The following modifications to the requirements
of this chapter are permitted under the terms and specifications herein
stated:
A.
Height. The height limitation of this chapter shall
not apply to church spires, belfries, cupolas, chimneys, ventilators,
skylights, bulkheads or similar features or to necessary mechanical
appurtenances usually carried above roof level. Such features, however,
shall be erected only to such heights as are reasonably necessary
to accomplish the purpose they are to serve. The provisions of this
chapter shall not apply to prevent the erection above the permitted
building height limit of a parapet wall (without windows) or cornice
for ornamental purposes extending above such height limit not more
than five feet, or other specific purpose structures as provided herein.
[Amended 12-18-1995 by Ord. No. 379]
B.
Projection. Decks, porches and raised patios are to
be considered part of a building for the purpose of calculating setbacks
and yard sizes. Chimneys, cornices or eaves may project into any front,
side or rear yard, provided that such projections do not exceed three
feet. An open or lattice-enclosed fire escape, fireproof outside stairway
and handicap ramp may project into any front, side or rear yard, provided
that such projection does not exceed six feet. Under no circumstances
shall any projection be closer than 10 feet to any lot lines.
C.
Setbacks.
(1)
The required side and rear setbacks (see Article X) may be reduced up to 50% if the following circumstances exist:
(a)
Due to topographic or other physical conditions
of the site, the property which adjoins the side or rear yard cannot
be developed for residential, commercial or industrial purposes; or
(b)
The adjoining side or rear property is under
the control of a governmental body, property owners' association or
other institution which cannot reasonably be expected to develop the
property; and
(c)
Such reduction in the minimum setback requirements
is not otherwise inconsistent with the objectives of this chapter.
(2)
In no event shall the setback distance be reduced
to less than 12 feet.
(3)
Notwithstanding the provisions of this Subsection C, no modification in the setback provisions of this chapter shall be made if any of the following circumstances exist:
(a)
If a recorded or approved plot map or plat depicting
the property to which the reduced setback would apply contains covenants
or plan notations, or otherwise indicates the subdivider's intention
to maintain greater setbacks; or
(b)
If a recorded or approved plot map or plat depicting
the property to which the reduced setbacks would apply depicts a greenbelt
or open space of less than 150 feet in width adjoining the property
line to which the setback would apply, which provides for the mutual
aesthetic enjoyment of all properties in the subdivision. The width
of the greenbelt or open space shall be measured from the applicant's
property line to the nearest point of the property line opposite.
(4)
Upon request of an application for a zoning permit which relies upon the provisions of this Subsection C, the Zoning Officer shall make the initial determination regarding the applicability of this Subsection C. The Zoning Officer's determination shall be made within the time period established by § 155-133 of this chapter. The applicant or any other person aggrieved by the decision of the Zoning Officer may appeal such determination to the Zoning Hearing Board in accordance with the provisions of Article XIII.
Except as hereinafter provided, the following
general regulations shall apply to all zones:
A.
Conformance required. Except as hereinafter specified,
no land, building, structure or premises shall hereinafter be used
and no building or part thereof or other structure shall be located,
erected, reconstructed, extended, enlarged, converted or altered except
in conformity with the regulations herein specified for the district
in which it is located.
B.
Continuing existing uses. Except as provided in Subsection C, any lawful use, building or structure in existence at the time of enactment of this chapter may be continued, even though such use, building or structure may not conform with the provisions of this chapter for the district in which it is located.
C.
Nonconforming uses and structures. No nonconforming
use or structure shall be enlarged, extended, substituted or structurally
altered unless the use thereof is changed to a use permitted in the
district in which such use or structure is located, except when required
to do so by law or order, except as follows:
(1)
The substitution for a nonconforming use of another
nonconforming use, if no structural alterations are made; provided,
however, that in any OS, RR, R-1 or R-2 District, any nonconforming
residential use shall not be changed to a nonresidential use; further
provided that in any OS, RR, R-1 or R-2 Districts, a nonconforming
nonresidential use shall not be changed to any use prohibited in a
C District; and further provided that in any C District, no change
shall be permitted to any use prohibited in the CI District. The substituted
nonconforming use shall conform in all respects to the requirements
for such use in the district where it normally would be permitted.
