Chapter 20.14
NONCONFORMITY

Sections:

20.14.010    Buildings and structures.

20.14.020    Uses.

20.14.030    Termination of nonconforming uses.

20.14.040    Signs.

20.14.010 Buildings and structures.

A. Any existing building or structure or portion thereof lawfully erected or altered which does not meet all of the zoning requirements found in this title is hereby declared a nonconforming building or structure and not in violation of this title.

B. Any building or structure nonconforming as to lot coverage, yard, height, open space, density provisions or parking requirements may be enlarged, remodeled or renovated, provided such alterations do not contribute to additional encroachment or infringement of this title.

C. In the event a nonconforming building or structure is less than 50 percent destroyed by any cause, nothing in this title shall prevent the securing of a building permit within one year from the date of destruction for the restoration of the building or structure. The determination of the percentage of destruction shall rest with the building official and shall be based upon the actual cost of repairing the portion of the building or structure destroyed in relation to the estimated replacement cost of the entire building or structure.

Any nonconforming building or structure 50 percent or more destroyed may be reconstructed, provided it meets all of the regulations of the use district in which it is located or the structure is rebuilt according to a plan approved by the hearing examiner. Such a plan may be approved by the hearing examiner if it finds that the proposed reconstruction minimizes infringement of this title consistent with the specific reconstruction needs of the structure. The hearing examiner may condition such approval to mitigate the detrimental effects of infringement of this title by any portion of the nonconforming building or structure.

D. Buildings and Structures Nonconforming to Design Standards.

1. This subsection (D) regulates under what circumstances nonconformance with the design standards under Chapter 20.25 BMC, Design Review, must be corrected.

2. Multifamily development regulated under BMC 20.25.020(B) that does not conform to the design standards and is damaged or destroyed by sudden accidental cause may be reconstructed. The reconstructed improvement may not be more nonconforming than it was immediately prior to the damage. An application for a building permit to rebuild or repair the nonconforming improvement must be made within 12 months or the nonconformance shall be considered to be terminated and shall not be resumed. Development that does not conform to other provisions of this title shall continue to be regulated under the provisions of this chapter.

3. Modifications to structures shall be consistent with the design standards to the greatest extent feasible as determined by the city.

4. The process for approval of reconstruction plans by the hearing examiner under the provisions of subsection (C) of this section shall not be used to allow modifications of the design standards.

E. Nonconforming Large Retail Establishments. Over the life of the facility, individual retail establishments greater than 90,000 square feet in size that were in existence on the effective date of the ordinance codified in BMC 20.10.025 (February 27, 2007) shall be allowed to expand the gross floor area of the establishment by a maximum of 2,000 square feet over their original February 27, 2007, size. [Ord. 2015-01-001 § 3; Ord. 2008-07-068; Ord. 2006-06-060; Ord. 2002-10-069 § 46; Ord. 9024, 1982].

20.14.020 Uses.

A. Any existing use lawfully established prior to the passage of the ordinance codified in this chapter which is not permitted in the use district in which it is located is hereby declared a nonconforming use and not in violation of this title.

B. A nonconforming use shall not be relocated, expanded, enlarged, or increased in intensity unless such activity is approved through issuance of a conditional use permit as provided by subsection (E) of this section. Such prohibited activities shall include without being limited to:

1. Any activity which would require a building permit other than repair or replacement of existing structures or improvements.

2. Extension of a nonconforming use to any building or other structure or land area other than one occupied by such use on the effective date of the ordinance codified in this chapter (or on the effective date of a subsequent amendment thereto that causes such use to become nonconforming).

3. Extension of a nonconforming use within a building or other structure to any portion of the floor area that was not occupied by such use on the effective date of the ordinance codified in this chapter (or on the effective date of a subsequent amendment thereto that causes such use to become nonconforming); provided, however, that a nonconforming use may be extended throughout any part of such building or other structure that was lawfully and manifestly designed or arranged for such use on such effective date.

