Words in italics are defined in Section 12-10 (DEFINITIONS) or, if applicable exclusively to this Chapter, in this Section.

In the flood zone, the provisions of this Chapter are modified by the provisions of Article VI, Chapter 4.

A non-conforming use may be continued, except as otherwise provided in this Chapter.

Repairs to both structural and non-structural parts or incidental alterations may be made in a building or other structure substantially occupied by a non-conforming use, or in connection with a permitted change or extension of a non-conforming use.

No structural alterations shall be made in a building or other structure substantially occupied by a non-conforming use, except when made:

1. in order to comply with requirements of law; or
2. in order to accommodate a conforming use; or
3. in order to conform to the applicable district regulations on performance standards; or
4. in the course of an enlargement permitted under the provisions of Section 52-40 (ENLARGEMENTS OR EXTENSIONS), inclusive; or
5. in the course of an alteration to improve the energy performance of the building or other structure, including, but not limited to, the addition of solar energy systems, energy storage systems, or qualifying exterior wall thickness;
6. or except as set forth in Section 52-80 (REGULATIONS APPLYING TO NON-CONFORMING SIGNS), inclusive.

For the purposes of this Chapter, a change of use is a change to another use listed in the same or any other Use Group. However, a change in ownership or occupancy shall not, by itself, constitute a change of use.

Except as provided in this Section, a non-conforming use may be changed to any conforming use, and the applicable district bulk regulations and accessory off-street parking requirements shall not apply to such change of use or to alterations made in order to accommodate such conforming use, but shall apply to any enlargement.

In all zoning districts which mandate compliance with the Quality Housing Program, the provisions of Article II, Chapter 8, shall apply to such change of use.

In Mandatory Inclusionary Housing areas and where made applicable pursuant to the provisions of Section 74-05 (General Provisions for Special Permit Uses), the affordable housing requirements of paragraph (d) of Section 23-154 (Inclusionary Housing), except maximum floor area ratio, shall apply to such change of use.

In Manhattan Community Districts 1, 2, 3, 4, 5 and 6, Brooklyn Community Districts 1, 2, 6 and 8, and Queens Community Districts 1 and 2, the conversion of non-residential floor area to residences shall be subject to the provisions of Article I, Chapter 5 (Residential Conversion within Existing Buildings), unless such conversions meet the requirements for residences of Article II (Residence District Regulations).

A non-conforming use may be changed to another non-conforming use only in accordance with the provisions of this Chapter.

Any such change of use permitted by this Chapter shall conform to the applicable district regulations on accessory off-street loading berths as set forth in Section 52-41 (General Provisions) and on accessory signs, except that in Residence Districts such change shall conform to the regulations on accessory signs applicable in a C1 District.

In the Manhattan Core, a non-conforming use may be changed to an automobile rental establishment as listed in Use Group VI, or to a public parking garage or public parking lot as listed in Use Group IX, only pursuant to the provisions of Article I, Chapter 3, and in the Long Island City area, as defined in Section 16-02 (Definitions), a non-conforming use may be changed to a public parking garage or public parking lot in Use Group IX only pursuant to the provisions of Article I, Chapter 6.

In the case of a conflict between these provisions and retail continuity provisions that apply to the ground floor of buildings, a non-conforming use on the ground floor in such building may be changed only to a conforming use.

In all Residence and Commercial Districts, a non-conforming use of land with minor improvements may be changed only to a conforming use.

In all Residence Districts, a non-conforming use that is listed in Use Groups IV, VI, VII, VIII, IX or X and permitted as-of-right within C7 Districts, may be changed, initially or in any subsequent change, only to a conforming use or to a commercial use permitted as-of-right in C1 Districts, other than those listed in Use Group V. In the case of any such change any associated size limitation denoted with an “S” in the underlying Use Group tables, need not apply. Eating or drinking establishments where such establishment provides entertainment with a cover charge or specified showtime, or includes a dance floor, thus permitted as a change of use, shall be subject to the enclosure provisions of Section 32-411 (In C1, C5, C6-5 or C6-7 Districts).

In all Commercial Districts, a non-conforming use that is listed in Use Groups IV, VI, VII, VIII, IX or X and not permitted as-of-right within C7 Districts, and which is not subject to the provisions of Section 52-32 (Land with Minor Improvements), may be changed either to a conforming use or:

(a)        to any commercial use permitted as-of-right within C7 Districts, other than those listed in Use Group V, in which case any subsequent change of use shall conform to the provisions of Section 52-36 (Non-Conforming Commercial Uses in Commercial Districts); or

(b)        in accordance with the provisions of the following table:

provided that such changed use shall conform to all regulations on performance standards applicable in M1 Districts, and that any such changed use or any storage of materials or products accessory to any changed use shall be located within a completely enclosed building. Whenever a use located within a completely enclosed building is changed to another use, no activity related to such changed use, including the storage of materials or products, shall be located outside of such building.

