A.
Purpose.
(1)
It is the purpose of this article to recognize that if, prior
to the adoption of the original Wyalusing Township Zoning Ordinance,
as amended, reenacted and replaced, property was used for a then lawful
purpose or in a then lawful manner which the Zoning Ordinance would
render thereafter prohibited and nonconforming, such property is generally
held to have acquired a vested right to continue such nonconforming
use or nonconforming structure. Nevertheless, this does not preclude
the Township from regulating the change, alteration, reconstruction,
reestablishment, extension, destruction and abandonment of nonconforming
uses in accord with the Pennsylvania Municipalities Planning Code[1] and general case law.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
It is also the purpose of this article to limit the injurious
impact of nonconforming uses and/or structures on other adjacent properties
within a particular district and the community as a whole, while recognizing
that the change, alteration, reconstruction, reestablishment, or extension
of nonconforming uses and/or structures may not be contrary to the
public interest or the general purpose of this chapter, when failure
to allow such change, alteration, reconstruction, reestablishment,
or extension would itself lead to neighborhood or district deterioration.
(3)
It is further the purpose of this article to prescribe those
standards which are to be applied by the Township in determining the
reasonableness of a proposal to change, alter, reconstruct, reestablish,
or extend a nonconforming use. The following are regulations which
shall apply.
B.
Applicability. The provisions and protections of this Article XII shall apply only to those nonconforming lots, structures and uses which legally pre-existed the applicable provisions of this chapter, as amended, or which are recognized by § 250-12.3 or § 250-12.4 of this Article XII. Any lot, structure or use created, constructed or established after the effective date of the original Zoning Ordinance, as amended, reenacted and replaced, which does not conform to the applicable requirements shall be considered an illegal lot, structure or use subject to the penalties prescribed by this chapter, and the said lot, structure or use shall not be entitled to any of the protections afforded to legal, preexisting nonconforming lots, structures or uses.
C.
Registration. It shall be the responsibility of the party asserting
a nonconformity to provide the evidence that the nonconformity is
legal. A property owner may request a written statement of nonconformity
from the Zoning Officer after providing sufficient evidence. The Zoning
Officer may submit any application for a certificate of nonconformance
to the Planning Commission for the Commission's review and recommendation
with regard to the evidence of nonconformity.
D.
Continuation and change. A lawful nonconforming lot, structure or
use as defined by this chapter may be continued and may be sold and
be continued by new owners. Any expansion, alteration, extension or
change in a nonconformity shall only proceed in compliance with this
article.
As used in this section, the following terms shall have the
meanings indicated:
Any lot which does not conform with the minimum width, depth
and area dimensions specified for the district where such a lot is
situated, such lot having been created and recorded in the office
of the County Recorder of Deeds prior to the effective date of this
chapter, as amended.
A structure or part of a structure which does not comply
with the applicable district limitations on structure size and location
on a lot, where such structure lawfully existed prior to the enactment
of this chapter, as amended; and including, but not limited to, nonconforming
signs.
As applied to a nonconforming structure, a change or rearrangement
in the structural parts or in the existing facilities, or an enlargement,
whether by extending on a side or by increasing in height, or the
moving from one location or position to another.
The rebuilding of a nonconforming structure damaged or destroyed
by casualty to the exact or less nonconforming condition which existed
prior to the casualty.
A use, whether of land or of a structure, which does not
comply with the applicable use provisions in this chapter or amendments
hereto, where such use was lawfully in existence prior to the enactment
of this chapter, as amended.
The conversion of a nonconforming use to a different use classification as enumerated in Article IV.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The expansion of a nonconforming use throughout the structure
which the said use partially occupies; or the expansion of a nonconforming
use onto property not already occupied by the said use.
The reopening or reestablishment of a nonconforming use which
has been discontinued by the owner of the said use, such reopening
effected prior to the abandonment of the nonconforming use as determined
under the provisions of this chapter.
For the purposes of this Article XII, a building, structure or use, legally permitted, planned and substantially under construction in compliance with existing ordinances prior to the effective date of this chapter, or any amendment hereto, and completed within a one-year period after the effective date of this chapter or amendment hereto, shall be considered nonconforming.
A building, structure or use allowed by variance in a district
where it is nonconforming with any regulations of this chapter, as
amended, reenacted and replaced, shall be considered nonconforming
for the purposes of this chapter.
Normal maintenance and repair, such as painting, replacement
of siding, and similar activities is allowed, as well as those interior
renovations which do not structurally alter the building or area or
result in increased use of the building or area, or a change of nonconforming,
or otherwise create more incompatibility with the surrounding permitted
uses. Such maintenance and repair activities shall, however, shall
comply with all other applicable standards and permit requirements
of this chapter.
