Chapter 17.64
NONCONFORMING SITUATIONS
Sections:
17.64.010 General provisions.
17.64.020 Nonconforming structures.
17.64.030 Nonconforming uses.
17.64.040 Nonconforming commercial site development.
17.64.050 Nonconforming lots of record.
17.64.060 Violation – Enforcement.
17.64.010 General provisions.
These provisions apply to nonconforming sites, structures, and uses, including accessory uses, commercial design standards, but not signs. See LCMC 17.72.090 for nonconforming sign regulations.
A. Purpose. The purpose of this chapter is to allow nonconforming structures and nonconforming uses to continue, but not to encourage their perpetuation, and ultimately to bring them into conformance with this code and the comprehensive plan.
B. Pre-Existing Conditional Use Permit or Variance. A use or structure that was lawful by reason of a conditional use permit or variance may continue only on the terms of the approved permit or variance and subject to all conditions and limitations under which the permit or variance was approved or subsequently amended.
C. Determination That Nonconforming Use, Site, or Structure Is Lawful. The city may make a determination of whether a nonconforming use on a particular property is lawful, if necessary for staff review of an application. Determination will be based on evidence submitted into the record that shows whether the nonconforming situation was permitted by the standards and regulations in existence at the time established and continued without any period of discontinuance or abandonment as provided under this chapter. This determination shall be an administrative process.
D. Restoration of a Damaged Lawful, Nonconforming Structure or Use. A lawful, nonconforming structure or use that has been damaged may be restored to its previous extent, if the value of the damage, as determined by the city, is less than 50 percent of the appraised value of the building or structure, as determined by the records of the county assessor for the year preceding destruction.
E. Restoration of a Substantially Damaged Lawful, Nonconforming Structure or Use. If damaged to an extent of 50 percent or more, as determined by the city, a lawful nonconforming structure or use may be restored to its former height and footprint only, as approved by the city. The planning and community development director has authority to review an application to restore a lawful, nonconforming single-family dwelling or duplex use as an administrative decision. The planning commission has authority to review an application to restore a lawful, nonconforming multi-family dwelling, mixed use structure or commercial structure or use and shall conduct a public hearing on the application. A decision to approve an application to restore a nonconforming structure must include findings of all the following:
1. The damage was not intentionally caused by the property owner;
2. The restoration does not increase the degree of nonconformity or add new nonconformity, and except as specified above, restored structures conform to requirements of this code;
3. Restoration is according to plans approved by the fire marshal, building inspector and floodplain manager, and, if required, in conformance with a geo-technical report;
4. The restored structure or use does not encroach unlawfully on adjacent properties;
5. The restoration complies with reasonable conditions imposed by the city on a building permit in order to mitigate any new or increased adverse impact on adjacent property; and
6. In the case of a multifamily dwelling, mixed-use structure, or commercial structure, the reconstructed use or structure would not interfere with the intent and purpose of the zone in which it is located.
F. Time Limit on Restoration of Lawful Nonconformity. The owner of a damaged lawful, nonconforming use or structure shall apply for a building permit for restoration no later than 24 months from the date of the damage. After 24 months following the date of damage, the building will be subject to current zoning regulations for the district in which the land and buildings are located, including residential density standards.
G. Routine Repairs and Maintenance. Routine maintenance and repairs may be performed on structures, buildings, or sites that are nonconforming or that house nonconforming uses. Examples of maintenance and repairs are painting, repairing dry rot, and re-roofing. Routine repairs and maintenance do not include expansion of the square foot area of a structure or use, or creation of new units within residential structures. Routine repairs and maintenance performed in any 12-month period may not exceed 50 percent of the assessed value of the existing building, structure or use. (Ord. 2011-03 § 4)
17.64.020 Nonconforming structures.
A. Alteration of a Nonconforming Structure. A nonconforming building or structure may be enlarged or altered to the extent that such alteration or enlargement conforms to current regulations. An alteration made to provide safe access to a building for persons with disabilities is not considered an enlargement. Alteration of a nonconforming residential structure shall not change the number of dwelling units, if the change would increase nonconformity.
B. Moving a Nonconforming Structure. A nonconforming structure may be moved within the same lot, if the move decreases the level of nonconformity. A nonconforming structure may be moved to a different lot only if the relocated structure conforms to the regulations of its new location and applicable state law, including but not limited to ORS 455.410 (2010).
