Chapter 18.08
NONCONFORMING SITUATIONS

Sections:

18.08.010    Purpose and intent.

18.08.020    Illegal uses, structures and lots not permitted.

18.08.030    Establishment.

18.08.040    Nonconforming existing lots of record.

18.08.050    Nonconforming situations (including structures and uses).

18.08.060    Approval criteria.

18.08.070    Sale of a nonconforming situation.

18.08.080    Extension, expansion or joint use of nonconforming utility facilities.

18.08.085    Expansion or reconstruction of nonconforming situations within the Community Facilities Recreation and Community Facilities – Facilities zones.

18.08.090    Nonconforming situations matrix.

18.08.010 Purpose and intent.

A.    Purpose: This chapter regulates legal nonconforming lots, structures, uses, and other development situations, excluding signs, parking and landscaping, which were made nonconforming through the adoption of, or amendments to, this Code. This chapter also specifies those circumstances, conditions, and procedures under which such nonconformities may be permitted to continue, expand, or be modified. Signs, parking and landscaping nonconforming situations are addressed in Chapters 18.11, 18.09 and 18.12 IMC (respectively).

B.    Intent: The intent of this chapter is to permit existing, legal, nonconforming lots, structures, uses, or other development situations to continue to exist without specific time limitations, but to also encourage conformity over time. It is also intended to balance an applicant’s request for relief from a hardship of a nonconforming situation with the public benefit resulting from denial of the relief requested. (Ord. 2108 § 8.1, 1996).

18.08.020 Illegal uses, structures and lots not permitted.

Structures, lots, site improvements, and/or uses which were not legally conforming or existing as of the effective date of this Code retain their illegal status and must be abated or fully conform and comply with the procedural and substantive provisions of this Code. Any proposal for site improvements and/or modification for illegal nonconforming situations must comply with the standards and provisions of this Code. Regular maintenance, such as re-roofing or painting, does not require provisions for conformance. (Ord. 2108 § 8.2, 1996).

18.08.030 Establishment.

The burden of establishing that any nonconformity is a legal nonconformity as defined herein shall, in all cases, be upon the owner of such nonconformity and shall not rest upon the City. Upon request, the Permit Center shall assist the property owner in locating public records which pertain to the legal status of the nonconformity. If the owner cannot establish that the structure, lot, site improvement or use is a legal nonconformity, the City may require Code conformance of the situation as required by the Code. (Ord. 2108 § 8.3, 1996).

18.08.040 Nonconforming existing lots of record.

A.    Legal Nonconforming Lots – All Districts: Development may be permitted on a legal, nonconforming lot in any district; provided all pertinent local and state rules and regulations are met, including setbacks, impervious surface ratio, required critical area buffers, landscape requirements, and parking. This section shall apply even though such lots fail to meet the district requirements for lot size and/or width.

B.    Legal Nonconforming Residential Lots: There is a lot size exception for one (1) or two (2) lots of single ownership, as follows: In any residential zone, a single family dwelling may be established on a lot which cannot meet the lot size requirements of the zone, or one (1) single family dwelling on each of two (2) such lots when they have a common side lot line; provided that:

1.    All other setback and coverage requirements shall apply; and

2.    The owner of such lot(s) does not own any property adjoining either lot(s) except the subject lots; and

3.    The separate ownership of such lot(s) was of public record or under a bona fide contract of purchase prior to the effective date of this Code.

C.    Creation of Nonconforming Lots: Nonconforming lots, as defined by the zoning districts, may not be created. (Ord. 2108 § 8.4, 1996).

18.08.050 Nonconforming situations (including structures and uses).

A.    Continuation of a Legal Nonconforming Situation: Any legal nonconforming situation with respect to this Code may continue, including routine maintenance and repair, unless otherwise regulated by this Code. An existing legal nonconforming situation may be included in and/or changed as part of any development, subject to review and approval under this Code.

B.    Reconstruction of an Involuntarily Damaged or Destroyed Legal Nonconforming Situation: If a legal nonconforming situation is partially or fully damaged or destroyed due to accident, act of nature, or similar involuntary occurrence, the situation may be repaired or reconstructed as follows:

1.    Single Family Residential Uses: A nonconforming single family dwelling or duplex may be reconstructed, regardless of value, subject to a Level 0 Review; provided, that the degree of nonconformity shall not be increased.

