Article 6 — NONCONFORMITIES

ARTICLE 6 - NONCONFORMITIES

Chapters:

Chapter 19.90 - GENERAL NONCONFORMING PROVISIONS

Sections:

Within the zones established by this Development Code or amendments that may later be adopted, there exists or will exist lots, structures, and uses of land and structures which were lawful before the adoption or amendment of this Development Code, but which no longer comply. The intent of this Article 6 (Nonconformities) is to permit those nonconformities to continue until they are removed or required to be terminated, but not to encourage their continuance. Such uses and structures are declared to be incompatible with permitted uses, structures, and standards in the zones involved, and it is intended that they shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone, except as may be expressly permitted in this Article.

19.90.020 - Establishment of legal nonconforming status.

A.

The provisions of this Article shall regulate the continuation, termination, and modification of lots, structures, and uses which were lawfully established, but which no longer conform to the provisions of this Development Code due to a change in zone boundaries or a change in the regulations for the zone in which it is located. A mere change in ownership or tenancy without any change in use, occupancy, or

development shall not affect any of the legal nonconforming rights, privileges, and responsibilities provided under this Article.

B.

Lots, structures, and uses not having previously acquired proper permits are illegal and subject to immediate abatement.

C.

Any nonconforming situation that becomes specifically authorized under the terms of some approval pursuant to this Development Code, other than approval of an extension, expansion, change, or early termination of nonconformity, shall henceforth be governed by the terms of such approval and shall no longer be considered to be a nonconformity unless and until such approval expires or is revoked.

A.

Continuation. Except as otherwise provided herein, any lot, structure, or use legally in place on the effective date of any ordinance creating the nonconformity may continue as a legal nonconforming lot, structure, or use, respectively.

B.

Maintenance. Routine maintenance and repairs of lots and structures which do not increase the nonconformity may be performed.

Notwithstanding any other provision of this Article, when a nonconformity exists incidental to a nonconforming use, that nonconformity may continue until the time specified for the termination of the nonconforming use, provided such nonconformity is brought into compliance with the regulations that would be applicable to the use if it were located in the most restrictive zone which automatically permits such use.

19.90.050 - Determination, extension, and abatement procedures.

A.

Purpose. This section sets forth provisions for the abatement of lots, structures, and uses deemed to be nonconforming and subject to abatement pursuant to the provisions of this Article.

B.

Authority. The Director shall be the designated Review Authority for determining that a lot, structure, or use is nonconforming, and the Commission shall be the designated Review Authority for action on the abatement procedures and extensions of the nonconforming lots, structures, or uses.

C.

Notice and hearing. Once the Director has determined that a lot, structure, or use is nonconforming, the Director shall provide required notice for hearing and action by the Commission. The purpose of the hearing is to determine whether the nonconformity should be abated, given a specific term prior to abatement, or granted a time extension. Notice and hearing shall be performed and conducted pursuant to Chapter 19.146 (Public Notices and Hearings).

D.

Decision and findings. The Commission shall base its decision as to the length of the permitted amortization period on any competent evidence presented, included but not limited to the depreciation schedule attached to the owner's latest federal income tax return. Findings shall be made as to whether or not the balancing of the public interest and the request by the owner for continuance, alteration, or expansion of the nonconformity of the subject property requires a deviation from the City's development standards. Findings shall be made in writing and provided to the property owner within 10 days after the decision is rendered.

E.

Appeal. Actions taken by the Commission may be appealed to the Council in accordance with provisions of Chapter 19.144 (Appeals).

F.

Extension of time. The Review Authority, at its discretion, may grant an extension of time for the abatement of a nonconformity where it finds that an unreasonable hardship would otherwise be imposed on the property or business owner.

G.

Revocation of nonconforming use or structure. The City may revoke the right to continue a nonconforming use or structure. Revocation procedures, including notice and hearing, shall be in accordance with provisions of Chapter 19.152 (Permit Modifications and Revocations).

H.

No reversion to nonconformance. When any nonconformity is eliminated or brought into conformance with the current regulations of this Development Code, the nonconforming rights and privileges with respect to that nonconformity are terminated and shall not be restored.