A.
Conditional uses. All changes of nonconforming uses shall be considered conditional uses subject to the specific procedures and review criteria contained in this chapter. A nonconforming use may only be changed to a use of equal or less nonconformity (i.e., more restrictive classification) as determined by the Planning Commission and Board of Supervisors in accord with classification of the uses as described in Article IV of this chapter. The general standard shall be that no change of a nonconforming use shall be permitted if such change will result in the establishment of a use which is materially different from the existing use in terms of negative effects on the community and the long term application of the Zoning Ordinance to eliminate incompatible uses from specific zoning districts. For example, a change from a nonconforming retail store in an R District to a bank may be permitted; however, a change to a manufacturing use would not be permitted.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
Conforming changes and conversions.
(1)
Change. A change in a nonconforming use to a conforming use shall not be considered a conditional use unless the proposed use is classified as a conditional use as described in Article IV of this chapter. A change of a nonconforming use to a conforming use shall be considered an abandonment of the nonconforming use which shall not thereafter revert to a nonconforming use.
(2)
Conversion. The conversion of a nonconforming use to a nonconforming
use of like classification shall not be considered a conditional use.
For example, a nonconforming retail establishment selling groceries
proposed for conversion to a shoe store would not be considered a
change in nonconforming use.
C.
Other standards. All changes to nonconforming uses shall also be
subject to all other applicable standards in this chapter.
A.
Conditional uses. All extensions of nonconforming uses into more area of a structure or onto more area of property shall be considered conditional uses subject to the specific procedures and review criteria contained in Article IX of this chapter, and the review factors in § 250-12.12 of this article.
B.
Extension onto other properties in the same ownership; new structures.
Extensions of a nonconforming use shall be on land contiguous to the
existing use and shall be limited to the same parcel of property on
which the nonconforming use is situated as said parcel existed on
record at the time of the adoption of this chapter. For any nonconforming
uses not involving a nonconforming structure, no new structures shall
be permitted as part of an extension.
C.
Extension limitation. An extension of land or structure utilized
for a nonconforming use shall be limited to a total increase not to
exceed 1/3 (33 and 1/3%) of land area and 1/3 (33 and 1/3%) of structure
area beyond what existed on the effective date of this chapter, as
amended. All such extensions of a nonconforming use may be permitted
in successive increments for a total up to the increase permitted;
and each increment shall be a separate application. Applications for
successive increments shall only be entertained by the Township upon
the completion of the previously approved addition or extension.
D.
Prohibited extensions. Should the use proposed for extension be judged
by the Township to be of such a nature as to impose health, safety
or welfare concerns which cannot be satisfied by the imposition of
the conditions permitted under this chapter, the requested extension
shall be denied. The Board shall, in addition to the other standards
in this chapter, consider past operating performance in making its
decision.
A.
Time limit. If any nonconforming structure or use (see Subsection D below for exception) is damaged up to a maximum of 50% of its appraised fair market value as a result of a casualty, it may be restored or reconstructed to its preexisting condition of nonconformity, provided:
C.
Reconstruction prohibited. A nonconforming structure that has been damaged or destroyed by more than 50% of its appraised fair market value by any cause shall not be rebuilt in any nonconforming manner except as provided for dwellings in Subsection D. Any structure not reconstructed within the required eighteen-month period shall be deemed abandoned and any subsequent use of the land or structure shall be for conforming purposes only and said use shall in all respects conform to the applicable provisions of this chapter.
D.
Dwellings. A destroyed or damaged nonconforming building containing
not more than two dwelling units may be reconstructed regardless of
the percentage of destruction provided:
E.
Fair market value. The applicant shall have the burden of proof to
document the percent of the fair market value that was damaged. Such
proof shall require an appraisal by a licensed real estate broker
with substantial appraisal experience. Fair market value shall be
as generally defined by real estate practice.
F.
Time extension. The Board of Supervisors may, as a conditional use
and if deemed appropriate by the Board in accord with the intent and
the conditional use standards of this chapter, grant a one-time extension
of not more than one year for the re-establishment of the nonconforming
use. Said extension shall only be considered by the Board upon written
application for same submitted by the property owner.
A.
Abandonment. Unless extended in accord with this § 250-12.9, if a nonconforming use of land or structure ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of one year or more, then this shall be deemed to be an intent to abandon such nonconforming use, and any subsequent use of the land or structure shall be for conforming purposes only and said use shall in all respects conform to the applicable provisions of this chapter. A change of a nonconforming use to a conforming use shall be considered an abandonment of the nonconforming use which shall not thereafter revert to a nonconforming use.
