Chapter 17.19
NONCONFORMING USES AND STRUCTURES
Sections:
17.19.020 Illegal uses, structures and lots not permitted.
17.19.040 Development on existing lots of record.
17.19.050 Continuation of nonconforming uses.
17.19.060 Nonconforming structures.
17.19.070 Change from a nonconforming use to a Class (1), (2) or (3) use.
17.19.090 Modifications of an approved site plan for a nonconforming use or structure.
17.19.100 Discontinuance of a nonconforming use or structure.
17.19.110 Sale of a nonconforming use or structure.
17.19.010 Purpose and intent.
Within the districts established by this title, or amendments that may later be adopted, there may exist lots, structures, and uses which were lawful before this title was adopted or amended, but because of the application of this title, no longer conform to the provisions and standards of the district in which they are located. This chapter provides for the regulation of these legal nonconforming lots, structures, and uses, and specifies those circumstances, conditions, and procedures under which such nonconformities shall be permitted to continue and expand.
Except as otherwise provided, it is the intent of this title to permit legal nonconforming uses or structures to continue to exist without specific limitations as to time. Modifications or changes to or involving such nonconformities are subject to the provisions and policies of this title. (Ord. 1183 §2(part), 2008: Ord. 956(part), 1993)
17.19.020 Illegal uses, structures and lots not permitted.
Structures, lots, required site improvements, uses and/or developments which were not legally established or existing as of the effective date of the ordinance codified in this title retain their illegal status and must be abated or fully conform and comply with the procedural and substantive provisions of this title. (Ord. 956(part), 1993)
17.19.030 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 not upon the city. Upon request, the planning commission shall assist the property owner in locating public records which pertain to the legal status of the nonconformity. (Ord. 956(part), 1993)
17.19.040 Development on existing lots of record.
In any district, any permitted use or structure may be erected on any existing lot or parcel; provided, that no zero lot line, common wall, duplex or multifamily development shall be allowed on existing lots of record in the SR and R-1 zones unless the lot conforms to the minimum lot size requirements in Table 5-2 or the development involves the replacement or reconstruction of a damaged legally existing zero lot line, common wall, duplex or multifamily development. This section shall apply even though such lots fail to meet the requirements for area or width, or both, that are generally applicable in the district; provided, that the setback dimensions of the structure shall conform to the regulations of the zoning district in which the lot is situated. Section 17.05.020(B) contains additional provisions for development on nonconforming lots. (Ord. 956(part), 1993)
17.19.050 Continuation of nonconforming uses.
A. Generally. Any legal nonconforming use may continue as long as it remains otherwise lawful. Any change or expansions of the nonconforming use shall be made in accordance with the provisions of Section 17.19.070 or 17.19.080.
B. Continuation When a Nonconforming Use Is Damaged or Destroyed. The following provisions shall apply when a nonconforming use is damaged or destroyed:
1. When a nonconforming use and associated structure are damaged, and reconstruction costs do not exceed seventy-five percent of the structure’s value using the most recent ICBO construction tables, the nonconforming use may be replaced as it was prior to the damage. If the structure was also nonconforming, the structure may be rebuilt as it was immediately prior to the damage or in a manner that is more conforming in accordance with Section 17.19.060(C).
2. When the reconstruction costs of a nonconforming use and associated structure exceed seventy-five percent of the structure’s value using the most recent ICBO construction tables, the city council shall determine whether or not the nonconforming use shall be allowed to continue in accordance with the provisions of Section 17.19.080. (Ord. 956(part), 1993)
17.19.060 Nonconforming structures.
A. Generally. Any legal nonconforming structure may continue so long as it remains otherwise lawful. A nonconforming structure other than a required site improvement may be included in and/or changed as parts of any development, or modification to development, subject to review and approval under the procedures and provisions of this title; provided, that nothing in this section shall authorize the expansion or change of a nonconforming structure except as otherwise provided for in this chapter. The required site improvements, parking and signs are subject to the more specific policies on nonconforming parking and signs in Chapters 17.06 and 17.08 which shall control and govern.
