Chapter 20.83
NONCONFORMING USES AND PARCELS

Sections:

20.83.010    Continuation.

20.83.015    Termination of nonconforming adult businesses.

20.83.020    Expansion of nonconforming use.

20.83.030    Zone district change – Continuation.

20.83.040    Change to another nonconforming use.

20.83.050    Damage or destruction – Rebuilding permitted.

20.83.060    Lots of record.

20.83.070    Lot consolidation.

20.83.080    Access to existing public road.

20.83.090    Use of consolidated parcels.

20.83.100    Hardship.

20.83.110    Reduction of area.

20.83.120    Applicability.

20.83.130    Affidavit of nonconforming use.

20.83.140    Developed subdivisions in forestry zones.

20.83.150    Development and performance standards.

20.83.151    Surface mining operations.

20.83.010 Continuation.

Except as otherwise provided in this chapter, the lawful use of any building, land or premises, existing on the effective date of adoption or amendment of this chapter, may be continued although such use does not conform to the provisions hereof. If such nonconforming use is discontinued for a period of 12 months or more, any future use of said building, land or premises shall be consistent with the provisions of this chapter.

A structure occupied by a nonconforming residential use may be converted to any of the following uses:

(1) An adult family home that is similar in size, facilities and occupancy to the nonconforming residential use.

(2) A boarding home that is similar in size, facilities and occupancy to the nonconforming residential use.

(3) A mental health facility that:

(a) Provides residential treatment; and

(b) Is similar in size, facilities and occupancy to the nonconforming residential use.

(4) A substance abuse facility that:

(a) Provides residential treatment; and

(b) Is similar in size, facilities and occupancy to the nonconforming residential use. (Ord. 2004-014 § 2, 2004).

20.83.015 Termination of nonconforming adult businesses.

Nonconforming adult businesses shall terminate within one year from the date that the use became nonconforming, except that the hearing examiner may approve up to four additional one-year extensions; provided, that:

(1) An application is submitted by the owner or operator of such business to the Whatcom County planning and development services department at least 120 days prior to the date that such business must terminate; and

(2) The hearing examiner shall find, in connection with such adult business, that:

(a) The applicant had made, prior to the use becoming nonconforming, substantial financial expenditures related to the adult business; and

(b) The applicant has not recovered, through sales, depreciation or other tax benefits, a reasonable portion of the financial expenditures related to the adult business that were made prior to the use becoming nonconforming; and

(c) The applicant could not recover, through sales, depreciation or other tax benefits, a reasonable portion of the financial expenditures by converting the nonconforming adult business to a use that is permitted or allowed as a conditional use in the zoning district; and

(d) The period for which such adult business may be permitted to continue is the minimum period sufficient for the applicant to recover, through sales, depreciation or other tax benefits, a reasonable portion of the financial expenditures incurred related to the adult business, but in no case shall exceed one additional year at a time; and

(e) The economic hardship to the applicant is found to outweigh the public benefit to be gained by termination of the nonconforming use.

For the purpose of this section, “financial expenditures” shall mean the capital outlays made by the applicant to establish the adult business, exclusive of the fair market value of the building in which the use is located and exclusive of any improvements unrelated to the nonconforming adult business. “Financial expenditures” shall not include improvements to the building for which all required permits were not obtained. “Financial expenditures” shall not include materials for sale or rent that could be moved to another legal site and placed for sale or rent at that site. (Ord. 99-070 § 2, 1999).

20.83.020 Expansion of nonconforming use.

(1) Nonconforming uses may be extended throughout any building partially occupied by such use at the time of passage of the ordinance codified in this section, except for nonconforming adult businesses, which shall not be extended to other parts of the building.

(2) The expansion of a nonconforming use by addition or enlargement shall require a conditional use permit, except for nonconforming adult businesses, which shall not be expanded. The expansion must be on the parcel as it existed at the time the use became nonconforming and the use shall not expand on adjacent parcel(s). The expansion shall be approved if it is consistent with the applicable zoning regulations except the use restrictions and complies with WCC 20.84.220(2) to (9).

(3) For the purposes of this section, the expansion of a nonconforming surface mining operation (which requires a conditional use permit) shall mean:

(a) Any lateral excavation outside of the footprint of the nonconforming mine as it existed on the effective date of the amendment codified in this subsection; or

(b) Any further excavation within a five-year time of travel boundary for delineated wellhead protection areas (areas within the one-year and two-year time of travel boundaries are included in the five-year time of travel boundary); or

(c) Any further excavation within 10 feet of the seasonal high water table if mining is within a 10-year time of travel boundary for delineated wellhead protection areas, but outside of a five-year time of travel boundary; or

(d) Any further excavation within five feet of the seasonal high water table if mining is within a critical aquifer recharge area, but outside of the 10-year time of travel boundary for delineated wellhead protection areas.