(2)
Whenever a nonconforming use has been changed to a
more conforming or totally conforming use, such use shall not thereafter
be changed to a less conforming use.
(3)
Any nonconforming use or nonconforming structure may
be enlarged by an amount not to exceed 50% of the existing land coverage
area or 25% of the existing square footage area devoted to such nonconforming
use or nonconforming structure, whichever is greater; provided, however,
that with respect to any such enlargement, all setbacks, height restrictions,
parking, screening and other requirements or restrictions which are
the most restrictive (i.e., either of the district in which the nonconforming
use or nonconforming structure is located or of the district in which
such use or structure would be permitted) are complied with.
D.
Restoration, repair and abandonment of nonconforming
buildings.
(1)
Restoration. Any lawful nonconforming building or
other structure which has been damaged or destroyed by fire, explosion,
windstorm or other external cause may be reconstructed in the same
location, provided that:
(a)
The reconstructed building or structure shall not exceed the height, area or volume of the damaged or destroyed building or structure, except as permitted in Subsection C(3).
(b)
Reconstruction shall begin within one year from
the date of damage or destruction and shall be carried on without
substantial interruption.
(2)
Repair. Nothing in this chapter shall prevent the
repair, maintenance or strengthening of any part of a nonconforming
building or structure.
(3)
Abandonment. If a lawful nonconforming use of land,
building, sign or other structure has been discontinued for one year
or more, it shall be presumed to be abandoned and subsequent use of
such building or structure or land shall be in conformity with the
provisions of this chapter applicable to the district in which it
is located.
E.
Flood area controls.
(1)
Identified floodplain areas.
(a)
No construction or development shall take place
within any identified floodplain area of the Township, unless its
purpose is for the containment, redirection or avoidance of water
(i.e., dams, dikes or bridges).
(b)
As of the effective date of this chapter, repairs,
improvements or modifications to an existing structure in a floodplain
area, the total costs of which are less than 50% of the market value
of the structure, but not including the value of the land, are permitted,
provided that such work does not result in the expansion or enlargement
of the structure.
(c)
The following uses are permitted in an area
designated as a flood area:
[1]
Customary agricultural operations exclusive
of buildings or structures as defined in this chapter.
[2]
Outdoor plant nurseries.
[3]
Forestry and seed production excluding storage
and mill structures.
[4]
Fishing and fish hatcheries.
[5]
Retail seasonal agriculture.
[6]
Parking lots.
[7]
Temporary fairs or carnivals.
[8]
Accessory uses for residential purposes.
[9]
Private sportsmen's clubs (for example, archery,
hunting and model planes).
[10]
All outdoor recreational activities, golf, tennis,
etc.
[11]
Orchards.
[12]
Grazing.
[13]
Wildlife sanctuaries.
[14]
Natural preserves.
[15]
Swimming areas.
[16]
Boat launching sites.
[17]
Related residential uses such as lawns, gardens
and parking.
(d)
The following uses are prohibited:
[1]
Walled and roofed buildings including gas or
liquid storage tanks.
[2]
Structures and other development, other than
dams, dikes or bridges, which may impede, retard or change the direction
of the flow of water in such streams or floodplain areas, which may
catch or collect debris carried by such water or which may be carried
downstream causing damage or detriment of either public or private
property.
[3]
On-lot or community sewage disposal bed systems.
