[Amended 12-4-2023 by Ord. No. 2023-12]
A.
Nonconforming uses and structures are incompatible with and detrimental
to permitted uses and structures in the zoning districts in which
they are located. They cause disruption of the comprehensive land
use pattern of the Town, inhibit present and future development of
nearby properties and confer upon their owners and users a position
of unfair advantage. It is a fundamental principle of this article
that nonconforming uses may be continued, but shall not be increased
or changed to any use other than a conforming use unless a special
use permit or use variance is obtained from the Planning Board or
Zoning Board of Review, whichever is applicable. Likewise, nonconforming
structures shall not be enlarged unless a dimensional variance is
obtained from the Planning Board or Zoning Board of Review, whichever
is applicable. Likewise, nonconforming structures shall not be enlarged
unless a dimensional variance is obtained from the Planning Board
or Zoning Board of Review, whichever is applicable. Existing nonconforming
uses and structures shall not constitute cause for further departures
from the provisions of this chapter for any other properties in the
vicinity.
B.
Adaptive reuse.
(1)
Permitted use. Adaptive reuse for the conversion of any commercial
building, including offices, schools, religious facilities, medical
buildings, and malls into residential units or mixed-use developments
is a permitted use, under the criteria described below under Eligibility.
(3)
Density calculations.
(a)
For projects that meet the following criteria, the residential
density shall be no less than 15 dwelling units per acre, except where
the developer proposes a project of lower density:
[1]
Where the project is limited to the existing footprint, except
that the footprint is allowed to be expanded to accommodate upgrades
related to the building fire code, and utility requirements.
[2]
The development includes at least 20% low- and moderate-income
housing.
[3]
The development has access to public sewer and water service
or has access to adequate private water, such as well and/or wastewater
treatment systems approved by the relevant state agency for the entire
development as applicable.
(b)
For all other adaptive reuse projects, the residential density
permitted in the converted structure shall be the maximum allowed
that otherwise meets all standards of minimum housing and has access
to public sewer and water services or has access to adequate private
water, such as well and wastewater treatment systems approved by the
relevant state agency for the entire development, as applicable. The
developer may propose a project of lower density.
(c)
The density proposed for any adaptive reuse project shall be
determined to meet all public health and safety standards.
(4)
Dimensional requirements.
(a)
Notwithstanding any other provisions of this section, existing
building setbacks shall remain and are considered legal nonconforming.
(b)
No additional encroachments shall be permitted into any nonconforming
setback unless relief is granted by the permitting authority.
(c)
Notwithstanding other provisions of this section, the height
of the structure shall be considered legal nonconforming if it exceeds
the maximum height of the zoning district in which the structure is
located.
[1]
Any rooftop construction necessary for building or fire code
compliance, or utility infrastructure is included in the height exemption.
(5)
Parking requirements.
(a)
Adaptive reuse developments shall provide one parking space
per dwelling unit. The applicant may propose additional parking in
excess of one space per dwelling unit.
(6)
Allowed uses within an adaptive reuse project.
(a)
Residential dwelling units are a permitted use in an adaptive
reuse project regardless of the zoning district in which the structure
is located, in accordance with the provisions of this section.
(7)
Development and design standards. Site design shall be in accordance
with the development regulations.
(8)
Procedural requirements.
(a)
Adaptive reuse project shall be subject to the procedural requirements of Article XXIV and undergo development plan review as determined in that section, except where land development project review is required pursuant to state law.
(b)
In addition to the checklist requirements for the applicable
review process, the applicant shall provide the following information:
A lawful nonconforming use or structure shall be permitted to continue in the manner existing at the time of the passage of the ordinance rendering it nonconforming, until such use or structure is abandoned, demolished or otherwise discontinued by the voluntary action of the owner as described in § 185-34 and § 185-35 herein, except for lawful nonconforming signs which are subject to amortization pursuant to § 185-103.
A nonconforming use shall not be changed to another nonconforming use, but may be changed only to a use that conforms to the regulations of the district in which it is located, unless a special use permit is obtained pursuant to Article XIV hereof. In addition, the Zoning Board of Review must made a determination that the proposed use will have the same or a lesser undesirable impact upon the surrounding area than the former nonconforming use. When a nonconforming use is changed to a conforming use, it may not thereafter be changed back to a nonconforming use.
The following standards shall apply to the extension,
addition to or enlargement of a use or structure that is nonconforming:
A.
A legal nonconforming use of any structure shall not be extended within the existing confines of such structure, except into any portion which was arranged or designed for such nonconforming use prior to the effective date of the ordinance rendering such use or structure nonconforming. Any other extension, addition to or enlargement of a nonconforming use of a structure shall be allowed only after a special use permit is granted pursuant to the provisions and standards set forth in Article XIV hereof. Any increase in the volume or intensity of use unaccompanied by a structural change of the premises shall not be considered an extension, addition to or enlargement of a nonconforming use.
B.
A legal nonconforming use of any parcel of land shall not be extended beyond that portion of the lot thus used, or otherwise expanded, unless a special use permit is obtained pursuant to the provisions set forth in Article XIV.
C.
A legal nonconforming structure shall not be enlarged or extended unless a dimensional variance is obtained pursuant to the provisions and standards set forth in Article XIII hereof. However, any enlargement or extension which otherwise complies in all respects with the provisions of this chapter as to setback, height and other spatial requirements shall not be deemed to be an extension or enlargement of a nonconforming structure.
The following standards shall apply to the physical
alterations of a structure which is nonconforming by use or by dimension:
A.
If any nonconforming structure is demolished in a
lawful manner, such structure shall not be rebuilt except in conformity
with the regulations of the district in which it is located.
B.
A nonconforming structure shall not be moved in whole
or in part unless such structure is made to conform to all of the
regulations of the district in which it is to be located.
C.
Nothing herein shall prevent the performance of normal
maintenance work and upkeep or routine repair of a lawful nonconforming
building or structure.
A.
A lawful nonconforming use of any land, premises,
structures or combination thereof which has been abandoned shall not
thereafter be used except in conformity with the regulations of the
district in which it is located. Abandonment, as that term is used
in this section, shall mean the following:
(1)
The discontinuance of the nonconforming use for a
period of one year or more, and consisting of some overt act, or failure
to act, which would lead one to reasonably believe that the owner
of the nonconforming use or structure neither claims nor retains any
interest in continuing the nonconforming development.
(2)
Failure to apply for or the lapse of any permit, license
or certification required for continuation of the use, or failure
to appeal the denial of any such permit, license or certification.
(3)
Failure to maintain the site, building or structure
in habitable, usable or safe condition, or failure to protect said
building or structure from the natural elements.
B.
In all such cases, the owner will be presumed to have
abandoned the nonconforming use or structure, unless that presumption
is rebutted by the presentation of sufficient evidence by the owner
of their intent not to abandon the use or the structure.
An involuntary interruption of a nonconforming
use, or the destruction of a nonconforming structure or nonconforming
portion of a structure, such as by fire or natural catastrophe, does
not establish the requisite intent to abandon the nonconforming use
or structure. However, if action to restore such use, or repair or
replace such structure, is not commenced within a period of one year,
then the owner will be presumed to have abandoned the nonconforming
use or structure, unless that presumption is rebutted by the presentation
of sufficient evidence by the owner of their intent not to abandon
the use or structure.
Any use or structure illegally established prior
to the effective date of this chapter or subsequent amendments thereof
shall not become legally established or a legal nonconforming use
by virtue of such an enactment or subsequent amendment. A use established
by variance or special use permit shall not acquire the rights of
nonconforming uses under this article.
