Chapter 18.82
NONCONFORMING USES
Sections:
18.82.010 Purpose.
18.82.020 Establishment.
18.82.030 Nonconforming applicability.
18.82.040 Nonconforming lot.
18.82.050 Nonconforming use.
18.82.060 Nonconforming buildings/structures.
18.82.070 Nonconforming mineral extraction.
18.82.080 Procedures for reconstruction of a nonconforming use and building/structure damaged beyond seventy-five percent of its value—Change from a nonconforming use to another nonconforming use—Expansion of a nonconforming use or building/structure.
18.82.090 Discontinuance.
18.82.100 Completion of a building/structure/ activity.
18.82.010 Purpose.
The purpose of this chapter is to address the legal status of nonconforming uses, buildings/structures or lots by creating provisions through which a nonconformance may be maintained, altered, reconstructed, expanded or terminated. Ultimately, it is the intent of this chapter to encourage the discontinuance or termination of nonconformity and the changing of a nonconformity to a conforming or more conforming use, building or lot. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.020 Establishment.
The burden of establishing that any nonconformity is a legal nonconformity as defined herein shall, in all cases, be upon the owner of such alleged nonconformity and not upon the county. Determination of the nonconforming status of a lot, use, building or structure is an administrative function of the director. Property owners asserting nonconforming status shall submit such information as the director deems necessary to substantiate or document the claim to the nonconformance. Documentation submitted by the property owner must ascertain the date the nonconformity was established and that it conformed to the applicable development regulations in effect at that time. Documentation may consist of such historical items as utility statements, property tax bills, real estate contracts, leases, building permits, dated photographs, newspaper clippings and other relevant documentation, when applicable. Unsubstantiated anecdotal evidence cannot be accepted for the determination of nonconforming status. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.030 Nonconforming applicability.
A. Provisions contained within this chapter do not supersede or relieve a property owner from compliance with:
1. The requirements of the International Building and Fire Codes; and
2. The provisions of the development regulations that are beyond the specific nonconformance addressed by this chapter.
B. Agricultural resource industries such as packing, storage and distribution facilities lawfully permitted and established prior to adoption or amendment to DCC Title 18 and as documented in DCC Section 18.82.020 shall not be considered nonconforming. Such qualifying uses may be continued as approved pursuant to DCC Section 14.10.040 and shall comply with all applicable provisions of the DCC.
C. Single-residential dwellings lawfully permitted and established within a commercial district prior to adoption of this chapter may be maintained, repaired, or reconstructed in accordance with the provisions of this chapter, provided the dwelling meets the applicable standards of DCC Chapter 18.16. Permit applications under this subsection are not subject to the procedures of DCC Section 18.82.080 and are classified as a limited administrative review pursuant to DCC Section 14.10.020.
D. The sale or transfer of a nonconforming use or building/structure does not alone affect the right to continue the nonconforming use or use of a nonconforming building/structure.
E. Buildings/structures, lots, required improvements, uses and/or developments which were not legally established or existing as of the effective date of the ordinance codified in this title retain their illegal status and must be abated or fully conform and comply with the procedural and substantive provisions of the DCC.
F. The term “nonconforming use” refers only to a single existing use and does not include all uses to which the property could have been used for under a prior zoning ordinance or zoning classification.
G. The development of a short subdivision or subdivision that received preliminary approval and for which the zoning classification has changed prior to final approval such that a smaller minimum lot size is authorized may be developed at the new standard. In these instances the total number of lots approved cannot be exceeded without approval by the appropriate review authority. Requests for revisions that would increase the total number of lots authorized are processed in the same manner as the original review in accordance with DCC Title 17. (Ord. TLS 08-03-05 Exh. B (part): Res. TLS 06-13 § 1 (part); Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.040 Nonconforming lot.
A. In any district, any permitted use or building/structure may be erected on a nonconforming lot of record, existing on the effective date of the ordinance codified in this title or amendment thereto, if the use is permitted in that district and the lot was created in conformance with the development regulations existing at the time of creation. This provision shall apply, even though such lot fails to meet the requirements for lot area or width, or both, that are generally applicable in the district. The building/structure shall conform to all other current regulations of the zoning district in which such lot is located, including without limitation required yards/setbacks, lot coverage, density, parking, storm drainage, landscaping, access and road improvement.
