Chapter 17.29
NON-CONFORMING USES AND STRUCTURES

17.29.010 Purpose

This Chapter provides for the regulation, modification and orderly termination of uses and structures (other than signs and billboards) which were lawfully established but which are no longer in conformance with the provisions of the Zoning Ordinance. This Chapter is intended to limit non-conforming uses and structures by preventing the expansion of such uses and structures to the maximum extent feasible, by establishing criteria under which they may be continued or expanded, and by providing for the correction or removal of these uses and structures in an equitable, reasonable and timely manner. In addition, this Chapter is intended to limit the number and extent of non-conforming structures by prohibiting their relocation, alteration or enlargement in a manner that would increase the disparity between existing conditions and applicable City regulations, codes or ordinances.

Regulations pertaining to non-conforming signs and billboards are contained in Chapter 17.88 PMC.

17.29.020 General Provisions

A.    A use lawfully occupying a structure or a site, that does not conform with the use provisions and development standards for the zone district in which the use is located, shall be deemed to be a legal non-conforming use and may be continued, except as otherwise limited in this Division.

B.    A structure lawfully occupying a site, that does not conform with the development standards contained in this Ordinance, including but not limited to standards for front yards, side yards, rear yards, height, lot coverage, distances between structures, and parking facilities for the zone district in which the structure is located, shall be deemed to be a legal non-conforming structure and may be used and maintained, except as otherwise limited in this Division.

C.    Any use or structure which has been unlawfully established and which does not conform to the use provisions or development standards of the zone district in which it is located is in violation of the City’s Zoning Ordinance, and shall be subject to all available measures for abatement and correction of the code violation(s) pursuant to the Municipal Code.

D.    Any portion of a legal non-conforming structure or use which is altered or changed to a conforming structure or use, may not thereafter be used for a non-conforming use.

E.    Routine maintenance and repairs may be performed on a legal non-conforming use or structure.

F.    Alterations and repairs which are necessary to maintain public health, safety and welfare, as determined necessary by the Director of Building and Safety, may be performed on a non-conforming use or structure.

17.29.030 Existing Approvals

A.    Approved entitlements. Nothing in this Chapter shall be deemed or construed to prevent the ultimate development of a project site which has been approved or conditionally approved by the City prior to the effective date of this Zoning Ordinance or any amendment thereto, provided that actions necessary to inaugurate such development, as defined in PMC 17.20.120(A), have occurred prior to the expiration of the original entitlement or any subsequent approved time extension to the project.

B.    Facilities under construction. Nothing in this Chapter shall be deemed or construed to prevent the completion and use, in accordance with this Chapter, of any building or structure under construction before the effective date of this Zoning Ordinance or any amendment thereto, provided:

1.    That such construction or the proposed use of such building or structure is not, at the effective date, in violation of any other law or regulation; and

2.    That applicable grading and building permits have been issued and construction of such building or structure is initiated. For the purposes of this Section, the issuance of a grading permit alone shall not constitute a vested right to develop and where the grading plan would result in a non-conformity, said permit shall be null and void on the effective date of this Zoning Ordinance; and

3.    That all applicable permits remain valid, reasonable progress toward completion is being made and that work has not been ceased for a continuous period of more than 180 days.

C.    Time extensions. Time extension applications filed or under consideration after the effective date of the Zoning Ordinance or any amendment thereto, shall be subject to the procedures, standards and regulations contained within this Zoning Ordinance, as amended.

D.    Non-conformity under construction. Any non-conformity existing in any building or structure completed in accordance with this Section, shall be subject to the provisions of this Chapter.

E.    Density non-conformity. In the R-2, R-3 and MX zone districts, a lawfully established multi-family structure which becomes non-conforming with respect to the density of dwelling units, but is otherwise a permitted use, shall be permitted to continue indefinitely in accordance with this Chapter, provided there is no further increase in the number of units or any proposed change of use.

17.29.040 Legal Non-Conforming Structures

A.    Alteration

1.    A non-conforming non-residential structure shall not be enlarged or expanded in such a way as to occupy any part or space on the site which it did not occupy at the time it became legal non-conforming use, except as permitted in this Chapter.

2.    The habitable living area of a non-conforming residential structure shall not be enlarged or expanded in such a way as to occupy any part or space which it did not occupy at the time it became legal non-conforming, except as permitted in this Chapter.

3.    No non-conforming structure shall be altered or reconstructed so as to increase the disparity between existing conditions and the development standards contained in this Ordinance, including but not limited to standards for front yard, side yards, rear yard, height of structures, lot coverage, and distances between structures in the regulations for the zoning district in which the structure is located.

4.    Any proposed expansions or alterations of a non-residential legal non-conforming structure shall be reviewed through the submittal of a Site Plan Review and found to conform with the findings contained in PMC 17.29.050. (Zoning Ordinance Amendment 95-6 adopted by City Council April 10, 1996. Zoning Ordinance Amendment 11-05, adopted by City Council September 5, 2012.)

5.    No permitted change or alteration of a legal non-conforming structure shall be construed as authorizing an extension of any time limit established for termination of said structure.