2.    All Other Uses with Less Than Seventy-Five (75) Percent Construction Value: When reconstruction costs are less than seventy-five (75) percent of the latest King County assessed improvement value a Level 0 Review is required; provided, that the degree of nonconformity shall not be increased. Any nonconforming use shall be replaced with the specific use damaged or destroyed or a permitted use.

3.    All Other Uses with Seventy-Five (75) Percent or More Construction Value: When reconstruction costs are greater than or equal to seventy-five (75) percent of the latest King County assessed improvement value, the level of review is determined by the Table of Permitted Land Uses and the structure and/or site elements subject to reconstruction shall conform to this title to the fullest extent practical and feasible. Any nonconforming use shall be replaced with the specific use damaged or destroyed or a permitted use.

4.    Time Limit: The required permit applications for repair or reconstruction shall be submitted and deemed complete within one (1) year of the occurrence of damage or destruction or the project must be brought into compliance with all applicable codes.

C.    Change of a Legal Nonconforming Situation (Including Remodel or Alteration of a Structure or Site): A nonconforming situation may be changed, including the remodel or alteration of a structure or site; provided, that the change shall decrease the degree of nonconformity by conforming to the fullest extent practical and feasible with the applicable provisions of this title for the structure and/or site elements subject to change. The required review level is determined as follows:

1.    Less Than Seventy-Five (75) Percent Construction Value: If the remodel or alteration costs are less than seventy-five (75) percent of the latest King County assessed improvement value, the change shall be reviewed through a Level 0 Review.

2.    Greater Than or Equal to Seventy-Five (75) Percent Construction Value: If remodel or alteration costs are greater than or equal to seventy-five (75) percent of the latest King County assessed improvement value, the change shall be reviewed through a level consistent with the Table of Permitted Land Uses.

3.    Parking: Changes to a legally nonconforming parking situation shall be addressed by the provisions of Chapter 18.09 IMC, Parking.

4.    Signs: Changes to a legally nonconforming sign situation shall be addressed by the provisions of Chapter 18.11 IMC, Signs.

5.    Landscaping: Changes to a legally nonconforming landscaping situation shall be addressed by the provisions of Chapter 18.12 IMC, Landscaping.

D.    Demolition or Vacant Sites: If demolition occurs or a site is vacant, the new structure and/or site shall be brought into conformance with all applicable code requirements, unless otherwise stated in this title.

E.    Change of a Legal Nonconforming Use: A nonconforming use shall only be changed to a use permitted in the applicable zoning district. The review process is determined by the appropriate level of review listed in the Table of Permitted Land Uses (IMC 18.06.130).

F.    Discontinued Legal Nonconforming Use: If a legal nonconforming use has been discontinued for more than twelve (12) months, the new use shall be a permitted use. Discontinuance of a nonconforming use for a period of twelve (12) months or greater is deemed to be an intention to abandon said use. The Planning Director/Manager may extend the time frame for reestablishment or reconstruction of a nonconforming use of a structure or land beyond the twelve (12) month time limit; provided, that the owner or authorized agent can document that the reestablishment or reconstruction has not commenced due to pending insurance or court settlement directly related to the damage or destruction. The extension shall not exceed one (1) year, and building permits shall be applied for prior to the expiration of the extension.

G.    Expansion of a Nonconforming Situation: A change to a nonconforming situation which increases the degree of nonconformity is not permitted except as allowed in IMC 18.08.085, Expansion or reconstruction of nonconforming situations within the Community Facilities Recreation and Community Facilities – Facilities zones.

H.    Undefined Nonconforming Situations: Nonconforming situations not addressed in this section and not addressed by other sections such as the sign, landscaping, and parking sections shall be determined on a case-by-case basis by the Planning Director/Manager. The Planning Director/Manager shall determine the extent of change permitted to the nonconformity (i.e., bring into conformance, decrease, maintain, or increase nonconformity) and the appropriate level of review.