(e)
Structures and development not expressly prohibited may only be allowed if authorized as special exceptions by the Zoning Hearing Board under Article XIV of this chapter. All necessary federal and state permits such as those required by the Pennsylvania Sewage Facilities Act (Act 1966-537, as amended); the Pennsylvania Dam Safety and Encroachments Act (Act 1978-325, as amended); the Pennsylvania Clean Streams Act (Act 1937-394, as amended);[1] and the U.S. Clean Water Act, Section 404, 33 U.S.C. § 1334,
shall be obtained prior to the application for such special exception.
In addition, all adjacent municipalities and the Pennsylvania Department
of Community and Economic Development, Bureau of Community Planning,
shall be notified, in writing, by the applicant by certified mail
setting forth the time, date and place of such hearing and requesting
such agency to respond, in writing, setting forth such agency's objections
to such structure, if such is the case, prior to any alteration or
relocation of any watercourse.
[1]
Editor's Note: See 35 P.S. § 750.1
et seq., 32 P.S. § 693.1 et seq. and 35 P.S. § 691.1
et seq., respectively.
(2)
Delineation of identified floodplain areas.
(a)
For the purpose of this chapter, the identified
floodplain shall be those areas of the Township which have been identified
as being subject to flooding by a one-hundred-year flood. These areas
are identified on the most current Flood Insurance Rate Map (FIRM)
which is included in the Flood Insurance Study (FIS) prepared by the
Federal Emergency Management Agency for the municipality, dated December
16, 1988, or the most recent revision thereof.
(b)
The identified floodplain area may be reviewed
or modified by the Board of Supervisors where studies or information
provided by a qualified agency or person documents the need for such
revision or modification. However, prior to any such change, approval
must be obtained from the Federal Emergency Management Agency.
(c)
Should a dispute concerning any identified floodplain
boundary map arise, any party aggrieved by such determination may
appeal to the Board of Supervisors. The burden of proof shall be on
the appellant.
(3)
Variances.
(a)
If compliance with any of the requirements of
this chapter would result in an exceptional noneconomic hardship to
a prospective builder, developer or landowner, the Zoning Hearing
Board may, upon request, grant relief from the strict application
of the requirements. Requests for variances shall be considered by
the Zoning Hearing Board in accordance with the existing Township
zoning ordinances and statutes.
[1]
Notwithstanding the provisions of this section,
no variance shall be granted for:
[b]
The commencement of, or any construction
of, a new manufactured home subdivision or improvement to an existing
manufactured home park or manufactured home subdivision.
[c]
Any new or improved structure which
will be used for the production or storage of any of the following
dangerous materials or substances or which will be used for any activity
requiring the maintenance of a supply of any of the following dangerous
materials or substances on the premises:
[i]
Acetone.
[ii]
Ammonia.
[iii]
Benzene.
[iv]
Calcium carbide.
[v]
Carbon disulfide.
[vi]
Celluloid.
[vii]
Chlorine.
[viii]
Hydrochloric acid.
[ix]
Hydrocyanic acid.
[x]
Magnesium.
[xi]
Nitric acid and oxides of nitrogen.
[xii]
Petroleum products (gasoline,
fuel oil, etc.)
[xiii]
Phosphorus.
[xiv]
Potassium.
[xv]
Sodium.
[xvi]
Sulfur and sulfur products.
[xvii]
Pesticides (including insecticides,
fungicides and rodenticides).
[xviii]
Radioactive substances, insofar
as such substances are not otherwise regulated.
[2]
No variance shall be granted for any construction,
development, use or activity within any floodway area that would cause
any increase in the one-hundred-year-flood elevation.
[3]
No variance shall be granted for any construction,
development, use or activity within any AE area (as designated on
the FIRM) that would, together with all other existing and anticipated
development, increase the one-hundred-year-flood elevation more than
one foot at any point.
[4]
If granted, a variance shall involve only the
least modification necessary to provide relief. If it should become
necessary to grant any variance, the applicant shall be required to
comply with all applicable requirements of the National Flood Insurance
Program Regulations (60.3 d) including the requirements for elevations,
floodproofing and anchoring. The applicant must also comply with any
other requirements or conditions of all other applicable Township
ordinances.
