Chapter 15.19
NONCONFORMING USES, STRUCTURES AND CRITICAL AREAS*

Sections:

15.19.010    Purpose and intent.

15.19.020    Illegal uses, structures and lots not permitted.

15.19.030    Establishment.

15.19.040    Development on existing lots of record.

15.19.050    Continuation of nonconforming uses.

15.19.060    Nonconforming structures.

15.19.070    Change from a nonconforming use to a Class (1), (2), or (3) use.

15.19.080    Change from a nonconforming use to another nonconforming use—Expansion of a nonconforming use or structure.

15.19.090    Modifications of an approved site plan for a nonconforming use or structure.

15.19.100    Discontinuance of a nonconforming use or structure.

15.19.110    Sale of a nonconforming use or structure.

15.19.120    Critical area nonconforming uses and facilities.

*    Prior legislation: Ord. 2007-18.

15.19.010 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. In the case of nonconformities with YMC Chapter 15.27, critical areas specific review provisions are provided under YMC 15.19.120 that shall be used in lieu of other provisions of this chapter.

Except as otherwise provided, it is the intent of this title to permit legal nonconforming uses or structures to continue to exist without specific time limitations. Modifications or changes to or involving such nonconformities are subject to the provisions and policies under YMC Chapters 15.17 and 15.18. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.020 Illegal uses, structures and lots not permitted.

Structures, lots, required site improvements, uses and/or developments not legally established or existing as of the effective date of 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. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.030 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 administrative official shall assist the property owner in locating public records that pertain to the legal status of the nonconformity. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.040 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. YMC 15.05.020(B) contains additional provisions for development on nonconforming lots. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.050 Continuation of nonconforming uses.

A.    Generally. Any legal nonconforming use may continue as long as it remains otherwise lawful. Any change or expansion of the nonconforming use shall be made in accordance with the provisions of YMC 15.19.070 or 15.19.080.

B.    Continuation When a Nonconforming Use is Damaged or Destroyed. When a nonconforming use and associated structure are damaged, 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 YMC 15.19.080. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 98-57 § 1 (part), 1998: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.060 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 part 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 YMC Chapters 15.06 and 15.08, 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.

C.    Reconstruction of a Nonconforming Structure. When a nonconforming structure is damaged or destroyed, the administrative official or designee 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 administrative official. Applications and permits for such reconstruction shall be made in accordance with YMC Chapter 15.11.

D.    Proof of Compliance. The property owner shall provide the information necessary to reasonably assure the administrative official or designee 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;

2.    Where a nonconforming use is involved, a written narrative describing the use or uses that existed immediately prior to damage;

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 administrative official or designee 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 administrative official or designee determines that the requested reconstruction amounts to an expansion of the nonconforming structure, he shall forward the application to the hearing examiner for review under the provisions of this chapter. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 98-57 § 1 (part), 1998: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.070 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 YMC Chapter 15.13, Type (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 YMC Chapter 15.14, Type (2) Review. The administrative official may approve the proposed Class (2) use when he determines the proposed use is compatible with the objectives of the Yakima 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 YMC Chapter 15.15, Type (3) Review. The hearing examiner shall hold at least one public hearing on the proposed change prior to rendering a decision. The hearing examiner may approve the proposed Class (3) use when he determines it is compatible with the objectives of the Yakima urban area comprehensive plan and the purpose and intent of this title. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.080 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 throughout a structure; and/or expand a nonconforming structure or use throughout a lot or onto an adjoining lot. These procedures shall 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 YMC 15.17.020 when the alteration or expansion:

1.    Does not increase the degree of nonconformity of the structure;

2.    Complies with development standards of the district in which it is located;

3.    The nonconforming structure is occupied by a Class (1) or Class (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 YMC 15.17.020 shall also be used for the reconstruction of a nonconforming single-family dwelling.

A.    Application. The application procedures shall be the same as those established in YMC 15.15.030 for Class (3) uses. A detailed site plan conforming to the provisions of YMC 15.11.040 shall accompany any applications required by this section.

B.    Public Hearing and Review. The division shall review and process the application under the provisions of YMC 15.15.040.

C.    Conditions for Approval. The hearing examiner may grant the relief requested if he finds all of the following:

1.    That the expansion, change, reconstruction or replacement requested would not be contrary to the public health, safety, or welfare;

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 significantly jeopardize future development of the area in compliance with the provisions and the intent of the zoning district;

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;

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.

6.    The expansion, change, reconstruction, or replacement requested shall be denied if the hearing examiner 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 hearing examiner shall prepare written findings and conclusions stating the specific reasons for his or her decision to approve, approve with conditions, or deny the application. The findings shall include the hearing examiner’s determination regarding compliance of the proposed expansion, change, reconstruction or replacement with the criteria established in subsection C of this section. In the event that the hearing examiner approves or conditionally approves the underlying land use application, the accompanying site plan shall be approved or be approved upon modification/compliance with the hearing examiner’s determination.