4. Operation of a nonconforming use in such manner as to conflict with, or to further conflict with if already conflicting on the effective date of the ordinance codified in this chapter (or on the effective date of a subsequent amendment thereto that results in such use becoming nonconforming), any performance standards established for the district in which the use is located.

5. Nothing contained in this section shall in any way prohibit a nonconforming use from acquiring additional off-street parking area or from installing any device, equipment, or structure whose sole purpose is to reduce any adverse environmental impact emanating from the nonconforming use.

C. The hearing examiner may grant a conditional use permit for a period not more than five years permitting a nonconforming use to change to another use not permitted in the use district in which it is located, provided the owner clearly demonstrates (1) that the structure, because of its particular design, cannot be reasonably used to house a permitted use, (2) that the proposed use will be more compatible with the permitted uses of the use district than was the existing use. The hearing examiner may condition such permit if it finds that provisions have to be taken to safeguard adjoining properties from detrimental effects that might result from the proposed use.

D. The hearing examiner may extend such conditional use permit for an additional period or may declare such use a permanent nonconforming use, provided the owner clearly demonstrates that the structure cannot be reasonably used for a permitted use because of its particular design. In determining whether to grant such an extension, and if so, for what period, the hearing examiner shall take into account the following:

1. If the hearing examiner finds that the nonconforming use’s contribution to the welfare of the community at its present site outweighs detriment to the neighborhood, then the hearing examiner may declare such use a permanent nonconforming use.

2. If the hearing examiner finds that the detriment to the surrounding properties outweighs the nonconforming use’s contribution to the general welfare of the community, then a period should be set which provides (a) a reasonable allowance of time for amortization of investments in the building and improvements, while (b) minimizing future detriment to the surrounding properties.

3. If the hearing examiner finds that the detriment to the surrounding properties significantly outweighs any deprivation of the property owners’ rights in the nonconforming uses caused by termination of such use, the hearing examiner may order that the use be terminated within a period of one year or longer.

The hearing examiner may otherwise condition the use so as to minimize detriment to the neighborhood. A time period shall be set so that the public benefit exceeds any private loss. No further extension shall be granted.

E. The hearing examiner may grant a conditional use permit allowing a nonconforming use to expand, enlarge, or increase in intensity; provided, that:

1. The use may not expand beyond the site, lot, or parcel as defined by the legal description on the certificate of occupancy for a nonconforming use, or as owned or leased by the nonconforming use as of the date it became nonconforming in the event there is no certificate of occupancy;

2. Uses which are nonconforming due to the number of residential units may not add additional units;

3. The proposed modification will not result in further infringement of the provisions of this title; modifications shall comply with all regulations (other than use restrictions) including but not limited to lot coverage, yard, height, open space, density provisions, or parking requirements unless waived by the hearing examiner through variance as provided by this title;

4. The nonconforming use must be a permitted use within at least one of the general use types; and

5. The use must not be an industrial use in a residential single or residential multi duplex district. For the purpose of this section, “industrial use” shall mean any use which is permitted only in industrial general use type districts. [Ord. 2002-10-069 § 46; Ord. 9251 §§ 1, 2, 1983; Ord. 9024, 1982].

20.14.030 Termination of nonconforming uses.

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

1. When open land shall cease to be used for a nonconforming use for six consecutive months.

2. When a building designed or arranged for a nonconforming use shall cease to be used by that particular use for 12 consecutive months.

3. When a building designed or arranged for a permitted use but used for a nonconforming use shall cease to be used for such nonconforming use for six consecutive months.

In any proceedings held relevant to or concerning enforcement of this section, the burden of showing continuous use shall be upon the owner or applicant for a use.