In Commercial Districts, any non-conforming commercial use is listed in Use Groups IV, VI, VII, VIII, IX or X and permitted as-of-right within C7 Districts, may be changed, initially or in any subsequent change, only to a conforming use or to any commercial use permitted as-of-right in C2 Districts, other than those listed in Use Group V.

In all Manufacturing Districts, any non-conforming commercial use may be changed, initially or in any subsequent change, only to a conforming use or to any use listed in Use Groups VI or VIII, other than an outdoor amusement park.

In all districts, a non-conforming use may not be changed, initially or in any subsequent change, to an adult establishment, except as provided in Sections 32-01 or 42-01 (Special Provisions for Adult Establishments).

A non-conforming use may be enlarged or extended within the district in which such non-conforming use is located only in accordance with the provisions of this Chapter. However, a non-conforming single- or two-family residence in an R3, R4 or R5 District may be enlarged or extended in accordance with the bulk regulations specified for the district in which it is located. Furthermore, enlargements or extensions designed exclusively to permit conformity with the regulations on performance standards, designed in order to improve energy performance, or designed in order to provide required accessory off-street parking spaces or off-street loading berths on the same zoning lot as the use to which such spaces or berths are accessory are not subject to the restrictions set forth herein.

For the purposes of this Section and Sections 52-31 (General Provisions) and 52-42 (C6, C8 or Manufacturing Districts), the applicable district regulations on accessory off-street parking spaces or loading berths shall be determined in accordance with the following tables. The term "required" as used in this Section shall mean some or all of, but not more than, the number of spaces or berths which would be required by such applicable district regulations for development for such use.

APPLICABLE OFF-STREET PARKING REGULATIONS FOR NON-CONFORMING COMMERCIAL OR MANUFACTURING USES

APPLICABLE OFF-STREET PARKING REGULATIONS FOR NON-CONFORMING RESIDENTIAL OR COMMUNITY FACILITY USES

APPLICABLE OFF-STREET LOADING REGULATIONS

For non-conforming use in Residence Districts, accessory off-street parking spaces or loading berths shall be subject to the provisions of Sections 25-66 or 25-77 (Screening).

In the Manhattan Core, enlargements or extensions of non-conforming uses which involve the provision of off-street parking are subject to the regulations set forth in Article I, Chapter 3, and in the Long Island City area, as defined in Section 16-02 (Definitions), such enlargements or extensions are subject to the regulations set forth in Article I, Chapter 6.

In the case of a conflict between these provisions and retail continuity provisions that apply to the ground floor of buildings, a non-conforming use on the ground floor in such building may be changed only to a conforming use.

Except for the use of land with minor improvements, in Commercial Districts or Manufacturing Districts, a use which is non-conforming with respect to the applicable district regulations on performance standards, may be enlarged or extended, provided that:

1. such enlarged or extended portion does not occupy more than 25 percent of the floor area or space which such non-conforming use occupied or utilized within the building or other structure at the time when it became non-conforming; provided, however, that in no event shall any such enlargement or extension create a non-compliance or increase the degree of non-compliance of a non-complying building or other structure;
2. such enlarged or extended portion conforms to the applicable district regulations on performance standards and on accessory off-street parking spaces and loading berths, as set forth in Section 52-41 (General Provisions); and 
3. such non-conformance with the performance standards was not self-created.

In the specified districts, such use may be extended into any floor area where it would be permitted as a changed use under the provisions of Section 52-35 (Manufacturing or Related Uses in Commercial Districts), provided that the applicable district regulations on performance standards and accessory off-street loading berths, as set forth in Section 52-41 (General Provisions), shall apply to such extended floor area.

In all Residence Districts, except R1 and R2 Districts, a fire station may be enlarged or extended, provided that:

(a)        such enlarged or extended portion does not occupy more than 25 percent of the floor area or space which such non-conforming use occupied or utilized within the building or other structure at the time when it became non-conforming;

(b)        such enlargement or extension shall not create a non-compliance or increase the degree of non-compliance; and

(c)        such enlarged or extended portion conforms to the applicable district regulations on accessory off-street parking spaces as set forth in Section 52-41 (General Provisions).

