Chapter 17.79
NONCONFORMING USES

Sections:

17.79.010    Limitation on nonconforming uses.

17.79.020    Continuation of nonconforming uses.

17.79.030    Nonconforming uses, conditions upon continued existence, when, procedure.

17.79.040    Nonconforming structure.

17.79.050    Change of a nonconforming use.

17.79.060    Change of district.

17.79.070    Remodeling a nonconforming use.

17.79.080    Rebuilding duplexes or triplexes in R-1 zones.

17.79.010 Limitation on nonconforming uses.

Any nonconforming use in existence on January 1, 1996, which is nonconforming as to the type of structure allowed in a zone shall be removed as a nonconforming use by the owner not later than twenty years from that date. Any structure which becomes a nonconforming use in any zone after January 1, 1996, shall be removed not later than twenty years after such structure becomes a nonconforming use. Any nonconforming use existing in any zone on January 1, 1996, shall be terminated not later than ten years from that date. Any use which becomes nonconforming in any zone after January 1, 1996, through the action of a rezone or an amendment of the text of the zoning ordinances shall be terminated not later than ten years after such use becomes nonconforming. A use which becomes nonconforming through the actions of the owner or occupant of the land, shall be terminated immediately.

Any residential use of a structure which (a) exists on a property on or before March 1, 2016, and (b) is a nonconforming use of the zone in which the property is located, or the structure otherwise violates any provision of Title 14, 17, or 18, may be allowed to continue indefinitely beyond the time period identified in this section if the owner (1) enters into a voluntary compliance agreement in accordance with Chapter 1.20 et seq.; (2) obtains the necessary permits and completes the work necessary to bring the property into compliance with all applicable building codes; and (3) ensures that existing tenants on the property have substitute housing (at no additional cost to the tenant) while the owner completes said work during all times the tenant is required to move out of the premises to enable the owner to complete the work provided said requirement does not violate any provision of the Washington Landlord Tenant Act or other Washington State law. (Ord. 1465 § 6, 2016: Ord. 975 § 1 (part), 1995: Ord. 948 § 2 (part), 1995).

17.79.020 Continuation of nonconforming uses.

Notwithstanding Section 17.79.010, the use of land existing on January 1, 1996, although such use does not conform to the provisions of this title, may continue upon such conditions as prescribed by the planning commission. After this ordinance becomes effective, and if such nonconforming use is abandoned, or is discontinued for any period of time, subsequent use of the land shall be in conformity with the provisions of this code. The extension of a nonconforming use to a portion of a structure which was arranged or designed for the nonconforming use on or before January 1, 1996, shall not be considered an extension of a nonconforming use.

The conditions prescribed by the planning commission for the continued use of a nonconforming use must bear a substantial relation to the alleviation of a hazard to the health, morals, safety or general welfare of the entire affected community and in particular that of surrounding inhabitants. Conditions may be prescribed including, but not limited to, those situations existing because of fumes, odors, glare, noise, smoke, dust, unsightly materials, or other objectionable factors. If, in fact, conditions are prescribed by the planning commission, such conditions shall be reviewed and revised if necessary no less frequently then every two years and/or upon change of ownership.

An appeal may be taken of the planning commission’s ruling to the city council as prescribed in Chapter 17.83* of this code. (Ord. 975 § 1 (part), 1995: Ord. 948 § 2 (part), 1995).

*    Code reviser’s note: Chapter 17.83 was repealed by Ord. 1547. Chapter 17.79 is scheduled to be revised by the city.

17.79.030 Nonconforming uses, conditions upon continued existence, when, procedure.

(a)    Those nonconforming uses allowed to continue to exist pursuant to Section 17.79.020, as now enacted or as hereafter amended, may be conditioned as provided in this section.

(b)    The building official, upon receipt of any claim, complaint, report or information that a nonconforming use exists within the city shall investigate such claim, complaint, report or information and make a determination as set forth below.

(c)    At the conclusion of his or her investigation, the building official shall determine if the use is a nonconforming use.

(d)    If the use is found to be a conforming use, the building official shall determine whether or not the use is allowed to continue pursuant to Section 17.79.020. If the use is not found to be a use allowed to continue pursuant to Section 17.79.020, the building official shall proceed as provided in this chapter to terminate the use.

(e)    If the use is found to be a nonconforming use allowed to continue pursuant to Section 17.79.020, the building official shall make written summary of his or her findings and submit them, together with any conditions that, in his or her opinion, should be attached to the use, to the planning commission.

(f)    Upon receipt of the documentation described in subsection (e) of this section, the planning commission shall proceed to set a date for a public hearing before it. The purpose of that hearing shall be to determine what conditions, if any, shall be attached to the continuing nonconforming use pursuant to Section 17.79.020. Notice of the hearing shall be published at least once prior to the hearing in a newspaper of general circulation in the city. Additionally, the building official shall cause notice of the public hearing to be delivered to the adjacent land owners and occupants by mailing, posting, or personal notification, whichever the building official determines is likely to give actual notice of the hearing to those persons.

(g)    At the conclusion of the public hearing, the planning commission shall make a finding on whether or not conditions need to be imposed pursuant to Section 17.79.020. If the planning commission finds conditions are necessary, it shall make findings as to what conditions shall be imposed and the reasons therefor.