B. 1. Between the effective date of the ordinance codified in this chapter and the end of 1990, the city planning department shall notify each nonconforming use located in a residential single or multi general use type and which engages in the operations hereinunder specified that it must, within 30 days of notification, apply for a certificate of nonconforming use which shall be granted only upon the following procedures:

a. Such issuance of a certificate of nonconforming use shall be considered and treated for the purposes of this section as an “action” under the State Environmental Protection Act and city Ordinance No. 8515, as amended; and

b. The hearing examiner shall hold a public hearing and, after consideration of any required environmental impact statement, shall impose conditions necessary to minimize detriment to the surrounding properties and neighborhoods.

If the conditions imposed by the hearing examiner are not followed or instituted by the nonconforming user, the planning director or building official may request and the city attorney’s office shall prepare and prosecute a complaint for permanent injunction to terminate the nonconforming use or eliminate detrimental effects or nuisance caused thereby.

2. The nonconforming uses subject to the review of the hearing examiner under this section shall be limited to those which engage in as its primary function the following operations:

a. Manufacturing uses engaging in the transformation or blending of materials into new products or in the assembly of parts.

b. Establishments engaged in the selling of merchandise to retailers, to industrial, commercial, institutional, farm, or professional business users or to other wholesalers.

c. Establishments engaged in the repair or painting of automobiles and motorcycles or their parts or systems.

d. Establishments engaged in freight operations or transportation terminals.

The planning and economic development department shall investigate nonconforming uses which engage in the aforementioned operations and which are the subject of departmental or citizen complaint(s). If the department determines that a nonconforming use which is the subject of complaint(s) has a detrimental impact on surrounding properties, such use shall be required to apply for a certificate of nonconforming use within 30 days of notification by the department.

C. In the event a building or structure which houses a nonconforming use is less than 50 percent destroyed by any cause, nothing in this title shall prevent the securing of a building permit within one year from the date of destruction for the restoration of the building or structure. The determination of the percentage of destruction shall rest with the building official and shall be based upon the actual cost of repairing the portion of the building or structure destroyed in relation to the estimated replacement cost of the entire building or structure. Any building or structure which houses a nonconforming use which is 50 percent or more destroyed may be rebuilt according to a plan approved by the hearing examiner. Such a plan may be approved by the hearing examiner if it finds that the proposed reconstruction minimizes detriment to the surrounding properties or the general welfare consistent with the reconstruction needs for the nonconforming use. The hearing examiner may condition such approval to mitigate such detrimental effects caused by the nonconforming use. [Ord. 2002-10-069 § 46; Ord. 9691 § 1, 1987; Ord. 9024, 1982].

20.14.040 Signs.

A. Any existing sign, legally erected, which no longer conforms with the regulations of this title is hereby declared a nonconforming sign and not in violation of this title (except for off-premises signs).

B. A nonconforming sign shall be permitted to remain until such time that said sign becomes abandoned or unsafe; or is proposed to be replaced, relocated and/or structurally or electronically altered (except for off-premises signs).

C. A nonconforming sign advertising a conforming use, when replaced or changed, shall comply with the provisions of this title (except for off-premises signs).

D. A nonconforming sign, when replaced or changed, shall comply with the provisions of this title; or one sign may replace all existing exterior signs if the total square footage of said sign does not exceed 75 percent of the aggregate total square footage of the existing signs nor constitutes more than 150 percent of the sign area permitted by regulations of the applicable land use designation (except for off-premises signs or billboards).

E. All off-premises signs which were legally erected and maintained are hereby declared nonconforming. Any off-premises sign 50 percent or more destroyed may not be reconstructed. All off-premises signs shall be removed from the city of Bellingham by March 13, 1996, as provided in BMC 20.12.040(C).

F. A nonconforming billboard may be repaired; provided, that the cost to repair shall not exceed $5,000. If the cost to repair or reconstruct a nonconforming billboard exceeds $5,000, the billboard must conform to the requirements specified in this code. [Ord. 10674 §§ 17, 18, 1995; Ord. 10039 § 3, 1990; Ord. 9582 § 6, 1986; Ord. 9024, 1982].