Chapter 17.68
NONCONFORMING USES AND STRUCTURES*

Sections:

17.68.010    Intent.

17.68.020    Extension and enlargement.

17.68.030    Nonconforming lots of record.

17.68.040    Nonconforming uses of land.

17.68.050    Nonconforming structures.

17.68.060    Nonconforming uses of structures and premises in combination.

17.68.065    Large retail establishments.

17.68.070    Nonconforming parking, loading or other characteristics of use.

17.68.080    Repairs and maintenance.

17.68.090    Curative application.

*    Prior ordinance history: Ord. 454.

17.68.010 Intent.

A. Within the districts established by this title and amendments that may later be adopted, there exist incompatible lots, structures, uses of land and structures and characteristics of use which were lawful before the provisions of this title or its amendments became applicable to such land, structure or use, but which would be prohibited, regulated or restricted under the terms of this title or future amendments.

B. It is the intent of this title to permit these nonconformities to continue until they are removed, but not to unreasonably encourage their survival. It is further the intent of this title that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. (Ord. 609 § 5, 2004)

17.68.020 Extension and enlargement.

A. A nonconforming use of a structure, a nonconforming use of land or a nonconforming use of a structure and land shall not be extended or enlarged after the provisions of this title or its amendments became applicable to such land, structure or use. Among other things, the attachment on a building or premises of additional signs intended to be seen from off the premises or the addition of other uses constitutes such an extension or enlargement.

B. To avoid undue hardship, nothing in this title shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun before the provisions of this title or its amendments became applicable to such building and upon which actual building construction has been diligently carried on. “Actual construction” is defined to include the placing of construction materials in permanent position and fastened in a permanent manner. In addition, where demolition or removal of an existing building has been substantially begun in preparation of 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. In no event shall the time of such construction exceed a period of one year except for a demonstrated cause approved in writing by the commission. (Ord. 609 § 5, 2004)

17.68.030 Nonconforming lots of record.

In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this title, a single-family dwelling and customary accessory buildings may be erected on any single lot of record as of January 17, 1978, or as of the date of annexation for land annexed to the city after that date. 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 district; provided, that yard dimensions and other requirements not involving area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. (Ord. 05-016 § 3, 2005; Ord. 609 § 5, 2004)

17.68.040 Nonconforming uses of land.

Where, as of the date the provisions of this title or its amendments became applicable to such use, a lawful use of land exists that is made no longer permissible under the terms of this title as enacted or amended, such use may be continued, so 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 land than was occupied as of the date the provisions of this title or its amendments became applicable to such use, unless such use is changed to a use permitted in the district in which such use is located;

B. No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use as of the date the provisions of this title or its amendments became applicable to such use;

C. If any such nonconforming use of land ceases for any reason for a period of more than 180 consecutive days, any subsequent use of such land shall conform to the regulations specified by this title for the district in which such land is located;

D. No additional structure which does not conform to the requirements of this title shall be erected in connection with such nonconforming use of land. (Ord. 609 § 5, 2004)

17.68.050 Nonconforming structures.

Where a lawful structure existed as of the date the provisions of this title or its amendments became applicable to such structure which structure could not be built under the terms of this title or its amendments by reason of restrictions on area, lot coverage, height, setback, yards or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

A. No such structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity;

B. Should such structure be destroyed by any means to an extent of more than 60 percent of its assessed value at time of destruction, it shall not be reconstructed except in conformity with the provisions of this title;

C. Subsection (B) of this section notwithstanding, if a residential dwelling, or residential dwelling units, in a residential district is damaged by any involuntary change, including fire, flood or earthquake, so that the cost of renewal of the damaged parts exceeds 60 percent of the assessed value of the entire building, then such building may be replaced or reconstructed to the same footprint on the original location, subject to the following:

1. The owner duly applies for a building permit to replace or reconstruct the building within one year of the involuntary change,

2. No part of the structure may encroach into public rights-of-way or adjacent property,

3. The intended use of the building is the same as, or less intensive than, the prior use and is a permissible use in the district,

4. A professional engineer, duly licensed as such by the state of Alaska, certifies to the city that the foundation of the building is structurally reusable as is and the building official does not object to the certification; or a professional engineer, duly licensed as such by the state of Alaska, certifies to the city that the foundation of the building is structurally reusable subject to economic repairs and the engineer provides plans and specifications for the reconstruction, and the building official does not object to the certification, the plans and specifications or the subsequent reconstruction,

5. Projections beyond the footprint including architectural features, roof eaves, foundation footings, porches, decks, terraces, patios, unenclosed stairways and fire escapes, and attached structures, may also be replaced or reconstructed as they existed on the original building, so long as they do not encroach into public rights-of-way or adjacent property,

6. The owner provides the building official with an as-built survey by a land surveyor, duly licensed as such by the state of Alaska, of the footprint and location of the original building and projections beyond the footprint,

7. The building may be replaced or reconstructed under this subsection with no fewer than the number of off-street parking spaces as were provided for the original building; provided, that if it is feasible to eliminate any noncompliance with the off-street parking requirements, such noncompliance must be eliminated to the extent feasible, and

8. The building as reconstructed will not pose any significant risk to health or safety as may be determined by the building official and the fire chief.

