Township of Muhlenberg, PA Article XII Nonconformities

§ 355-127 Statement of intent.

A. The purpose and objective of the provisions established under Article XII of this chapter are to establish specific regulations pertaining to nonconforming uses, lots, land areas, building and/or structures.

B. As part of the establishment of zoning districts by this chapter of the Code, or by subsequent amendments thereto, there exists or will exist certain nonconformities which, if lawful before this chapter of the Code was passed or amended, may be continued, subject to certain limitations, although such nonconformities would be prohibited, regulated or restricted under the terms of this chapter or future amendments thereto.

C. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been diligently conducted.

D. The regulations concerning nonconformities, as established under Article XII of this chapter, shall be subject to the interpretation of the Muhlenberg Township Zoning Officer or other qualified professional, as designated by the Board of Commissioners. Should a dispute arise concerning the interpretation of these regulations, the person aggrieved by the interpretation may file an appeal with the Zoning Hearing Board. In all cases, the burden of proof and submission of technical evidence shall be the responsibility of the person appealing the interpretation of the Zoning Officer or other qualified professional, as designated by the Board of Commissioners.

§ 355-128 Nonconforming lots of record.

A. Any lot shown on a recorded subdivision or land development plan on the effective date of this chapter or after the enactment of any subsequent amendments thereto which does not meet the minimum size or width requirements of the zoning district in which it is located may be used for a use permitted by regulations of that zoning district, provided that all yard, height, coverage and open space requirements of the zoning district shall be met. However, when a developer or applicant has had an application for approval of a preliminary or final subdivision plan which has been approved prior to the effective date of this chapter, no provision and/or regulation in this chapter shall be applied to affect adversely the right of the developer or applicant to commence and complete any aspect of the approved preliminary or final plan within such time periods as are established within the Pennsylvania Municipalities Planning Code.[1]

[1] Editor's Note: See 53 P.S. § 10101 et seq.

B. Any lot held in single and separate ownership on the effective date of this chapter or after the enactment of any subsequent amendments thereto which does not meet the minimum size or width requirements of the zoning district in which it is located may be used for any use permitted in that zoning district, provided that all yard, height, coverage and open space requirements of the district are met. However, if two or more lots, combination of lots, or portions of lots with continuous frontage held under single ownership are of record at the time of passage or amendment of this chapter, and if all or part of the lots do not meet the requirements established for lot width and/or area, the land involved shall be considered to be an undivided parcel for the purpose of this chapter, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and/or area requirements established by this chapter, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this chapter.

§ 355-129 Nonconforming uses of land.

A. For lawful uses of land which at the effective date of this chapter or subsequent amendment thereto becomes nonconforming, such nonconforming use or uses may be continued by the present or any subsequent owner so long as it remains otherwise lawful, subject to the provisions listed within this article of this chapter of the Code.

B. A nonconforming land use shall not be enlarged, increased and/or extended in order to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this chapter.

C. Whenever a nonconforming use has been discontinued for a period of 12 consecutive months, such use shall not thereafter be reestablished, except if the owner of such property files within 30 days of the date of discontinuance a certificate of intention to maintain such use. If such certificate is filed, the time period for which a nonconforming use may be discontinued and still be reestablished shall be extended by a twelve-month period.

D. A nonconforming use, if changed to a conforming use, shall not thereafter be changed back to any nonconforming use. A nonconforming use may be changed to a conforming use or to a nonconforming use of a less offensive nature. A nonconforming use shall not be moved in whole or in part to any portion of the lot or parcel other than that occupied by such at the effective date of adoption or amendment of this chapter.

E. No additional structures which do not conform to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

§ 355-130 Nonconforming buildings and structures.

A. Lawful nonconforming structures or buildings at the effective date of this chapter or subsequent amendment thereto that become nonconforming by reason of restrictions on area, lot coverage, height, yards, location on the lot, or other requirements concerning the building or structures may be continued as long as they remain otherwise lawful, subject to the provisions listed in the following subsections.

B. A nonconforming use, building or structure shall not be enlarged or increased upon land not owned, leased or under option to purchase at the time of the enactment of this chapter.

C. A nonconforming building or structure shall not be enlarged, increased, repaired, maintained or modified in any manner which will further violate any applicable dimensional requirements imposed by this chapter, except that a principal building which existed at the effective date of this chapter which is nonconforming as to a yard requirement may have repairs, improvements, modifications and/or additions made to those portions of the building located within the required yard. All such repairs, improvements, modifications and/or additions shall not further increase or extend into the required yard.

