A property owner has a constitutional right to continue a nonconforming
condition and the Zoning Officer(s) shall issue to a property owner
a zoning permit for any nonconformity so long as the property owner
can prove to the Zoning Officer that the lot, use or structure was
lawfully in existence as of the time of the enactment of an ordinance
with which the lot, use or structure is in violation. Once a zoning
permit has been issued for the nonconformity, the nonconformity can
continue until it is abandoned. A preexisting nonconforming condition
for which a zoning permit is issued creates a vested property right
that shall run with the land, not the owner. A use or structure that
is approved by the Township and subsequently becomes part of an Overlay
District shall not be considered a nonconforming use. Uses and structures
with no vested rights are illegal and require removal.
Nonconforming lots in all zoning districts. A nonconforming
lot enjoys the protections afforded by such attribution; however,
such lot shall be developed in conformity with all applicable district
regulations other than minimum lot area, and lot width, including
side and rear yard setbacks. Improvement of a nonconforming lot cannot
otherwise violate other dimensional requirements or increase the existing
nonconformity, except pursuant to variance application procedures
as hereinafter set forth:
A.
Permitted construction on a nonconforming lot. A single, permitted-by-right
principal use and its customary accessory uses may be constructed,
reconstructed or expanded on a nonconforming lot, provided all of
the following additional requirements are met:
(1)
The lot must be a lawful nonconforming lot of record. All federal,
state and local wetland regulations shall be met.
(2)
Sewer and well requirements shall be met.
(3)
If the subject lot is in a recorded subdivision having yard
setback requirements set forth on the recorded plan or in the recorded
deed, those delineated yard setbacks shall be applied.
(4)
If no yard setback requirements are set forth on the recorded
plan or in the recorded deed, the following shall be applied for a
single-family dwelling unit:
(a)
Lots having a width of 100 feet or greater but
less than 150 feet shall have a minimum side yard setback of 20 feet.
(b)
Lots having a width of 79 feet or greater but less
than 100 feet shall have a minimum side yard setback of 15 feet.
(c)
Lots having a width of 49 feet or greater but less
than 79 feet shall have a minimum side yard setback of 12 feet.
(d)
Lots having a depth of less than 100 feet shall
have a minimum front yard setback of 30 feet.
(e)
Lots having a depth of less than 100 feet shall
have a minimum rear yard setback of 20 feet.
(f)
Triangular lots shall have a minimum front yard
setback of 25 feet.
(g)
Triangular lots shall have a minimum rear yard
setback of 15 feet.
(5)
Nonconforming lots in nonresidential districts. If a nonconforming
lot is located in a nonresidential district, then a building may be
constructed on it for any use permitted in that district in which
the lot is located, provided that the off-street parking and loading
requirements, including all yard requirements for the applicable district,
are complied with.
A structure that is nonconforming may be altered, reconstructed,
enlarged and/or expanded, including an extension of a nonconforming
building footprint, so long as the alteration, reconstruction, enlargement
and/or expansion does not create a new dimensional nonconformity or
worsen an existing dimensional nonconformity without the granting
of a variance. In the case of a nonconforming structure which is used
by a nonconforming use, any expansion shall also meet the requirements
for nonconforming uses as set forth in this chapter.
A.
Prior certificate of nonconformity. If a property has been previously
issued a certificate for a nonconforming structure or a certificate
for a structure containing a nonconforming use and said nonconforming
structure is subsequently partially damaged or destroyed, then the
landowner has a right to demolish and rebuild as follows:
(1)
An application for a zoning and building permit must be submitted
within 18 months after the date of damage or destruction;
(2)
Work must commence within six months of the issuance of the
building permit;
(3)
No new nonconformity or increase in nonconformity may be created
by any reconstruction; and
(4)
The property must be properly secured during such time in such
a way to keep out trespassers and to avoid harm to neighboring properties.
B.
No prior certificate of nonconformity. If the property did not
have a certificate for a nonconforming structure or a certificate
for a nonconforming use prior to the nonconforming structure being
partially damaged or destroyed, the Zoning Officer shall issue to
a property owner a zoning permit for any nonconformity so long as
the property owner can prove to the Zoning Officer that the lot, use
or structure was lawfully in existence as of the time of the enactment
of an ordinance with which the lot, use or structure is in violation.
The property owner may then proceed in compliance with § 042-040A.
C.
C-1 Zoning District. Within the C-1 Zoning District only, a
nonconforming structure, with respect to front yard setback requirements,
which contains a conforming use and for which the nonconforming structure
has been issued a certificate of nonconformity, may be demolished
and rebuilt at the existing nonconforming setback line, provided that
the following conditions are met:
(1)
The new structure shall be located no closer to the street line
at any point than the prior structure was located; and
(2)
The building footprint that lies within the required front yard
setback shall be no greater after reconstruction than the building
footprint that was located within the required front yard setback
prior to removal.
A.
A nonconforming use may be expanded (or subject to a series of expansions)
so long as the total percentage increase of the nonconforming condition
that existed at the time of enactment of this ordinance creating the
nonconforming condition is not increased to greater than 100% of the
nonconformity, pursuant to the procedures as outlined for a public
hearing with the Zoning Hearing Board.
B.
Variance from percentage limitation. A property owner may seek
a variance from the percentage limitation so long as the property
owner can satisfy the following four factors:
(1)
That an unnecessary hardship exists which is not created by
the party seeking the variance and which is caused by unique physical
circumstances of the property for which the variance is sought;
(2)
That a variance is needed to enable the party's reasonable use
of the property;
(3)
That the variance will not alter the essential character of
the district or neighborhood or substantially or permanently impair
the use or development of the adjacent property such that it is detrimental
to the public's welfare; and
(4)
That the variance will afford the least intrusive solution.
The nature of a nonconforming use is determined from the actual
use to which the property is put, rather than from the identity of
the users. A modification of a nonconforming use to a new or changed
use is prohibited subject to the following:
A.
A proposed use need not be identical to the current use; it need
only be sufficiently similar to the nonconforming use so as not to
constitute a new or different use;
B.
A change in technology is a continuation of a use;
C.
A change in the intensity of a use is a continuation of a use;
and
D.
A change in use necessitated for compliance with a state or
federal law is not an expansion.
A.
Generally. A property owner may continue to operate under the protections
of a nonconforming status until such time as the use has been abandoned.
C.
Discontinuance provision. If a nonconforming use has not been used
for a period of 18 consecutive months, this failure to use the nonconforming
use shall establish the intent to abandon the nonconforming use.
(1)
Once the municipality establishes the intent to abandon, the
burden of persuasion shifts to the party challenging the claim of
abandonment.
(2)
If the challenger introduces evidence of contrary intent, the
presumption of intent to abandon is rebutted, and the burden of persuasion
shifts back to the party claiming abandonment.
D.
Actual abandonment. Actual abandonment cannot be inferred from or
established by a period of nonuse alone; the municipality must establish
actual abandonment through the property owner's overt acts or failure
to act.
