Chapter 162 – NONCONFORMANCE

Sections:

162.05    User Guide

162.10    When Conformance Is Required

162.15    General

162.20    Abatement of Nonconformance That Was Illegal When Initiated

162.25    Immediate Compliance with Certain Provisions Required

162.30    Special Provision for Damaged Improvements

162.35    Certain Nonconformances Specifically Regulated

162.40    Additional Provision If a Quasijudicial Decision Is Required

162.45    Prohibition on Increasing Nonconformance

162.50    Applicability of Uniform Codes

162.55    Special Provisions for Continued Uses – Lot Coverage

162.57    JBD 5 Continued Use

162.65    CBD Continued Use

162.05 User Guide

This chapter establishes when and under what circumstances nonconforming aspects of a use or development must be brought into conformance with this code. You need to consult the provisions of this chapter only if there is some aspect of the use or development on the subject property that is not permitted under this code.

For properties within jurisdiction of the Shoreline Management Act, see Chapter 83 KZC.

For properties containing wetlands, streams, minor lakes, frequently flooded areas and fish and wildlife habitat conservation areas, see Chapter 90 KZC.

(Ord. 4551 § 4, 2017; Ord. 4252 § 1, 2010)

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162.10 When Conformance Is Required

If an aspect, element or activity of or on the subject property conformed to the applicable zoning code in effect at the time the aspect, element or activity was constructed or initiated, that aspect, element or activity may continue and need not be brought into conformance with this code unless a provision of this chapter requires conformance.

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162.15 General

If a use is nonconforming, the applicable use zone chart does not establish what regulation of this code applies. Therefore, to determine what regulations apply, the City will determine the zone that allows the nonconforming use that is most similar to the zone in which the nonconforming use is located and apply the regulations of that chapter.

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162.20 Abatement of Nonconformance That Was Illegal When Initiated

1.    General – Except as specified in subsection (2) of this section, any nonconformance that was illegal when initiated must immediately be brought into conformance with this chapter. The City may, using the provisions of Chapter 1.12 KMC, immediately abate any nonconformance that was illegal when initiated.

2.    Exceptions – If a nonconformance has ever been in complete conformance with an applicable zoning code it may continue to exist subject to the provisions of this chapter, and it is not subject to abatement under subsection (1) of this section.

(Ord. 4281 § 1, 2011)

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162.25 Immediate Compliance with Certain Provisions Required

1.    General – Regardless of any other provision of this chapter, the following nonconformances must be immediately brought into conformance with the applicable provisions of this code:

a.    Nonconformance with the noise standards in Chapter 115 KZC.

b.    Nonconformance with the lighting standards in Chapter 115 KZC.

c.    Nonconformance with the heat emission standards in Chapter 115 KZC.

d.    Nonconformance with the radiation standards in Chapter 115 KZC.

e.    Nonconformance with the air quality standards in Chapter 115 KZC.

f.    Nonconformance with the water quality standards in Chapter 115 KZC.

g.    Nonconformance with the odor standards in Chapter 115 KZC.

h.    Nonconformance with the provisions in Chapter 115 KZC regarding parking and storage of large vehicles in residential zones.

i.    Nonconformance with the provisions in Chapter 21.41 KMC regarding junk in residential zones.

j.    Nonconformance with the glare standards in Chapter 115 KZC.

k.    Nonconformance with the provision of KZC 100.85(1)(i) regarding portable outdoor signs.

l.    Nonconformance with the provision of KZC 100.75(1) regarding location of signs as it relates to pole signs extending over rights-of-way.

m.    Any other nonconformance if the Planning and Building Director concludes that the public interest in abating the nonconformance outweighs the detriment or loss to the owner or occupant of the property, and either:

1)    Immediate abatement is necessary to fulfill a specific adopted policy of the City; or

2)    The nonconformance is causing distinct and identifiable harm to adjacent property, the neighborhood in which it exists, or the City as a whole.

2.    Abatement – The City may immediately abate any nonconformance listed in KZC 162.25(1) using the provisions of Chapter 1.12 KMC, or any other abatement process lawfully available to the City.

