Chapter 20.42
NONCONFORMING USES
Sections:
20.42.020 Established nonconforming use.
20.42.030 Schedule of continuance—Nonconforming open land uses.
20.42.040 Enlargement and extension.
20.42.050 Abandonment relinquishes rights.
20.42.060 Conversion or removal.
20.42.070 Notice of nonconformance.
20.42.080 Enlargement of nonconforming use.
20.42.090 Upgrading of nonconforming uses.
20.42.100 Wear and tear improvements—Alteration of unsafe structures.
20.42.110 Restoration of damaged structures.
20.42.120 Unlawful uses not authorized—Special exception.
20.42.140 Nonconforming lots of record.
20.42.160 Certificate of continued use.
20.42.010 Policy.
It is declared to be the policy of the city council to provide regulatory mechanics for nonconforming uses as found and determined to be reasonable and equitable. This policy is pursued in order that nonconforming uses in existence at the time of adoption of the ordinance codified in this chapter, or amendments thereto, shall be brought to conformity or amortized and removed within such periods of time as are compatible with justice to the owners of properties affected and with the interests of the safety, health and general welfare of the city. (Ord. 1921-0518 (part), 2018; Ord. 987 § 15.01, 1979)
20.42.020 Established nonconforming use.
To benefit from the protection given to a nonconforming use, such use must have been legitimately and lawfully established prior to the adoption of the ordinance codified in this chapter and amendments thereto or a county resolution in effect at the time of annexation which rendered it nonconforming. (Ord. 987 § 15.02, 1979)
20.42.030 Schedule of continuance—Nonconforming open land uses.
The two alternatives provided to meet compliance with nonconforming “open” land uses are:
A. The use of land (not having buildings thereon) which does not conform to the use provisions of this title, and which becomes nonconforming by reason of subsequent amendments or annexation, shall be discontinued within two years from the effective date of the ordinance codified in this chapter, amendments thereto, or the effective date of the zoning restrictions applied to annexed areas; or
B. All uses of land for outdoor work or storage purposes which after the adoption of the ordinance codified in this chapter, or amendments thereto, exist as nonconforming uses in any district, shall within two years after the same become a nonconforming use, be completely enclosed within a view-obscuring fence approved by the hearings examiner. Such fence shall be of a sufficient height so that the fence and supplemental landscaping will at all seasons of the year completely screen all operations of such establishments from view from adjacent land and buildings. (Ord. 1310-191 § 2 (part), 1991; Ord. 987 § 15.03, 1979)
20.42.040 Enlargement and extension.
No nonconforming use of land shall be changed to another nonconforming use. The lawful use of land existing at the time of the adoption of the ordinance codified in this chapter may be continued under the provisions of Section 20.42.030(B), although such use does not conform to this title for the district in which such land is located; provided further, that no such nonconforming use shall be enlarged or increased, nor shall any nonconforming use be extended to occupy a greater area of land or building than that occupied by such use at the time of the adoption of the ordinance codified in this chapter, unless by said moving it brings the use closer to conformance with this title. (Ord. 987 § 15.04, 1979)
20.42.050 Abandonment relinquishes rights.
A. A nonconforming use, if changed to a conforming use, shall not thereafter be changed back to a nonconforming use.
B. A nonconforming use, when discontinued or abandoned, shall not be resumed. Discontinuance or abandonment shall be defined as follows:
1. When improved land used as a nonconforming use shall cease to be used for twelve consecutive calendar months;
2. When a building designed or arranged for a nonconforming use shall cease to be used for that particular use as a lawful nonconforming use continuously for a period of twenty-four consecutive calendar months;
3. When a building designed or arranged for a conforming use, but used for nonconforming activities, shall cease to be for such particular use for a period of eighteen consecutive calendar months.
C. The land from which any nonconforming structure has been removed shall be subsequently used in conformity with the appropriate district regulations. (Ord. 1450-796 § 3, 1996; Ord. 987 § 15.05, 1979)
20.42.060 Conversion or removal.
Conversion or removal of a nonconforming structure or use shall be commenced not later than sixty days after the date of abandonment and shall be completed within one year thereafter; except that in no case shall a nonconforming use or structure be required to commence conversion or removal for a period of less than two years from the date of the first notice of nonconformance as issued by the director of planning. In case of failure to complete said removal or conversion as required, the director of planning, within ninety days after the date described herein for completed conversion or removal of said use, shall cause the use and/or structure to be removed, and cost shall be charged against property. (Ord. 1311-191 § 1 (part), 1991; Ord. 987 § 15.06, 1979)