E.    Conditional Approval. When approving a change in, or the expansion, reconstruction, or replacement of, a nonconforming use or structure, the hearing examiner may attach conditions to the proposed change, expansion, replacement, 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 Yakima urban area comprehensive plan, this title, and neighboring land uses. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 98-57 § 1 (part), 1998: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.090 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 YMC Chapter 15.17. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.100 Discontinuance of a nonconforming use or structure.

A nonconforming use or structure shall become discontinued when it is:

A.    Succeeded by a Class (1), (2), or (3) use;

B.    Succeeded by another use or structure that is less nonconforming;

C.    Discontinued and not reestablished within eighteen months, unless an extension is granted by the administrative official upon proper application. Denials of such requested extensions may be appealed in the same manner as Class (2) decisions under YMC Chapter 15.14; or

D.    Damaged and application for rebuilding or replacement is not made within eighteen months of such damage or resolution of court litigation or insurance settlement.

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. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 98-57 § 1 (part), 1998: Ord. 3019 § 63 (part), 1987: Ord. 2947 § 1 (part), 1986).

15.19.110 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 use or use of a nonconforming structure. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008: Ord. 2947 § 1 (part), 1986).

15.19.120 Critical area nonconforming uses and facilities.

With respect to critical areas, as provided under YMC 15.27.320, they are classified as either conforming uses with nonconforming structures or areas, or as nonconforming uses, as described in subsection A of this section. Both types have different review processes and decision criteria, as provided below in subsections B and C of this section.

A.    Classification Criteria. There may be situations that do not conform to the standards or regulations. These situations are characterized as:

1.    Nonconforming Uses. Uses of a structure or land that were lawfully established at the time of their initiation but are currently prohibited by YMC Title 15 are nonconforming uses, and may utilize structures or land areas that are also nonconforming. A nonconforming use that is discontinued for any reason for more than one year shall have a presumption of intent to abandon, shall not be reestablished, and shall lose its nonconforming status unless a variance or administrative adjustment is obtained to extend the length of time based on documentation showing that an intent to abandon did not exist during the period of discontinuance. Such a variance or administrative adjustment request may be submitted after the deadline has passed. In the case of destruction or damage where reconstruction costs exceed fifty percent of the assessed value, the structure shall not be rebuilt.

2.    Conforming Uses with Nonconforming Structures or Areas. These are structures or areas for conforming uses that were lawfully established at the time of their initiation, but currently do not conform to the bulk, dimensional, or other development standards. Structures or areas in locations approved under a permit shall not be considered nonconforming. Nonconforming outdoor areas that have not been used or maintained for five consecutive years shall lose their nonconforming status and may not be reestablished.

3.    Ordinary Care Required. Any nonconforming structure, area, or use may be maintained with ordinary care according to the provisions in YMC 15.27.140, 15.27.303, and 15.27.304, and does not require additional review under these nonconforming provisions.

B.    Process.

1.    Alterations to Conforming Uses with Nonconforming Structures or Areas. These uses shall be allowed under the following process requirements with the understanding that other permits or reviews may also be required under this title:

a.    Those that do not increase the existing nonconformity and otherwise conform to all other provisions are allowed without additional review under these nonconforming provisions.

b.    Those that increase the nonconformity, including establishing additional square footage within a buffer, are allowed without additional review under these nonconforming provisions; however, an adjustment must be obtained for the increased nonconformity.

c.    Reconstruction or repair of a structure damaged less than seventy-five percent of the assessed value shall be processed as provided in subsections (B)(1)(a) and (b) of this section.

d.    A nonconforming structure which is moved any distance shall be processed as provided in subsections (B)(1)(a) and (b) of this section.

e.    Reconstruction or repair of structures destroyed or damaged seventy-five percent or more of the assessed value of the structure (not the whole property), including that resulting from neglect of maintenance or repair, shall be processed under these nonconforming provisions as a Type (2) review under this title.

2.    Alterations to Nonconforming Uses.

a.    Alterations to nonconforming uses involving expansion or alteration within an existing structure, but not including alterations to outdoor areas or expansions of the building’s height or square footage, are allowed without additional review under these nonconforming provisions.

b.    Alterations to nonconforming uses, including their nonconforming structures or areas that do not qualify under subsection (B)(2)(a) of this section, shall be processed under these nonconforming provisions as a Type (2) review, as provided by this title.

C.    Decision Criteria. Decisions on projects that require review under the nonconforming provisions, as identified under subsection B of this section, shall be based on the general decision criteria found in YMC 15.27.311 together with the criteria below:

1.    Decisions on Nonconforming Structures. Applications for conforming uses with nonconforming structures or areas that are subject to subsection (B)(1)(e) of this section shall not be approved unless a finding is made that the project meets all of the following criteria:

a.    Using the original location will not place the structure or people in danger of a hazard;

b.    The previous structure and any structural shore modification used to protect the structure did not increase hazards or damage to other properties; and

c.    The previous structure and any shore modification used to protect the structure did not cause significant impacts to the functions and values of the critical area.

2.    Decisions on Nonconforming Uses. A nonconforming use may not be altered or expanded in any manner that would bring that use into greater nonconformity. (Ord. 2016-029 § 1 (Exh. A) (part), 2016: Ord. 2008-46 § 1 (part), 2008).