Chapter 18.37
NONCONFORMING AND CONFORMING BUILDINGS AND USES

18.37.000    Chapter Contents

Sections:

18.37.020    Existing nonconformity.

18.37.040    Nonconforming buildings.

18.37.060    Nonconforming use.

18.37.070    Nonconforming Structures and Uses Within Critical Area Buffers.

18.37.080    Nonconforming lots.

(Ord. 6356 §6, 2005).

18.37.020 Existing nonconformity

To benefit from the protection herein provided, the nonconforming use, building or structure must have been legitimately and lawfully established prior to the effective date of the ordinance or standard that rendered it nonconforming.

(Ord. 5517 §1, 1995).

18.37.040 Nonconforming buildings

A.    Alterations. Any building or structure that does not meet the criteria in section 18.37.040 (B) and is nonconforming as to development/building coverage, yard, building setback, height, open space or density provisions of the use district in which it is located, may be enlarged or remodeled if such alterations do not contribute to further nonconformity. To the extent practical and feasible, any such alteration shall bring the building or structure into closer conformance with the provisions of this title. Enlargement of a nonconforming building within a required yard, whether horizontally or vertically, shall constitute a further nonconformity. Preservation of structure remnants, including but not limited to walls and foundations, solely to justify an exception from conformance shall not be permitted.

B.    Alterations of multi-family residential buildings. The Hearing Examiner may grant a conditional use permit to allow alteration or expansion of a building within a multi-family complex having ten or more units located in the R-4-8 single-family residential zone or R-6-12 two-family zone if the alteration does not exceed more than a ten percent increase in gross building area and does not increase any non-conformity relating to building setback or height provisions of the use district in which it is located. Any such alteration must occur on the same site as the existing non-conforming use. To the extent practical and feasible, any such alteration shall bring the building or structure into closer conformance with the provisions of this title. A conditional use permit of this type may not be granted more than once by the Hearing Examiner within the same ten year period for the same non-conforming multi-family complex.

C.    Relocation. Nonconforming buildings or structures shall not be relocated on the same site unless the move results in bringing the building or structure into closer conformance with the provisions of this title.

D.    Restoration. In the event that a nonconforming structure or building is less than fifty (50) percent destroyed by fire, explosion, act of God or act of public enemy, nothing in this title shall prevent the securing of building permit within six (6) months from the date of destruction for the restoration of said structure. The determination of whether a building or structure is less than fifty (50) percent destroyed shall rest with the building inspector and shall be based on the actual cost of replacing said structure or building. In case the building to be restored houses a nonconforming use, such use is not to be changed unless such change is in conformance with the portion of this section dealing with conversions.

E.    Awnings. Awnings which may be affixed to a commercial building which is legally nonconforming as to setback, may project over a public rights-of-way.

(Ord. 6594 §10, 2008; Ord. 6273 §25, 2003; Ord. 5830 §43, 1998; Ord. 5714 §17, 1997; Ord. 5517 §1, 1995).

18.37.060 Nonconforming use

A.    Conversions.

1.    A nonconforming use may be changed to a permitted use at any time.

2.     The Hearing Examiner may grant a conditional use permit for a period of not more than ten (10) years that allows a nonconforming use to change to another nonconforming use that would not normally be allowed in the district in which it is located; provided, that the following can be clearly demonstrated by the applicant:

a.    The structure that houses the existing nonconforming use cannot be used for any permitted uses because of its particular design; and

b.    The proposed use will be more compatible with the permitted uses of the use district than the existing use; and

c.    Provisions have been made to safeguard the adjoining properties against any detrimental effects that might result from allowing the proposed use.

3.    The Hearing Examiner also may grant a conditional use permit to allow the following uses to change to another residential or commercial use that is not typically allowed in the district in which it is located:

a.    An existing commercial or institutional structure in a residential zone when such structure is on the National, State or Olympia Heritage Register; or

b.    An existing commercial or institutional structure within a National, State or Olympia Historic District, excluding the South Capitol Historic District; or

c.    An existing commercial or institutional structure conditioned on restoration of a structure to achieve Register status; provided, that the following can clearly be demonstrated by the applicant:

i.    The structure cannot be utilized for any of the uses normally permitted within that district; and

ii.    The proposed use will not alter the historic features documented at the time of Register placement; and

iii.    Provisions have been made to safeguard the adjoining properties and the neighborhood against any detrimental effects that might result from allowing the proposed use, subject to the requirements in 18.48.040, Additional Conditions.

At a minimum, the conditional use permit shall establish controls on parking, lighting, noise, and hours of operation.

This section does not authorize the Hearings Examiner to allow as a nonconforming use the property uses contained in Subsection E. of OMC 18.37.060, Nonconforming Use, Discontinuation, except the Hearings Examiner may authorize restaurants as a non-conforming use.

