Chapter 19.55 Non-Conformance

Chapter 19.55
Non-Conformance

19.55.005 User Guide

This chapter establishes when and under what circumstances nonconforming aspects of a use, structure or site improvement must be brought into conformance with this Code. You need to consult the provisions of this chapter only if there is some aspect of a use, structure or site improvement that is not permitted or does not comply with this Code. [Ord. 268 § 2, 1999]

19.55.010 Purpose

The purpose of this chapter is to establish the legal status of a nonconformance by creating provisions through which a nonconformance may be maintained, altered, reconstructed, expanded or terminated. [Ord. 268 § 3, 1999]

19.55.015 General

1. This chapter applies to any use, structure or site improvement that does not conform to this Code as adopted or as amended.

2. If a use, structure or site improvement conformed to the applicable Zoning Code in effect at the time the use, structure or site improvement was constructed or initiated, that use, structure or site improvement may continue and need not be brought into conformance with this Code unless a provision of this Chapter requires conformance.

3. No nonconformance may in any way be enlarged, expanded, increased, intensified, compounded or made greater, except as permitted in this chapter. If a use, structure or site improvement is on or within 100 feet of any critical area, the provisions of BMC Chapter 19.40 apply.

4. The provisions of this chapter do not supersede or relieve a property owner from compliance with:

A. The requirements of the City of Burien Construction Code; or

B. The provisions of this Code beyond the specific nonconformance addressed by this chapter.

5. Any valid conditional use, variance, or permit approved under BMC Chapter 19.65 prior to the date that the use, structure or site improvement became non-conforming shall be permitted to continue in accordance with such approval.

6. If this Code requires that a use or structure be reviewed by any of the processes described in BMC Chapter 19.65, a proposal for expansion or modification of an existing use, structure or site improvement shall also be reviewed pursuant to such process if:

A. The area devoted to the use and/or structure is expanded by more than 10 percent; or

B. The Director determines that the change or alteration will have significantly more or different impact on the surrounding area than does the present development. In determining impact, the Director shall consider the scale of the proposed expansion or modification, and expected changes to traffic, noise, hours of operation, and parking. [Ord. 268 § 4, 1999]

19.55.020 Abatement of illegal uses, structures or sites

Any use, structure or site improvement that did not comply with the Zoning Code requirements in effect at the time it was established or constructed, and does not comply with this Code as now or hereafter amended, is illegal and shall be discontinued, terminated or brought into conformance with the provisions of this Code as now or hereafter amended. [Ord. 268 § 5, 1999]

19.55.025 Nonconforming and continuing uses

A nonconforming or continuing use may be continued and is transferable to a new owner or tenant, subject to the following conditions:

1. If a use is a nonconforming or continuing use, the applicable use zone chart in BMC Chapter 19.15 does not establish what regulations of this Code apply to that use in that zone. To determine which regulations apply, the Director will select the use in that zone that is most similar to the nonconforming or continuing use.

2. The following applies only to a continuing use:

A. The gross floor area and the area devoted to outdoor use, activity or storage may be expanded under the following conditions:

i. Such expansion shall comply with applicable development regulations in BMC Chapter 19.15 (including but not limited to setbacks and landscaping); and

ii. Expansion may occur on contiguous lots if on November 1, 1999, the continuing use and contiguous lot were owned by the same property owner and have remained joined through any ownership transfer.

B. A continuing use must be brought into conformance or discontinued if the use has ceased for 12 or more consecutive months.

3. Except as authorized in BMC 19.55.025.4 or .5, any nonconforming use that does not qualify as a continuing use under BMC 19.55.025.2 must be brought into conformance or discontinued if:

A. The applicant is increasing the gross floor area of any structure that houses or supports the nonconforming use; or

B. The applicant is increasing the area devoted to outdoor use, activity or storage associated with the nonconforming use; or

C. The nonconforming use has ceased for 12 or more consecutive months;

4. The Director, through a Type 1 review, may allow up to a 10 percent increase in the area of land or structure occupied by the nonconforming use on the date of adoption of this Code, or any subsequent amendments. In deciding whether to grant such request, the Director shall use the criteria in BMC 19.55.025.5.

