40.530.010 Nonconforming Lots, Structures and Uses
A. Purpose.
Lots, uses, and structures exist which were lawful when established but whose establishment would be restricted or prohibited under current zoning regulations. The intent of this chapter is to allow continuation of such nonconforming uses and structures. It is also the intent of this chapter to, under certain circumstances and controls, allow modifications to nonconforming uses and structures consistent with the objectives of maintaining the economic viability of such uses and structures while protecting the rights of surrounding property owners to use and enjoy their properties.
(Amended: Ord. 2017-07-04)
B. Applicability.
All nonconforming lots, uses and structures shall be subject to provisions of this chapter.
1. If a lot, use or structure deemed legal nonconforming under past zoning regulations is brought into compliance with current standards, it shall be considered conforming.
2. The provisions in this chapter do not supersede or relieve a property owner from compliance with building, fire, health or other life safety requirements of the code.
(Amended: Ord. 2017-07-04)
C. Nonconforming Status.
1. Any lot, use, or structure which, in whole or part, is not in conformance with current zoning requirements shall be considered as follows:
a. Legal Nonconforming. Lots, uses and structures legally created or established under prior zoning and/or platting regulations. These lots, uses and structures may be maintained or altered subject to provisions of this chapter.
b. Illegal Nonconforming. Lots, uses and structures which were not in conformance with applicable zoning and/or platting regulations at the time of creation or establishment. Illegal nonconforming lots, uses and structures shall be discontinued, terminated or brought into compliance with current standards.
2. It shall be the burden of a property owner or proponent to demonstrate the legal nonconformity of a lot, use, and structure.
(Amended: Ord. 2017-07-04)
D. Legal Nonconforming Lots.
A legal lot of record, as defined in Section 40.100.070 and created as a building site, which does not conform to minimum lot area, width or depth requirements of the zoning district in which it is currently situated may be developed, subject to the following:
1. A permitted use or structure shall meet all existing development standards of the zoning district within which it is located including, but not limited to, required yards/setbacks, lot coverage, density, parking, landscaping, storm drainage, signage, and road standards.
2. For the purpose of establishing setbacks from property lines, any residential lot of record in the rural (R-5, R-10 and R-20), resource (FR-80 and FR-40, AG-20, and AG-WL), urban reserve (UR-10 and UR 20) and urban holding (UH-10 and UH-20) districts which has a smaller lot area, width and/or depth than that required by the zone in which it is located may use that residential zoning classification which most closely corresponds to the area or dimensions of the lot of record.
3. A legal nonconforming lot shall not be further diminished in size or dimension unless approved through a lot reconfiguration under Section 40.210.010(D) or Section 40.250.110(C)(2).
4. A legal nonconforming lot may be increased in size to bring it into closer conformance with area requirements of the zone in which it is located.
5. A legal nonconforming lot which is increased in area or dimension such that it is brought into compliance with any or all of the lot requirements for the zoning district in which it is located shall thereafter remain in compliance.
6. A legal lot of record that is reduced through governmental action or adverse possession below, or further below the required minimum size of the zoning district in which it is located shall be deemed a legal nonconforming lot, subject to review through a Type I process.
(Amended: Ord. 2012-07-03; Ord. 2016-06-12; Ord. 2017-07-04)
E. Legal Nonconforming Buildings or Structures.
A legally established building or structure may continue to be used or occupied by a use permitted in the zoning district in which it is currently located even though it does not comply with present development standards (e.g., setbacks, lot coverage, density, height, etc.) of said zone. The legal nonconforming building or structure may be maintained as follows:
1. Maintenance and Repair.
Ordinary repairs to correct deterioration or wear may be made to legal nonconforming structures. Minor maintenance and repair includes such things as painting, roof repair and replacement, plumbing, wiring, mechanical equipment replacement, and weatherization.
2. Expansion or Structural Alteration.
A legal nonconforming building or structure may be expanded, enlarged, or structurally altered, provided the modification meets applicable development standards for the zoning district in which it located. In no case shall said modification increase the building or structure’s nonconformity. Expansion of nonresidential and multifamily buildings or structures may require site plan approval.
Figure 40.530.010-1
3. Restoration of Damaged Building or Structure.
A legal nonconforming building or structure that is damaged by fire, flood, explosion, wind, earthquake, war, riot, calamity or other catastrophic event may be restored or repaired as follows:
a. Partial Destruction.
