Chapter 17.46
NONCONFORMING USES, BUILDINGS AND LOTS
Sections:
17.46.020 Nonconforming status.
17.46.030 Continuation of existing uses.
17.46.040 Duration of nonconforming use status.
17.46.050 Duration of nonconforming building status.
17.46.060 Repairs, alterations and maintenance.
17.46.090 Modification of a nonconforming use.
17.46.100 Proceedings to determine that a nonconforming use is no longer lawful.
17.46.110 Restoration of damaged nonconforming structures.
17.46.120 Expansion of nonconforming uses and buildings or other structures.
17.46.130 Rules governing the expansion of nonconforming buildings.
17.46.010 Purpose.
This chapter regulates nonconforming uses, buildings, and lots other than nonconforming signs, which are regulated elsewhere in this title. (Ord. 495 § 1, 2005)
17.46.020 Nonconforming status.
A. Nonconforming status begins only because of:
1. Annexation of territory to the city.
2. Amendment to this chapter, a previous zoning ordinance of the city or EMC Title 16, Subdivisions.
3. Rezoning.
B. A use or a building which was lawfully begun (or in the case of a building, lawfully erected) but which lacks a conditional use permit currently required by this chapter is nonconforming and subject to the rules of this chapter. (Ord. 495 § 1, 2005)
17.46.030 Continuation of existing uses.
Any use, building or other structure existing on the effective date of the ordinance codified in this title which does not conform with the provisions of this title for the zone in which it is located shall be deemed to be a nonconforming use, building or other structure and may be continued except as hereinafter specified; provided, however, that this section does not apply to any use, building or other structure established in violation of the zoning ordinance previously in effect. (Ord. 495 § 1, 2005)
17.46.040 Duration of nonconforming use status.
A. This section regulates the duration of nonconforming uses. A nonconforming use must cease at the end of the applicable period.
B. The following uses are allowed to continue indefinitely:
1. Nonconforming residential use.
2. Schools.
3. Churches.
4. Residential care facilities.
5. Commercial uses that are nonconforming as to parking. However, parking must be provided to the maximum extent possible given existing physical constraints of the property such as building location and coverage, trees and other physical barriers or features. Any commercial property that is nonconforming as to parking shall not be allowed to intensify use or improve the property other than as required for normal maintenance. Examples of changes that would be permitted are painting, normal maintenance to utility systems, signage with required permits, and change of use that does not require parking in addition to that required for the previous use.
C. Where there are improvements on the land, but of a type for which no building permit would currently be required such as a parking lot or accessory structure, the nonconforming use must cease three years from the date the use becomes nonconforming.
D. Where the land is improved with one or more structures of a type for which a building permit would currently be required and the structure(s) are utilized in connection with the nonconforming use, the authorized period of duration of the nonconforming use is 20 years from December 1, 2004, or 20 years from the date the use became nonconforming, whichever is later.
E. Where a zoning amendment is adopted which causes a use to be nonconforming solely by subjecting it to the requirement of obtaining a conditional use permit, all uses affected by the amendment must apply for a use permit within 24 months after the amendment becomes effective. Failure to make such application shall render the subject use immediately unlawful. (Ord. 495 § 1, 2005)
17.46.050 Duration of nonconforming building status.
A nonconforming office, commercial or industrial building located in a residential zone must, by demolition, removal or alteration, be made to conform with the rules of the zone when the building is older than shown on the following schedule:
A. CBC Type IV or V buildings: 35 years.
B. CBC Type II or III buildings: 40 years.
C. CBC Type I buildings: 50 years.
When any of the foregoing time periods have elapsed, the building in question no longer has status as a nonconforming building. However, when a nonconforming building houses a nonconforming use the building need not be made to conform until the nonconforming use ceases or expires as provided by this chapter, whichever comes first. Buildings that become nonconforming only as a result of the adoption of a floor area ratio shall be exempt from the provisions of this section. (Ord. 495 § 1, 2005)
17.46.060 Repairs, alterations and maintenance.
A. Ordinary nonstructural repairs, alterations, or maintenance may be made to a nonconforming building or structure as required to keep it in sound condition. Alterations or repairs of a structural nature to a nonconforming building or structure shall not be permitted except such as are required by law or ordinance or authorized by the planning commission upon obtaining a conditional use permit pursuant to this title; provided, however, that structural alterations or repairs may be made to a nonconforming residential building or structure which is used for residential uses in a zone in which residential uses are allowed.
B. Nothing in this chapter shall prevent the making of structural repairs or alterations or otherwise strengthening or restoring to a safe condition any part of any building or structure which is unsafe or which is substandard under any of the building codes specified in EMC Title 15, Buildings and Construction. (Ord. 495 § 1, 2005)
17.46.070 Change of use.
A. A nonconforming use which is determined by the planning commission to be of the same or a more desirable nature may be substituted for another nonconforming use; provided, that in each case a conditional use permit is first secured in accordance with the provisions of this title.
B. Whenever a nonconforming use has been changed to a conforming use, such use shall not thereafter be changed to a nonconforming use. (Ord. 495 § 1, 2005)
17.46.080 Cessation of use.
A. Where the nonconforming use of a building or structure has ceased for six continuous months or more, such building or structure shall not again be put to a nonconforming use.