C. Completion of Structure. Nothing contained in this chapter shall require any change in the plans, construction, alteration or designated use of a structure for which a valid approval has been granted prior to the effective date of the ordinance codified in this chapter, except that if the structure will be nonconforming, it shall be considered abandoned for the purposes of LCMC 17.64.030(B), if not operational within 24 months of the date of issuance (or any extension) of the building permit. (Ord. 2011-03 § 4)
17.64.030 Nonconforming uses.
A. Lawful Nonconforming Uses Allowed to Continue. A lawful nonconforming use of land may continue as long as it remains otherwise lawful, provided the nonconforming use does not cease for any reason for a period of more than six months. For purposes of calculating the six-month period, a use is discontinued or abandoned on the occurrence of the first of any of the following events:
1. On the date when the use of land is physically vacated;
2. For commercial uses, on the date the sale of merchandise or the provision of services ceases;
3. On the date of termination of any lease or contract under which the nonconforming use has occupied the land; or
4. On the date a request for final reading of water and power meters is made to the applicable utility.
B. Discontinuance of a Nonconforming Use. If a conforming use has replaced a nonconforming use, or if the nonconforming use of a building, structure or site ceases for a period of six months or more, as described in subsection (A) of this section, the planning and community development director shall deem the nonconforming use discontinued, and the building, structure or land area shall be occupied only by uses conforming to the regulations for the zone in which it is located. If a nonconforming use has ceased, but the owner is marketing the property continually and actively for sale or lease, the planning and community development director may allow the lawful nonconforming status to continue for up to 18 additional months. The director’s determination shall be an interpretation, subject to appeal to the planning commission. Following an evidentiary hearing, the planning commission decision will be final, unless called up by the city council under LCMC 17.76.040(B).
C. Alteration of a Nonconforming Use. No building, structure, or land area devoted to or accessory to a nonconforming use may be used, moved or expanded unless the movement or expansion reduces nonconformity. Alteration of a nonconforming residential use shall not change the number of dwelling units, if the change would increase nonconformity.
D. Change of Nonconforming Use. The planning commission may approve an application for conversion to another nonconforming use in accordance with the provisions of LCMC 17.76.010, if, on the basis of the application and the evidence submitted, it finds the proposed use is suitable to the site and location and will not have greater adverse effect on the neighborhood or community than the previous use with regard to traffic, parking demand, hours of operation, noise, dust, and customer and/or residential activity. The commission may place conditions on the new nonconforming use to ensure compatibility and maximize conformance to current regulations. (Ord. 2011-03 § 4)
17.64.040 Nonconforming commercial site development.
The purpose of this section is to upgrade elements of nonconforming commercial development that affect the appearance of a site and create adverse impact on adjacent sites. The intent is to make commercial development closer to conformance with design standards in Chapter 17.74 LCMC, but not to require extensive changes that would be impractical or extremely expensive, such as moving, lowering or structurally altering buildings.
A. Subject to the other provisions of this chapter, when the owner of a use or structure located on a commercially zoned lot that contains nonconforming site development elements converts to a different use, enlarges or structurally alters the use or structure, the owner also shall alter the nonconforming site development elements to conform to standards in Chapter 17.74 LCMC to the maximum extent feasible within a cost not to exceed 25 percent of the cost of the conversion, enlargement, or structural alteration.
B. The following elements shall be made compliant with the commercial design standards in Chapter 17.74 LCMC, or, as approved by the planning and community development director, as close to compliant as possible within the cost limitation defined in subsection (A) of this section.
1. Pedestrian circulation, as set out in LCMC 17.74.070;
2. Materials and colors as set out in LCMC 17.74.080(B)(13);
3. Pedestrian spaces as set out in LCMC 17.74.100;
4. Screening and parking area landscaping as set out in LCMC 17.74.120;
5. Water quality as set out in LCMC 17.74.120(B)(5);
6. Exterior lighting as set out in LCMC 17.74.130;
7. Transparency as set out in LCMC 17.74.080(B)(3); and
8. Landscaping of existing setbacks and yard areas. (Ord. 2011-03 § 4)
17.64.050 Nonconforming lots of record.
If a lot or the aggregate of contiguous lots as recorded in the office of the county clerk has an area or dimension that does not meet the lot size requirements of the zone in which the property is located, such lot or lots may be occupied by a use or uses permitted in the zone, subject to the other requirements of the zone; provided, such lots in residential zones shall be limited to a single-family dwelling and such lots in the R-R zone shall be limited to a single-family dwelling or a recreational vehicle. (Ord. 2011-03 § 4)
17.64.060 Violation – Enforcement.
Any modification of a nonconforming use, site or structure that according to this chapter requires city approval shall not be initiated before such approval is obtained. Failure to obtain an approval required by this chapter is a violation punishable as a class A violation under Chapter 1.16 LCMC, with each day the property is used in violation of this section considered a separate infraction. Notice provisions of LCMC 17.84.020(B) shall not apply in any enforcement of violation of this chapter, and the city may at its option proceed to file a complaint or take other remedial action as provided in Chapter 17.84 LCMC without prior notice of violation to the property owner or any opportunity to correct. (Ord. 2011-03 § 4)