Chapter 17.114
NONCONFORMING BUILDINGS AND USES
Sections:
17.114.010 Nonconforming use of land.
17.114.020 Nonconforming use of a building.
17.114.040 Nonconforming lots of record.
17.114.050 Cessation of nonconforming use of building and land.
17.114.060 Repair to nonconforming structures.
17.114.070 Destruction of nonconforming structures.
17.114.080 Enlargement or extension of nonconforming buildings.
17.114.085 Improvements or additions to nonconforming residential structures.
17.114.090 Extension of nonconforming use throughout a building.
17.114.100 Change of nonconforming use.
17.114.110 Conditional uses are not nonconforming uses.
17.114.120 Effect of change of zones.
17.114.130 Repeal of former ordinance does not change nonconforming status.
17.114.140 Variance uses may continue.
17.114.150 Expansion of nonconforming uses.
17.114.010 Nonconforming use of land.
The lawful use of land existing on the effective date of the ordinance codified in this title, although such use does not conform to the regulations specified for the zone in which such land is situated, may be continued; provided, that no such use shall be enlarged or increased, or be extended to occupy a greater area than that occupied by such use at the time of the passage of the ordinance codified in this title, and if any such use ceases, as hereinafter provided, subsequent use of such land shall be in conformity with the regulations specified in this title for the zone in which such land is situated. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.010.]
17.114.020 Nonconforming use of a building.
The lawful use of a building existing on the effective date of the ordinance codified in this title may be continued although such building or the use made thereof does not conform to the regulations specified for the zone in which such building is located. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.020.]
17.114.040 Nonconforming lots of record.
A. Notwithstanding MCC 17.110.680 and Chapter 17.172 MCC, any lot created by deed, plat or subdivision prior to September 1, 1977, is considered legally created for the purposes of applying the land use code.
B. For a lot or parcel created by sale on or after September 1, 1977, but before January 1, 2007, an application to validate a unit of land that did not comply with the applicable criteria for creation of a unit of land may be approved if:
1. The unit of land could have complied with the applicable criteria for the creation of a lawfully established unit of land in effect when the unit of land was sold.
2. Notwithstanding subsection (A) of this section, an application to validate a unit of land may be approved if the county approved a land use permit, as defined in ORS 215.402, for the construction or placement of a dwelling or other building on the unit of land after the sale. If the permit was approved for a dwelling, the county must determine that the dwelling qualifies for replacement under the criteria set forth in MCC 17.136.030(D)(1) through (5).
3. An application to validate a unit of land under this section is an application for a land use permit, as defined in ORS 215.402. An application under this section is not subject to the minimum lot or parcel sizes established by ORS 215.780.
4. The unit of land becomes a lawfully established parcel when the county validates the unit of land under this section if the owner of the unit of land causes a partition plat to be recorded within 90 days after the date the county or city validates the unit of land.
5. Development or improvement of a parcel created under subsection (B)(4) of this section must comply with the applicable laws in effect when a complete application for the development or improvement is submitted.
6. An application for a land use permit, as defined in ORS 215.402, or a permit under the applicable state or local building code for the continued use of a dwelling or other building on a unit of land that was not lawfully established may be approved if:
a. The dwelling or other building was lawfully established prior to January 1, 2007; and
b. The permit does not change or intensify the use of the dwelling or other building; and
c. There are no other violations on the property. [Ord. 1369 § 4 (Exh. B), 2016; Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.040.]
17.114.050 Cessation of nonconforming use of building and land.
If the actual operation of a nonconforming use of a building ceases for a continuous period of one year, such building and the land on which it is located shall then be subject to all the regulations, except required setback and off-street parking, specified in this title for the zone in which such land and building is situated. In case the nonconforming use of land where no building is involved ceases for a period of 30 days, then such land shall be subject to all the regulations specified for the zone in which the land was located. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.050.]
17.114.060 Repair to nonconforming structures.
A nonconforming structure may be repaired and maintained so long as any such repair or maintenance does not in any way increase its nonconformity and it remains otherwise lawful. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.060.]
17.114.070 Destruction of nonconforming structures.
A. Restoration or replacement of any lawful nonconforming building or structure may be permitted when the restoration is made necessary by fire, other casualty or natural disaster.
B. When it is permissible to restore or replace any lawful nonconforming building or structure, restoration or replacement shall be commenced within one year from the occurrence of the fire, casualty or natural disaster. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.070.]
