The following modifications to the requirements of this chapter are permitted under the terms and specifications herein stated:
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]
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.
The required side and rear setbacks (see Article X) may be reduced up to 50% if the following circumstances exist:
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
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
Such reduction in the minimum setback requirements is not otherwise inconsistent with the objectives of this chapter.
In no event shall the setback distance be reduced to less than 12 feet.
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:
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
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.
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:
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.
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.
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:
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.
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.
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.
Restoration, repair and abandonment of nonconforming buildings.
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:
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).
Reconstruction shall begin within one year from the date of damage or destruction and shall be carried on without substantial interruption.
Repair. Nothing in this chapter shall prevent the repair, maintenance or strengthening of any part of a nonconforming building or structure.
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.
Flood area controls.
Identified floodplain areas.
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).
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.
The following uses are permitted in an area designated as a flood area:
Customary agricultural operations exclusive of buildings or structures as defined in this chapter.
Outdoor plant nurseries.
Forestry and seed production excluding storage and mill structures.
Fishing and fish hatcheries.
Retail seasonal agriculture.
Temporary fairs or carnivals.
Accessory uses for residential purposes.
Private sportsmen's clubs (for example, archery, hunting and model planes).
All outdoor recreational activities, golf, tennis, etc.
Boat launching sites.
Related residential uses such as lawns, gardens and parking.
The following uses are prohibited:
Walled and roofed buildings including gas or liquid storage tanks.
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.
On-lot or community sewage disposal bed systems.
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); 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.
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.
Delineation of identified floodplain areas.
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.
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.
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.
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.
Notwithstanding the provisions of this section, no variance shall be granted for:
The commencement of, or any construction of, a new manufactured home subdivision or improvement to an existing manufactured home park or manufactured home subdivision.
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:
Nitric acid and oxides of nitrogen.
Petroleum products (gasoline, fuel oil, etc.)
Sulfur and sulfur products.
Pesticides (including insecticides, fungicides and rodenticides).
Radioactive substances, insofar as such substances are not otherwise regulated.
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.
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.
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.
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.
Whenever a variance is granted, the Zoning Hearing Board shall notify the applicant, in writing, that:
In reviewing any request for a variance, the Zoning Hearing Board shall consider the following as the minimum criteria:
That there is good and sufficient cause.
That failure to grant the variance would result in exceptional noneconomic hardship to the applicant.
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.
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.
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]
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.
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.
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.
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.
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]
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]
Clear sight triangle.
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.
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:
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.
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.)
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.)
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:
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]
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 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.
Editor's Note: Said attachments are included at the end of this chapter.
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 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.
Editor's Note: Said attachments are included at the end of this chapter.
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.
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.
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:
The maximum permissible sound level limits set forth above shall not apply to any of the following noise sources:
The emission of sound for the purpose of alerting persons to the existence of an emergency.
Emergency work to provide electricity, water or other public utilities when public health or safety are involved.
Domestic power tools, between the hours of 7:00 a.m. to 8:00 p.m.
Construction (including necessary blasting) and street and utility repair operations.
Public celebrations, specifically authorized by the Township.
Railroads or airplanes.
The unamplified human voice.
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.
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]
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.
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.
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]