B. The boundaries of nonconforming lots may be adjusted consistent with DCC Sections 17.34.020 through 17.34.040. (Ord. TLS 19-16-41B Exh. B (part): Ord. TLS 17-11-44B Exh. A: Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.050 Nonconforming use.
A. Generally. A nonconforming use lawfully established under the DCC and which became or becomes nonconforming by amendment to DCC Title 18 may continue as long as it remains otherwise lawful. Any change or expansion of the nonconforming use shall be made in accordance with the provisions of DCC Section 18.82.020 and 18.82.080.
B. Continuation When Damaged or Destroyed. The following provisions shall apply when a nonconforming use is damaged, demolished or destroyed by any means:
1. When a nonconforming use and associated building/structure are damaged by any means, and reconstruction costs do not exceed seventy-five percent of the value of the building/structure determined by using the most recent ICBO construction tables, the nonconforming use may be replaced as it was prior to the damage. If the building/structure was also nonconforming, the building/structure may be rebuilt as it was immediately prior to the damage or in a manner that is more conforming in accordance with DCC Section 18.82.060(C).
2. When the reconstruction costs of a nonconforming use and associated building/structure exceed seventy-five percent of the value of the building/structure determined by using the most recent ICBO construction tables, the hearing examiner shall determine whether or not the nonconforming use shall be allowed to continue in accordance with the provisions of DCC Section 18.82.080. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.060 Nonconforming buildings/structures.
A. Generally. Any legal nonconforming building/structure may continue so long as it remains otherwise lawful. A nonconforming building/structure other than a required site improvement may be included in and/or changed as a part of any development, or modification to development, subject to review and approval under the procedures and provisions of this title; provided, that nothing in this section shall authorize the expansion or change of a nonconforming structure except as otherwise provided for in this chapter. Required site improvements, including parking and signs, are subject to the more specific policies on nonconforming parking and signs in DCC Title 20, which shall govern and control.
B. Maintenance of a Nonconforming Building/Structure. Nothing in this chapter shall be construed to restrict normal structural repair and maintenance of a nonconforming building/structure, including the replacement of walls, fixtures and plumbing; provided, that the value of work and materials in any twelve-month period does not exceed twenty-five percent of the value of the building/structure prior to such work determined by using the most recent ICBO construction tables. This chapter is not intended to apply to the rehabilitation of dwelling units when such rehabilitation does not expand the number of dwelling units or physically expand the building/structure.
C. Reconstruction of a Nonconforming Building/Structure When Damage Does Not Exceed Seventy-Five Percent of its Value. When a nonconforming building/structure is damaged, demolished or destroyed by any means and reconstruction costs do not exceed seventy-five percent of the value of the building/structure determined by using the most recent ICBO tables, the department may issue a development permit(s) allowing the building/structure to be rebuilt as it was immediately prior to the damage or in a manner that is more conforming. Provided, no reconstruction of a nonconforming building/structure shall be performed without issuance of a development
permit(s) as appropriate. The property owner shall provide the information necessary to reasonably assure the review authority that the reconstruction complies with this section. The review authority may approve reconstruction in conformance with the submitted and verifiable plans or in a manner that is more conforming to the applicable provisions of the DCC and the district in which the building/structure is located. If the review authority determines that the proposed reconstruction amounts to an expansion of the nonconforming building/structure, the owner must file an application for review by the hearing examiner under the provisions of DCC Section 18.82.080.
D. Reconstruction of a Nonconforming Building/Structure When Damage Exceeds Seventy-Five Percent of its Value. The following provisions shall apply when the reconstruction costs for a damaged, removed, demolished or destroyed nonconforming building/structure exceeds seventy-five percent of its value determined by using the most recent ICBO construction tables:
1. When a damaged, removed, demolished or destroyed nonconforming building/structure was used for an approved or existing use, any reconstruction of the building/structure shall occur in accordance with the provisions of this title and other applicable development regulations of the DCC.
2. When a damaged, removed, demolished or destroyed nonconforming building/structure was used for a nonconforming use it may be replaced as it was before or in a manner that is more conforming upon approval by the hearing examiner in accordance with DCC Section 18.82.080.