[5]
In granting any variance, the Zoning Hearing
Board shall attach whatever reasonable conditions and safeguards it
considers necessary in order to protect the public health, safety
and welfare and to achieve the objectives of this chapter.
[6]
Whenever a variance is granted, the Zoning Hearing
Board shall notify the applicant, in writing, that:
[7]
In reviewing any request for a variance, the
Zoning Hearing Board shall consider the following as the minimum criteria:
[a]
That there is good and sufficient
cause.
[b]
That failure to grant the variance
would result in exceptional noneconomic hardship to the applicant.
[c]
That the granting of the variance
will neither result in an unacceptable or prohibited increase in flood
heights, additional threats to public safety or extraordinary public
expense; nor create nuisances, cause fraud on or victimize the public,
or conflict with any other applicable state or local ordinances and
regulations.
(b)
Notwithstanding any of the above, all structures
shall be designed and constructed so as to have the capability of
resisting a one-hundred-year flood.
(4)
Penalties. Any person who fails to comply with any and all of the requirements or provisions of this Subsection E or fails or refuses to comply with any notice, order or direction of the Zoning Officer or any other authorized employee of the Township shall be guilty of a summary offense and, upon conviction, shall be subject to the fines and penalties as set forth in this Code.
[Amended 6-21-1999 by Ord. No. 411]
(5)
It shall be unlawful for any person, partnership,
business or corporation to undertake or cause to be undertaken any
construction or development anywhere within the Township unless a
zoning permit as required by this chapter has been obtained from the
Zoning Officer.
F.
Street frontage. Every principal building shall be
built upon a lot with access to a street or driveway. No single-family
residential lot shall have access from a secondary arterial highway
as designated in the Comprehensive Plan. Any lot having its rear lot
line coinciding with the right-of-way of a secondary arterial highway
shall have 25 feet added to its rear yard requirements.
G.
Principal residential building. The number of principal
residential buildings on any one tract in any of the residential districts
shall not exceed the number permitted by projection of the maximum
density of the district in which the tract is located. No yard or
other open space provided about any building for the purpose of complying
with the provisions of this chapter shall be considered to provide
a yard or open space for any other building. The construction of more
than one principal residential building on any one tract shall not
relieve the property owner of the obligation of complying with the
subdivision requirements of the Township in effect in the event of,
at the time of, any subsequent application for subdivision whether
for purposes of sale or otherwise.
H.
Artificial lights. No artificial lights shall be used
by any building or premises which shall cause illumination in excess
of 0.5 footcandles, either directly or indirectly, beyond the property
lines of such use.
I.
Yards. All yards adjacent to a public street shall
be considered front yards and shall conform to the minimum front yard
requirements for the district in which they are located. On corner
lots, the requirements shall apply to whichever yard is adjacent to
the public street with the shortest street frontage.
[Amended 9-3-2002 by Ord. No. 432]
J.
Swimming pools. A fence or other permanent barrier
not less than four feet or more than six feet in height shall be constructed
to entirely enclose the area on which the swimming pool is located
to bar the public all reasonable and normal access to the swimming
pool except through a substantial self-closing gate or gates of the
same height as the fence. These gates are to be equipped with facilities
for locking when the pool is unattended or unguarded. In the case
of aboveground pools, the sidewalls may be considered as part of the
fencing requirements, provided that the total minimum height requirements
are met. No pool may be nearer the street than the required front
yard setback line in the district in which it is located. No swimming
pool, including any elevated deck adjoining or surrounding the pool
proper, shall be located within the front, side or rear yard setbacks.
Permits shall be required for all pools capable of holding more than
two feet of water (in depth).
[Amended 6-21-1999 by Ord. No. 411]
K.
Clear sight triangle.