Community facility bulk regulations as set forth in Article II, Chapter 4, shall apply to such enlarged or extended fire stations.

In an M1 District, a non-conforming residential use occupying at least 50 percent of the floor area of a building which was designed for residential use and erected prior to December 15, 1961, may be extended on the ground floor level provided that no dwelling unit or rooming unit may be located on or below a story occupied by a commercial or manufacturing use. The total number of dwelling units or rooming units in the building may not be increased by more than one for each 400 square feet of residential floor area created by such extension.

In M1-1D, M1-2D, M1-3D, M1-4D and M1-5D Districts, a building containing conforming or non-conforming residential uses may be enlarged and the residential uses extended thereby, provided that no non-residential uses exist above the level of the first story ceiling.

Such enlargement is subject to all of the following regulations:

(a)        There shall be no increase in the number of dwelling units in the building beyond the lawful number in existence on December 21, 1989.

(b)        The total amount of residential floor area in the building shall not exceed 500 square feet additional to the residential floor area in existence on December 21, 1989, or a floor area ratio of 1.65, whichever is less.

(c)        No residential enlargement shall be permitted within 30 feet of the rear lot line.

(d)        No enlarged portion shall exceed a height of 32 feet above curb level.

(e)        No side yards shall be required. However, if any open area extending along a side lot line is provided at any level it shall have a width of not less than eight feet. However, enlargements of single-family or two-family residences existing as of June 20, 1988 shall be exempt from this requirement, provided such enlarged building does not exceed a height of two stories.

Enlargements in excess of those permitted in this Section, and enlargements that create additional dwelling units may be permitted by authorization of the City Planning Commission, pursuant to the regulations of Sections 42-321 (Residential uses in M1-1D through M1-5D Districts) and 42-322 (Use regulations in M1-6D Districts).

Except as set forth in Section 52-80 (REGULATIONS APPLYING TO NON-CONFORMING SIGNS), inclusive, if a non-conforming building or other structure is damaged, destroyed or demolished, the provisions set forth in Sections 52-52 to 52-56, inclusive, shall apply.

However, if a non-conforming single- or two-family residence in an R3, R4, or R5 District is damaged, destroyed or demolished, such building may be continued in use and reconstructed provided that such reconstruction shall not create a new non-compliance nor increase the pre-existing degree of non-compliance with the applicable bulk regulations.

In all districts, if a non-conforming building or other structure or other improvement located on land with minor improvements is damaged or destroyed by any means, including but not limited to, any demolition ordered or permitted by the Department of Buildings, to the extent of 25 percent or more of the assessed valuation of all buildings or other structures or other improvements thereon (as determined from the assessment rolls effective on the date of damage or destruction), such non-conforming use shall terminate, and the zoning lot shall thereafter be used only for a conforming use.

In all Residence Districts, if the floor area occupied by non-conforming uses within a building designed for residential use is damaged or destroyed by any means, including but not limited to, any demolition ordered or permitted by the Department of Buildings, to the extent of 25 percent or more of such floor area, such building may be continued in use or reconstructed only in accordance with the provisions of Section 52-53 (Buildings or Other Structures in All Districts) except that the 25 percent ratio set forth in this Section shall apply instead of the 50 percent ratio set forth in Section 52-53.

In the event that a building or other structure substantially occupied or utilized by a non-conforming use is damaged or destroyed to a lesser extent than that specified in Sections 52-51 to 52-54, inclusive, relating to Damage, Destruction or Demolition, the building or other structure may be restored and the non-conforming use of such building or other structure or zoning lot may be continued, provided that such restoration shall not create a non-compliance or increase the degree of non-compliance, if any, existing prior to such damage, destruction or demolition.

In the case of damage or destruction of less than 75 percent of the total floor area of a non-conforming building containing three or more dwelling units in an M1-1D, M1-2D, M1-3D, M1-4D or M1-5D District, such building may be repaired or reconstructed, and its residential use continued, subject to the following regulations:

(a)        there shall be no increase in the number of dwelling units in the building beyond the lawful number in existence prior to such damage and destruction; and

(b)        there shall be no increase to the pre-existing amount of floor area except as expressly provided in Section 52-46 (Conforming and Non-conforming Residential Uses in M1-1D Through M1-5D Districts).

Enlargements in excess of those permitted, pursuant to paragraph (b) of this Section, and enlargements that create additional dwelling units, may be permitted by authorization of the City Planning Commission pursuant to the regulations of Section 42-321 (Residential uses in M1-1D through M1-5D Districts).