(Ord. 4281 § 1, 2011)

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162.30 Special Provision for Damaged Improvements

1.    If a nonconforming improvement is damaged by sudden accidental cause and the damage does not exceed 50 percent of the assessed or appraised value of that improvement, whichever is greater, the applicant may reconstruct that improvement. The reconstructed improvement may not be more nonconforming than it was immediately prior to the damage. A building permit to rebuild the nonconforming improvement must be applied for within six (6) months or the nonconformance shall be considered to be terminated and shall not be resumed.

2.    If the damage exceeds 50 percent of the assessed or appraised value of the improvement, whichever is greater, the improvement, the use conducted in or on the improvement, and other site improvements that support the damaged improvement must conform to this code.

3.    The provisions of subsections (1) and (2) of this section are superseded by any specific provision of KZC 162.35.

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162.35 Certain Nonconformances Specifically Regulated

1.    General – The provisions of this section specify when and under what circumstances certain nonconformances must be corrected. If a nonconformance must be corrected under this section, the applicant must submit all information necessary for the City to review the correction as part of the application for any development permit. In addition, the City will not permit occupancy until the correction is made.

If KZC 162.25 applies to a specific nonconformance, then the provisions of this section do not apply to that same nonconformance.

2.    Nonconforming Use

a.    For the purpose of determining a nonconforming use, the word “use” refers to the specific activity being conducted and not the definition of use set forth in KZC 5.10.955. A nonconforming use may be continued by successive owners or tenants.

b.    Any nonconforming use except for a detached dwelling unit must be brought into conformance or discontinued if:

1)    The applicant is making a structural alteration or increasing the gross floor area of any structure that houses or supports the nonconforming use; or

2)    The nonconforming use has ceased for 90 or more consecutive days; or

3)    The nonconforming use is replaced by another use; the City may allow a change from one (1) nonconforming use to another such use if, through Process IIA, the City determines that the proposed new use will not be more nonconforming and will have a less adverse effect on the neighborhood than does the existing use.

3.    Expansion or Modification of an Existing Use or Structure or the Addition of New Structures

If the expansion or modification of an existing use or structure or the addition of a new structure(s) requires review of the application by any one (1) of the processes described in Chapters 145 through 152 KZC, the proposal shall be reviewed pursuant to such process; unless:

a.    The gross floor area of the use is expanded by less than 10 percent; and

b.    The Planning and Building Director determines that the change or alteration will not have significantly more or different impact on the surrounding area than does the present development.

4.    Nonconforming Parking

a.    If there are fewer parking spaces for the uses conducted on the subject property than are required under this code, this additional required number of spaces must be provided if the applicant is going to change the use conducted on the subject property and the new use requires more parking spaces than the former use.

b.    Existing parking stalls which conformed to the code effective at the time of construction are not required to meet the parking area dimensional requirements of Chapter 180 KZC, Plates 1 through 4.

5.    Nonconforming Signs

a.    All nonconforming signs are defined as either major nonconforming signs or minor nonconforming signs.

1)    Major nonconforming signs include the following:

a)    Any pole sign associated with a pole which is not entitled to Sign Category F.

b)    Any pole sign which exceeds 20 feet or monument sign which exceeds 12 feet in height above average ground elevation.

c)    Any sign attached to the building and which extends above the building roofline.

d)    Any projecting sign except those allowed by KZC 100.115.

e)    Any sign listed as a prohibited device by KZC 100.85.

f)    Any sign which has exposed structural supporting elements such as angle irons, guy wires and braces.

g)    Any sign located off-site which does not meet the provisions of KZC 100.75.

2)    Minor nonconforming signs are those, other than listed above in subsection (1) of this section, which violate any provision of the Zoning Code.

b.    Nonconforming signs must be brought into conformance as specified below:

1)    Notwithstanding the provisions of KZC 162.30, any major nonconforming sign must be brought into conformance if:

a)    Structural alteration is made to the sign; or

b)    The color, design, lettering or shape of the sign is altered. Change in temporary message on a readerboard is excluded from this requirement; or

c)    Structural alteration or an increase in the gross floor area is made to any structure that houses or supports the use that has the major nonconforming sign.

