Chapter 17.94
NONCONFORMING USES
Sections:
17.94.020 Additions such as signs.
17.94.040 Nonconforming lots of record.
17.94.050 Nonconforming uses of land.
17.94.060 Nonconforming structures.
17.94.070 Nonconforming uses of structures – Continuance.
17.94.080 Nonconforming uses of structures – Expansion.
17.94.090 Nonconforming uses of structures – Extension throughout building.
17.94.100 Nonconforming uses of structures – Change to another nonconforming use.
17.94.110 Nonconforming uses of structures – Discontinuance.
17.94.120 Repairs and home improvement.
17.94.140 Termination of nonconforming adult uses.
17.94.010 Intent.
A. Within the districts established by this division or amendments that may be adopted, there exist lots, structures and land uses and structures which were lawful before the ordinance codified in this division was passed or amended, but which would be prohibited, regulated or restricted under the terms of this division or future amendments.
B. It is the intent of this division to permit these nonconformities to continue until they are moved, but not to encourage their survival. Such uses are declared by this division to be incompatible with permitted uses in the districts involved. It is further the intent of this division 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. 2554 § 3, 2003)
17.94.020 Additions such as signs.
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 passage of the ordinance codified in this division by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses of a nature which would be prohibited generally in the district involved. (Ord. 2554 § 3, 2003)
17.94.030 Existing buildings.
To avoid undue hardship, nothing in this division shall be deemed to require a change in the plans, construction or designated use of any building on which actual construction was lawfully begun, or a building permit issued, prior to the effective date of adoption or amendment of the ordinance codified in this division. Demolition or removal shall be deemed “actual construction”; provided, that work shall be diligently carried on until completion of the building involved. (Ord. 2554 § 3, 2003)
17.94.040 Nonconforming lots of record.
A. In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this division, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of the ordinance codified in this division. Such lots must be in separate ownership and not of continuous frontage with other lots in the same ownership. 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 setbacks and other requirements not involving area or width or both of the lot shall conform to the regulations of the district in which such lot is located.
B. If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of the ordinance codified in this division, and if all or part of the lots do not meet the requirements for lot width and area as established by this division, the lands involved shall be considered to be an undivided parcel for the purposes of this division, and no portion of the parcel shall be used or sold which does not meet lot width and area requirements established by this division, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this division. (Ord. 2554 § 3, 2003)
17.94.050 Nonconforming uses of land.
If, at the effective date of adoption or amendment of the ordinance codified in this division, lawful use of land exists that is made no longer permissible under the terms of this division 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 at the effective date of adoption or amendment of the ordinance codified in this division.
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 at the effective date of adoption or amendment of the ordinance codified in this division.
C. If any such nonconforming use of land ceases for any reason for a period of more than 90 days, any subsequent use of such land shall conform to the regulations specified by this division for the district in which such land is located. (Ord. 2554 § 3, 2003)
17.94.060 Nonconforming structures.
Where a lawful structure exists at the effective date of adoption or amendment of the ordinance codified in this division that could not be built under the terms of this division or restrictions on area, lot coverage, height, yards or other characteristics of the structure or 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 expanded or enlarged until it has been brought into conformity.
B. Should such structure be 50 percent destroyed by any means it shall not be reconstructed except in conformity with the provisions of this division. A claim of less than 50 percent destruction shall require proof in the form of insurance claim or other documentation.
C. Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved. (Ord. 2554 § 3, 2003)
17.94.070 Nonconforming uses of structures – Continuance.
If a lawful use of a structure, or of a structure and premises in combination, exists at the effective date of adoption or amendment of the ordinance codified in this division, that would not be allowed in the district under the terms of this division, the lawful use may be continued so long as it remains otherwise lawful, subject to the provisions set out through BMC 17.94.110. (Ord. 2554 § 3, 2003)
17.94.080 Nonconforming uses of structures – Expansion.
No existing structure devoted to a use not permitted by this division in the district in which it is located shall be enlarged, extended, moved or structurally altered to expand the exterior dimensions of the facility except in changing the use of the structure to a use permitted in the district in which it is located. This shall not prohibit repairs or remodeling of the structure. (Ord. 2554 § 3, 2003)
17.94.090 Nonconforming uses of structures – Extension throughout building.
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 the ordinance codified in this division, but no such use shall be extended to occupy any land outside such building. (Ord. 2554 § 3, 2003)
17.94.100 Nonconforming uses of structures – Change to another nonconforming use.
If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use as a conditional use requiring conditional use permit approval for the change in use. The approving authority shall take into consideration that the use being considered is a nonconforming use and therefore may not be consistent with the comprehensive plan and zoning use regulations. In that regard the approving authority may base its approval in part on a finding that the proposed use is no more nonconforming than the existing nonconforming use; provided, that all other applicable conditional use criteria are met. (Ord. 2554 § 3, 2003)
17.94.110 Nonconforming uses of structures – Discontinuance.
A. Any structure, or structure and land 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.
B. When a nonconforming use of a structure, or structure and premises in combination, is discontinued or the premises is vacant for 90 consecutive days or for nine total months during any three-year period, the structure and premises in combination shall not thereafter be used except in conformance with the regulations of the district in which it is located.
C. 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. (Ord. 2879 § 1 (Exh. A § 6), 2016; Ord. 2554 § 3, 2003)
17.94.120 Repairs and home improvement.
Nothing in this division shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official, or to prevent the improvement of a single-family house without expanding its exterior dimensions. (Ord. 2554 § 3, 2003)
17.94.130 Conditional uses.
Any use for which a conditional use permit has been provided, other than a use that has received conditional use permit approved as a change from one nonconforming use to another, shall not be deemed a nonconforming use, but shall without further action be deemed a conforming use in such district. A nonconforming use that received conditional use approval as a change from one nonconforming use to another shall continue to be a nonconforming use and shall be subject to all of the provisions of this chapter regarding nonconforming uses except as may be modified in the conditions of approval of the conditional use permit. (Ord. 2554 § 3, 2003)
17.94.140 Termination of nonconforming adult uses.
A. Nonconforming adult uses shall terminate within 12 months from the date that the use became nonconforming, except that the city council may approve up to four additional six-month extensions; provided, that:
1. A complete application is submitted by the owner or operator of such business to the community development services department at least 120 days prior to the date that such use must terminate (see BMC 17.46.130(B) for procedures for requesting an extension);
2. The city council finds, in connection with such adult use, that:
a. The applicant had made, prior to the use becoming nonconforming, substantial financial expenditures related to the adult use; 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 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 through 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 business is in compliance with all other applicable regulatory and/or licensing requirements; and
f. Payment of all actual costs of notice at or prior to the hearing as determined by the director;
3. The city council shall record its findings and conclusions following the hearing, and base its decision on the standards and criteria listed above, and may impose any conditions to ensure that the proposed use will meet the above standards and criteria. Evidence that such conditions are being complied with on an ongoing basis may be required.
B. 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. 2728 § 2 (Exh. A), 2009; Ord. 2673 § 2, 2007; Ord. 2554 § 3, 2003)
17.94.150 Appeals.
Appeals of a final decision shall be submitted pursuant to BMC 17.06.180, Appeals. (Ord. 2673 § 2, 2007)