This subsection (3) does not apply to mining operations conducted in accordance with a previously approved conditional use permit, mining operations conducted in accordance with a previously approved county surface mining permit, nor to mining operations within the mineral resource lands overlay zone that have obtained administrative approval. Subsections (3)(b) and (3)(c) of this section do not apply when the well was drilled after the effective date of the amendment codified in this subsection.

(4) Whatcom County shall not pursue enforcement action for failure to possess a conditional use permit against any operator or owner of a nonconforming surface mining operation if all of the following circumstances apply:

(a) The owner or operator demonstrates that this section would require them to cease operations until they obtained a conditional use permit; and

(b) The owner or operator applies for a conditional use permit:

(i) Within 120 days of the effective date of the amendment codified in this subsection; or

(ii) Within 120 days of the date the mine owner or operator is notified of the new wellhead protection area, if the new wellhead protection area is established after the effective date of the amendment codified in this subsection for an existing well; and

(c) The owner or operator continues to actively seek the conditional use permit after the application is submitted. (Ord. 2016-011 § 1 (Exh. J), 2016; Ord. 2001-047 § 1, 2001; Ord. 99-070 § 2, 1999; Ord. 88-29, 1988).

20.83.030 Zone district change – Continuation.

When a zone district is changed, existing nonconforming uses may be continued consistent with the provisions of WCC 20.83.010, 20.83.020, and 20.83.150. (Ord. 2001-047 § 1, 2001).

20.83.040 Change to another nonconforming use.

The change of a nonconforming use to another type of a nonconforming use shall be conditionally permitted, except that a nonconforming use shall not be changed to an adult business. The change of nonconforming use shall be approved if it is consistent with the applicable zoning regulations, except the use restrictions, and complies with WCC 20.84.220(2) to (9), providing such change does not require the provision of water and sewer utility services at a level greater than that currently available to the subject property, and that the new nonconforming use does not result in greater impacts upon surrounding properties than did the original nonconforming use. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 99-070 § 2, 1999; Ord. 86-15, 1986).

20.83.050 Damage or destruction – Rebuilding permitted.

If a nonconforming use or physical feature of a building or group of buildings on one site is damaged or destroyed by any means, that use shall be permitted to be rebuilt equal to the square footage of damaged or destroyed building(s), and for the same use and location on the site. (Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.060 Lots of record.

Except as modified by WCC 20.83.070, legal parcels or lots of record that do not meet the minimum area or width requirements of the zone district may be developed with permitted, accessory and conditional uses provided:

(1) That all other district standards are met; and

(2) The lots or parcels were created pursuant to applicable state and local subdivision regulations in place at the time of lot segregation. (Ord. 2000-013 § 1, 2000; Ord. 87-12, 1987; Ord. 87-11, 1987; Ord. 82-78, 1982).

20.83.070 Lot consolidation.

Two or more lots of record shall be considered as one undivided parcel for the purpose of use or sale if all of the following circumstances apply, except as modified by WCC 20.83.071, 20.83.072, or 20.83.073:

(1) The lots were in one ownership as of the date of the adoption of the ordinance codified in this section (March 21, 2000);

(2) One or more of the lots in question does not meet the conventional minimum lot size of the applicable zone district;

(3) The lots are not separated by an intervening parcel in different ownership or by public right-of-way;

(4) No more than one lot is developed with a legally established permitted or conditional use;

(5) At least one of the lots is less than one acre or located within the Lake Whatcom watershed or other water resource protection overlay district, a designated critical area, or an area zoned agriculture, commercial forestry, or rural forestry.

.071 Lots that were formally established after September 2, 1955, by long plats, assessor’s plats, short plats, the binding site plan process, divisions certified exempt on the conveying instrument by Whatcom County, Lummi Island lots exempted per WCC 20.34.254, or parcels which were legally created after February 3, 1972, under an exemption included in the Whatcom County subdivision regulations in place at the time they were divided, are exempt from the lot consolidation requirements of WCC 20.83.070.

.072 The following formula shall be used to determine the maximum number of lots which shall be permitted by the consolidation of substandard lots. This formula is not applicable to satisfying the requirements of Chapter 20.89 WCC.

The total area of all lots subject to consolidation under this section shall be added together and the sum divided by the minimum noncluster lot size for the zoning district. The whole number quotient shall be the maximum number of lots; provided, that an additional lot shall be allowed if the quotient contains a fraction of 0.5 or more; and provided further, that the number of lots shall not exceed the original number of lots. Parcels recognized as permitted lots under this subsection are not required to obtain administrative approval under WCC 20.83.073.