2)    In addition to the provisions of subsection (5)(b)(1) of this section, any major nonconforming sign by subsection (5)(a)(1)(g) of this section shall be brought into conformance or removed within 18 months after the effective date of this subsection, or within 18 months after the effective date of annexation of the location at which the sign is erected, whichever is later.

Nothing in this subsection shall relieve the property owner and owner of the sign of the duty to immediately remove such sign if it was not erected in compliance with federal, state and local law, or if it does not meet the requirements to be a nonconforming sign.

Nonconforming signs may remain in a nonconforming state for a greater period of time than the amortization period provided above if such extension is applied for no later than six (6) months prior to the otherwise applicable deadline. The Hearing Examiner, through Process IIA, Chapter 150 KZC, may grant discretionary extensions of the amortization period a maximum of two (2) times for up to three (3) years at a time. In addition to the criteria listed in KZC 150.65(2), the Hearing Examiner shall consider the following criteria in making this decision:

a)    Any hazard to traffic or pedestrian safety.

b)    The detriment to the appearance of a neighborhood, or the impinging upon a view of scenic interest.

c)    The demonstration of need for an even greater depreciation period, such as because the date of erection of the billboard was less than four (4) years and more than six (6) months before the annexation. However, it is not the intent of this provision that the nonconformance necessarily be allowed to remain for the length of amortization period satisfactory to the applicant.

3)    Nonconforming signs must be brought into conformance or removed immediately if there is a change in land use or change in business name on the sign structure or ownership of the sign.

4)    Nothing in this section shall relieve the owner or user of a nonconforming sign or owner of the property on which the nonconforming sign is located from the provisions of this code regarding safety, maintenance, and repair of signs.

5)    Notwithstanding the provisions of KZC 162.30, any minor nonconforming sign must be brought into complete conformance when either:

a)    The fair market value of any nonstructural alteration (such as color, design) of the sign exceeds 35 percent of the replacement value of that sign (change in temporary message on a readerboard is excluded from this requirement); or

b)    Structural alteration is made to the sign. In such event, the applicant must sign and record a concomitant agreement to run as a covenant with the property, in a form acceptable to the City Attorney. Said agreement shall describe the minor nonconforming elements involved and state that they will be brought into conformance within 10 years of the date of issuance of the building or sign permit. The applicant shall also grant to the City license to enter the property and shall also sign an agreement to reimburse the City for the cost of removing the sign(s) if, after the specified time, the prescribed minor nonconforming element(s) is not brought into conformance; or

c)    Structural alteration or an increase is made to the gross floor area of any structure that houses or supports the use that has the minor nonconforming sign.

c.    Any sign which can be classified as both a major nonconforming sign and a minor nonconforming sign shall be regulated as a major nonconforming sign.

d.    Exception for Repair and Maintenance

Repair and maintenance work to any nonconforming sign is excepted from the provisions of this chapter, subject only to the following:

1)    The repair or maintenance work will not increase the degree or magnitude of nonconformance.

2)    If the repair or maintenance work requires a building or sign permit, the applicant must sign and record a concomitant agreement to run as a covenant with the property, in a form acceptable to the City Attorney. Said agreement shall describe the minor nonconforming elements involved and state that they will be brought into conformance within 10 years of the date of issuance of the building or sign permit. The applicant shall also grant to the City license to enter the property and shall also sign an agreement to reimburse the City for the cost of removing the sign(s) if, after the specified time, the prescribed minor nonconforming element(s) is not brought into conformance.

3)    For purposes of this section, “repair” shall mean the work that is necessary to restore a sign to its former appearance subsequent to a sudden, accidental event.

6.    Nonconforming Landscaping, Buffers and Paving

a.    See KZC 95.47 for nonconforming landscaping and buffering requirements.

b.    Parking lot surfaces must be brought into conformance in any of the following situations:

1)    An increase in gross floor area of any use except detached dwelling units; or

2)    A change in use on the subject property and the new use requires more parking than the former use; or

3)    An alteration to any structure, the cost of which exceeds 50 percent of the replacement cost of the structure.

