Chapter 18.85
NONCONFORMING USES AND NONCOMPLYING STRUCTURES
Sections:
18.85.020 Determination of nonconforming status.
18.85.030 Authority to continue.
18.85.040 Abandonment or loss of nonconforming use.
18.85.050 Moving, enlarging, or altering nonconforming uses.
18.85.060 Noncomplying structures.
18.85.070 Ordinary repair and maintenance and structural safety.
18.85.010 Purpose.
This chapter regulates the continued existence of nonconforming uses and noncomplying structures as defined in Chapter 18.10 HMC. While nonconforming uses, noncomplying structures and improvements may continue, this chapter is intended to limit enlargement, alteration, restoration, or replacement which would increase the discrepancy between existing conditions and the development standards prescribed by this code. In addition, applications are reviewed to ensure that they are reducing the degree of nonconformity and improving the physical appearance of the structure and site through such measures as landscaping, building design, or the improved function of the use in relation to other uses. [Ord. 2010-5. Code 1988 § 11-6.1].
18.85.020 Determination of nonconforming status.
A. Burden on Owner to Establish Legality. The owner bears the burden of establishing that any nonconforming use or noncomplying structure lawfully exists. Acceptable documentation shall include plat maps, tax records, previous zoning ordinances, and building permits.
B. Determination of Status. The planning commission shall determine the nonconforming or noncomplying status of properties. Any decision of the planning commission may be appealed within 10 calendar days of the final decision to the appeal authority. [Ord. 2010-5. Code 1988 § 11-6.2].
18.85.030 Authority to continue.
A. Continuation of Nonconforming Use. A lawful nonconforming use may continue subject to the standards and limitations of this chapter.
B. Continuation of Noncomplying Structure. A noncomplying structure that was lawfully constructed with a permit prior to a contrary change in this code may be used and maintained, subject to the standards and limitations of this chapter. [Ord. 2010-5. Code 1988 § 11-6.3].
18.85.040 Abandonment or loss of nonconforming use.
A. Abandonment of Nonconforming Use. A nonconforming use that is discontinued for a continuous period of 12 months is presumed abandoned and shall not thereafter be reestablished or resumed. Any subsequent use of the building, structure, or land must conform to the regulations for the zoning district in which it is located.
B. Rebuttable Presumption of Abandonment. The presumption of abandonment may be rebutted upon showing that during such period:
1. Any period of discontinued use was caused by governmental actions or an act of God without any contributing fault by the owner and the owner did not intend to discontinue the use; or
2. The owner can demonstrate no abandonment of the use. [Ord. 2010-5. Code 1988 § 11-6.4].
18.85.050 Moving, enlarging, or altering nonconforming uses.
No nonconforming use may be moved, enlarged, altered, or occupy additional land, except as provided in this chapter.
A. Enlargement. A nonconforming use may not be enlarged, expanded, or extended to occupy all or a part of another structure or site that it did not occupy on the date on which the use became nonconforming. A nonconforming use may be extended through the same building or structure provided no structural alteration of the building or structure is proposed or made for the purpose of the extension and the parking demand is not increased.
B. Exterior or Interior Remodeling or Improvements to Building or Structure. Exterior or interior remodeling or improvements to a structure containing a nonconforming use shall be allowed provided there is no expansion of the area of the nonconforming use.
C. Relocation of Building or Structure. A building or structure containing a nonconforming use may not be moved unless the use shall thereafter conform to the regulations of the zoning district into which the building or structure is moved.
D. Change of Nonconforming Use to a Conforming Use. Whenever any nonconforming use is changed to a conforming use, such use shall not later be changed back to a nonconforming use.
1. Application. Application for any nonconforming use must be made upon forms provided by the city recorder. Upon filing of a complete application, the city shall post the property indicating that an application for modification of a nonconforming use has been filed and that more detailed information may be obtained from the city.
2. Notification of Abutting Property Owners. Notice shall be provided pursuant to the notice matrix in Chapter 18.15 HMC.
3. Planning Commission Meeting. Within 45 calendar days of the receipt of a complete application, and after giving public notice, the planning commission shall hold a public meeting on the nonconforming use application. The commission shall either grant the application in whole or in part, with or without modifications or conditions, or deny the application. The commission’s decision shall be made pursuant to criteria provided below.
4. Criteria. The planning commission shall approve an application to change a nonconforming use to another nonconforming use if the applicant proves the following criteria:
a. All reasonable measures will be undertaken to alleviate or reduce the incompatibility or adverse effects of the nonconforming use or building upon abutting properties or in the neighborhood;
b. All changes, additions, or expansions comply with all current laws except as to use;
c. The new use, if applicable, will provide for enclosed storage of necessary equipment, materials, and refuse, rather than create a need for additional outside storage; and
d. The new use does not increase the parking requirement; or if there is an increase, the site plan meets the parking requirement and the planning commission finds that adjoining properties and the neighborhood will not be adversely impacted by the increased parking demand. [Ord. 2010-5. Code 1988 § 11-6.5].
18.85.060 Noncomplying structures.
No noncomplying structure may be moved, enlarged, or altered, except in the manner provided in this chapter or unless required by law.
A. Repair, Maintenance, Alteration, and Enlargement. Any noncomplying structure may be repaired, maintained, altered, or enlarged; provided, that such repair, maintenance, alteration, or enlargement shall neither create any new noncompliance nor shall increase the degree of the existing noncompliance of all or any part of such structure.
B. Moving. A noncomplying structure shall not be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zone in which it will be located. [Ord. 2010-5. Code 1988 § 11-6.6].
18.85.070 Ordinary repair and maintenance and structural safety.
The owner may complete normal maintenance and incidental repair on a complying structure that contains a nonconforming use or on a noncomplying structure. This chapter shall not be construed to authorize any violations of law nor to prevent the strengthening or restoration to a safe condition of a structure in accordance with an order of the building official who declares such structure to be unsafe and orders its restoration to a safe condition. [Ord. 2010-5. Code 1988 § 11-6.7].
18.85.080 Right to rebuild.
It shall be the right of each property owner of a legal noncomplying structure to rebuild said structure in the event of a fire, earthquake, flood or any other natural disaster, calamity or circumstance beyond the control of the property owner. Said property owner shall have a right to rebuild a noncomplying structure, and continue any legal conforming or legal nonconforming use of the structure, that was in operation at the time of the disaster that significantly damaged or destroyed it. A noncomplying structure may only be rebuilt if the structure is completely destroyed or sustains significant damage to the point of unsafe occupancy conditions as determined by the building official. [Ord. 2010-5. Code 1988 § 11-6.8].
18.85.090 Appeals.
Appeal from a planning commission decision made pursuant to this chapter shall be made to the appeal authority. Any person filing an appeal for review of any decision made under the terms of this chapter shall file such appeal within 30 days after the date of the planning commission’s final decision. [Ord. 2010-5. Code 1988 § 11-6.9].