If, for a continuous period of two years, either the non-conforming use of land with minor improvements is discontinued, or the active operation of substantially all the non-conforming uses in any building or other structure is discontinued, such land or building or other structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing.

The provisions of this Section shall not apply where such discontinuance of active operations is directly caused by war, strikes or other labor difficulties, a governmental program of materials rationing, or the construction of a duly authorized improvement project by a governmental body or a public utility company.

However, the provisions of this Section shall also not apply to vacant ground floor or basement stores in buildings designed for residential use located in R1 through R10 Districts, where the changed or reactivated use is a use listed in Use Group VI that would be permitted in a C1 District that is a select commercial overlay, or an office, as listed in Use Group VII. 

In addition, the changed or reactivated use shall be subject to the provisions of Section 52-34 (Commercial Uses in Residence Districts).

In M1-1D, M1-2D, M1-3D, M1-4D and M1-5D Districts, vacant floor area in a building originally designed as dwelling units or rooming units may be occupied by a residential use provided that the requirements of either paragraph (a) or (b) are met.

(a)        Residential uses in such buildings may be reactivated as-of-right, provided:

(1)        the floor area has been continuously vacant for two years or more;

(2)        the street line of the zoning lot upon which the discontinued building stands does not exceed 60 feet in length (or, in the case of a corner lot, the lot area does not exceed 6,800 square feet); and

(3)        the zoning lots abutting on both side lot lines and fronting on the same street (or streets, if a corner lot) are occupied by buildings designed for residential use and contain no manufacturing uses.

(b)        Residential uses in such buildings may be reactivated by authorization of the City Planning Commission, provided:

(1)        the floor area has been continuously vacant for two years or more;

(2)        the street line of the zoning lot upon which the discontinued building stands does not form a continuous frontage with vacant land or land with minor improvements whose aggregate length exceeds 60 feet (or, in the case of a corner lot, the lot area does not exceed 6,800 square feet);

(3)        the zoning lot abutting on one side lot line and fronting on the same street is occupied by either:

(i)        a building designed for residential use or a community facility building; or

(ii)        a building originally designed as dwelling units or rooming units for which an application to reactivate residential use in such building has been combined with the subject application;

(4)        25 percent or more of the aggregate length of the block fronts on both sides of the street facing each other is occupied by zoning lots containing community facility buildings or buildings containing residences; and

(5)        the Commission finds that:

(i)        reactivating the residential use will not adversely affect manufacturing or commercial uses in the district; and

(ii)        such residential use will not be exposed to excessive noise, smoke, dust, noxious odor, or other adverse impacts from manufacturing or commercial uses.

In granting such authorization, the Commission may prescribe additional conditions and safeguards as the Commission deems necessary.

The number of dwelling units permitted in such reactivated building containing residences shall not exceed the greater of the number of lawful dwelling units last recorded by the Department of Buildings, or one dwelling unit for every 675 square feet of total net residential floor area as defined in Section 28-02 (Definitions).

No dwelling unit shall be permitted on or below a story occupied by a commercial or manufacturing use.

Residential uses in M1-D Districts may enlarge pursuant to the regulations of Sections 52-46 (Conforming and Non-conforming Residential Uses in M1-1D Through M1-5D Districts) or 42-321 (Residential uses in M1-1D through M1-5D Districts) as applicable.

In specified districts, specified non-conforming signs, specific non-conforming uses of land with minor improvements, specified non-conforming objectionable uses, certain specific types of uses involving open storage or salvage, non-conforming adult establishments, or certain non-conforming public parking lots may be continued for a reasonable period of useful life as set forth in this Chapter, provided that after the expiration of that period such non-conforming uses shall terminate in accordance with the provisions of this Chapter.

In all Residence Districts, a non-conforming use of land with minor improvements that is listed in Use Groups IV, VI, VII, VIII, IX or X and not permitted as-of-right within C7 Districts, may be continued for three years after December 15, 1961, or such later date that the use becomes non-conforming, provided that after the expiration of that period such non-conforming use shall terminate, and thereafter such land shall be used only for a conforming use.

In all Residence Districts, any open use involving waste or high-hazard material storage in Use Groups IV(B) or IX, other than a use of land with minor improvements that:

(a)        involves activities not located within a completely enclosed building; and

(b)        involves the use of buildings or other structures or other improvements with a total assessed valuation, excluding land, of less than $20,000 as determined from the assessment rolls effective on the date established for termination;

may be continued for 10 years after December 15, 1961, or such later date that the use becomes non-conforming, provided that after the expiration of that period such non-conforming use shall terminate, and thereafter such land or building or other structure shall be used only for a conforming use.