Nothing in this subsection constitutes an approval or waiver of an encroachment of the building or its footprint or projections beyond the footprint into a public right-of-way or adjacent property. Nothing in this subsection waives any other applicable laws or regulations including without limitation this title or the building code.

D. Subsection (B) of this section notwithstanding, if a building or structure listed on the National Register of Historic Places as part of the Matanuska Colony Community Center as either a historic structure or a contributing structure is damaged by any involuntary change, including fire, flood or earthquake, such building may be replaced or reconstructed to the same footprint on the original location, provided:

1. The owner duly applies for a building permit to replace or reconstruct the building with a design that matches the damaged design, construction materials, color, and texture so as to retain the historic character of the property; and

2. The building as reconstructed will not pose any significant risk to health or safety as may be determined by the building official and the fire chief. (Ord. 10-023 § 3, 2010; Ord. 609 § 5, 2004)

17.68.060 Nonconforming uses of structures and premises in combination.

If a lawful use involving individual structures, or of structure and premises in combination, existed as of the date the provisions of this title or its amendments became applicable to such use or structure that would not be allowed in the district under the terms of this title, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

A. No existing structure devoted to a use not permitted by this title in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located;

B. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such buildings;

C. Any structure, or structure and premises in combination, in or on which a nonconforming use is superseded by a permitted use shall thereafter conform to the regulations for the district in which such structure is located and the nonconforming use may not thereafter be resumed;

D. When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for 12 consecutive months, except when government action impedes access to the premises, the structure or structure and premises in combination shall not thereafter be used except in conformance with the regulations of the district in which it is located;

E. Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land unless the land itself is in a nonconforming use. “Destruction,” for the purpose of this subsection, means damage to an extent of more than 60 percent of the assessed value of the structure at the time of destruction. (Ord. 609 § 5, 2004)

17.68.065 Large retail establishments.

A. A large retail establishment existing on or before May 11, 2004, shall be deemed to be a permitted large retail establishment and not a nonconforming use or structure; provided, that the structure was not otherwise a nonconforming structure. The provisions of this chapter notwithstanding, the expansion, reconstruction, renovation, or remodeling of a large retail establishment existing on the effective date may be allowed only after a limited development plan approval is granted by the city manager. This section shall not, however, apply to the interior remodeling, renovation, or repair to interior portions of large retail establishments existing on the above effective date. In approving limited development plans under this subsection, the city manager shall apply the standards set out in PMC 17.32.025 in a manner proportionate to the extent of the expansion, reconstruction, renovation, or remodeling proposed. The cost of compliance with the standards set forth in PMC 17.32.025 shall not exceed 10 percent of the cost of the expansion, reconstruction, renovation, or remodeling. In determining the degree to which the standards set out in PMC 17.32.025 shall apply to the expansion, reconstruction, renovation, or remodeling proposed, the city manager shall also consider:

1. Whether strict application of any standard of PMC 17.32.025 would result in peculiar or exceptional practical difficulties or work an undue hardship on the owner of the property;

2. Whether the proposed design and development plan satisfies the intent of this section as well or better than would strict compliance with standards set forth in PMC 17.32.025;

3. Whether relaxation of any requirement of PMC 17.32.025 would impose any significantly greater negative impact on surrounding property; and

4. Whether the proposed design and development plan brings the site into greater compliance with the standards set forth in PMC 17.32.025 than the existing structure.

B. Applications for limited development plan approval under this subsection shall be processed in the same manner as applications for a development plan approval required for new establishments. (Ord. 606 § 8, 2004)

17.68.070 Nonconforming parking, loading or other characteristics of use.

If the characteristics of a use, such as off-street parking, off-street loading or other matters required by this title in relation to specified uses of land, structures or premises, are not in accord with the requirements of this title, no change shall be made in such characteristics of use which increase nonconformity with such requirements. Change will be permitted in the direction of conformity to the requirements of this title. (Ord. 609 § 5, 2004)

17.68.080 Repairs and maintenance.

A. On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding 20 percent of the current assessed value of the building; provided, that the cubic volume of the building as of the date the provisions of this title or its amendments became applicable to such land, structure or use shall not be increased.

B. Buildings or structures listed on the National Register of Historic Places as part of the Matanuska Colony Community Center as either a historic structure or a contributing structure are exempt from the limitations of subsection (A) of this section if the proposed repairs or replacement support the use of the building or structure without affecting the defining historic characteristics of the building and its site. (Ord. 10-023 § 5, 2010; Ord. 609 § 5, 2004)

17.68.090 Curative application.

A. The city recognizes that between January 17, 1978, and January 27, 2004 (the effective date of the ordinance codified in this chapter), the city annexed areas into the city and the city also increased zoning restrictions on some parcels inside the city. As such, this title or certain increased restrictions therein may have become applicable to those structures, uses of land and structures and characteristics of use after January 17, 1978, but this chapter may not have been expressly available for them. Technically, these structures, uses of land and structures and characteristics of use may not have been considered legal under this title. The purpose of this section is to cure such oversight and to apply nonconforming use status to those above-described structures, uses of land and structures and characteristics of use; provided, that the status otherwise applies to them.

B. This chapter shall apply to those structures, uses of land and structures and characteristics of use described in subsection (A) of this section so that they are considered nonconforming; provided, that they were lawful at the time this title or the increased restrictions first applied to them; and provided further, that they have otherwise continued to meet the requirements of this chapter. (Ord. 609 § 5, 2004)