20.42.070 Notice of nonconformance.
The (building inspector, planning director, or zoning administrator) shall determine by survey the existence of nonconforming uses which may be affected by the requirements of the preceding section and, shall give written notice by mail to the owners thereof as shown in the county assessor’s records. Such notice shall state the purpose, provisions and the expiration date as set forth herein, and shall be given after the effective date of the ordinance codified in this chapter or any amendment thereto which may cause a building to become nonconforming. Failure to give notice shall not invalidate the regulations nor alter the expiration date. (Ord. 1311-191 § 1 (part), 1991; Ord. 987 § 15.07, 1979)
20.42.080 Enlargement of nonconforming use.
A. The enlargement of a nonconforming use to any portion of an existing building, which portion was designed and built for such nonconforming use prior to the passage of the ordinance codified in this chapter, may be permitted, provided no structural alterations are made.
B. A building designed and built for, or devoted to, a nonconforming use at the time of the passage of the ordinance codified in this chapter, may not be enlarged or structurally altered unless the use of such building is changed to a conforming use, or when such enlargement is permitted by variance in case of evident hardship.
C. Moving of a nonconforming use to contiguous lots is prohibited.
D. The expanded use of a legal nonconforming multifamily use to any portion of an existing building specifically designed to allow such expansion, including an increase in the number of dwelling units, shall be permitted. Such expansion shall be allowed regardless of the date of construction of the subject building so long as construction was completed before November 30, 1997. Such expanded use shall be permitted only if all of the following conditions are met:
1. The expansion of use shall not result in any increase in building height or structural footprint.
2. The existing building envelope shall not be altered except to increase its compliance with any design review criteria and/or other applicable standards that may apply.
3. Any increase in parking requirement resulting from the expansion of use shall be addressed per chapter 20.44.
4. Any traffic impacts attributable to the expansion of use shall be addressed per city requirements.
5. The city must determine that adequate size exists in sewer mains and laterals serving the structure.
6. A certificate of occupancy for the existing structure has been issued previous to any application to expand the use. In the case of structures permitted or constructed before the city commonly issued certificates of occupancy, use and occupancy of the structure must be well established and longstanding. In no case may this section be interpreted to allow construction of a building not otherwise authorized under city codes.
7. The proposed expansion of use must receive site plan approval per chapter 20.49.
8. When the expansion of use results in a total of four or more residential units, the project will be subject to review under SEPA. (Ord. 1486-1197 § 1, 1997; Ord. 987 § 15.08, 1979)
20.42.090 Upgrading of nonconforming uses.
A lawful nonconforming use of a building may not be changed to another nonconforming use unless changed to a more restrictive use. (Ord. 987 § 15.09, 1979)
20.42.100 Wear and tear improvements—Alteration of unsafe structures.
Normal repairs and alterations may be made to a lawful nonconforming building; provided, that no structural alterations shall be made, except those required by law or ordinance. No existing nonconforming structure designed, arranged, intended for, or devoted to, a use not permitted under this title for the district in which such structure is located shall be enlarged, extended, reconstructed, structurally altered, or moved unless such use is changed to a use permitted under the regulations specified by this title for the district in which said building is located; provided, that work may be done in any period of twelve months on ordinary repairs or on repairs or replacements of nonbearing walls, fixtures, wiring, or plumbing to an extent not exceeding fifteen percent of the full value of the structure as determined from the assessed value thereof (according to the assessment thereof by the county assessor for the year in which such work is done); provided, that the cubical content of the building as it existed at the time of passage of the ordinance codified in this chapter not be increased; and provided further, that nothing in this title shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by the city and ordered to be strengthened or restored to a safe condition, unless such building has been destroyed by an extent exceeding fifty percent of full value, as determined by consideration of the assessed value referred to above. (Amended during 9/92 supplement; Ord. 987 § 15.10, 1979)
20.42.110 Restoration of damaged structures.
When a building or other structure containing a nonconforming use is damaged by fire or by any other cause so that the cost of renewal of the damaged parts exceeds seventy-five percent of the cost of the replacement of the entire structure (exclusive of foundation) using new materials, then such building shall not be rebuilt unless the building and its construction and uses conform fully to this title and other codes of the city as applied to new buildings and structures and to uses for the district in which it is located. Any rebuilding otherwise authorized by this code shall commence within six months from the date of damage or destruction, if such nonconforming use is to be continued. The determination of whether a building is destroyed to the extent described above shall rest with the hearings examiner. (Ord. 1310-191 § 2 (part), 1991; Ord. 987 § 15.11, 1979)
