A.
Purpose:
(1)
It is the purpose of this article to recognize that
if, prior to the adoption on August 6, 1974, of the original Mount
Pocono Borough Zoning Ordinance, as amended, reenacted and replaced,
property was used for a then lawful purpose or in a then lawful manner
which such 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 Borough from regulating the
change, alteration, reconstruction, reestablishment, extension, destruction,
and abandonment of nonconforming uses in accord with the Pennsylvania
Municipalities Planning Code and general case law.
(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 Borough 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 IX shall apply only to those nonconforming lots, structures and uses which legally preexisted the applicable provisions of this chapter or which are recognized by § 215-61or § 215-62 of this Article IX. 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 its review and recommendation with
regard to the evidence of nonconformity.
D.
Sale, continuation and change. A lawful nonconforming
lot, structure or use as defined by this chapter may be continued
and, if sold, be continued by the new owners. Any expansion, alteration,
extension or change in a nonconformity shall only proceed in compliance
with this article.
As used in this article, 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 Monroe County Recorder of Deeds prior to the effective date
of the original Mount Pocono Borough Zoning Ordinance, as amended,
reenacted and replaced.
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 adoption
of the original Mount Pocono Borough Zoning Ordinance, as amended,
reenacted and replaced, 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
thereto, where such use was lawfully in existence prior to the adoption
of the original Mount Pocono Borough Zoning Ordinance, as amended,
reenacted and replaced.
The conversion of a nonconforming use to a different use
classification as enumerated on the Schedule of Uses[1] of this chapter.
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 reinstitution 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.
[1]
Editor's Note: Said schedule is an attachment
to this chapter.
For the purposes of this Article IX, 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 thereto, 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 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, comply with all other applicable standards and permit
requirements of this chapter.
A.
Special exceptions. All changes of nonconforming uses shall be considered special exceptions subject to the specific procedures and review criteria contained in Article XII of this chapter and the review factors in § 215-70 of this article. 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 Council in accord with the classification in the Schedule of Uses in Article IV.[1] 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
districts. For example, a change from a nonconforming retail store
in the R-1 District to a bank may be permitted; however, a change
to a manufacturing use would not be permitted.
[1]
Editor's Note: Said schedule is an attachment
to this chapter.
B.
Conforming changes and conversions.
(1)
Change. A change in a nonconforming use to a conforming
use shall not be considered a special exception unless the proposed
use is classified as a special exception by the Schedule of Uses in
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 special exception. 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.
Special exceptions. All extensions of nonconforming uses into more area of a structure or onto more area of property shall be considered special exceptions subject to the specific procedures and review criteria contained in Article XII of this chapter, and the review factors in § 215-70 of this article.
B.
Extension onto other properties of record in the same
ownership. A nonconforming use may only be extended onto a new property
of record if that property is contiguous to the existing location,
the properties were both under the same ownership as of the effective
date of this chapter, the owner has clearly exhausted the alternatives
available for expansion on the existing property, and the use is not
one which has been altogether prohibited as a new use under this chapter.
C.
Extension limitation. A nonconforming use shall not
be extended by more than the following percentages beyond the area
of land or structure legally occupied by the use as it existed at
the date of the adoption of the original Borough of Mount Pocono Zoning
Ordinance, as amended, reenacted and replaced:
D.
Prohibited extensions. If the use proposed for extension
is deemed by the Borough to be one similar to such a use or 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 Borough shall
consider past operating performance in making its decision.
[Amended 12-2-2013 by Ord. No. 5-2013]
A.
Reconstruction permitted. Any lawful nonconforming building, structure
or use which has been razed or damaged or destroyed by fire, explosion,
windstorm, or other natural or criminal causes may be reconstructed
in accord with the following:
(1)
Conditional use approval shall be required and the application shall
be submitted within one year of the date of the casualty.
(2)
The nonconformity is not increased and no new nonconformity is created
unless otherwise approved in accord with this chapter.
(3)
The reconstruction shall be made as conforming as possible based
on the prior size of the nonconforming structure and lot coverage
as determined by Borough Council.
B.
Time extension. The Zoning Officer may for good cause grant a one-time
extension of not more than one year for the reconstruction of the
nonconforming use. Said extension shall only be considered upon written
application for same submitted by the property owner.
Unless extended in accord with this § 215-67, if a nonconforming use of land or structure ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of 12 months 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. The Zoning Officer may notify, in writing, the title owner of the land and/or structure that the twelve-month period has expired. 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.
A.
Alterations. The alteration or expansion of nonconforming structures shall be permitted only in accord with this § 215-68.
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 special exception if the alteration or expansion involves a change or extension of a nonconforming use as regulated by § 215-64 and § 215-65 of this chapter, respectively.
C.
Nonconforming setbacks. If a building has a lawful
nonconforming front, side or rear building setback, the structure
may be altered to increase the height above such setback or to extend
other portions of the building up to such nonconforming setback, but
not to exceed a distance of 50% of the existing nonconforming part
of the structure as it existed at the date of the adoption of the
original Mount Pocono Borough Zoning Ordinance, as amended, reenacted
and replaced. Any extension shall be the lower of the following: the
preexisting height of the structure or the maximum height permitted
by 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)
Setbacks. The front setback normally required in the
District is maintained. The side and rear setbacks may be reduced
by the same percentage that the area deficiency of said lot bears
to the minimum area presently required (e.g., if a lot is 10,000 square
feet and the present minimum is 15,000 square feet, the side and rear
yards may be decreased by 1/3). In no event, however, shall the side
and rear setbacks be reduced by more than 1/3.
(2)
Other standards. All other applicable standards in
this chapter are satisfied.
(3)
Water supply. An adequate water supply is provided
in accord with Borough and other applicable regulations.
(4)
Sewage disposal. Sewage disposal is provided in accord
with applicable Borough and PA DEP requirements.
B.
Commercial uses. A commercial use may be developed
on any lawfully existing nonconforming lot where permitted by the
Schedule of Uses,[1] provided:
(1)
Adjoining property. The lot owner does not own adjoining
property all or part of which can be combined to make the lot more
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 Borough 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 Borough and PA DEP requirements.
[1]
Editor's Note: Said schedule is an attachment
to this chapter.
In addition to other applicable standards, the
Borough shall consider any nonconformity special exception application
in terms of the effect on the following factors:
A.
Traffic generation.
B.
Noise, dust, fumes, gases, odor, glare, vibration,
fire and explosion hazards and other nuisances.
C.
Amount and nature of outdoor storage.
D.
Hours of operation.
E.
Compatibility with the character of the surrounding
neighborhood.
F.
Potential of the expansion to reduce existing congestion
and alleviate parking shortages by improved site design, addition
of parking and improved loading areas.