If the extent of damage does not exceed sixty percent (60%) of either the square footage or assessed value of such building or structure as established by the most current County Assessor’s tax roll, the building or structure may be reconstructed to the footprint existing immediately prior to the time of partial destruction, provided:
(1) A building permit for said restoration shall be applied for within one (1) year of the date of damage or disaster.
(2) Restoration/reconstruction shall be completed within two (2) years of the date of partial destruction.
(3) Upon receiving a written request, the responsible official may, through a Type I review process, extend the above time limitations due to special circumstances beyond the control of the owner of said building or structure.
b. Substantial Destruction.
If the extent of damage exceeds sixty percent (60%) of either the square footage or assessed value of such building or structure as established by the most current County Assessor’s tax roll, the building or structure shall not be repaired or reconstructed unless it conforms to development requirements of the zoning district in which it is located.
4. Relocation.
A legal nonconforming building or structure shall not be relocated on the same lot unless said move results in bringing the building or structure into compliance with requirements of the zoning district in which it is situated.
5. Signs.
Legal nonconforming signs are subject to provisions in Section 40.310.010(H).
F. Legal Nonconforming Uses.
Any lawfully established nonconforming use or development may be continued at the same gross floor area or land coverage occupied on the effective date of the ordinance codified in this title, or any amendment thereto, that made the use no longer permissible. Use of these buildings and land are subject to the following:
1. Establishment of Legal Nonconforming Status.
a. Any person may request a determination through a Type I process regarding legal status of a nonconforming use.
b. Evidence submitted by the applicant shall demonstrate that the use was lawfully created or established in accordance with the zoning regulations in existence at that time, and that said use has been maintained continuously since the time zoning regulations governing the land changed. Acceptable documentation may consist of, but is not limited to, such items as:
(1) Dated business receipts showing types of service or goods provided;
(2) Statements or records from utilities, such as power, water or gas, which indicate the date and type of use;
(3) Business licenses;
(4) Property rental invoices or receipts;
(5) Income tax records;
(6) Dated listings in telephone, business or Polk directories;
(7) Records of the County Assessor;
(8) Building, land use or development permits;
(9) Dated photographs, newspaper clippings, and other relevant documentation; or
(10) Notarized affidavits from neighbors or persons who have observed the nonconforming use over the required period of time may assist in substantiating its presence but shall not be the primary document upon which a determination is based.
2. Change of Ownership, Tenancy, or Management.
The legal nonconforming status of a use runs with the land, and is not dependent upon ownership, tenancy, or management, provided the nature, character, intensity or occupancy classification of the use does not change.
3. Maintenance and Repair.
Ordinary repairs and incidental alterations to correct deterioration or wear may be made to buildings containing a legal nonconforming use, provided the cost of such repairs in any twelve (12) month period does not exceed twenty-five percent (25%) of the assessed valuation of such building or structure as established by the most current County Assessor’s tax roll. Minor maintenance and repair includes such things as painting, roof repair and replacement, plumbing, wiring, mechanical equipment replacement, and weatherization. Incidental alterations may include construction of nonbearing walls or partitions.
4. Expansion or Alteration of Uses Established with Planned Unit Development or Site Plan Approval.
Applications for expansion or alteration of existing nonconforming uses which have been established pursuant to a valid planned unit development or site plan approval from the county may be considered, subject to the following:
a. All applicable conditions of the planned unit development or site plan approval shall be fully complied with; and
b. The responsible official may apply specific standards of the zoning district in which the planned unit development or site plan was approved, rather than standards of the underlying zoning district, as deemed necessary to ensure compliance with this chapter.
5. Other Expansions or Alterations.
Other than as allowed under Section 40.530.010(F)(4), a legal nonconforming use shall not be enlarged, expanded, or extended to include a portion of a structure or site it did not previously occupy on the date said use became nonconforming. For the purposes of this section, the term “enlarged, expanded, or extended” shall include, but not be limited to:
a. Increased hours;
b. Increased services or programs;
c. Increased number of residential dwellings;
d. Interior renovations or structural additions that increase the occupant load of the structure dedicated to the nonconforming use;
e. Any new structures accessory to the nonconforming use;
f. Expansion or replacement of the structure (or portions thereof) dedicated to the nonconforming use; or
g. Anything beyond regular maintenance and minor repairs.