B. Maintenance of a Nonconforming Structure. Nothing in this chapter shall be construed to restrict normal structural repair and maintenance of a nonconforming structure, including the replacement of walls, fixtures and plumbing; provided, that the value of the work and materials in any twelve-month period does not exceed twenty-five percent of the value of the structure using the most recent ICBO construction tables prior to such work. This chapter is not intended to apply to the rehabilitation of dwelling unit(s) when such rehabilitation does not expand the number of dwelling units nor physically expand the structure.
C. Reconstruction of a Nonconforming Structure When Damage Does Not Exceed Over Seventy-Five Percent of Its Value. When a nonconforming structure is damaged and reconstruction costs do not exceed over seventy-five percent of its latest value, using the most recent ICBO construction tables, the building official shall issue a development permit allowing the structure to be rebuilt as it was immediately prior to the damage or in a manner that is less nonconforming. Provided, no reconstruction of a nonconforming structure shall be performed without the issuance of a development permit by the building official. Applications and permits for such reconstruction shall be made in accordance with Chapters 17.11 and 17.12 except that no certificate of zoning review is required.
The property owner shall provide the information necessary to reasonably assure the building official that the reconstruction being authorized complies with this section. The information provided shall include, but not be limited to: (1) a general site plan showing the actual dimensions of the nonconforming structure, its height, and its exact placement on the lot prior to being damaged; and (2) where a nonconforming use is involved, a written narrative describing the use or the uses that existed immediately prior to damage; and (3) an affidavit or certificate that the narrative and site plan accurately represent the nonconforming structure and/or use as they were immediately prior to damage. The building official may approve reconstruction in conformance with the site plan or in a manner that is more conforming with the provisions and standards of the zoning district in which it is located. If the building official determines that the requested reconstruction amounts to an expansion of the nonconforming structure, he shall forward the application to the planning commission for review under the provisions of Section 17.19.080.
D. Reconstruction of a Nonconforming Structure When Damage Exceeds Seventy-Five Percent of Its Value. The following provisions shall apply when the reconstruction costs for a damaged nonconforming structure exceed seventy-five percent of its value using the most recent ICBO construction tables:
1. When a damaged nonconforming structure was used for an approved or existing use, any reconstruction of the structure shall occur in accordance with the provisions of this title; provided, that one or more of the basic development standards may be adjusted in accordance with the provisions of Chapter 17.10.
2. When a damaged nonconforming structure was used for a nonconforming use, it may be replaced as it was before or in a manner that is less nonconforming upon approval by the city council in accordance with Section 17.19.080. (Ord. 956(part), 1993)
17.19.070 Change from a nonconforming use to a Class (1), (2) or (3) use.
The following procedures shall be followed for changing a nonconforming use to a Class (1), (2) or (3) use:
A. Change to a Class (1) Use. Application for changing a nonconforming use to a Class (1) use shall be made under the provisions of Chapter 17.13, Class (1) Review.
B. Change to a Class (2) Use. Application for changing a nonconforming use to a Class (2) use shall be made and reviewed under the provisions of Chapter 17.14, Class (2) Review. The planning commission may approve the proposed Class (2) use when it determines the proposed use is compatible with the objectives of the Wapato urban area comprehensive plan, the intent of the zoning district and the provisions and standards established herein.
C. Change to a Class (3) Use. Application for changing a nonconforming use to a Class (3) use shall be made and reviewed under the provisions of Chapter 17.15, Class (3) Review. The city council shall hold at least one public hearing on the proposed change prior to rendering a decision. The city council may approve the proposed Class (3) use when it determines it is compatible with the objectives of the Wapato urban area comprehensive plan and the purpose and intent of this title. (Ord. 1205 §1(part), 2009: Ord. 1183 §2(part), 2008: Ord. 956(part), 1993)
17.19.080 Reconstruction of a nonconforming use and structure damaged beyond seventy-five percent of value--Change from a nonconforming use to another nonconforming use--Expansion of a nonconforming use or structure.