(1)
Streets. On any corner lot, no structure, fence, wall,
shrub or plant more than 36 inches higher than the road surface shall
be erected or maintained within a triangular area of three external
points located 75 feet (in each of three directions) from the point
of intersection of the two street center lines.
(2)
Driveways. On any lot, no structure, fence, wall,
shrub or plant more than 36 inches higher than the road surface shall
be erected or maintained within an area along the edge of the cartway
from a point on the center line of the intersecting driveway, distant
15 feet from the nearest edge of the cartway of the through road to
the points on the center line of the through road for a distance of:
L.
Accessory structures.
(1)
Distance from principal building and other accessory
buildings. No accessory structure in any district shall be closer
than eight feet to any principal building, unless said accessory structure
is attached to a portion of the principal building.
(2)
Height. The maximum height from the average finished grade to the highest point of the roof for any permitted accessory structure in any district shall be 15 feet if the accessory structure contains 400 square feet or less. In the event that the accessory structure is greater than 400 square feet in area, the maximum height shall be equal to the maximum permitted height of the principal building in the district in which it is located. (See Article X.)
(3)
Setbacks. The setback requirements for permitted detached accessory structures and uses for the residential districts shall be 50 feet for the minimum front setback and 25 feet for the minimum rear setback. The side setback shall be that designated for the zoning district in which the structure is located. (See the chart of minimum lot and yard requirements in Article X.) Decks attached to an accessory structure are to be considered part of the structure in calculating the setback. (See § 155-10B.)
M.
Prohibited uses. Any use not specifically permitted
in a zone established by this chapter is hereby specifically prohibited
from that district, and the following uses and activities are specifically
prohibited in any district in the Township:
N.
Existing nonconforming lots. In any zone, where a
nonconforming lot exists as a separate entity at the time of passage
of this chapter, or where the nonconforming lot exists as a result
of an approval of a subdivision plan by either the Monroe County Planning
Commission or the Tobyhanna Township Planning Commission, then the
following development is permitted:
[Amended 12-8-2008 by Ord. No. 476]
(1)
If the lot is located in the RR, R-1, R-2 and/or OS District, a single-family dwelling and customary accessory buildings may be constructed on it as a permitted use, provided that all setbacks, habitable floor area and maximum building height shall conform with the requirements for said use in Article X of Chapter 155 of the Tobyhanna Township Code of Ordinances and the applicable attachments[2] thereto, as amended. The lot coverage permitted on a nonconforming
lot shall be limited to and shall not exceed the maximum amount of
lot coverage permitted on the smallest allowable conforming lot for
the proposed use within the zoning district where the nonconforming
lot is located. The lot coverage on a nonconforming lot shall not
exceed the requisite setbacks.
[2]
Editor's Note: Said attachments are included
at the end of this chapter.
(2)
If the lot is located in any zoning district other than RR, R-1, R-2 and/or OS, then a structure may be constructed on it for a use permitted in the district in which it is located, provided that off-street parking and loading requirements of this chapter and all lot and yard requirements of Article X of Chapter 155 of the Tobyhanna Township Code of Ordinances and the applicable attachments[3] thereto, as amended, for the specific use being proposed
are complied with, with the exception of lot area, lot coverage, lot
width and lot depth. The lot coverage permitted on a nonconforming
lot shall be limited to and shall not exceed the maximum amount of
lot coverage permitted on the smallest allowable conforming lot for
the proposed use within the zoning district where the nonconforming
lot is located. The lot coverage on a nonconforming lot shall not
exceed the requisite setbacks.
[3]
Editor's Note: Said attachments are included
at the end of this chapter.
O.
Existing nonconforming lots with same ownership. Where adjacent nonconforming lots are in the same ownership at the time of passage of this chapter, Subsection N shall apply.
P.
Temporary construction buildings. A temporary construction
building shall require a permit from the Zoning Officer, who shall
set a date for termination not more than one year from the issuance.
