§ 450-64. Nonconformities.

A. 

Proof and registration of nonconformities. It shall be the responsibility of, with the burden of proof upon, a party asserting a nonconformity to provide the evidence that it is lawful. A property owner may request a written statement of nonconformity from the Zoning Officer after providing sufficient evidence.

B. 

Continuation. A lawful nonconforming use, structure or lot as defined by this article may be continued and may be sold and continued by new owners. Any expansion of, construction upon or change in use of a nonconformity shall only occur in conformance with this section.

C. 

Expansion of or construction upon nonconformities.

(1) 

Nonconforming structure.

(a) 

The Zoning Officer shall permit a nonconforming structure to be reconstructed or expanded provided:

[1] 

That such action will not increase the severity or amount of the nonconformity (such as the area of the building extending into the required yard) or create any new nonconformity [except as provided by Subsection C(1)(b) below]; and

[2] 

That any expanded area will comply with the applicable setbacks in that district and other requirements of this article.

(b) 

In the case of a nonconforming structure which is used by a nonconforming use, any expansion shall also meet the requirements of this section regarding nonconforming uses.

(c) 

Extension along a nonconforming setback. If an existing building has a lawfully nonconforming building setback, additions may occur to increase the height above such setback or to extend other portions of the building out to the nonconforming side or rear setback line, provided that:

[1] 

The structure shall not be extended beyond the existing nonconforming setback line;

[2] 

No additional nonconformity shall be created;

[3] 

The new nonconforming extension shall not be greater than 25% of the existing floor area;

[4] 

All other requirements of this chapter shall be met; and

[5] 

Such addition shall not be permitted for a nonresidential building that abuts an existing principal residential use.

(2) 

Nonconforming lots.

(a) 

Permitted construction on a nonconforming lot. New permitted structures for a single permitted-by-right principal use and its customary accessory uses may be constructed, reconstructed or expanded on a nonconforming lot of record held in single and separate ownership as a permitted-by-right use if minimum setback requirements are met.

(b) 

Lot width. The fact that an existing lawful lot of record does not meet the minimum lot width requirements of this article shall not by itself cause such lot to be considered to be a nonconforming lot.

(3) 

Expansion of a nonconforming nonresidential use. A nonconforming use or a building used by a nonconforming use shall not be expanded, except in accordance with the following provisions:

(a) 

An expansion of more than 5% in total building floor area shall require special exception approval from the Zoning Hearing Board under Article II.

(b) 

Such reconstruction or expansion shall be only upon the same lot that the nonconforming use was located upon at the time the use became nonconforming.

(c) 

The total building floor area used by a nonconforming use; or the total land area covered by the nonconforming use, whichever is more restrictive, shall not be increased by greater than 40% beyond what existed in the nonconforming use at the time the use first became nonconforming, under this chapter or a previously adopted zoning ordinance, whichever came first.

[1] 

The above maximum increase shall be measured in aggregate over the entire life of the nonconformity. All expansions of the nonconforming use and/or building(s) that occurred since the use originally became nonconforming shall count towards the above maximum increase.

(d) 

Any expansion of a nonconforming use shall meet the required setbacks and other requirements of this article, unless the Zoning Hearing Board grants a variance.

(4) 

Expansion of a nonconforming residential use. An existing nonconforming residential use may be expanded as a permitted-by-right use, provided that: the number of dwelling units or rooming house units are not increased; the expansion meets all applicable setbacks; no new types of nonconformities are created; a nonconformity is not made more severe; and all other dimensional requirements of this chapter are met.

(5) 

Nonconforming sign. The provisions of this article shall not be interpreted to provide a right to expand or extend a nonconforming sign. Instead, any expansions or extensions of a nonconforming sign shall comply with this article.

D. 

Damaged or destroyed nonconformities.

(1) 

A nonconforming structure that has been destroyed or damaged may be rebuilt in a nonconforming fashion only if:

(a) 

The application for a building permit is submitted within 18 months after the date of damage or destruction;

(b) 

Work begins in earnest within 12 months afterwards and continues; and

(c) 

No nonconformity may be created or increased by any reconstruction.

(2) 

The property shall be properly secured during such time in such a way to keep out trespassers and to avoid harm to neighboring properties.

(3) 

Destruction of a nonconforming use. The removal, destruction, or partial destruction of the structure or building of a nonconforming use, by fire, explosion, or any other means, to the extent of 75% of the fair market value of the building or structure immediately prior to such damage, shall eliminate its nonconforming use status.

[Added 3-12-2009 by Ord. No. 2009-04]

E. 

Abandonment of a nonconformity.

(1) 

If a nonconforming use of a building or land is discontinued, razed, removed or abandoned for 12 or more months, subsequent use of such building or land shall conform with the regulations of the district in which it is located, except:

(a) 

As provided for in Subsection D, Damaged or destroyed nonconformities.

(2) 

The applicant shall be responsible to provide evidence that the nonconformity was not abandoned.

(3) 

An existing lawful separate dwelling unit may be unrented for any period of time without being considered "abandoned" under this article.

F. 

Changes from one nonconforming use to another.

(1) 

Once changed to a conforming use, a structure or land shall not revert to a nonconforming use.

(2) 

A nonconforming use may be changed to a different nonconforming use only if permitted as a special exception by the Zoning Hearing Board. However, special exception approval is not needed for a simple change within an existing building from one lawful nonconforming retail store use to another retail store use or from one lawful nonconforming personal service use to another personal service use, provided that the new use complies with any Zoning Hearing Board conditions that applied to the previous use and is not more objectionable in external effects than the previous use.

(3) 

Where special exception approval is required for a change of a nonconforming use, the Board shall determine whether the applicant has provided sufficient proof to show that the proposed new use will be equal or less objectionable in external effects than the preexisting nonconforming use with regard to:

(a) 

Traffic safety and generation (especially truck traffic);

(b) 

Noise, dust, fumes, vapors, gases, odor, glare, vibration, fire, hazardous substances, and explosive hazards;

(c) 

Amount and character of outdoor storage;

(d) 

Late night and early morning hours of operation if the use would be close to dwellings; and

(e) 

Compatibility with the character of the surrounding area.

(4) 

A nonconforming use shall not be changed to a nonconforming adult use.

G. 

District changes. Any uses, structures or lots that become nonconforming because of a zoning district change shall be regulated under this section on nonconformities.

H. 

Nonconformities created due to condemnation:

[Added 8-9-2012 by Ord. No. 2012-07]

(1) 

Any condemnation of private property by the Borough of Walnutport which would cause any property, in whole or in part, to become nonconforming as to any provision of the Zoning Ordinance shall be deemed to be conforming and not in violation of the Borough Zoning Ordinance immediately and simultaneously upon the date of the taking.

(2) 

The extension of a nonconforming structure into setback areas shall be permitted for any and all structures made nonconforming due to a condemnation of private property, or when a preexisting nonconforming structure is made more nonconforming due to a condemnation of private property. Any nonconforming structure so created, or any nonconforming structure made more nonconforming, shall be permitted by right to extend into any front yard, side yard, and/or rear yard setback to the depth of encroachment created by the condemnation. The encroachment into a setback area caused by a condemnation of private property shall not be a violation of the Borough Zoning Ordinance. The section applies immediately upon the date of taking.

(3) 

The requirement that a change in the configuration of a nonconforming lot shall be to bring such lot into conformance shall not apply to any change made in the configuration of a nonconforming lot if the change in configuration was caused by a condemnation of private property. In that event, the configuration of a nonconforming lot after condemnation shall be remitted as of right immediately upon the date of taking.