I.    Critical Areas: Changes to an existing legal nonconforming situation with respect to critical area wetland and stream buffers are subject to the following requirements:

1.    New Development and Redevelopment:

a.    New development and redevelopment shall comply with wetland buffer standards in IMC 18.10.640 and stream buffer standards in IMC 18.10.785.

b.    Wetland and stream buffer widths may be reduced as allowed in IMC 18.10.650(D), Reducing Wetland Buffer Requirements, and IMC 18.10.790(D), Reducing Stream Buffer Requirements.

2.    Alteration and Expansion of Existing Nonconforming Development:

a.    Expansion is allowed outside of required wetland and stream buffer area.

b.    Existing buildings may expand vertically to add upper stories.

c.    Building expansion over existing impervious surface area within the buffer is allowed provided the building expansion does not encroach closer toward a wetland or stream. Buffer enhancement, equal to the building expansion area, is required for building expansion over five hundred (500) square feet. Buffer enhancement shall comply with standards in IMC 18.10.650(D)(1)(c)(3).

3.    Nonconforming structures damaged or destroyed due to accidents or acts of nature may reconstruct on the original building footprint.

4.    A variance is required for changes to nonconforming situations that do not meet the standards listed above. (Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2549 § 3, 2009; Ord. 2108 § 8.5, 1996).

18.08.060 Approval criteria.

A.    To change a nonconforming situation, an approval or approval with conditions shall be granted if the project complies with all of the following applicable criteria:

1.    Applicant’s Hardship vs. Public Benefit: The significance of the applicant’s hardship is more compelling than, and reasonably overbalances, the public benefit resulting from denial of the relief requested; and

2.    Character and Future of Neighborhood: The proposed situation change is compatible with the character of the neighborhood, and, in the case of an expansion or change, does not significantly jeopardize future development of the area in compliance with the provisions and intent of the zoning district; and

3.    Compliance with Building Code: All proposed new construction meets applicable building codes; and

4.    Compliance with Review Criteria: The proposal is in compliance with the technical and design review criteria of the development review process which is required (Level 0, 1, 2 or 3); and

5.    Critical Areas: Changes to existing legal nonconforming situations involving wetland and/or stream buffers shall comply with Nonconforming Situations, IMC 18.08.050(I); and

6.    Degree of Nonconformity: The proposal is consistent with the requirements of this chapter, including IMC 18.08.050, Nonconforming Situations (Including Structures and Uses); and

7.    Historic Significance: The locally historic significance of the situation (including structure or use) is more compelling than, and reasonably overbalances, the public benefit resulting from the denial of the relief requested; and

8.    Parking Requirements: The application includes the required parking for any proposed expansion of the use or structure, or an Administrative Adjustment to the parking requirement is approved; and

9.    Property Value: The value of nearby properties will not be significantly decreased by approving the requested situation change; and

10.    Public Health, Safety and Welfare: The situation change requested would not be contrary to the public health, safety or welfare; and

11.    Repair and/or Reconstruction Application: A required permit application for repair or reconstruction is submitted and deemed complete within one (1) year of the occurrence of damage or destruction; and

12.    Repair/Reconstruction Procedures: The repair or reconstruction of the structure is completed pursuant to procedures set forth in this chapter.

B.    Findings and Conclusions: The Planning Director/Manager shall prepare written findings and conclusions stating the specific reasons for the decision to approve, approve with conditions, or deny the application. (Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2549 § 3, 2009; Ord. 2413 § 4, 2004; Ord. 2274 § 7, 2000; Ord. 2108 § 8.6, 1996).

18.08.070 Sale of a nonconforming situation.

Legally nonconforming property may be sold or transferred without affecting the right to continue the nonconforming situation, use, or use of a nonconforming structure. (Ord. 2274 § 7, 2000; Ord. 2108 § 8.7, 1996).