7.    Nonconforming Height, Yards, and View Corridors

Any structural alteration of a roof or exterior wall which does not comply with height, required yard, or view corridor standards will require that the nonconforming height, setback or view corridor be brought into conformance. Excepted from this section is the repair or maintenance of structural members. For properties within jurisdiction of the Shoreline Management Act, see Chapter 83 KZC.

8.    Nonconformances to Design Regulations in Design Districts

Nonconformances to the design regulations of Chapter 92 KZC are governed by Chapter 142 KZC.

9.    Personal Wireless Service Facilities

Existing or nonconforming personal wireless service facilities are governed by KZC 117.20, Applicability. For properties within jurisdiction of the Shoreline Management Act, see Chapter 83 KZC.

10.    Vehicular Access Easement or Tract Standards

Nonconforming access easements and tracts are governed by KZC 105.10(2)(i).

11.    Nonconforming Paddock Areas

a.    Paddock areas as required under KZC 115.20 must be brought into conformance if a proposed alteration or replacement of an existing dwelling unit on the subject property in any 12-month period exceeds 50 percent of the replacement cost of that dwelling unit.

b.    See KZC 162.45, Prohibition on Increasing Nonconformance, for proposed modifications, alterations, or replacements of any other improvements on the subject property.

12.    Nonconforming Density – Multifamily Structures in Multifamily Zones

Within areas designated by the Zoning Code for multifamily use, a structure with nonconforming density may be maintained, repaired, remodeled or redeveloped consistent with other provisions of this chapter; provided, that the density within the structure is no greater than the density contained in the structure prior to maintenance, repair, remodeling or redevelopment and that any expansion of the structure complies with all applicable zoning regulations.

13.    Any Other Nonconformance

If any nonconformance exists on the subject property, other than as specifically listed in the prior subsections of this section, these must be brought into conformance if:

a.    The applicant is making any alteration or change or doing any other work in a consecutive 12-month period to an improvement that is nonconforming or houses, supports or is supported by the nonconformance, and the cost of the alteration, change or other work exceeds 50 percent of the replacement cost of that improvement; or

b.    The use on the subject property is changed and this code establishes more stringent or different standards or requirements for the nonconforming aspect of the new use than this code establishes for the former use.

(Ord. 4650 § 1, 2018; Ord. 4399 § 1, 2013; Ord. 4252 § 1, 2010; Ord. 4238 § 2, 2010; Ord. 4193 § 1, 2009; Ord. 4097 § 1, 2007; Ord. 4037 § 1, 2006; Ord. 4030 § 1, 2006; Ord. 4010 § 3, 2005; Ord. 3972 § 1, 2004; Ord. 3954 § 1, 2004; Ord. 3889 § 2, 2003; Ord. 3833 § 1, 2002; Ord. 3814 § 1, 2001)

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162.40 Additional Provision If a Quasijudicial Decision Is Required

If a development activity on the subject property is being decided upon using either Process I, IIA or IIB, described in Chapters 145, 150 and 152 KZC, respectively, the City shall in such process consider the degree of nonconformance, its relationship to the proposed development activity, and pursuant to the relevant provisions of this chapter, may require that the applicant correct any nonconformance that exists on the subject property.

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162.45 Prohibition on Increasing Nonconformance

No nonconformance may in any way be enlarged, expanded, increased, intensified, compounded or in any other way made greater, except as permitted in this chapter.

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162.50 Applicability of Uniform Codes

Nothing in this chapter in any way supersedes or relieves the applicant from compliance with the requirements of KMC Title 21, Buildings and Construction.

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162.55 Special Provisions for Continued Uses – Lot Coverage

As used in this chapter, the term “continued use” shall mean an existing lawful use of land (and structures) which became nonconforming as to use solely as a result of this amendatory Ordinance No. 2347 or which becomes nonconforming solely as a result of the maximum lot coverage provision of this code, Ordinance No. 2678, effective on October 2, 1982.

A continued use shall be permitted to exist as a lawful use subject only to the following conditions:

1.    Any change in use shall conform to the Comprehensive Plan and zoning regulations in effect at the time such change is made.