5. The City Council, through the Type 3 review process, may modify or waive any of the provisions in BMC 19.55.025.2 or 3, based on a finding that the proposal:

A. Does not create an expansion that would be detrimental to adjacent properties; and

B. Improves aspects of safety or function of the nonconformance. [Ord. 560 § 1 (Exh. A), 2012; Ord. 268 § 6, 1999]

19.55.030 Nonconforming structures

A nonconforming structure may remain and be used, provided that:

1. A nonconforming structure shall not be expanded unless the expansion conforms to the regulations of this Code or as follows:

A. A structure in an RS or RM zone with nonconforming setbacks may extend horizontally and vertically along existing building setbacks (see Figure 19.55-1) if the proposed expansion:

i. Will not endanger public safety; and

ii. Will not interfere with adopted City plans or regulations requiring additional right-of-way width; and

iii. Is not an expansion of a setback previously authorized by a City of Burien variance process or Type 1, 2, or 3 land use review. In this case, a new variance or Type 1, 2 or 3 land use review application is required; and

iv. Will not create any new nonconformance in height or setback.

B. An increase in nonconforming building coverage and/or impervious surface coverage is permitted when each new square foot of impervious surface is offset by a reduction of two square feet of existing impervious surface, or until the site is in conformance with the current requirements for the maximum allowed impervious surface coverage.

2. If moved, the structure shall be made to conform to this Code;

3. If the structure is damaged or destroyed, it may be reconstructed or repaired provided that:

A. The fire or other casualty was not intentionally caused by the applicant or owner of the structure; and

B. The damage or destruction was not due to abatement or voluntary demolition beyond 50% of the assessed value of the nonconforming structure as established by the most current county assessor’s tax roll; and [Ord. 523 § 1, 2009]

C. Except as allowed in BMC 19.55.030.1, the extent of the previously existing nonconformance is not increased and a new nonconformance is not created; and

D. A complete building permit application for repair or reconstruction is submitted within 12 months of the occurrence of the damage or destruction; and

E. Construction conforms with the provisions of the City of Burien Construction Code in effect at the time when the complete building permit application is submitted.

4. The City Council, through the Type 3 review process, may modify or waive any of the provisions in Sec. 19.55.030.1 through 3 above, based on a finding that the proposal:

A. Does not create an expansion that would be detrimental to adjacent properties; and

B. Improves aspects of safety or function of the nonconformance.

5. Any nonconforming structure for which a valid building permit has been issued prior to the effective date of this Code as now or hereafter amended, may be completed and used in accordance with the provisions of this Code as now or hereafter amended, provided that such structure is completed essentially in accordance with the plans and specifications on which the building permit was issued. [Ord. 560 § 1 (Exh. A), 2012; Ord. 268 § 7, 1999]

19.55.035 Nonconforming site improvements

A nonconforming site improvement shall be made conforming if:

1. The structure or use associated with the nonconforming site improvement is enlarged or expanded;

2. The use associated with the nonconforming site improvement changes to a new use that requires different and greater site improvements. For example, if a new use requires more parking under this Code than the old use, then the additional parking stalls required for the new use must be provided.

3. The structure associated with the nonconforming site improvement is damaged or destroyed by fire or other casualty, and the valuation of the damage exceeds 50 percent of the current King County assessment value for the land and improvements, as determined by BMC Title 15 (definition of valuation);

4. The Director may modify or waive any of the provisions in Sec. 19.55.035.1 through 3 above, based on a written finding that the proposal:

A. Would not be detrimental to adjacent properties; and

B. Complies with the purpose and intent of the site improvement that is nonconforming;

The Director’s decision may be appealed to the Hearing Examiner using the appeal process established for an appeal of a Type 1 decision.

5. Any nonconforming site improvement for which a valid building permit has been issued prior to the effective date of this Code, may be completed and used in accordance with the provisions of this Code, as amended, provided that the site improvement construction is completed in accordance with the plans and specifications on which the building permit was issued. [Ord. 268 § 8, 1999]

FIGURE 19.55-1