(h)    Any nonconforming use found to be required to be conditioned, will be allowed to continue as long as the person, firm, partnership or corporation responsible for that nonconforming use agrees to abide by and be governed by the conditions imposed by the planning commission within the time limit set by the planning commission. The conditions imposed by the planning commission may be for a period of up to twenty-four months. The planning commission may require more frequent review of the conditions imposed on the use as it may direct at the initial public hearing or any subsequent review.

(i)    Additionally, the planning commission may bring a set of conditions on for review before the date provided at the time the conditions were set, upon a complaint being brought to its attention by the building official or any citizen. The planning commission shall determine from a review of the complaint whether or not the allegation is sufficient to warrant a further hearing on the question. If a further hearing is deemed appropriate, the planning commission shall cause to be sent to the person, firm, partnership or corporation responsible for the nonconforming use a notice of a hearing before the planning commission setting the date, time and place of the hearing. The notice shall provide, in all capital letters, in a conspicuous place thereon: “THIS HEARING COULD DETERMINE WHETHER OR NOT YOUR NONCONFORMING USE IS ALLOWED TO CONTINUE.” Said notice shall be delivered in the same manner as personal service of summons to the responsible person, or posted upon the real property in question, or sent by United States mail service, postage prepaid, to the address of the responsible person. Said notice shall allow the responsible party five days’ time before the hearing within which to prepare, unless the planning commission findings at the time it considers the allegation of noncompliance are that the public health, safety and morals require a hearing before that time.

(j)    Either prior to or at least at the time of the hearing to consider the allegations of a complaint concerning noncompliance with conditions, the planning commission shall inform the person, firm, partnership or corporation responsible for the nonconforming use of the notice of the alleged violation. The building official shall present the evidence of the failure to comply. The responsible person shall then be allowed to respond if that person so desires. The planning commission shall then make its findings. It shall find whether or not the conditions have been violated; whether or not any violation has occurred of such magnitude to require additional conditions, more frequent reviews of conditions, or termination. If termination of the privilege to continue the nonconforming use is determine by the planning commission as the only method that can protect the public health, safety and morals to an acceptable degree, the planning commission shall determine the date and time of termination. Once the privilege is terminated for failure to observe conditions, the planning commission shall proceed to direct the building official to enforce the provisions of this chapter to terminate the use.

(k)    Any person aggrieved by the decision of the planning commission may appeal to the city council as provided in Chapter 17.83*. (Ord. 948 § 2 (part), 1995).

*    Code reviser’s note: Chapter 17.83 was repealed by Ord. 1547. Chapter 17.79 is scheduled to be revised by the city.

17.79.040 Nonconforming structure.

A structure conforming with respect to use but nonconforming with respect to height, setback or coverage may be altered or extended if the alternation or extension does not deviate further from the standards of this title, unless otherwise stated in this chapter. (Ord. 948 § 2 (part), 1995).

17.79.050 Change of a nonconforming use.

If a nonconforming use is replaced by another use, the new use shall conform to this title and shall not subsequently be replaced by a nonconforming use. (Ord. 948 § 2 (part), 1995).

17.79.060 Change of district.

The provisions of this chapter shall also apply to nonconforming uses in districts hereafter changed or established and any time limit for the suspension of a nonconforming use of land shall date from the date of the enactment of the ordinance codified in this title or any amendment of district boundaries or amendment or adoption of zoning ordinances. (Ord. 948 § 2 (part), 1995).

17.79.070 Remodeling a nonconforming use.

Recognizing that there are nonconforming buildings or structures which are now existing which should be upgraded or improved by replacement, rebuilding or addition thereto, the city council may, after a public hearing before the planning commission, issue a permit for the replacement, rebuilding or addition to an existing nonconforming building or structure. As a condition to the issuance of the permit the city council shall require plans and specifications of the proposed replacement, rebuilding or addition be filed and that a bond in an amount to be set by the council be posted to assure compliance with the plans and specifications so filed. No permit shall be issued unless the city council finds that the proposed replacement, rebuilding or addition will be compatible with the lot or tract of land involved and, further, that it will not be detrimental to the health, safety or welfare of the surrounding area.

This section shall not apply to duplexes in areas currently zoned R-1 or areas subsequently zoned R-1 either through a rezoning or upon territory being annexed into the corporate limits of the city of Othello which are intended to be replaced, rebuilt or added to totally or partially because of destruction. In the case of such replacement, rebuilding or addition, Section 17.79.080 shall apply. (Ord. 948 § 2 (part), 1995).

17.79.080 Rebuilding duplexes or triplexes in R-1 zones.

In areas currently zoned R-1 or areas subsequently zoned R-1 either through a rezoning or upon territory being annexed into the corporate limits of the city of Othello, if a duplex or triplex exists as a nonconforming use and is destroyed, it may be replaced, rebuilt or added to by the owner/purchaser/vendee of the duplex or triplex without reference to the provisions of Section 17.79.070. In the case of such aforesaid replacement, rebuilding or addition, the duplex or triplex may be replaced, rebuilt or added to upon obtaining a building permit as is required for all construction in the city, provided, that the replacement, rebuilding or addition otherwise complies with all other current or subsequently enacted ordinances of the city.

If an exclusion from any ordinances is desired during this rebuilding, replacement or addition process, application must be made to the city council who may allow the sought after exclusion if the city council finds that strict adherence to the ordinances would work an injustice against the owner/purchaser/vendee of the duplex or triplex and further would not be detrimental to the health, safety or welfare of the surrounding area. (Ord. 975 § 1 (part), 1995: Ord. 948 § 2 (part), 1995).