Chapter 18.68
NONCONFORMING PROVISIONS1
Sections:
18.68.030 Nonconforming lots of record.
18.68.040 Nonconforming uses, buildings, structures.
18.68.010 Purpose and intent.
Within the districts established by this chapter or amendments that may later be adopted, there may exist lots, uses and structures which were lawful before the ordinance codified in this chapter was passed or amended, but which would be prohibited, regulated or restricted under the terms of this title or future amendments. 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.
It is the intent of this chapter to permit these legal nonconformities to continue until they are removed. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. Ultimately, it is the intent of this chapter to encourage the discontinuance or termination of nonconformity and the changing of nonconformity to a conforming or more conforming use, building or lot. [Ord. 1111 § 1, 1999.]
18.68.020 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 city. Determination of the nonconforming status of a lot, use, building or structure is an administrative function of the director. Property owners asserting existing nonconforming status shall submit such information as the director deems necessary to substantiate or document the claim to the existing 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 existing nonconforming status. [Ord. 1111 § 1, 1999.]
18.68.030 Nonconforming lots of record.
In any district in which single-family dwellings are permitted, a single-family dwelling and allowed accessory buildings may be erected on nonconforming lots of record. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided all other current regulations of the district shall apply, including, without limitation, required yards/setbacks, lot coverage, density, parking, storm drainage, landscaping, access, and road improvements; variance to these standards shall not be allowed. Nonconforming lots of record which have become more nonconforming due to subsequent action of the owner(s) shall still be allowed to develop if they retain more than 75 percent of the area of the original “lot of record.” This is intended to accommodate minor past modifications made to parcels, to allow for infill development and takes into account those adjustments made prior to the time that the city allowed construction on such parcels and owners were unaware of the ramifications that this could have on the development potential of the lot. Lot reassembly is allowed; however, no lot reassembly which creates awkwardly shaped parcels shall be allowed. [Ord. 1268 (Exh. D), 2005; Ord. 1111 § 1, 1999.]
18.68.040 Nonconforming uses, buildings, structures.
A. A nonconforming use, building and/or structure lawfully established under the Leavenworth Municipal Code (LMC) and which became or becomes nonconforming by amendment to this title may continue as long as it remains otherwise lawful. No nonconforming use, building and/or structure shall be enlarged, increased or extended to occupy a greater area of land, nor shall it be moved in whole or in part to any other portion of the lot or parcel being occupied by such use, at the effective date of the adoption or amendment of the ordinance codified in this title, except as provided for in this chapter.
B. 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 75 percent of the value of the building/structure (as determined by using a contractor’s estimate for reconstruction and the most recent assessed value as stated in the Chelan County assessor’s records, or an appraisal submitted by a licensed real estate appraiser), the nonconforming use, building and/or structure may be replaced or rebuilt as it was immediately prior to the damage, or in a manner that is more conforming. No replacement or 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 replacement or reconstruction complies with this section. The review authority may approve replacement or reconstruction in conformance with the submitted and verifiable plans or in a manner that is more conforming to the applicable provisions of the LMC and the district in which the building/structure is located. The proposed replacement or reconstruction cannot be completed in such a manner as to constitute an expansion of the nonconforming use, building and/or structure.
2. Provisions contained within this chapter do not supersede or relieve a property owner from compliance with the requirements of the uniform building and fire codes, and the provisions of the development regulations that are beyond the specific nonconformance addressed by this chapter.
C. Single-family residential dwellings lawfully permitted and established within a commercial district prior to adoption or amendment of this chapter may be maintained, repaired or reconstructed in accordance with the provisions of this chapter, provided the dwelling meets the provisions of Chapter 18.36 LMC. Additionally, accessory buildings which are allowed with single-family residences may be erected, provided the following conditions and/or regulations are complied with:
1. The structure(s) shall meet the applicable provisions of Chapter and 18.36 LMC; and
2. The single-family residence has not been converted to a more conforming, nonresidential use at any previous time.
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 not legally 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 LMC.
F. The term “nonconforming use” refers only to the single existing use and does not include all uses which the property could have been used for under a prior zoning ordinance or zoning classification.
G. 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 12-month period does not exceed 25 percent of the assessed value of the building/structure, as described in subsection (B)(1) of this section, prior to such work.
H. Expansions of 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 25 percent of the length of the original wall as it existed on May 24, 1999, subject to other applicable requirements of the LMC. Nothing in this section will prohibit vertical expansion in the side or rear yards up to the height allowed in the applicable zoning district, provided all other applicable requirements of the LMC are met. Nothing in this section will prohibit vertical expansion in the front yard up to the height allowed in the applicable zoning district if the portion of the nonconforming structure to be expanded is 15 feet or greater from the front property line. If the portion of the nonconforming structure to be expanded is less than 15 feet from the front property line, that portion of the structure can be extended vertically up to 25 percent of the existing height of the structure, provided all other applicable requirements of the LMC are met.
1. Other provisions of this title notwithstanding, a conforming addition may be made to an existing nonconforming single-family dwelling where such nonconformance is due to inadequate front, side or rear yard setback, providing such single-family dwelling complied with the yard setbacks required by ordinance at the time of construction, or was constructed prior to the adoption of setback requirements. [Ord. 1694 § 1 (Att. A-1), 2024; Ord. 1589 § 1 (Att. B), 2022; Ord. 1121 § 2, 1999; Ord. 1111 § 1, 1999.]
18.68.050 Discontinuance.
A. A nonconforming use, building and/or structure shall be discontinued when it is:
1. Succeeded by another use, building and/or structure that is more conforming; or
2. Discontinued and not re-established within one year; or
3. Damaged, demolished, removed or destroyed, by any means, to the extent that replacement and/or reconstruction costs exceed 75 percent of its value as described in LMC 18.68.040(B)(1); or
4. Damaged, demolished, removed or destroyed, by any means, to the extent that replacement and/or reconstruction cost does not exceed 75 percent of its value as described in LMC 18.68.040(B)(1) and when a complete application for such replacement and/or reconstruction is not made within one year of such damage.
B. When a nonconforming use becomes discontinued as defined above, 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. 1111 § 1, 1999.]
Prior ordinance history: Ord. 531, as amended by Ords. 551 and 992.