The following procedures shall be followed to change a nonconforming use to a different nonconforming use, expand a nonconforming use through a structure, expand a nonconforming structure or use throughout a lot or onto an adjoining lot, or replace a nonconforming use and structure damaged beyond seventy-five percent of their value using the most recent ICBO construction tables. These procedures shall also be used to expand a nonconforming structure throughout a lot. Provided, a structure that is nonconforming only by reason of excessive building height or substandard setbacks, or is a nonconforming single-family dwelling, may be altered or expanded under the modification provisions of Section 17.17.050 when the alteration or expansion: (1) does not increase the degree of nonconformity of the structure; and (2) complies with development standards of the district in which it is located; and (3) the nonconforming structure is occupied by a Class (1) or (2) use or is a single-family dwelling or duplex; and (4) in the case of expanding a nonconforming single-family dwelling or duplex, the proposed expansion is fifty percent or less of the existing building area.
The provisions of Section 17.17.050 shall also be used for the reconstruction of a nonconforming single-family dwelling damaged beyond seventy-five percent of its value using the most recent ICBO tables.
A. Application. The application procedures shall be the same as those established in Chapter 17.11 for Class (3) uses. A detailed site plan conforming to the provisions of Chapter 17.11 shall accompany any applications required by this section.
B. Public Hearing and Review. The fire department shall review and process the application under the provisions of Section 17.15.040. The city council shall hold at least one public hearing. Within ten days after the public hearing, unless a longer period is agreed to on the record or in writing by the applicant, the city council shall render a written decision.
C. Conditions for Approval. The city council may grant the relief requested if they find all of the following:
1. That the expansion, change, reconstruction or replacement requested would not be contrary to the public health, safety or welfare; and
2. That the proposed expansion, change, reconstruction or replacement is compatible with the character of the neighborhood and, in the case of an expansion or change, does not sufficiently jeopardize future development of the area in compliance with the provisions and intent of the zoning district; and
3. That the significance of the applicant’s hardship is more compelling than, and reasonably overbalances, the public interest resulting from denial of the relief requested; and
4. That the use or structure was lawful at the time of its inception; and
5. That the value of nearby properties will not be significantly depressed by approving the requested expansion, change, reconstruction or replacement.
The expansion, change, reconstruction or replacement requested shall be denied if the city council finds that one or more of the provisions in subsections (C)(1) through (5) of this section are not met.
D. Findings and Conclusions. The city council shall prepare written findings and conclusions stating the specific reasons for its decision to approve, approve with conditions, or deny the application. The findings shall include the city council determination regarding compliance of the proposed expansion, change, reconstruction or replacement with the criteria established in subsection C of this section. The city council shall issue a certificate of zoning review in accordance with Section 17.15.060 upon approval of an application and accompanying site plan.
E. Conditional Approval. When approving a change in, or the expansion, reconstruction, or replacement of, a nonconforming use or structure, the city council may attach conditions to the proposed change, expansion, replacement or reconstruction or any other part of the development in order to assure that the development is improved, arranged and screened to be compatible with the objectives of the Wapato urban area comprehensive plan, this title, and neighboring land uses. (Ord. 1183 §2(part), 2008: Ord. 956(part), 1993)
17.19.090 Modifications of an approved site plan for a nonconforming use or structure.
Site plans approved for the change, expansion, reconstruction or replacement of a nonconforming use or structure may be modified under the provisions of Chapter 17.17. (Ord. 956(part), 1993)
17.19.100 Discontinuance of a nonconforming use or structure.
A nonconforming use or structure shall become discontinued when it:
A. Is succeeded by a Class (1), (2) or (3) use; or
B. Is succeeded by another use or structure that is less nonconforming; or
C. Is discontinued and not re-established within twelve months; or
D. Is damaged and application for rebuilding or replacement is not made within six months of such damage; or
E. Is damaged to the extent that reconstruction costs exceed seventy-five percent of its value using the most recent ICBO construction tables and the replacement of the nonconforming use and structure is denied by the city council in accordance with the provisions of Section 17.19.080.
When a nonconforming use becomes discontinued, it shall be deemed that such use has ceased to exist and thus loses its status as a legal nonconforming use. Any subsequent use shall conform to the provisions of the use district in which it is located. (Ord. 956(part), 1993)
17.19.110 Sale of a nonconforming use or structure.
Property classed as nonconforming may be transferred without that fact alone affecting the right to continue the nonconforming structure. (Ord. 956(part), 1993)