Chapter 18.84
NONCONFORMING STRUCTURES, LOTS AND USES – ALL ZONES
Sections:
18.84.030 Establishment of a legal nonconformity and applicability.
18.84.040 Nonconforming lots of record.
18.84.050 Nonconforming structures.
18.84.070 Lawful permit applications prior to zoning change.
18.84.080 Unlawful uses and structures.
18.84.010 Purpose.
A. Amendments over time to regulatory authority provided within this title may result in structures, land and uses which no longer conform to the provisions set forth for the district in which they are situated. Therefore, it is the intent of this chapter to allow for the continuance and maintenance of legally established nonconforming uses, with certain exceptions, subject to standards and provisions prescribed within this chapter.
B. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any structure or site legally established. The intent of this chapter is to set forth the conditions under which these nonconformities may continue to exist until such time they are discontinued as prescribed by law. (Ord. 1843 § 2, 2014; Ord. 1495 § 1, 2008; Ord. 1400 § 2, 2006)
18.84.020 Definitions.
A. “Nonconforming use” shall mean a land use legally commenced or constructed in accordance with regulations in place at the time of commencement or construction which has since become noncompliant due to change(s) in legislation. Nonconforming uses shall not be expanded to occupy a greater area of a structure or lot, regardless of the structure or lot’s conformity, than what existed at the time the use became nonconforming, except through variance.
B. “Nonconforming structure” shall mean a structure legally constructed or permitted in accordance with regulations in place at the time the structure was constructed or permitted, which has since become noncompliant due to change(s) in legislation. Nonconforming structures may be expanded to occupy a greater area of a lot than what existed at the time the structure became nonconforming; provided, that any expansion must conform to current regulations, and that such alteration does not constitute an expansion of a nonconforming use, except through variance.
C. “Nonconforming lots of record” shall mean real property legally created or vested through subdivision or other legal means in accordance with zoning and subdivision regulations in place at the time the lot was created, which has since become noncompliant due to change(s) in legislation. Nonconforming lots may be utilized in the same manner as conforming lots, subject to limitations described for nonconforming uses and nonconforming structures within FMC 18.84.060 and 18.84.050, respectively; and provided, that any new uses or structures must conform to current regulations, except through variance.
D. “Cessation of use” shall mean the abandonment or end of a use upon the occurrence of one or more of the following:
1. When any portion of a structure or lot, regardless of the conformity of the structure or lot, is converted from a nonconforming use to a conforming use, for that portion of the structure or lot affected by the conversion.
2. When a structure has been substantially destroyed in accordance with subsection (G) of this section, unless the property owner, his/her agent, or his/her successor-in-interest demonstrates intent to continue the use by submitting a complete building permit application, within one year of destruction, which proposes continuance of the use.
3. When a use has ceased for a period of one year and there has been no demonstrated intent to continue such use in the future.
4. Applied for or permitted construction activity or the offering of a nonconforming use, structure, or lot for sale, within one year of the end of an active nonconformity, among other considerations, shall constitute evidence of intent to continue a use and shall preclude termination.
E. “Maintenance or repair” shall mean those usual activities required to prevent decline, lapse or cessation from a lawfully established condition or to restore the character, scope, size, and design of a serviceable area, structure, or land use to a state comparable to its previously authorized and undamaged condition. This does not include any activities that change the character, scope, or size of the original structure, facility, utility or improved area beyond the original design. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance.
F. “Minor alterations” shall mean those activities intended to modify a structure, use, or lot that do not require a building permit or change the use of the structure or lot, in the judgment of the Zoning Administrator.