2.    Ordinary repairs and maintenance may be carried out consistent with the provisions of this chapter; provided, that there shall be no limitation on the amount or cost of such repairs and maintenance.

3.    A continued use shall be subject to the provisions of this chapter relating to destruction by fire or other casualty. In the event a structure so designated as a continued use is destroyed to any extent by fire or other casualty, the structure may be rebuilt; provided, however, that the gross floor area of the structure and major exterior dimensions of the structure shall not exceed the same dimensions or standards of the previous structure. This provision shall not reduce any requirements of the building or fire codes in effect when such structure may be rebuilt.

    The provisions of this section shall only be available if any application for a building permit is filed within 12 months of such fire or other casualty and construction is commenced and completed in conformance with the provisions of the building code then in effect.

4.    A continued use shall be subject to the provisions of this chapter relating to the abandonment of structure or use.

5.    The owner of a continued use may request the issuance of a “certificate of continued use” which shall identify the property, existing use, density and site characteristics for which the certificate is issued and which shall include the provisions of this chapter.

(Ord. 4650 § 1, 2018)

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162.57 JBD 5 Continued Use

The term “JBD 5 continued use” means an existing residential structure in JBD 5 which became nonconforming as to height when the area was annexed to the City in 1988 and which has been in continuous use as a residential structure from 1988 to the present, unless destroyed.

A JBD 5 continued use shall be permitted to exist as a lawful use subject only to the following conditions:

1.    Any change in use or density shall conform to the Comprehensive Plan and zoning regulations in effect at the time such change is made.

2.    Ordinary repairs and maintenance may be carried out consistent with the provisions of this chapter; provided, that there shall be no limitation on the amount or cost of such repairs and maintenance.

3.    A JBD 5 continued use shall not be subject to the provisions of this chapter relating to destruction by fire or other casualty.

In the event a structure designated as a JBD 5 continued use is destroyed to any extent by fire or other casualty, the structure may be rebuilt in accordance with this paragraph. The structure may be rebuilt as a residential structure so long as the rebuilt structure meets all Zoning Code, Building Code, and Fire Code requirements; except, that the height of the rebuilt structure may be up to a maximum of the height of the JBD 5 continued use structure. Provided that the other requirements of this paragraph are met, the rebuilt structure may have, at a maximum, the same number of dwelling units, the same gross floor area, and the same major exterior dimensions as the previous structure.

The provisions of this section shall only be available if an application for a building permit is filed within 12 months of such fire or other casualty and construction is commenced and completed in conformance with the provisions of the building code then in effect.

4.    A JBD 5 continued use shall be subject to the provisions of this chapter relating to the abandonment of structure or use.

5.    The owner of a JBD 5 continued use may request the issuance of a “certificate of JBD 5 continued use” which shall identify the property, existing use, and maximum building height for which the certificate is issued.

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162.65 CBD Continued Use

The term “CBD continued use” means an existing structure in a CBD Zone which became nonconforming solely as a result of the adoption of Ordinance No. 3609.

A CBD continued use shall be permitted to exist as a lawful use subject only to the following conditions:

1.    Ordinary repairs and maintenance may be carried out consistent with the provisions of this chapter; provided, that there shall be no limitation on the amount or cost of such repairs and maintenance.

2.    In the event a CBD continued use is destroyed to any extent by fire or other casualty, the structure may be rebuilt; provided, however, that the gross floor area of the structure and major exterior dimensions of the structure shall not exceed the same gross floor area or major exterior dimensions of the previous structure. This provision shall not reduce any requirements of the building or fire codes in effect when such structure may be rebuilt.

    The provisions of this section shall only be available if any application for a building permit is filed within 12 months of such fire or other casualty and construction is commenced and completed in conformance with the provisions of the building code then in effect.

3.    Except as would be in conflict with this section, rebuilding shall conform to then-current codes or regulations.

4.    The owner of a CBD continued use may request the issuance of a “certificate of CBD continued use” which shall identify the property, existing use, building dimensions, and site characteristics for which the certificate is issued and which shall include the provisions of this section.

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