Renewal of the permit for an additional one year shall be granted
by the Zoning Officer for just cause. The buildings must be removed
30 days after the use ends or the permit expires, whichever comes
first.
Q.
Noise.
(1)
No person shall operate or cause to be operated on
private or public property any source of sound in such a manner as
to create a sound level which exceeds the limits set forth for the
receiving land use category in the following table when measured at
or within the property boundary of the receiving land use:
|
Sound Level Limits by Receiving Land Use
and Time
| |||
|---|---|---|---|
|
Land Use or Zoning District Receiving
Noise
|
Hours and Days
|
Maximum Permitted
Sound Level
(dBA)
| |
|
Principally residential lots or nursing homes
|
7:00 a.m. to 8:00 p.m. other than Sundays and
major legal holidays
|
50
| |
|
8:00 p.m. to 7:00 a.m. and Sundays and major
legal holidays
|
40
| ||
|
Industrially developed or zoned lots
|
All times and days
|
65
| |
|
Any lot not listed above
|
7:00 a.m. to 8:00 p.m. other than Sundays and
legal holidays
|
55
| |
|
8:00 p.m. to 7:00 a.m. and Sundays and major
legal holidays
|
50
| ||
(2)
The maximum permissible sound level limits set forth
above shall not apply to any of the following noise sources:
(a)
The emission of sound for the purpose of alerting
persons to the existence of an emergency.
(b)
Emergency work to provide electricity, water
or other public utilities when public health or safety are involved.
(c)
Domestic power tools, between the hours of 7:00
a.m. to 8:00 p.m.
(d)
Construction (including necessary blasting)
and street and utility repair operations.
(e)
Agriculture.
(g)
Public celebrations, specifically authorized
by the Township.
(h)
Railroads or airplanes.
(i)
The unamplified human voice.
(j)
Activities conducted in public parks, public playgrounds, sanctioned
recreation activities at private clubs and community associations,
public and private school grounds, including but not limited to school
athletic and school entertainment events, between the hours of 8:00
a.m. and 8:00 p.m.
[Added 5-2-2022 by Ord. No. 567]
(3)
For any source of sound which emits an impulsive sound
(a sound of short duration, with an abrupt onset and rapid decay and
an occurrence of not more than one time in any fifteen-second interval),
the sound level shall not exceed 20 dBA over the ambient sound level
between the hours of 7:00 a.m. to 6:00 p.m. and 10 dBA between the
hours of 6:00 p.m. to 7:00 a.m.
R.
Driveway access. The installation of any driveway
which accesses any street or roadway, or which requires a road or
curb cut, in addition to any other provision of the Code, shall conform
to the regulations of the Pennsylvania Department of Transportation
(hereinafter referred to as "Department regulations") for highway
occupancy permits, in the following particulars:
[Added 9-3-2002 by Ord. No. 428]
(1)
A minimum use driveway as defined in the Department
regulations shall conform to the applicable plan requirements set
forth therein, as determined by the Township Engineer, and the applicant
shall provide the Township with the same information as required by
form M-950A.
(2)
In the case of a driveway not classified as a minimum
use driveway in the Department regulations, the driveway shall conform
to the applicable plan requirements, as determined by the Township
Engineer, set forth in Section 441.3(i) of the Department regulations,
and the applicant shall provide the Township with the same information
as required by form M-945A, and form M-950A.
S.
Notwithstanding any other provision of this chapter,
any plan required to be submitted by this chapter shall also include
a copy on computer readable media in either auto-cad R-14, auto-cad
2000, TIFF image format or ESRI Arc Infro\arcview, with all required
media containing Pennsylvania State Plane N, NAD 83 Coordinates, or
such other electronic, digital or computer readable media or format
as designated from time to time by resolution duly enacted by the
Board of Supervisors.
[Added 10-14-2003 by Ord. No. 444; amended 11-10-2003 by Res. No.
2003-025]