B.    Restoration of a damaged non-conforming structure

1.    Whenever a structure which does not comply with the development standards contained in this Ordinance, including but not limited to front yard, side yards, rear yard, height of structures, distances between structures, densities and parking facilities as prescribed in the regulations for the district in which it is located, or the use of which does not conform with the regulations for the district in which it is located, is destroyed by fire or other calamity, by act of nature, or by the public enemy to the extent of fifty (50%) percent or less, the structure may be restored and the non-conforming use may be resumed, provided that restoration is started within one year and diligently pursued to completion. When the destruction exceeds fifty (50%) percent or the structure is voluntarily razed or is required by law to be razed, the structure shall not be restored except in full conformity with the regulations for the district in which it is located, and the non-conforming use shall not be resumed.

2.    A single family residential structure damaged beyond fifty (50%) percent may be rebuilt in substantially the same manner and to the same square footage as previously legally permitted, provided the structure does not further encroach into the existing setback area. (Zoning Ordinance Amendment 11-05, adopted by City Council September 5, 2012.)

3.    The extent of damage or partial destruction shall be based upon the ratio of the estimated cost of restoring the structure to its condition prior to such damage or partial destruction, to the estimated cost of duplicating the entire structure as it existed prior thereto. Estimates for this purpose shall be made by or shall be reviewed and approved by the Director of Building & Safety and shall be based on the minimum cost of construction in compliance with the Uniform Building Code.

4.    The repair of buildings or structures pursuant to this Section shall not be construed as authorizing an extension of any time limit for the termination of a non-conformity.

C.    Off-site relocation

When a building or structure is relocated to another site, it shall be made conforming in all respects with the provisions of this Zoning Ordinance and all other applicable laws and regulations.

17.29.050 Findings for Approval of Alteration of a Legal Non-Conforming Structure

A.    Before any modification to a legal non-conforming structure may be granted, the reviewing authority shall find that all of the following conditions shall exist in reference to the alteration being considered:

1.    The alteration of a non-residential structure will result in expansion of a structure by no more than ten (10) percent of the total floor area within the structure, or the alteration of a residential structure will result in the expansion of a structure by no more than seventy-five (75%) percent of the total floor area of the structure or 1,000 square feet, whichever is less; and (Zoning Ordinance Amendment 95-6 adopted by City Council April 10, 1996.)

2.    The use within the legal non-conforming structure is similar in nature to the use originally allowed and is not of greater intensity with regard to traffic, noise, density, parking demand, odor, light, or other similar development or performance standard; and

3.    The proposed alteration will not adversely affect or be materially detrimental to adjoining properties; and

4.    The proposed alteration complies with all applicable City policies, codes and ordinances; and

5.    The proposed changes are limited to minor alterations, improvements, or repairs which do not increase the degree of non-conformity present and do not constitute or produce an expansion or intensification of a non-conforming use.

B.    Any alterations required by governmental or court action shall be exempt from conditions of PMC 17.29.040 and this Section which are determined by the Planning Director not to apply to the project site.

17.29.060 Abatement of Non-Conforming Structures

A.    Non-conforming structures

A lawfully constructed structure which becomes non-conforming shall be terminated and such buildings, structures or facilities shall be removed or made conforming in all respects within the time period specified in Table 17.2.29.1.

B.    Site development non-conformities

1.    Non-conformity requiring capital expenditure to conform

Lawfully established site improvements, buildings and structures which become non-conforming with respect to site development regulations, and which cannot be made conforming without incurring a capital expenditure or loss, either shall be made conforming or allowed to continue as indicated in Table 17.2.29.2, unless otherwise provided in this Division.

2.    Non-conformity involving only non-capital expenditure or loss to conform

Unless otherwise specified, lawfully established facilities, operations or other circumstances which become non-conforming, but which can be made conforming without a capital expenditure or capital loss, shall be made conforming within one year from the date of non-conformance.

TABLE 17.2.29.1

TIME PERIODS FOR ABATEMENT OF

NON-CONFORMING STRUCTURES

Type of Structure*

Classification

Use

Allowable Life

Light metal or wood frame

II (1-hour)

II-N, V

Non-residential

23 years (Zoning Ordinance Amendment 14-03, adopted by City Council July 2, 2014)

Light metal or wood frame

II (1-hour)

II-N, V

Residential except

single-family dwellings.

20 years

Heavy timber,

masonry, concrete

II (Fire Resistive)

III, IV

All

30 years

Fire resistive heavy steel and/or

concrete

I

All

40 years

*    Building Code classification shall take precedence over type of material in case of conflict.

TABLE 17.2.29.2

TIME PERIODS FOR ABATEMENT OF

SITE DEVELOPMENT NON-CONFORMITIES

Non-Conformity

Requirement

Existing wall, fence or hedge of excess height, nonconforming placement, design, etc.

Shall be removed or made conforming within 3 years from the date of non-conformance.

Outdoor storage areas for vehicles, equipment or materials lacking required screening and/or enclosures.

Shall be made conforming within 1 year from the date of non-conformance.