B. When a nonconforming use of land not involving any building or structures, except minor structures such as fences, signs and buildings less than 400 square feet in area, has ceased for six continuous months or more, such land shall not again be put to a nonconforming use. (Ord. 495 § 1, 2005)
17.46.090 Modification of a nonconforming use.
A use which is nonconforming shall not be modified without obtaining a conditional use permit. A modification shall be defined as follows:
A. Any change that is an intensification of use, including but not limited to:
1. Additions to seating capacity or gross floor area;
2. Increase in parking required, other than the requirement of increases because of ordinance amendment;
3. Use of additional land;
4. Commencement of new activities; and/or
5. Increase in the number of hours of operation or staying open later and such change of hours imposes a new burden on the surrounding neighborhood.
B. Any change that is a substantial departure from plans which were the basis of any approved use. (Ord. 495 § 1, 2005)
17.46.100 Proceedings to determine that a nonconforming use is no longer lawful.
Failure to comply with any of the requirements of this chapter shall render an otherwise valid, nonconforming use unlawful. Proceedings to make a determination of such unlawfulness shall be held in the same manner as set forth for a zoning approval. Any notice given for such proceedings should indicate that the result of the proceeding may be cessation of the modified use or a continuation of the modified use with a conditional use permit. (Ord. 495 § 1, 2005)
17.46.110 Restoration of damaged nonconforming structures.
A. If a nonconforming single- or two-family dwelling, multiple-family dwelling, school or church located in any zone is damaged or destroyed, it may be rebuilt on the same foundation in substantially the same manner as it existed before its destruction.
B. If any other nonconforming building is destroyed above the foundation to the extent of more than 50 percent of its value, then without further action by the city such building and the land on which such building was located shall from and after the date of such destruction be subject to the regulations specified by ordinance for the zone where such land and building are located. Value is to be determined by the building official. (Ord. 495 § 1, 2005)
17.46.120 Expansion of nonconforming uses and buildings or other structures.
A. A nonconforming use of a lot, building or structure may only be expanded by securing a conditional use permit pursuant to this title.
B. The owner of a nonconforming building or structure has no right to expand a nonconforming building or structure.
C. A building permit may be issued for a building or structure which alters a nonconforming building or structure only after review by the city planner. An application (on a form approved by the city planner) for an alteration to a nonconforming building or structure shall be submitted to the planning department. The application shall include all information therein requested including, but not limited to, elevations, floor plan and a site plan showing the proposed location for the addition, the location of all relevant improvements existing on the site, and the location of adjacent public or private streets, roads, alleys, rights-of-way and the like.
D. The city planner shall review and approve, conditionally approve or disapprove all applications for a building permit for alteration of a legal nonconforming building or other structure, or may refer an application to the planning commission for consideration. The city planner shall review each application for compliance with the provisions of this title to ensure that the additional area to be added to a nonconforming structure is in compliance with all established zoning requirements. If a structure is nonconforming due to insufficient on-site parking, the city planner will evaluate the potential for the addition to increase the parking demand for the structure or building and may refer the permit to the planning commission for action. The city planner may attach conditions of approval as deemed appropriate, in the exercise of reasonable discretion, to secure compliance with the purpose and provisions of this chapter.
E. The approval, conditional approval or disapproval of an application for a permit for increasing the size of a legal nonconforming structure or other building shall be set forth in writing by the city planner and shall specify in the case of approval that the application is in compliance with the provisions of this section and the conditions attached to the approval, if any, and shall specify the reasons for disapproval in the event the application is disapproved. A copy of the written decision shall forthwith be given to the applicant. The decision made by the city planner may be appealed to the planning commission. (Ord. 495 § 1, 2005)
17.46.130 Rules governing the expansion of nonconforming buildings.
When expansion is allowed by this chapter, the following rules apply:
A. When a building is too close to a property line or street, any expansion or reconstruction may not be nearer to a property line than the existing building is to that property line. Reconstruction may only be allowed if the building official determines that the portion of the building proposed to be demolished has deteriorated to a point that reconstruction is necessary. The projections listed in the title except chimneys and bay windows may project beyond the wall of the expanded or reconstructed portion subject to meeting building code requirements.
B. When a building is too high, the expansion must be within the current height limitations of the zone in which located.
C. When a building covers too much land no expansion is allowed which would increase the coverage. However, second floor additions are allowed as long as the area of the second floor does not exceed the area allowed to be covered by the rules of the zone.
D. Approval can be denied if the expansion would in any way cause a safety problem or be detrimental to the public welfare.
E. The expansion must take place either on the zoning plot as it existed on the date the building became nonconforming or on the existing zoning plot, whichever is smaller.
F. The expansion must not impede the orderly development or redevelopment of neighboring property in a manner which will conform to both the general plan and the current zoning.
G. Approval of the expansion may not be inconsistent with the general policy of phasing out nonconforming uses. (Ord. 495 § 1, 2005)
17.46.140 Nonconforming lots.
The following provisions apply to nonconforming lots:
A. If the lot is in a residential zone and recognized by the city as a lawful lot pursuant to this title, a single-family dwelling may be constructed if site and architecture approval is obtained.
B. If the lot is in other than a residential zone, it may be used for any purpose allowed in the zone.
C. Any rule of the zone including front, side and rear yard requirements may be modified by the terms of the site and architecture approval so that the building and its use will be compatible with the neighborhood. (Ord. 495 § 1, 2005)