4.    A conditional use permit of this type may be renewed by the Hearing Examiner for a period of not more than ten (10) years if it can be clearly demonstrated that:

a.    The continued use of the premises in the manner allowed by the permit will not have any detrimental effect upon the property values of the surrounding properties;

b.    That such use has minimal adverse effect upon the people living or working in the vicinity of such use; and

c.    That it will create a hardship for the owner of the structure if the conditional use permit is not renewed.

B.    Relocation and Enlargement. The area devoted to a nonconforming use shall not be relocated or enlarged.

C.    Open Land. The use of land (having no buildings thereon, except those incidental to the nonconforming use) which does not conform to the provisions of this title, shall be discontinued within three (3) years from the effective date of the ordinance that made such use nonconforming. The use of “open land” which becomes nonconforming by subsequent amendment or annexation shall likewise be discontinued within three (3) years from the effective date of the amendment or annexation.

D.    Signs. See Chapter 18.42.

E.    Discontinuation.

1.    A nonconforming use, when abandoned or discontinued, shall not be resumed. Discontinuation or abandonment shall be construed as follows:

a.     When land used for a nonconforming use shall cease to be used for that particular use for twelve (12) consecutive months;

b.    When a building designed or arranged for a nonconforming use shall cease to be used for that particular use for twelve (12) consecutive months;

c.    When a building designed or arranged for a conforming use but used for a nonconforming use shall cease to be used for such nonconforming use for twelve (12) consecutive months.

2.    The Hearing Examiner may, by conditional use permit, allow a discontinued or abandoned use to resume operations if it can be proven that all of the following conditions exist.

a.    That discontinuation or abandonment was caused by a condition over which the owner and operator of such use had no control.

b.    That it is impossible for the owner to change the use of the premises to a permitted use without causing a hardship to himself.

c.    That resumption of the nonconforming use will not have a detrimental effect on surrounding properties.

F.    Restoration. In the event that a non-conforming multi-family residential structure or building is destroyed by fire, explosion, act of nature or act of public enemy, nothing in this title shall prevent the securing of a building permit within twelve (12) months from the date of destruction for the restoration of said structure. In the event that a structure or building housing a nonconforming use is less than fifty (50) percent destroyed by fire, explosion, act of nature or act of public enemy, nothing in this title shall prevent the securing of a building permit within twelve (12) months from the date of destruction for the restoration of said structure. The determination of whether a building or structure is less than fifty (50) percent destroyed shall rest with the building inspector and shall be based on the actual cost of replacing said structure or building. In the event that said structure or building is fifty (50) percent or more destroyed, a building permit for restoration may not be issued except upon a finding by the Hearing Examiner that said nonconforming use will not interfere with the right of neighboring residents or property owners to make use of their property as permitted in the use district in which they are located. Review by the Hearing Examiner shall be conducted as provided for in Chapter 18.82, Hearing Examiner.

(Ord. 6717 § 1, 2010; Ord. 6594 §11, 2008; Ord. 6408 §23, 2006; Ord. 5517 §1, 1995).

18.37.070 Nonconforming Structures and Uses Within Critical Area Buffers

A.    Existing structures and uses. Existing structures and uses which are located within a critical area or its buffer prior to the effective date of Chapter 18.32 may continue pursuant to the provisions of this Chapter.

B.    Appurtenant structures and related development. Existing structures located within a critical area or its buffer as provided in OMC 18.37.070(A), may include appurtenant structures and related development such as but not be limited to: garages, out-buildings, lawns, landscaping, gardens, sports fields, sport courts, picnic areas, play equipment, trails and driveways which also existed prior to the effective date of Chapter 18.32.

C.    Critical area review. That portion of a parcel which contains existing structure, appurtenant structures, and related development as defined by OMC 18.37.070(A) and 18.37.070(B), shall be exempt from further review of OMC Chapter 18.32, except as provided in OMC 18.32.215. Expansion or additions of structures and uses listed in OMC 18.37.070(A) and 18.37.070(B) into undisturbed parts of the property which are within a critical area or its buffer will require a critical area review per OMC Chapter 18.32.

(Ord. 6426 §51, 2006; Ord. 6356 §6, 2005).

18.37.080 Nonconforming lots

A.    Any use may be established on an undersized lot which cannot satisfy the lot area or width requirements of the applicable district, provided that:

1.    All other applicable regulations of the City, as well as the development standards in this code are met.

2.    The lot was legally created and satisfied the lot area and width requirements applicable at the time of creation.

3.    Thurston County Environmental Health Division standards are met.

4.    The lot cannot be combined with contiguous undeveloped lots to create a lot of required size.

(Ord. 5830 §13, 1998).