Parking (non-residential), including number and size of space, lot layout, lot improvement and landscaping.

Allow to continue indefinitely, except that any expansion of use or intensity by more than twenty-five (25) percent shall require that all truck loading and maneuvering areas be made conforming to the extent feasible in the opinion of the Reviewing Authority. (Zoning Ordinance Amendment 98-1, adopted by City Council March 10, 1999.)

Parking (residential), including number of spaces and type of enclosure.

Allowed to continue indefinitely where no change of use or density is proposed. An addition to a dwelling may be made without making the parking conforming provided the number of dwelling units is not increased and the addition does not occupy the only available space on the lot which could be used to meet the parking requirement. (Zoning Ordinance Amendment 98-1, adopted by City Council March 10, 1999.)

Truck loading and maneuvering areas and truck stacking and parking spaces.

Shall be provided in a conforming manner within 1 year from the date of non-conformance.

Utilities.

Allowed to continue indefinitely, except that any replacement of an existing line shall be made in a conforming manner to the extent feasible.

17.29.070 Legal Non-Conforming Uses

A.    Alteration of Legal Non-conforming Non-residential Uses

1.    Any proposed expansion or change to a legal non-conforming use shall be reviewed through the submittal of a Conditional Use Permit and found to conform with the findings contained in PMC 17.29.080. In the case where a non-conforming use occupies a non-conforming structure, any alteration to either the use or the structure shall require approval of a Conditional Use Permit based on the findings contained in PMC 17.29.080.

B.    Alteration of Legal Non-conforming Residential Uses

1.    Any expansion of a single family residential use shall conform to the Standards for Development contained in PMC 17.41.090. No expansion of a multiple family residential use shall be permitted. (Zoning Ordinance Amendment 95-6 adopted by City Council April 10, 1996.)

2.    No permitted change or alteration of a legal non-conforming use shall be construed as authorizing an extension of any time limit established for termination of said use. (Zoning Ordinance Amendment 95-6 adopted by City Council April 10, 1996.)

C.    Discontinuation of a legal non-conforming use

Whenever a non-residential non-conforming use has been changed to a conforming use, or has been discontinued for a continuous period of 180 days or more, the non-conforming use shall not be reestablished, and use of the structure or site thereafter shall be in conformity with the regulations for the zone district in which it is located. A residential legal non-conforming use shall be determined to be discontinued when all residential units on a parcel of land have been changed to a conforming use or as set forth in Table 17.2.29.3. Thereafter, the use of the parcel shall be in conformance with the regulations for the zone district in which it is located. Discontinuance of a use shall include termination of a use regardless of intent to resume the use. (Zoning Ordinance Amendment 95-6 adopted by City Council April 10, 1996.)

17.29.080 Findings for Approval of Alteration of a Non-Conforming Use

A.    Before any modification to a non-conforming use may be granted, the reviewing authority shall find that all of the following conditions shall exist in reference to the alteration being considered:

1.    The proposed alteration will not prolong the normal remaining life of the non-conforming use.

2.    The proposed alteration of the non-conforming use will not be detrimental to or prevent the attainment of goals, objectives, and policies specified in the General Plan.

3.    The proposed alteration will not be detrimental to public health, safety, or welfare, or injurious to the property or improvements in the vicinity and district in which the use is located.

4.    The proposed alteration will not change the primary use of the land or increase the intensity of that use.

5.    The existing non-conforming use and proposed alteration complies with all of the applicable City policies, codes and ordinances regulating operation of such uses.

B.    Any alterations required by governmental or court action shall be exempt from conditions of PMC 17.29.070 and this Section which are determined by the Planning Commission not to apply to the project site.

17.29.090 Abatement of Non-Conforming Uses

A lawfully established use which becomes a non-conforming use under the provisions of this Zoning Ordinance, shall be terminated within the time period specified in Table 17.2.29.3:

 

TABLE 17.2.29.3

TIME PERIODS FOR ABATEMENT OF

NON-CONFORMING USES

USE

ALLOWABLE LIFE

A non-conforming use which does not occupy a structure.

1 year

A non-conforming use involving only buildings or structures which would not require a building permit to replace such buildings or structures.

3 years

A non-conforming use housed in a conforming structure designed to serve a use permitted in the zone.

5 years

A non-conforming use involving buildings or structures which would require a construction of a building specifically designed for that use, due to the specialized needs or functions of said use. (Zoning Ordinance Amendment 95-6, adopted by City Council April 10, 1996.)

20 years*

A non-conforming residential use which, through neglect, vandalism or deterioration, has become uninhabitable or unsafe to occupy. (Zoning Ordinance Amendment 95-6, adopted by City Council April 10, 1996.)

180 days from the date the structure is deemed unsafe/ uninhabitable.

*    Provided that the structure has a useful remaining life of at least 20 years. In the event that the structure does not have a useful remaining life of at least 20 years, as determined by the Building Official, then the Planning Director may establish a shorter amortization period for the non-conforming use and shall notify the owner of this determination in writing. (Zoning Ordinance Amendment 95-6, adopted by City Council April 10, 1996.)