D. Total future expansion of a nonconforming use shall not exceed 50% of the gross floor area or ground area occupied by the use at the time of the effective date of this chapter.

E. A nonconforming building or structure which has been damaged by fire, explosion, accident and/or calamity may be reconstructed and used for the same nonconforming use, provided that the reconstructed building or structure does not exceed the area, volume and height of the destroyed buildings or structure. In addition, building reconstruction shall be started within one year from the date the building or structure was destroyed and shall be carried through without interruption.

F. No nonconforming structure or building shall be, for any reason, moved for any distance unless it shall thereafter conform to the regulations for the district in which it is located after it is moved.

§ 355-131 Nonconforming uses of buildings or structures.

A. Lawful nonconforming structures or buildings, or structures or buildings and land in combination, which exist at the effective date of this chapter or subsequent amendments thereto, that would not be allowed in the district under the terms of this chapter, may be continued so long as they remain otherwise lawful, subject to the provisions contained within this article of this chapter of the Code.

B. An existing structure devoted to a use not permitted by this chapter within the zoning district where it is located may be enlarged, extended, constructed, reconstructed or structurally altered up to but not more than 25% of its gross floor and/or use area as it existed at the time of the passage of this chapter or subsequent amendment, provided that the lot or lots upon which the nonconforming structure is situated were held under single ownership or long-term lease (10 years or more) and purchased or leased prior to the enactment of this chapter.

C. Any enlargement, extension, construction, reconstruction or structural alteration must conform to all other regulations of the zoning district in which it is located. This provision may be used only once for each nonconforming structure.

D. Any nonconforming use may be extended throughout the building which was in use for the nonconforming use at the time of adoption of this chapter, but no such use shall be extended to occupy any land outside such building unless provided for under this article of this chapter of the Code.

E. A nonconforming use of a structure, or premises and structure, may be changed to another nonconforming use, provided that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. Such determination shall be made by a special exception granted from the Zoning Hearing Board, which shall take into consideration the following issues: the intent of the provisions for the zoning district; the ability to change the use to a conforming use; traffic generation and congestion; noise, smoke, dust, fumes, vapors, gases, heat, odor, glare, vibration or other nuisances; external storage; solid waste disposal; sewer and water facilities; and the general appearance of the use compared to the uses within 500 feet of the property lines.

F. Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed. When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for 12 consecutive months, the structure or structure and premises in combination shall not thereafter be used except in conformity with the regulations of the district in which it is located.

G. Where nonconforming-use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land and use. "Destruction" for the purpose of this subsection is defined as damage to an extent of more than 75% of the market value at the time of destruction.

§ 355-132 Unsafe or unlawful structures.

If a nonconforming structure or building or portions thereof containing a nonconforming use becomes physically unsafe due to lack of repairs and maintenance and is declared by the Muhlenberg Township Code Enforcement Officer, Engineer and/or Zoning Officer to be unsafe by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.

§ 355-133 Registration of nonconformities.

To facilitate the administration of this chapter, the property owner shall inform the Township Zoning Officer as to the status of a nonconforming use, lot, structure or building. The burden of proof that the use, lot, structure or building is a nonconformity shall be the responsibility of the property owner. All known nonconformities shall be a matter of public record and shall constitute sufficient notice and the limitations therein express and implied to any transferee acquiring any right to use or own such property.

§ 355-134 Preexisting residential developments.

A. Prior to the enactment of this chapter, a few planned residential communities had been previously considered and approved under alternative zoning regulations, such as planned residential developments, cluster developments, lot averaging developments and/or other residential developments, which were viable land use and development alternatives permitted under the provisions of past ordinances that were in effect at that time. A list of these preexisting planned residential communities shall be maintained by the Muhlenberg Township Zoning Officer.

B. The planned residential communities that fall under the guidelines of § 355-134A of this chapter may continue as legal conforming developments, provided that all principal and accessory uses are planned, developed and constructed in accordance with the pending application and/or approved plan. No further subdivision or land development activity shall be permitted unless it is in strict compliance with the pending application and/or approved plan. Any minor deviations to the principal or accessory uses or structures may be permitted, provided that a special exception application has been considered and approved by the Zoning Hearing Board.