Chapter 19.92 - NONCONFORMING LOTS

Sections:

Any lawfully created lot which becomes nonconforming with regard to lot area, street frontage, lot width, lot depth, or accessibility may continue indefinitely with such nonconformity and may be developed and used

as if it were a conforming lot. However, any property proposed for development with multi-family dwellings shall be fully conforming as to lot area and lot width.

Legal nonconforming lots may not be modified in any manner that increases the degree of nonconformity. Where feasible, parcel modifications (through lot merger or lot line adjustment) are encouraged to eliminate or minimize the degree of nonconformity.

Chapter 19.94 - NONCONFORMING STRUCTURES

Sections:

A.

Continuation of structure. Any legally established nonconforming structure that does not conform to the provisions of this Development Code with regard to maximum permitted height, minimum required setback, lot coverage, and/or maximum permitted encroachment into required yard areas may be continued indefinitely.

B.

Exceptions. The following are the exceptions to the indefinite continuation of a legal nonconforming structure:

1.

Residential structures. Any increase in the number of residential units for buildings designed and occupied for residential use shall be prohibited.

2.

Utilities. Any new or replacement utility/mechanical facilities, equipment, or construction shall conform to the maximum extent feasible, as determined by the Director.

3.

Encroachments in commercial zones. Within the commercial zones, any nonconforming encroachment into required yards may be required to be removed or reduced upon review by the Review Authority as follows:

a.

When an expansion in floor area which is greater than 50 percent of the existing floor area is proposed for any structure maintaining a nonconforming encroachment, or

b.

When an expansion in floor area is proposed anywhere within an integrated development which is greater than 50 percent of the total floor area of all structures within the integrated development.

4.

Trash facilities, outdoor storage, and display. Trash areas or facilities, outdoor storage areas, and outdoor display areas shall be made fully conforming at the time of any expansion or intensification of use on the site.

C.

Modification or expansion of legal nonconforming structure.

1.

A legal nonconforming structure shall not be modified in a manner that expands, extends, or enlarges the use in any manner beyond its existing scope upon the date the nonconformity was created, except as follows:

a.

The modifications are, in and of themselves, in conformance with the provisions of this Development Code.

b.

The modifications are limited to minor alterations, improvements, or repairs that do not increase the degree of nonconformity present and do not constitute or tend to produce an expansion or intensification of a nonconforming use.

c.

The modifications are required by other laws.

d.

The modifications are incidental to the public acquisition of a portion of a site, no greater degree of nonconformity will be created other than that caused as a result of the public acquisition, and the changed development will conform to current regulations to the maximum extent feasible.

2.

No change made to any development or use shall be construed as automatically permitting an extension of any time limit for the termination of a nonconformity.

D.

Destruction of legal nonconforming structure.

A nonconforming structure(s) involuntarily damaged or partially destroyed by fire, act of nature, or act of the public enemy may be repaired or rebuilt and re-occupied only as follows:

a.

If the cost of repairing or replacing the damaged portion of the structure(s) does not exceed 50 percent of its appraised value, based on an appraisal which was prepared within the last 12 months by a licensed appraiser, the structure may be restored, provided the following conditions are met:

(1)

The reconstruction meets current Building Code requirements.

(2)

Reconstruction begins within 12 months of the date of damage, unless otherwise allowed by the Director, and is diligently pursed to completion.

b.

If the cost of repairing or replacing the damaged portion of the structure(s) does exceed 50 percent of its appraised value as determined by an appraisal which was prepared within the last 12 months by a licensed appraiser, the structure may not be restored.

c.

Special provision for existing two-story residential structures in the R-1D zone. If a nonconforming second story structure in the R-1D zone is destroyed, it may be rebuilt as a two-story structure if the original construction was legally permitted. The area of the second story rebuild shall be limited to the amount of floor area previously permitted and design shall be subject to Site Plan and Design Review.

E.

Discontinuance of legal nonconforming structure. If any legal nonconforming structure is abandoned or the use thereof discontinued for a period of 180 consecutive days or more, subsequent development of the land shall be in conformity with the provisions of this Development Code. Maintenance of a valid business license shall of itself not be considered a continuation of the use.

F.

Off-site relocation. When a structure is relocated to another lot, it shall be made conforming in all respects with the provisions of this Development Code and all other applicable laws and regulations.