.073 Any owner of lots subject to consolidation hereunder may apply for administrative approval for relief from the provisions of WCC 20.83.070 on the grounds that such requirements place an unreasonable burden upon the property affected. In evaluating such a claim, the zoning administrator shall grant consolidation relief if all of the following circumstances apply:

(1) That each lot has a water and sewer service from a public provider or an on-site water and sewage disposal system approved by the Whatcom County department of health and human services.

(2) That each lot has a building site, exclusive of building setbacks, at least 40 feet wide and 40 feet deep, which is not located within the Lake Whatcom watershed or other water resource protection overlay district, a designated critical area, or an area zoned agriculture, rural forestry or commercial forestry.

(3) That each lot has legal and physical access to a public or private road improved to county road standards.

(4) The proposed consolidation relief meets the approval criteria of WCC 20.84.220(3) through (9).

The procedures for administrative approval uses (WCC 20.84.235) shall be followed when processing a lot consolidation relief application, except that the approval criteria of WCC 20.84.220(1) and (2) shall not apply. (Ord. 2017-030 § 1 (Exh. A), 2017; Ord. 2016-011 § 1 (Exhs. F, J), 2016; Ord. 2003-029 § 1 (Att. A § 9), 2003; Ord. 2002-055, 2002; Ord. 2000-013 § 1, 2000; Ord. 88-29, 1988; Ord. 87-12, 1987; Ord. 87-11, 1987; Ord. 82-78, 1982).

20.83.080 Access to existing public road.

No parcel shall be created and treated as an independent usable lot (through consolidation of lots of record under WCC 20.83.070 and 20.83.071) that does not have access to an existing public road. (Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.090 Use of consolidated parcels.

Parcels of land created by consolidation pursuant to WCC 20.83.070, 20.83.071 or 20.83.072 shall be considered as conforming parcels and shall be eligible for permitted, accessory and conditionally permitted uses; provided, that prior to issuance of a building permit, platted lots that are consolidated shall either be bound together by a covenant filed with the county auditor or by the vacation of interior lot lines, and unplatted lots that are consolidated shall be bound together by a covenant filed with the county auditor. A binding covenant shall include the county as a signator to prevent removal of the covenant without the knowledge of the county. (Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.100 Hardship.

To mitigate hardship to the applicant/ property owner, lots being created pursuant to a currently valid application for a short plat or long subdivision, at the date of adoption or amendment of this ordinance, shall be recognized as conforming lots for the purpose of this ordinance; provided, that other applicable requirements of the zone district and subdivision ordinance are met. (Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.110 Reduction of area.

The administrator shall not cause or increase the nonconformity of lots that are substandard as to lot area and/or lot width requirements through boundary line adjustments; provided, however, that the administrator or hearing examiner may approve boundary line adjustments required to satisfy an unidentified or disputed property line or to identify the same in accordance with RCW 58.04.007. In addition, boundary line adjustments in the Agricultural Zone in conformance with WCC 20.40.253 and 20.40.254 shall be allowed. (Ord. 2013-040 Exh. 1, 2013; Ord. 2009-031 § 1 (Exh. 1), 2009).

20.83.120 Applicability.

The provisions of this ordinance shall be applicable to the use or sale of any parcel subject to this ordinance, and shall preclude any action in any manner which may diminish compliance herewith.

20.83.130 Affidavit of nonconforming use.

When a nonconforming use of a property is challenged through a complaint from the public or by initiative of the zoning administrator, the burden of proof of applicability of WCC 20.83.010 shall rest with the property owner. The owner shall make public record of his right of nonconforming land use status by filing an affidavit of nonconforming use with the zoning administrator that contains the legal description of the affected property, the purpose for which the property is used and any other facts necessary as evidence to verify the legitimacy of the nonconformity. The affidavit shall be accompanied by a filing fee as listed on the current fee schedule. The zoning administrator or designee shall make a site examination to verify the nonconforming use and endorsed upon the affidavit if found to be as represented by the applicant.

The administrative determination to endorse or not to endorse a nonconforming use may be appealed under WCC 20.84.240. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 2003-029 § 1 (Att. A § 4), 2003; Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.140 Developed subdivisions in forestry zones.

Residential or recreational subdivisions substantially developed and located within Forestry Zones shall be subject to standards as shown below:

(1) Lummi Island Scenic Estates shall be administered under the RR-I Zone District regulations. (Ord. 87-12, 1987; Ord. 87-11, 1987).

20.83.150 Development and performance standards.

Within 18 months from November 9, 1992, the development and performance standards of WCC 20.73.650 and 20.73.700 shall apply to all lawfully existing surface mining operations. (Ord. 92-079, 1992).

20.83.151 Surface mining operations.

Surface mining operations lawfully existing prior to November 9, 1992, may continue such activity only when the rate of extraction does not exceed the average rate at the site over the previous five years; provided, that this shall not apply to operations with a valid state or local surface mining permit. (Ord. 92-079, 1992).