G. “Substantial destruction” shall mean, for the purpose of this chapter, the repair or replacement of a building or structure which exceeds 75 percent of the replacement cost of the entire building, or 50 percent of the replacement cost for structures within the FEMA floodway or floodplain, as per FMC 15.24.100 (Substantial damage), with the exception of replacement as allowed under subsection (E) of this section. The replacement cost shall be derived from the Whatcom County Assessor’s value of the structure, or the value as defined by the City’s building code, whichever is greater. The City shall consider the cumulative costs of repairs and improvements when making a determination that a structure has been substantially destroyed. (Ord. 1843 § 2, 2014)
18.84.030 Establishment of a legal nonconformity and applicability.
A. A party asserting the existence of a lawfully established nonconforming lot, use or structure has the burden of proving that the lot, use or structure was compliant with the zoning, subdivision, building and other development regulations in effect at the time the lot, use, or structure was created.
B. The rules of this chapter are applied first by reviewing which provisions are applicable to the nonconformity, e.g., whether the nonconformity involves a lot, use, structure or a combination thereof. When a combination of a nonconforming lot, structure or use exists, each segment of the nonconformity is reviewed independently of the others. For example, a legally established single-family dwelling prohibited in a current zone and noncompliant with current setback requirements would be allowed to rebuild after substantial destruction, but the new structure must comply with the current setback requirements. (Ord. 1843 § 2, 2014)
18.84.040 Nonconforming lots of record.
The following provisions shall apply to all lots meeting the definition in FMC 18.84.020(C):
A. Continuation and Development. A nonconforming lot may be developed for any use allowed by the zone, provided the development meets, through design or by an approved variance, the zoning, subdivision, building and other development regulations applicable to the area in which it is located.
B. Illegal Lot Modifications or Split. The following is applicable to all lots:
1. No lot may be modified, divided or adjusted in a manner that would violate the dimensional or area requirements of the zone in which it is located.
2. A government agency may lawfully modify a lot in a manner that would result in nonconformity, if portions of a lot are acquired for a public use or purpose, or is allowed otherwise by law. (Ord. 1843 § 2, 2014; Ord. 1495 § 1, 2008; Ord. 1400 § 2, 2006. Formerly 18.84.020)
18.84.050 Nonconforming structures.
The following provisions shall apply to all structures and buildings meeting the definition in FMC 18.84.020(B). In addition, the City of Ferndale has determined that single-family detached residences within the City Center zone are inconsistent with the goals of the community as established by Chapter 18.46 FMC (City Center Zone). Therefore, no such structure shall be structurally enlarged or altered in any way, except for normal repairs and maintenance, or by variance issued pursuant to FMC 18.12.180, unless such modifications are proposed in order to convert all or a portion of the structure to a conforming use. Pursuant to FMC 18.84.020(D), the conversion of any portion of a structure from a nonconforming use to a conforming use shall result in the cessation of the nonconforming use for that portion of the structure, and the nonconformity may not be reestablished, except through variance.
A. Continuation. Any legally established nonconforming structure may be continued until such time that it is discontinued as prescribed in subsection (C) of this section.
B. Expansion. Buildings may be expanded, provided:
1. A nonconforming structure may be enlarged, extended or structurally altered; provided, the enlargement or alteration complies with the use, setback, height, lot coverage, and other site development requirements of the zone in which the structure is located, as well as other development regulations applicable to the area in which the structure is located.
2. No structures used as a single-family dwelling within the City Center zone may be expanded for a single-family use or for any other nonconforming use, except by variance.
C. Damage or Destruction. A nonconforming structure experiencing substantial destruction shall be considered discontinued and its nonconforming status will cease, pursuant to the definition of cessation of use in FMC 18.84.020. Any subsequent repair or reconstruction of the structure shall comply with the setback, height, lot coverage and other site development requirements of the zone in which the structure is located and other development regulations applicable to the area in which the structure is located, except by variance.
D. Partial Damage or Destruction. A nonconforming structure suffering from less than substantial destruction shall maintain its nonconforming status; provided, that:
1. The structure is damaged by fire or other casualty not intentionally caused by the owner or tenant, and a complete building permit application is filed within one year of such fire or other casualty; or
2. A building permit application is submitted prior to partial destruction. The building permit must remain active and if it is allowed to expire, the legal nonconforming status shall terminate and subsequent repairs and improvements comply with the zoning, subdivision, building and other development regulations applicable to the area in which the structure is located.
