Chapter 17.68
NONCONFORMING USES
Sections:
17.68.020 Nonconforming lots of record.
17.68.030 Nonconforming uses of land.
17.68.040 Nonconforming structures.
17.68.050 Nonconforming uses of structures and land.
17.68.070 Change or discontinuance of use.
17.68.010 Generally.
A. Within the zones established by this title or amendments that may later be adopted, there may exist lots, structures and uses of land and structures which were lawful before the ordinance codified in this title was adopted or amended, but which would be prohibited, regulated or restricted under the terms of this title or future amendment.
B. It is the intent of this title to permit these preexisting nonconformities to continue until they are removed by economic forces or otherwise, but not to encourage their survival except in cases where continuance thereof would not be contrary to the public health, safety, or welfare or the community.
C. To avoid undue hardship, nothing in this title shall be deemed to require a change in the plans, construction or designation use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of the ordinance codified in this title, and upon which actual building construction has been diligently carried on, namely, actual construction materials placed in permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such demolition or removal shall be deemed to be actual construction; provided, that work shall be diligently carried on until completion of the building involved. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-1, 1980.]
17.68.020 Nonconforming lots of record.
In any zone, any permitted use or structure and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of the ordinance codified in this title. 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 zone; provided, that setback dimensions and other requirements not involving area or width of the lot shall conform to the regulations for the zone in which such lot is situated. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-2, 1980.]
17.68.030 Nonconforming uses of land.
If, at the effective date of adoption or amendment of the ordinance codified in this title, a lawful use of land, not conducted within a building, exists, that is made no longer permissible under the terms of this title as adopted or amended, such use may be continued as long as it remains otherwise lawful, subject to the following provisions:
A. No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of the lot of record than that which is occupied at the effective date of adoption or amendment of the ordinance codified in this title.
B. At such time as a structure is erected thereon, the structure and the use of specified by this title for the zone in which the land is situated. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-3, 1980.]
17.68.040 Nonconforming structures.
A. If, at the effective date or adoption or amendment of the ordinance codified in this title, a building is nonconforming only by reason of substandard building area, height or setback conditions, any structural alterations or enlargements of any existing building under such condition shall not increase the degree of nonconformity and shall be conducted in compliance with the setback requirements of the zone in which it is situated.
B. A building, nonconforming only by reason of substandard building area, height or setback conditions, destroyed to an extent such that restoration costs would exceed two-thirds of the market value of the building immediately prior to such occurrence, shall be considered completely destroyed and shall be required to meet all applicable building area, height and setback requirements of this title upon restoration. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-4, 1980.]
17.68.050 Nonconforming uses of structures and land.
If, at the effective date of adoption or amendment of the ordinance codified in this title, a lawful use of a structure and land in combination exists that would not be allowed under the terms of this title as adopted or amended, such use may be continued as long as it remains otherwise lawful, subject to the following provisions:
A. Any such nonconforming use may be expanded or extended throughout any part of a structure; provided, that no structural alterations, except those required by law, and no enlargement of said structure shall occur except as allowed by a conditional use permit, and subject to existing building area, height and setback conditions.
B. 1. If a nonconforming structure is damaged by fire, explosion, accident, act of God or act of the public enemy, to the extent of more than 70 percent of the assessed value, thereafter the land and any development on it shall conform to the regulations of the zone in which it is located, except that the Hearing Examiner may grant a conditional use permit under the procedures outlined in Chapter 17.64 SMC for the rebuilding of the nonconforming use, if an application for such conditional use permit is received by the City within one year from the date the nonconforming structure is damaged.
2. If damage is 70 percent or less, restoration of the nonconforming use approximately to its status prior to the act of damage is permitted without action of the Hearing Examiner.
3. Single-family residences in any zone in which such use is nonconforming may be restored within one year without action by the Hearing Examiner regardless of the extent of damage.
4. Any single-family residences so restored under any of these circumstances shall be subject to building area, height and setback requirements of the zone in which it is situated.
5. The use of any structure, including single-family residences, restored under any of these circumstances shall remain nonconforming. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1803 § 1, 1992; Ord. 1272 § 17-5-5, 1980.]
17.68.060 Improvements.
Nothing in this chapter shall be construed to restrict normal structural repair and maintenance activities including 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 true market value of the structure prior to such work. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-6, 1980.]
17.68.070 Change or discontinuance of use.
A. If a nonconforming use is discontinued and succeeded by another and more restrictive use, it shall be presumed that the prior nonconforming use has ceased to exist and thus loses its status as a preexisting nonconforming use. If the substitute use is itself nonconforming, the degree of nonconformity may not subsequently be increased by changing to a less restrictive use.
B. “More restrictive use,” as employed in this title, means the following:
1. Those uses permitted in the R-1 zone are the most restrictive uses.
2. All other uses are less restrictive in the following sequence: R-2, R-3, M-H, B-N, P-B, B-1, B-2, B-3, M-1, M-2 and PUD.
C. If a nonconforming use is discontinued and is not succeeded by another use within 12 months of such discontinuance, it shall be presumed that such use has ceased to exist and thus loses its status as a preexisting nonconforming use. Any subsequent use shall conform to the regulations of the use zone in which it is located.
D. The ownership of property classed as nonconforming may be transferred without that fact alone affecting the right to continue such nonconforming use. [Ord. 2023-28 § 1 (Exh. B), 2023; Ord. 1272 § 17-5-7, 1980.]