[Amended 10-3-2012 by L.L. No. 5-2012]
The purpose of this article is to provide for the regulation
of nonconforming (grandfathered) buildings, structures, and uses,
and to specify those circumstances and conditions under which nonconforming
buildings, structures, and uses are permitted to continue.
A.
Any use of land or a building or structure or part thereof established
at the time that this article, or any amendment thereto, becomes effective
may be continued, subject to all other provisions of this article,
even though such building, structure, or use of land does not conform
with the provisions of the zoning district in which it is located.
B.
A nonconforming use shall be considered lawfully established on the
effective date of this article, or any amendments thereto, only if:
(1)
Such use of land or a building, structure, or part thereof is lawfully
maintained and occupied on the effective date of this chapter; or
(2)
Substantial construction is underway under a valid building permit
on the effective date of this chapter. "Substantial construction"
shall be interpreted as the expenditure of a sum on excavation, site
preparation, and/or construction exceeding 25% of the estimated cost
of such structure as stated on the building permit. The mere issuance
of a building permit or planning/zoning approval shall not be sufficient
to establish a vested right and, consequently, entitle the owner to
continue with the establishment of a nonconforming use or building;
or
(3)
In the case of residential subdivisions approved for the construction
of single-family homes where lot dimensions and/or setbacks do not
conform with the requirements of the zoning district in which they
are located, said nonconforming subdivisions are allowed to continue,
provided that 33% or more of the lots have been sold or 20% or more
of the lots have either been built upon or are under construction.
"Under construction," in this instance, means that the foundation
has at least been started or a slab has been poured.
The footprint of nonconforming buildings and uses cannot be
expanded by more than 10%, or in any way enlarged, without the granting
of a conditional use permit by the Zoning Board of Appeals. Further,
the expansion will only be allowed once, and it is required that the
alteration make the nonconforming use more compatible, such as expansion
necessary to bring the structure into compliance with state or local
laws or regulations which are designed to protect the public health
and safety.
No nonconforming building or use can be changed to other than
a conforming use for the zoning district in which it is situated.
A nonconforming use must be maintained in such a condition that
it will not constitute a danger to the safety, health, or general
welfare of the public. Failure to comply with this requirement shall
cause a lawful nonconforming building or use to be terminated when
maintenance has not been completed within six months of notification
of the owner by the Building Inspector or Code Enforcement Officer.
A.
Damage. Any nonconforming building or structure, or any building or structure containing a nonconforming use, which is damaged or destroyed by fire, flood, wind, earthquake, act of nature, or act of man must be repaired or rebuilt within one year of the damage or destruction. However, in rebuilding or repairing the structure, the building's footprint may not be increased beyond the 10% allowed in § 270-96. Failure to repair or reconstruct the building or structure within one year shall cause a lawful nonconforming use to terminate. The Town Board is empowered to extend this period upon receipt of a written request from the owner at least 30 days in advance of the expiration of the yearlong period.
B.
Exemption for residential buildings. Residential buildings, be they
single-family, duplexes, multifamily, townhouses, etc., and all residential
accessory structures, are exempt from the one-year restoration/rebuilding
period. However, when the building and/or accessory structure is rebuilt
or repaired, the new/repaired building or structure shall not be placed
so that it would worsen the previously deficient yard setback or dimensional
nonconformity. For instance, if a fifteen-foot side yard setback is
required, yet the damaged or destroyed building was only 11 feet from
the side lot line, the new/repaired building cannot be placed any
closer than 11 feet to the relevant side lot line. The same applies
to similar nonconforming dimensional standards such as building height
and lot coverage.
If a nonconforming use or the use of a nonconforming building,
structure, or property is discontinued for a period of 12 consecutive
months, the lawful nonconforming use is terminated, and any subsequent
use of the building, structure, or property must comply with the requirements
of the zoning district in which it is located.
There may be occasions when the landowner and Building Inspector
or Code Enforcement Officer do not agree on the date on which a nonconforming
use was discontinued, damaged, or destroyed. In these instances, the
burden is on the landowner to demonstrate when said discontinuance,
damage, or destruction occurred. Proof should be in the form of a
utility bill, telephone bill, business receipt, police report, canceled
rent payment check, or any other written documentation that clearly
identifies a date on which the nonconforming use was still operating
or the date on which it was definitively discontinued, damaged, or
destroyed. Further, in those instances when the date of discontinuance,
damage, or destruction is in dispute, the landowner must also provide
a notarized affidavit swearing to the date or dates on which the nonconforming
building or use was still operating or to the date on which the nonconforming
building or use ceased operation.
In instances where an existing lot of record is nonconforming
relative to lot size, lot width, and/or lot depth, an area variance
to waive these dimensional requirements is not required in order for
a building permit to be secured. However, any new construction on
a nonconforming lot must comply with the applicable setback, height,
and lot coverage requirements.