In all districts, non-conforming building materials or contractors' yards, or non-conforming junk or salvage yards, including auto wrecking or similar establishments, or non-conforming scrap metal, junk, paper or rags storage, sorting or baling may be continued subject to the applicable provisions set forth herein, whichever impose the greater restriction.

(a)        In Residence Districts, where such use constitutes a non-conforming use of land with minor improvements, the provisions of Section 52-72 (Land With Minor Improvements) apply.

(b)        In Residence Districts, where such use constitutes a use other than a use of land with minor improvements, and meets the criteria set forth in Section 52-74 (Uses Objectionable in Residence Districts), the provisions of Section 52-74 apply.

(c)        In all districts where such use is non-conforming with respect to the required enclosure as set forth in the listing of such use in Section 42-19 (Use Group IX – Storage) and is either conforming or non-conforming in other respects, it may be continued without such enclosure until a date three years from February 8, 1968, or from such later date that the use becomes non-conforming. Thereafter, any such use which does not conform with the enclosure requirements shall be terminated, and the land shall be used only for a conforming use.

In all districts, a non-conforming adult establishment shall terminate within one year from October 25, 1995, or from such later date that the adult establishment becomes non-conforming, except that such establishment may be continued for a limited period of time by the Board of Standards and Appeals pursuant to Section 72-40 (AMORTIZATION OF CERTAIN ADULT ESTABLISHMENTS AND SIGNS FOR ADULT ESTABLISHMENTS). However, the provisions of this Section shall not apply to an adult establishment subject to the provisions of paragraph (f) of Section 32-01 or 42-01 (Special Provisions for Adult Establishments).

A non-conforming sign shall be subject to all the provisions of this Chapter relating to non-conforming uses, except as modified by the provisions of Sections 52-82 (Non-Conforming Signs other than Advertising Signs) and 52-83 (Non-Conforming Advertising Signs).

A change in the subject matter represented on a sign shall not be considered a change of use.

Any non-conforming sign, except a flashing sign or a sign subject to the provisions of Section 52-734 (Non-conforming signs for adult establishments), and except any advertising signs may be structurally altered, reconstructed or replaced in the same location and position, provided that such structural alteration, reconstruction or replacement does not result in:

(a)        the creation of a new non-conformity or an increase in the degree of non-conformity of such sign;

(b)        an increase in the surface area of such sign; or

(c)        an increase in the degree of illumination of such sign.

However, any structural alteration, reconstruction or replacement of a non-conforming sign accessory to a non-conforming use shall be subject to the provisions of Section 52-31 (General Provisions).

To the extent that such structural alteration, reconstruction or replacement of non-conforming signs is permitted under the provisions of this Section, the provisions of the following Sections are modified:

Section 52-22 (Structural Alterations)

Sections 52-51 to 52-55, inclusive, relating to Damage or Destruction.

In all Manufacturing Districts, or in C1, C2, C4, C5-4, C6, C7 or C8 Districts, except as otherwise provided in Sections 32-66 or 42-65 (Additional Regulations for Signs Near Certain Parks and Designated Arterial Highways), any non-conforming advertising sign except a flashing sign may be structurally altered, reconstructed or replaced in the same location and position, provided that such structural alteration, reconstruction or replacement does not result in:

(a)        the creation of a new non-conformity or an increase in the degree of non-conformity of such sign;

(b)        an increase in the surface area of such sign; or

(c)        an increase in the degree of illumination of such sign.

However, in Community District 1 in the Borough of Brooklyn, a non-conforming advertising sign may be structurally altered, reconstructed or replaced in a different location, and may create a new non-conformity or non-compliance, or an increase in the degree of non-conformity or non-compliance, provided such sign is reconstructed pursuant to a Certificate of Appropriateness from the Landmarks Preservation Commission, is located on a landmark building that is part of a general large scale development, and there is no increase in the surface area or degree of illumination of such sign. Furthermore, the discontinuance provisions of Section 52-61 shall not apply to such sign, provided such sign is reconstructed on the landmark building prior to the issuance of a temporary certificate of occupancy for any use within such building.

No sign that exceeds or is otherwise in violation of any illumination standard established by rule of the Department of Buildings shall be non-conforming as to such illumination standard one year after such rule becomes effective.

To the extent that such structural alteration, reconstruction or replacement of non-conforming advertising signs is permitted under the provisions of this Section, the provisions of the following Sections are modified:

Section 52-22 (Structural Alterations)

Sections 52-51 to 52-55, inclusive, relating to Damage or Destruction.