18.08.080 Extension, expansion or joint use of nonconforming utility facilities.

Public Utility Service Facility Extended or Expanded: A public utility service facility, such as a pumping station, water tower or substation, that is nonconforming as to use or development standards in a particular district, may be extended or expanded including allowing joint use of that facility by another public utility service facility pursuant to a Level 2 Review; and provided, that all the following conditions are met:

A.    The extension, expansion or joint use will not result in adverse consequences to existing facilities, adjoining properties or persons; and

B.    The extension, expansion or joint use is reasonably necessary to provide improved utility services in the area; and

C.    All proposed and existing facilities on the site use an appropriate screened buffer, which includes landscaping, to protect adjacent properties. (Ord. 2274 § 7, 2000; Ord. 2108 § 8.8, 1996).

18.08.085 Expansion or reconstruction of nonconforming situations within the Community Facilities Recreation and Community Facilities – Facilities zones.

A nonconforming situation within the Community Facilities Recreation (CF-R) or Community Facilities – Facilities (CF-F) zones may be rebuilt or expanded if it is determined that the nonconforming situation serves the greater community benefit by remaining as a nonconforming use upon that site. The expansion of a nonconforming situation must meet the approval criteria as established in IMC 18.07.480, Community facility standards, and at no time shall a nonconforming situation preclude a conforming use. The intent of this section is to allow the continued use and possible expansion of nonconforming situations, subject to the approval criteria in IMC 18.07.480 and 18.08.060, of public facilities such as, but not limited to, the senior center on Memorial Field, the Kiwanis Lodge in Gibson Park, the cemetery site near Mountainaire Park, or the Transit Center at SR900. All applications for expansion of nonconforming situations in the CF-R or CF-F districts shall be subject to Level 3 review consistent with IMC 18.08.090, Nonconforming situations matrix. (Ord. 2413 § 1, 2004; Ord. 2274 § 7, 2000).

18.08.090 Nonconforming situations matrix.

Nonconforming Situation

Permitted Change to Nonconformity

Level of Review

Approval Criteria

Reconstruction of Damaged or Destroyed Nonconformity (within 12 months)

– Single-family dwelling or duplex

Same nonconforming use only, otherwise conforming use; equal or lesser degree of nonconformity for other situations

Level 0

IMC 18.08.050, IMC 18.08.060

– All other uses when less than 75% of Structure Value

Same nonconforming use only, otherwise conforming use; equal or lesser degree of nonconformity for other situations

Level 0

IMC 18.08.050, IMC 18.08.060

– All other uses when greater than or equal to 75% of Structure Value

Same nonconforming use only, otherwise conforming use; conformance to fullest degree practical and feasible for other situations

Level 2 for reconstruction of a nonconforming use; for permitted uses, see Table of Permitted Uses

IMC 18.08.050, IMC 18.08.060

Change of a Nonconformity (Maintenance, Repair, Remodel, or Alteration)

– Less than 75% of Structure Value

Conformance to fullest degree practical and feasible for elements subject to change

Level 0

IMC 18.08.050, IMC 18.08.060

– Greater than or equal to 75% of Structure Value

Conformance to fullest degree practical and feasible for elements subject to change

See Table of Permitted Uses

IMC 18.08.050, IMC 18.08.060

– Critical Areas

Allowed in accordance with Nonconforming Situations, IMC 18.08.050(I)

Level 1

IMC 18.08.050(I)

Change of a Nonconformity (Demolition and Vacant Sites)

– Demolition and Vacant Sites

Bring into conformance

See Table of Permitted Uses

IMC 18.08.050, applicable level of review criteria

Change of a Nonconforming Use

– In All Zones

Bring into conformance

See Table of Permitted Uses

Applicable level of review criteria

Re-establish an Abandoned Legal Nonconforming Use

– Discontinued more than 12 months

Bring into conformance

See Table of Permitted Uses

Applicable level of review criteria

Extension or Expansion of Nonconforming Situations

– Extension, Expansion or Joint Use of Nonconforming Utility Facilities

Greater degree of nonconformity

Level 2

IMC 18.08.060 and 18.08.080

– Community Facilities in the CF zone

Greater degree of nonconformity

Level 3

IMC 18.07.480(D) and (E), 18.08.060, 18.08.080 and 18.08.085

(Ord. 2664 § 2 (Exh. A1), 2012; Ord. 2549 § 3, 2009; Ord. 2413 § 2, 2004; Ord. 2274 § 7, 2000; Ord. 2108 § 8.8, 1996).