[Added 11-4-2019 by Ord.
No. 2019-172[1]]
[1]
Editor's Note: Ordinance No. 2019-172 also repealed original
Sec. 203, Nonconforming Use Provisions.
The intent of this article is to regulate nonconforming lots,
uses and structures. This article intends to be realistic so that
nonconforming vacant lots of record can be reasonably developed, nonconforming
existing structures can be properly maintained or repaired, and nonconforming
uses can continue to be changed to other less nonconforming uses or
to conforming uses. When nonconforming uses cease operation, the intent
of these regulations is not to allow them to be reestablished after
a twelve-month period of dormancy. These regulations are designed
for the betterment of the community and for the improvement of property
values.
A.
Continuance, enlargement or reconstruction. Any use of land or any
structure, or parts thereof, legally existing at the time of the adoption
of this chapter, or at any time a zone is changed by amendment hereafter,
which does not conform to the requirements of this chapter or its
amendments may continue, but may not be extended, reconstructed, enlarged,
or structurally altered except as specified by this chapter.
B.
Transfer of ownership. Ownership of lots, structures and uses which
remain lawful but become nonconforming by the adoption or amendment
of this article may be transferred, and the new owner may continue
the nonconforming use or continue to use the nonconforming structure
or lot, subject to the provisions of this article.
C.
In addition to the standards outlined below, nonconforming structures, lots and uses located within the Shoreland Protection Overlay Zone shall conform to the standards outlined in § 335-8.12 of this chapter. Whenever a provision of this article conflicts with or is inconsistent with a provision in § 335-8.12, the provisions of § 335-8.12 shall prevail.
A.
Existing nonconforming use.
(1)
A residential nonconforming use may be extended, altered or
expanded without a variance. Any increase in building footprint must
conform to the performance standards of the zoning district in which
it is located. The expansion or creation of one accessory structure
to a nonconforming residential structure shall be permitted.
(2)
Unless otherwise stated in this article, a nonresidential nonconforming
use of a building or structure shall not be extended throughout other
parts of the building or structure unless those parts of the building
or structure were manifestly arranged or designed for such use prior
to the adoption of this chapter or of any amendment making such use
nonconforming.
B.
Change of a nonconforming use.
(1)
An existing nonconforming use may be changed to another nonconforming
use if the Code Enforcement Officer determines that the proposed use
is less intrusive than the current use.
(2)
If a nonconforming use is changed to a conforming use by this
article, it must remain a conforming use thereafter.
C.
Discontinuance of a nonconforming use. If a nonconforming nonresidential
use is discontinued for 12 consecutive months, as determined by the
Code Enforcement Officer, it shall thereafter be utilized as a permitted
use or conditional use, in accordance with the performance standards
in the zoning district in which it is located.
D.
Extractive industry nonconforming use.
(1)
Where the nonconforming use is an extractive industry, it shall
be considered a prohibited extension or enlargement of the use to
do any of the following:
(a)
Increase the amount of materials lawfully extracted from the
site on a monthly basis. This increase shall be determined based upon
an average of the amount of materials lawfully extracted on a monthly
basis during the operating months of the extractive industry over
the immediate prior five years.
(b)
Move lawfully existing processing operations to another location
on the property.
(c)
Increase the amount of truck traffic generated on a daily basis.
The increase shall be determined based upon an average of the number
of truck trips generated on a daily basis during the operating months
of the extractive industry over the immediate prior five years.
(d)
Establish any type of extractive industry use on adjacent property
that was not part of the parcel on which excavation occurred on the
date of the adoption of the ordinance, ordinance amendment or map
amendment that made the extractive industry a nonconforming use.
(e)
Relocate to another location on the site extraction activities
in lawful existence at the time of the adoption of the ordinance,
ordinance amendment or map amendment that made the use nonconforming
unless the operator of the extractive industry demonstrates to the
Code Enforcement Officer the following:
[1]
The area proposed for extraction activities was clearly intended
to be excavated before the adoption of the ordinance, ordinance amendment
or map amendment that made the use nonconforming, as measured by objective
manifestations and not by subjective intent; and
[2]
The relocated operations will not have a substantially different
and adverse impact on the adjacent neighborhood, including but not
limited to traffic generation, dust, noise and vibrations.
(2)
For the purposes of this Subsection D, evidence of objective manifestations of intent to excavate an area may include, but is not limited to, Planning Board approval of a plan for an extractive industry for the site, including the area where the relocation is proposed, regardless of whether extraction has commenced in that area before the adoption of the ordinance, ordinance amendment or map amendment that made the extractive industry a nonconforming use.
A.
Expansions of a nonconforming structure.
(1)
A nonconforming structure may be expanded, provided that the
expansion does not increase the nonconformity of the structure, as
determined by the Code Enforcement Officer. Expansions of a nonconforming
structure that meet the standards of the zone in which it is located
are permitted.
(2)
The placing of a foundation below a lawfully existing nonconforming
structure shall not constitute the expansion of the structure, provided
that the first-floor space of the structure is not increased, and
provided that the maximum height limit within the zone is not exceeded.
B.
Restoration or replacement of a nonconforming structure.
(1)
The normal upkeep and maintenance of nonconforming structures,
including repairs, renovations and modernizations which do not involve
expansion of the nonconforming structure, or any other changes in
the structure as required by federal, state or local building and
safety codes are permitted.
(2)
Any nonconforming structure which is hereafter damaged or destroyed
by fire or any cause other than the willful act of the owner or their
agent, as determined by the Code Enforcement Officer, may be restored
or reconstructed within one year of the date of said damage or destruction,
or two years within the date of fire damage, provided that the restoration
or replacement structure does not increase in nonconformity.