17.114.080 Enlargement or extension of nonconforming buildings.
A nonconforming building may be enlarged, extended, or structurally altered provided such enlargement, extension or structural alteration itself conforms in all respects to the regulations specified by this title for the zone in which such building is located, but otherwise it shall be unlawful to enlarge, extend or structurally alter any nonconforming building.
For buildings where the structure is nonconforming for property line setback only, a one-time expansion is allowed that extends the linear setback nonconformance no more than 10 percent, or not more than 10 feet, whichever is greater. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.080.]
17.114.085 Improvements or additions to nonconforming residential structures.
Additions and improvements may be made to nonconforming residential structures located in industrial zones, provided such additions comply with the regulations specified by this title for the RS zone (see Chapter 17.131 MCC). [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.085.]
17.114.090 Extension of nonconforming use throughout a building.
A nonconforming use of a portion of a building may be extended throughout the entire building; provided, that such extension be approved by the director, planning commission or hearings officer after proceedings are had as in this title provided for variances and adjustments. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.090.]
17.114.100 Change of nonconforming use.
The nonconforming use of a building may be changed to a use of the same or more restricted nature when such change of use is approved by the director, planning commission or hearings officer after proceedings are had as in this title provided for variances and adjustments. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.100.]
17.114.110 Conditional uses are not nonconforming uses.
Any use which is permitted as a conditional use as provided in this title shall not be deemed a nonconforming use, but shall, without further action, be deemed a conforming use, qualified with such conditions as the director, planning commission or hearings officer has required. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.110.]
17.114.120 Effect of change of zones.
Whenever any premises are reclassified or changed from one zone to another, the provisions of this title dealing with nonconforming uses and buildings shall apply to any use or building in the area reclassified or changed from one zone to another. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.120.]
17.114.130 Repeal of former ordinance does not change nonconforming status.
Any use conducted or established, or any building or structure erected or maintained at and before the effective date of the ordinance codified in this title in violation of any planning or zoning ordinance then in effect, which use, building or structure, or the establishment, erection, or maintenance whereof is also unlawful under this title, shall not be classified as a nonconforming use by virtue of the repeal of any such former ordinance; and continuation of any such use, building or structure shall constitute a violation of this title. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.130.]
17.114.140 Variance uses may continue.
Any use or building heretofore lawfully established or erected pursuant to the variance provisions of any ordinance (except that those buildings or uses which were established as permitted variances by said ordinance shall be considered as conditional uses and shall be maintained in the manner prescribed for conditional uses in MCC 17.119.010 through 17.119.070) may continue to be used and may continue to be maintained as heretofore authorized, even though the ordinance authorizing the same, or pursuant to which ordinance such use or building was established or erected, has since been repealed and notwithstanding the fact that such variance, local option use or building is not permitted under the terms of the present ordinance; provided, however, such use shall not be changed unless the change be made to a use permitted under this title.
For purposes of verifying a nonconforming use, an applicant may not be required to provide verification to prove the existence, continuity, nature and extent of the use for a period exceeding 20 years immediately preceding the date of application. [Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.140.]
17.114.150 Expansion of nonconforming uses.
A nonconforming use may be enlarged, expanded, or extended wholly on the same lot or parcel or on an adjacent lot or parcel consistent with the criteria below when such enlargement, expansion or extension is approved by the planning commission, hearings officer, or planning director through the variance proceedings set forth in Chapter 17.122 MCC. Any approval by the planning commission, hearings officer, or planning director of an application for the enlargement, expansion or extension of a nonconforming use shall be allowed only after findings are made which reflect the following considerations:
A. The intent and purpose of the zoning or zone change which caused the subject use to become nonconforming;
B. Adverse impact of the expansion of the nonconforming use on the interests sought to be protected by the zone in which the subject property is located;
C. The availability, including economic factors, of other property where the subject use would be a conforming and permitted use;
D. The availability of other appropriate remedies;
E. The presence of unnecessary, unreasonable hardships or practical difficulties which can be relieved only by approving the request;
F. Whether the request is the minimum necessary to permit development of the property for the proposed use;
G. Whether the request will not have a significant adverse effect on property or improvements in the neighborhood of the subject property;
H. Whether the request will not have a significant adverse effect upon the health or safety of persons working or residing in the vicinity.
The approval of an application under this section does not waive the status of the nonconforming use. [Ord. 1369 § 4 (Exh. B), 2016; Ord. 1271 § 5, 2008; Ord. 1168 § 5, 2002; Ord. 1125 § 4, 2000. RZ Ord. § 114.150.]