E. Expansions to structures that are nonconforming with respect to a required yard may not encroach any further into the required yard, and are limited to extensions adding no more than twenty-five percent of the length of the existing wall, subject to other applicable requirements of the DCC. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.070 Nonconforming mineral extraction.
A. Nonconforming mineral extraction and/or mining may continue operations, provided the following provisions have been submitted for review to the director for review:
1. Documentation verifying the nonconformity asserted;
2. Site, grading and operation plans disclosing the boundaries of the mineral extraction operation, phasing plan, and restoration plan.
B. The expansion of mineral extraction areas including the enlargement of the perimeter boundary, change in access or addition of processing shall be permitted only upon the review and approval of the hearing examiner in accordance with this chapter. Requests for expansion are classified pursuant to DCC Section 14.10.040 and subject to the standards of DCC Section 18.80.180. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.080 Procedures for reconstruction of a nonconforming use and building/structure damaged beyond seventy-five percent of its value—Change from a nonconforming use to another nonconforming use—Expansion of a nonconforming use or building/structure.
The following procedures shall be followed to change a nonconforming use to a different nonconforming use, expand a nonconforming use throughout a building/structure, expand a nonconforming structure or use throughout a lot or onto an adjoining lot, or replace a nonconforming use and/or building/structure damaged by any means beyond seventy-five percent of its predamaged value as determined by using the most recent Building Safety Journal Square Foot Construction Costs chart, as published by the International Code Council:
A. Applications submitted under this section are classified for quasi-judicial review described in DCC Section 14.10.040.
B. The hearing examiner may grant the relief requested if he/she finds all of the following:
1. That the expansion, change, reconstruction or replacement requested would not be contrary to the public health, safety or welfare; and
2. That the proposed expansion, change, reconstruction or replacement is compatible with the character of the neighborhood; and, in the case of an expansion or change, does not significantly jeopardize future development of the area in compliance with the provisions and the intent of the zoning district; and
3. That the significance of the hardship asserted by the applicant is more compelling than, and reasonably overbalances, the public interest resulting from the denial of the relief requested; and
4. That the use or building/structure was lawful at the time of its inception; and
5. That the approval of the requested expansion, change, reconstruction or replacement will not significantly adversely impact nearby properties.
C. The hearing examiner shall deny the proposed expansion, change, reconstruction or replacement if he/she finds that one or more of the provisions in DCC Section 18.82.080(B) are not met.
D. When approving a change in or the expansion, reconstruction or replacement of a nonconforming use or building/structure, the hearing examiner may attach conditions to the proposed change, expansion, reconstruction or replacement or any other portion of the development in order to assure that the development is improved, arranged, designed and operated to be compatible with the objectives of the comprehensive plan, applicable development regulations and neighboring land uses and transportation systems. (Ord. TLS 08-03-05 Exh. B (part); Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.090 Discontinuance.
A. A nonconforming use or building/structure shall be discontinued when it is:
1. Succeeded by another use or building/structure that is more conforming; or
2. Discontinued and not re-established within six months; or
3. Damaged and a complete application for reconstruction or replacement is not made within six months of such damage; or
4. Damaged, demolished, removed or destroyed, by any means, to the extent that reconstruction or replacement costs exceed seventy-five percent of its value determined by using the most recent ICBO construction tables and the reconstruction or replacement of the nonconforming use and/or building/structure is denied by the hearing examiner in accordance with the provisions in DCC Section 18.82.080.
B. When a nonconforming use becomes discontinued, it shall be deemed that such use has ceased to exist and thus loses its status as a legal nonconforming use. Any subsequent use shall conform to the provisions of the district in which it is located. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))
18.82.100 Completion of a building/structure/activity.
Nothing contained in this chapter shall require any change in plans, construction, alterations, or designated uses of a building/structure specified in a complete application for a development permit submitted prior to the adoption of this chapter. Improvements and uses authorized by a signed document of the board of county commissioners, or any permit issued by the county prior to the effective date of this title may be developed as set forth in the permit. If the permit becomes invalid prior to development of improvements or uses, the provisions of this chapter shall then be in full force and effect on the subject property. (Ord. TLS 03-01-01B Exh. B (part): Ord. TLS 97-10-71B Exh. F (part))