[Amended 9-12-2022 by Ord. No. 2022-105]
A.
Vacant lots. Except in the Shoreland Zone, where a vacant nonconforming
lot was part of a subdivision approved in conformance with City and
state subdivision regulations and statutes, said lot may be constructed
upon in accordance with the zoning requirements in effect at the time
the lot was lawfully established, provided the proposed use is a permitted
one. This provision shall apply only to a vacant lot that has never
been built upon.
B.
A single nonconforming lot which, at the effective date of this chapter,
does not meet the minimum lot size or minimum road frontage may be
built upon without a variance, provided that such lot is not contiguous
with any other lot in the same ownership, and provided further that
all other provisions of this chapter are met.
C.
Where a nonconforming lot cannot meet the yard setback requirements of this chapter, the Zoning Board of Appeals may grant a variance in accordance with provisions of Article XV. No variance shall be granted if the lot is by deed connected to an adjacent lot in the same ownership and their combination meets the standards of the Zoning District in which the lots are located.
D.
If two or more contiguous lots or parcels are in single or joint
ownership of record and if any of said lots or parcels does not individually
meet the dimensional requirements of this chapter or subsequent amendments,
and if one or more of the lots are vacant or contain only an accessory
structure, the lots or parcels shall be combined to the extent necessary
to meet all applicable dimensional standards. This provision does
not apply to a nonconforming lot that was part of a subdivision approved
in conformance with City and state subdivision regulations and statutes.
[Amended 9-12-2022 by Ord. No. 2022-105]
The following design standards must be used when new residential
construction is proposed for a nonconforming lot located in the Residential
Growth Area 1 or Residential Growth Area 2 districts. The purpose
of these standards is to ensure that increased density in established
neighborhoods makes a positive contribution to the character of the
City's urban neighborhoods, while continuing to provide housing for
all members of the community. Architectural similarity, not sameness,
together with similarity in scale and massing, are the key focus of
these standards.
A.
The measurement of the immediate neighborhood is as follows:
(1)
On the same side of the street, by counting six houses to the
left and six houses to the right of the proposed building; and
(2)
On the opposite side of the street, by counting the house most
directly opposite the proposed building and then counting six houses
to the right and six houses to the left.
B.
Building construction material. Buildings must be constructed on
a foundation and framed on the site, unless the building meets the
state modular home guidelines.
C.
Building design.
(1)
Porches. There must be a porch at all main entrances that face
the street or private way. In the case of corner lots, the main entrance
that faces the most traveled way shall be used. New homes are required
to have a porch if either of the following situations exists: if an
existing home on either side of the building lot has a porch or 50%
or more of the homes in the immediate neighborhood of the proposed
building have porches.
(a)
Single-story buildings. The porch or deck of a single-story
building is not required to have a roof but must be at least three
feet wide and three feet deep.
(b)
Two- or more story buildings.
[1]
If the porch projects out from the building it must have a roof.
[2]
If the roof of a required porch is developed as a deck or balcony,
it may be flat, otherwise the roof must have a similar pitch to the
main building.
[3]
If the main entrance is to a single dwelling, the covered area
provided by the porch must be designed in a similar style and dimension
to an existing porch in the immediate neighborhood. The style chosen
shall be approved by the Code Enforcement Officer.
[4]
If the main entrance is to more than one dwelling unit, the
covered area provided by the porch(es) must at least cover the main
entrances to the building and be designed in a similar style and dimension
to an existing porch in the immediate neighborhood. The style chosen
shall be approved by the Code Enforcement Officer.
(c)
In all cases, if no applicable porch designs are available in
the immediate neighborhood, the Code Enforcement Officer may approve
an alternate design that best matches the roof slopes and design of
the proposed building.
(2)
Columns. If the front porch at a main entrance provides columns
as supports, the columns may not be unadorned four-by-four posts or
wrought iron.
(3)
Windows and doors. Street-facing windows must be vertical. Where
abutting properties have sash that are divided, then new buildings
shall have complementary window designs. Windows in rooms with a finished
floor height four feet or more below grade are exempt from this standard.
(4)
Roofs.
(a)
Pitch. Primary structures must have a sloped roof with a pitch
that is similar to abutting properties. The use of flat roofs must
use the following:
[1]
The cornice meets the following conditions:
[a]
There must be two parts to the cornice. The top
part of the cornice must project at least six inches from the face
of the building and be at least two inches further from the face of
the building than the bottom part of the cornice; and
[b]
The height of the cornice is based on the height
of the building as follows: buildings 10 feet tall or less must have
a cornice at least six inches high.
(b)
Buildings greater than 10 feet and less than 35 feet in height
must have a cornice at least 12 inches high.
(c)
Eaves. Roof eaves must project from the building wall at least
12 inches on all elevations. Buildings that take advantage of the
cornice option are exempt from this standard.
(5)
Landscaping. Landscaping must be provided as follows:
(a)
At least one tree, of a two-inch-minimum caliper, must be provided
in front of each residential structure. On corner lots, there must
be one tree for each 50 feet of frontage on the side street. Such
tree(s) shall be guaranteed by the landowner for a minimum of one
year.
(b)
Screening shall be provided in the nondriveway side yard in
order to provide a buffer to the adjacent lot. The Code Enforcement
Officer shall determine that such screening meets the intent of this
requirement.
(6)
Vehicle areas.
(a)
Parking areas and driveways must be located to the side of the
primary structure's street-facing facade.
(b)
Attached garages must be set back at least four feet further
from the property's front lot line than the primary structure's street-facing
facade is set back from the property's front lot line.
(7)
Height. Building height shall not exceed the average height
of houses in the immediate neighborhood in existence prior to the
proposed subdivision or individual home.