20.42.120 Unlawful uses not authorized—Special exception.
Nothing in this title shall be interpreted as authorization for, or approval of, the continuance of, nor the allowing of a special permit, exception or variance for the use of a structure or premises in violation of the zoning regulations in effect at the time of the effective date of the ordinance codified in this chapter. Any use existing at the time of adoption of the ordinance codified in this chapter which is within the scope of uses previously permitted by conditional exception or accessory exception or by conditional use in the use district in which the property is situated shall be deemed a conforming use without necessity of any action by the hearings examiner. Conditional exceptions shall be referred to as conditional uses upon adoption of the ordinance codified in this chapter. (Ord. 1310-191 § 2 (part), 1991; Ord. 987 § 15.12, 1979)
20.42.130 District changes.
Whenever the boundaries of a district shall be changed from one district to another district of different classification, the foregoing provisions shall also apply to any nonconforming uses existing therein, or thereby created. (Ord. 987 § 15.13, 1979)
20.42.140 Nonconforming lots of record.
A. In any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record on December 22, 1969, notwithstanding limitations imposed by other provisions of this title. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership.
B. 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 requirements other than those applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the hearings examinert. (Amended during 9/92 Supplement; Ord. 987 § 15.14, 1979)
20.42.150 Exceptions.
A. All classes of residential uses which are legal, nonconforming uses located in any residential or commercial district may be allowed to expand, through an administrative review process, subject to meeting each of the following criteria:
1. The expansion conforms to all yard setbacks, lot coverage, height and other density/bulk requirements of the underlying zone.
2. The expansion creates no additional dwelling units or bedrooms.
3. The expansion takes place within the same or contiguous lots. “Contiguous lot” means an adjacent parcel, lot or tract of land which meets the underlying zone requirements for parcel size, or which is a nonconforming lot of record as defined in Section 20.42.140. “Contiguous lot” shall not include property separated by a public street, utility corridor or other similar circumstance.
4. The contiguous parcel must have been under the same ownership as the principal use lot as of June 1, 1979; no property acquired since that date may be considered a contiguous lot for purposes of expansion of a nonconforming use under this section.
5. Expansions shall not exceed ten percent of the full value of the structure as determined by the assessed value thereof (according to the assessment thereof by the county assessor for the year in which such work is done) in any twelve-month period.
6. The gross floor area of any expansion or cumulative expansions in gross floor area shall not exceed ten percent of the lot area or parcel which houses the primary or principal use. Expansions into contiguous lots, as permitted in this section, shall be computed using only the parcel dimensions which accommodate the principal use. Any expansions and cumulative expansions in excess of ten percent of the lot area shall be required to follow the variance appeal procedure specified in Section 20.42.080(B).
B. It is the intent of this section to provide for expansion of nonconforming residential uses within residential and commercial zones primarily for accessory uses incidental to the primary (residential dwelling unit) use. Any expansions to the primary structure which result in permanent improvements which expand gross floor area in excess of five percent of the original gross floor area shall be required to follow the variance appeal procedure specified in Section 20.42.080(B).
C. This section shall not authorize expansions of nonconforming structures.
D. No expansion shall be permitted for the purpose of a home occupation, as defined in Section 20.44.180.
E. Approval of the expansion may be made by the planning director upon review of a completed application for expansion of a nonconforming residential use which documents compliance with all criteria referenced in subsections (A) through (D) of this section, along with payment of all applicable fees as established by the Shelton city council. Such application shall be reviewed by the planning director, and approved or denied based upon compliance with the referenced criteria and including the following additional factors:
1. Traffic and safety issues;
2. Adequacy of public services;
3. Creation of noise, glare, smoke or other nuisances; and
4. Compatibility with surrounding uses.
Mitigation of any of the above factors may be required as a condition of approval of the application.
F. None of the provisions of this section shall void the requirements of Section 20.42.050, “Abandonment relinquishes rights.” Any use which is abandoned as described in that section shall not be allowed to expand.
G. None of the provisions of this chapter shall exempt any expansion or improvement from review under the State Environmental Policy Act (SEPA), the Shoreline Management Act, or other applicable local, state or federal regulations. (Ord. 1921-0518 (part), 2018; Ord. 1314-491 (part), 1991)
20.42.160 Certificate of continued use.
Any owner of any property deemed to be a nonconforming use under the provisions of this chapter may request a “certificate of continued use.” Such certificate will be issued by the planning department and shall certify all legal nonconformities which may be allowed to continue under the provisions of this chapter. (Ord. 1314-491 (part), 1991)