B.
Time extension. The Board of Supervisors may, as a conditional use
and if deemed appropriate by the Board in accord with the intent and
conditional use standards of this chapter, grant a one-time extension
of not more than one year for the re-establishment of the nonconforming
use. Said extension shall only be considered by the Board upon written
application for same submitted by the property owner.
A.
Alterations. The alteration or expansion of nonconforming structures
shall be permitted only in accord with this § 250-12.10.
B.
Procedure - permits. All applicable permits for the alteration or expansion of a nonconforming structure shall be required. Such alteration or expansion shall be considered a conditional use if the alteration or expansion involves a change or extension of a nonconforming use as regulated by §§ 250-12.6 and 250-12.12 of this chapter, respectively.
C.
Nonconforming setbacks. In the case of a structure associated with
a conforming use where the structure has a nonconforming side or rear
yard setback, an extension of the structure may continue along the
nonconforming setback, provided the extension projects no farther
into the front, side or rear yard setback than the existing structure.
Conditional use approval shall not be required and the Zoning Officer
may issue the permit as a use permitted by right provided the extension
complies with all other applicable requirements of this chapter.
D.
Increase in area or bulk nonconformity. In the case where a proposed
alteration or expansion of a nonconforming structure will result in
an increased nonconformity of setback, height, lot coverage or other
area or bulk standard, a variance shall be required from the Zoning
Hearing Board.
A.
Single-family dwelling. A single-family dwelling may be erected or
expanded on any lawful nonconforming lot of record in any district,
provided:
(1)
Adjoining property. The lot owner does not own adjoining property
all or part of which can be combined to make the lot conforming.
(2)
Setbacks. The required front setback is maintained as required
for the district in which the lot is located, and side and rear yards
are maintained in the same proportion as the ratio of the lot size
of the nonconforming lot to the lot size requirement for the district.
However, no side yard or rear yard shall be reduced to less than 50%
of the requirement of the district.
(3)
Other standards. All other applicable standards in this chapter
are satisfied.
(4)
Water supply. An adequate water supply is provided in accord
with Township and other applicable regulations.
(5)
Sewage disposal. Sewage disposal is provided in accord with
applicable Township and PA DEP requirements.
B.
Commercial uses. A commercial use may be developed on any lawfully existing nonconforming lot where permitted as described in Article IV, provided:
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(1)
Adjoining property. The lot owner does not own adjoining property
all or part of which can be combined to make the lot conforming.
(2)
Setbacks. All setbacks normally required in the district are
maintained.
(3)
Lot size requirement. This chapter does not require a lot size
for the specific use which is greater than the lot size for the district.
(4)
Water supply. An adequate water supply is provided in accord
with Township and other applicable regulations.
(5)
Other standards. All other applicable standards in this chapter
are satisfied.
(6)
Sewage disposal. Sewage disposal is provided in accord with
applicable Township and PA DEP requirements.
In addition to all other applicable requirements, the Township
shall consider any nonconformity conditional use application in terms
of the effect on the following factors:
A.
Nuisance considerations.
(1)
Traffic generation.
(2)
Noise, dust, fumes, gases, odor, glare, vibration, fire and
explosion hazards and other nuisances.
(3)
Amount and nature of outdoor storage.
(4)
Hours of operation.
(5)
Compatibility with the character of the surrounding neighborhood.
(6)
Potential of the expansion to reduce existing congestion and
alleviate parking shortages by improved site design, addition of parking
and improved loading areas.
B.
Specific considerations.
(1)
Storage of materials. There shall be no increase in the amount
of materials, supplies and/or products that are stored outside a nonconforming
facility, as on a lot in a nonconforming use, excepting those types
of uses outlined in Section B(2) below.
(2)
Screening. Where the nonconforming activity is one which necessarily
results in the storage of large quantities of material, supplies or
products outside (such as a sawmill, farm machinery sales operation
or similar operation), the use may only be expanded if a solid fence
of wood and/or buffer, not less than six feet in height, is present
on all sides of the immediate area in use. Stored material shall not
exceed the height of the screening material. Yards and buffers shall
be provided in accord with § 250-11.10A of this chapter.
(3)
Yards and setbacks. No addition, change or expansion of a nonconforming
use shall further violate setback and/or height regulations of the
district in which it is located.
(4)
Parking and traffic. In no case will a change, addition or expansion
of a nonconforming use be allowed which would result in the diversion
of traffic, or relocation of a driveway on the site to any point nearer
a residential property, or result in violation of any of the parking
and unloading requirements of this chapter. The Township may require
vegetative screening of the parking area from nearby residential areas
in accord with § 250-11.10A of this chapter.