3. In no case shall the nonconformity be allowed to expand in conflict with the zoning, subdivision, building and other development regulations applicable to the area in which the structure is located, except through variance.
E. Repair and Maintenance. Normal repair and maintenance work, in accordance with FMC 18.84.020(E), and minor alterations that maintain safe and sanitary conditions on a nonconforming structure may be performed. (Ord. 1843 § 2, 2014; Ord. 1495 § 1, 2008; Ord. 1400 § 2, 2006. Formerly 18.84.030)
18.84.060 Nonconforming uses.
The following provisions shall apply to all uses meeting the definition in FMC 18.84.020(A):
A. Continuation. Any legally established nonconforming use may be continued until such time that it is discontinued as prescribed in subsection (D) of this section.
B. Change of Use. A structure or property containing a nonconforming use may be changed to the following:
1. A use that conforms to the zoning, subdivision, building and other development regulations applicable to the area in which the structure and/or property is located.
C. Expansion. A nonconforming use may not be expanded or enlarged, except under one of the following circumstances:
1. Normal repair and maintenance, in accordance with FMC 18.84.020(E), and minor alterations are permitted, provided they are within the existing physical space of the structure or use.
2. With the exception of nonconforming single-family detached residences within the City Center zone, which may not expand except through a variance, nonconforming uses may have the building area expanded if the structural expansion or addition complies with all zoning, subdivision, building and other development regulations applicable to the area in which the use and structure are located, and the use shall be allowed to expand accordingly.
D. Discontinuation. A nonconforming use that is discontinued shall have its legal nonconforming status terminated and any subsequent use of the property or structure shall be a use that conforms to the zoning, subdivision, building and other development regulations applicable to the area in which the use and structure are located. A nonconforming use is discontinued if any of the following circumstances apply:
1. The nonconforming use is changed to a conforming use;
2. There is a cessation of use, as defined by FMC 18.84.020(D). (Ord. 1843 § 2, 2014; Ord. 1495 § 1, 2008; Ord. 1400 § 2, 2006. Formerly 18.84.040 and 18.84.050)
18.84.070 Lawful permit applications prior to zoning change.
A. To avoid undue hardship and to give effect to vested rights, no zoning, subdivision, or other regulatory changes adopted by the City or by future amendments thereto shall require a change in the plans, construction or designated use of a structure or land for which either a building, plat, conditional use permit application, or other land use application subject to FMC 14.07.090 has been submitted prior to the zoning, subdivision, or other regulatory changes, if:
1. The application, together with any minor supplemental information requested by the Zoning Administrator, is consistent with the zoning, subdivision, building or other development code regulations and other applicable laws in force at the time of application for the permit; and
2. The building permit thereafter granted is issued in accordance with the zoning, subdivision, building or other development code regulations and other applicable laws in force at the time of application for the permit; and
3. The building permit issued does not thereafter become null and void through expiration, cancellation or otherwise under the provisions applicable thereto in force at the time of application for the permit.
B. This section shall not prevent such structure and/or use from being a nonconforming structure and/or use subject to the provisions of this chapter. (Ord. 1843 § 2, 2014; Ord. 1495 § 1, 2008; Ord. 1400 § 2, 2006. Formerly 18.84.060)
18.84.080 Unlawful uses and structures.
A. Nothing in this chapter shall be interpreted to be authorization for, or approval of, the continuation of the use of a structure that is in violation of any ordinance in effect at the time of the passage of the ordinance codified in this chapter. The intermittent, temporary, or illegal use of land or structures shall not be sufficient to establish the existence of a nonconforming use and/or structure.
B. Any use, structure or lot which did not comply with the zoning, subdivision, building or other development code regulations and any other applicable laws at the time it was established or constructed and does not comply with the current zoning code is illegal and shall be required to comply with the provisions of FMC Title 18 and any other applicable provisions of the Ferndale Municipal Code. (Ord. 1843 § 2, 2014)