6. Change of Use.
The legal nonconforming use of a building, structure, or land may be changed through the site plan review process in Section 40.520.040, subject to the following:
a. Permitted Use in the Zone.
A conversion from a nonconforming use to a use permitted in the zone shall require site plan review under the provisions of Section 40.520.040 to ensure compliance with applicable development standards. Whether the application is a Type I or Type II will depend on the criteria in Section 40.520.040(B). Once converted to a permitted use, the nonconforming use may not be re-established.
b. Different Nonconforming Use.
A legal nonconforming use may be changed to another nonconforming use, subject to a Type II site plan review, only if all of the following conditions are met:
(1) The proposed new use must have equal or lesser overall adverse impacts to the surrounding area considering such factors as traffic, required on-site parking, hours of operation, noise, glare, dust, odor, and vibration.
(2) The proposed use will not introduce hazards or interfere with development potential of nearby properties in accordance with current zoning regulations.
(3) The change in use will not result in an increase in the amount or area devoted to outdoor storage of goods or materials.
(4) The proposed new use will not increase the amount of space occupied by a nonconforming use.
(5) The proposed change in use will involve minimal structural alteration.
(6) The responsible official may impose conditions to ensure compliance with subsections (F)(6)(b)(1) and (2) of this section.
(Amended: Ord. 2012-12-23)
7. Restoration of Damaged Building or Structure.
A building or structure containing a legal nonconforming use that is damaged by fire, flood, explosion, wind, earthquake, war, riot, calamity or other catastrophic event may be restored or repaired as follows:
a. Partial Destruction.
If the extent of damage does not exceed sixty percent (60%) of either the square footage or assessed value of such building or structure as established by the most current County Assessor’s tax roll, the building or structure may be reconstructed to the footprint existing immediately prior to the time of partial destruction.
(1) A building permit application for said restoration shall be filed for within one (1) year of the date of damage or disaster.
(2) Restoration/reconstruction shall be completed within two (2) years from the date of partial destruction.
(3) Upon receiving a written request, the responsible official may through a Type I review process extend the above time limitations for special circumstances beyond the control of the owner of said building or structure.
b. Substantial Destruction.
If the extent of damage exceeds sixty percent (60%) of either the square footage or assessed value of such building or structure as established by the most current County Assessor’s tax roll, the building or structure shall not be repaired, reconstructed or reoccupied for any use unless such use conforms to development requirements of the zoning district in which the building or structure is located.
8. Discontinuation of Legal Nonconforming Use.
If a legal nonconforming use of land is discontinued or terminated, it shall not be re-established. Any subsequent use of the building or land shall conform to requirements of the zoning district in which it is located.
a. A use is considered discontinued if customary operation of said use has ceased for a period of twelve (12) months or more.
b. The responsible official may, through a Type I process, grant an extension to the timeframe identified above, provided the property owner submits documentation demonstrating there was no intent to abandon the use. Documentation may include, but is not limited to, the following:
(1) Requests for approvals necessary to re-establish the use or structure submitted to appropriate county, state and federal agencies within twelve (12) months after the use was discontinued;
(2) The property or structure has been involved in litigation;
(3) Disputes in insurance settlements in the case of fire or casualty;
(4) Delay in transferring title due to probate proceedings; or
(5) Attempts to lease the site are ongoing due to:
(a) The length of time involved for marketing the premises; or
(b) The structure is a specialized type of building requiring a specialized type of use due to equipment, processes or configuration.
c. A statement from the property owner merely stating that there is no intent to abandon is not sufficient documentation without a showing of additional actions taken by the property owner to re-establish the use or structure.
G. Nonconforming Landscaping and Screening.
On a lawfully developed property which is nonconforming as to landscaping or screening, a change of use which requires site plan review under Section 40.520.040 shall be brought into compliance with landscape and screening standards in Section 40.520.040(E)(4).
(Amended: Ord. 2010-08-06)
H. Nonconconforming Vehicles/Boats.
On any lawfully developed property which is nonconforming based on the presence of inoperable boats in violation of Section 9.24.010, after July 15, 2014, the owner and persons occupying the property must bring the property into conformance with current code within six (6) months.
(Added: Ord. 2014-07-13)