Chapter 17.36 — NONCONFORMING USES AND STRUCTURES

The purpose of this chapter is to establish provisions for the regulation of nonconforming uses, structures, lot, or other development that was lawfully permitted before the adoption of or an amendment to this Title or previously adopted City ordinance, but which would be prohibited, regulated, or restricted differently under this Title. This chapter also establishes affirmative termination provisions for nonconforming uses to protect the community by bringing nonconforming properties into compliance with existing land use and environmental standards, while balancing property owners’ legal rights to protect legitimate investment-backed expectations.

The intent of this chapter is to allow for the short-term continuation of nonconformities until they are removed, but not encourage their perpetuation. The development standards in this chapter are administered in a manner that encourages the eventual abatement and discontinuance of all nonconformities throughout the City. As such, previous development that may have been exempt pursuant to a previous ordinance shall be subject to the provisions of this Title for such use and shall neither be considered nonconforming nor afforded the allowances within this chapter. (Ord. 20-03 § 6)

• A. Nonconforming Uses, Structures, and Lots. Any lawfully established use, structure, or lot that is in existence on the effective date of the ordinance codified in this Title or any subsequent amendment, but which does not comply with all of the standards and requirements of this Title, is considered nonconforming. Nonconforming status may result from any inconsistency with the requirements of this Title, including, without limitation, location, density, height, setbacks, open space, buffering, screening, landscaping, provision of parking, and performance standards, or the lack of an approved Zoning Permit, Development Plan, Conditional Use Permit, or other required authorization.

• B. Continuation of Nonconformities. Nonconformities may only be continued subject to the requirements of this chapter.

• C. Unpermitted Nonconformities. Any nonconforming use, structure, or lot not deemed to be legally permitted or created, shall be determined illegal and must be abandoned and/or otherwise remedied pursuant to Chapter 17.69 , Enforcement.

• D. Previously Approved Development Plans or Conditional Use Permits. Any physical development legally permitted through the approval of a Development Plan or Conditional Use Permit and in existence prior to the adoption of this Title shall not be considered nonconforming pursuant to this Title. In the event of damage or destruction, such projects shall be allowed to be restored or reconstructed as originally permitted with the approval of a Zoning Clearance as to conformance with the previously approved Development Plan or Conditional Use Permit. This subsection does not apply to any uses, or structures associated with said uses, that are inconsistent with the underlying base Zoning District.

• (Ord. 20-03 § 6; Ord. 25-10, 12/2/2025)

• A. Changes of Use. A nonconforming use may be changed to a different use based on the new use as follows:

  1. New Use Permitted By-Right. Any nonconforming use may be changed to a use that is allowed “by-right” in the zoning district in which it is located and complies with all applicable standards for such by-right use;

  2. New Use Requires a Use Permit. No nonconforming use may be changed to a different use without approval of a Use Permit, unless the new use is permitted by-right. This

requirement does not apply to a change of ownership, tenancy, or management where the new use is in the same classification as the previous use, as defined in this Title, and the use is not expanded; and

3. New Nonconforming Use Not Permitted. Nonconforming uses may not be changed to a different nonconforming use.

• B. Absence of Use Permit. Any use that is nonconforming solely by reason of the absence of a use permit may be changed to a conforming use by obtaining the appropriate permit.

• C. Expansion of Nonconforming Uses. A nonconforming use may only be expanded subject to the following requirements:

  1. Within a Conforming Structure. A nonconforming use in a structure that conforms to the applicable requirements of this Title and to the Building Code, as adopted by the City, may expand the floor area that it occupies;

  2. Within a Structure That Does Not Conform to the Building Code. Any nonconforming use in a structure that does not conform to the Building Code, as adopted by the City, may not expand the area it occupies until and unless the structure is brought into conformance with all applicable Building Code requirements;

  3. Within a Structure That Does Not Conform to this Title. A nonconforming use in a structure that does not conform to the requirements of this Title but does conform to the requirements of the Building Code may expand the floor area it occupies; and

  4. Expansions to Other Structures or Lots. A nonconforming use may not be expanded to occupy all or any part of another structure or another lot that it did not occupy on the effective date of this Title.

• D. Discontinuance of Use. If a nonconforming use is discontinued, any future use shall comply with the provisions of the district in which the use is located. Proof of discontinuation of a nonconforming use for 12 consecutive months shall be prima facie evidence that the nonconforming use has been discontinued.

• (Ord. 20-03 § 6)

A. Termination of Previously Permitted Nonconforming Uses.

1. The City Council may consider whether or not to order the termination of any previously permitted use that is nonconforming pursuant to this Title. The time period within which such use must be terminated as provided herein only after a duly noticed public hearing pursuant to Chapter 17.52 , Common Procedures.

2. The property owner of record and any tenant, individual or business operator known to be occupying the property shall be notified in writing no less than 10 days in advance of the hearing that the City Council will be considering whether or not to order the termination of the nonconforming use. The notice shall state the specific date, time, and location of the hearing.

3. If the City Council orders termination of the nonconforming use, the Order of Termination shall include the effective date of the termination and shall be served on the owner of record and any tenant and/or business operator or any other person or business entity known to be occupying the premises via personal service or delivery through the United States Postal Service or any other service designated for overnight delivery. If the City Council determines that there is no known address for an owner of record and any tenant and/or business operator, the Council may direct service of the Order of Termination to be

accomplished by posting the Order on the property and publishing the Notice of the Order of Termination in a newspaper of general circulation. Service of the Termination Order shall be deemed complete at such time as it is served in the manner provided herein.

• B. Termination Period. The following time periods shall apply to the termination of a nonconforming use:

  1. Except as otherwise provided herein, a nonconforming use that does not occupy a structure shall cease within one year from the date of a City Council Order of Termination.

  2. Except as otherwise provided herein, all other nonconforming uses shall cease within five years from the date of a City Council Order of Termination.

  3. The City Council may, within its discretion, order termination of a nonconforming use within any other time period that is less than five years where it determines that it would be appropriate in consideration of one or more of the following factors:

     • a. The total cost of land and improvements;

     • b. The length of time the use has existed;

     • c. The length of time the use has existed as a nonconforming use;

     • d. The intended use and scope of use of the property before it became nonconforming;

     • e. Whether the originally intended use and scope of use of the property before it became nonconforming was expanded after it became a nonconforming use or is proposed to be expanded;

     • f. Whether and to what extent the original investment in the improvements on the property was recouped;

     • g. The extent to which the use on the property is incompatible with surrounding uses and properties within the zone, the General Plan and any applicable land use elements;

• h. The potential threat to public health, safety, or general welfare by the continuation of the nonconforming use;

  - i. The cost of moving and reestablishing the use elsewhere; and j. Any other relevant factors.
  

C. Application for Modification of Order of Termination.

1. Within one year of the issuance of the City Council’s Order of Termination, as provided herein, the property owner of record or any lessee of the property, acting with the written consent of the current owner may apply for a modification of the Termination Order to extend the date by which all nonconforming uses shall cease up to an additional 15 years.

2. An application for modification shall be submitted on a form to be supplied by the City and shall be signed by the property owner, shall state the reasons why the use should be allowed to continue, and shall state how the continued use will not be incompatible with or detrimental to the uses in the surrounding area adjacent to the property; and shall state how the continued use will be consistent or can be modified to become consistent with the General Plan for the surrounding zoning area.

• D. Planning Commission Hearing on the Application for Modification. The Planning Commission shall conduct a duly noticed public hearing within a reasonable time not to exceed 90 days after the application for modification of a Termination Order is deemed complete and accepted by the City, and may approve, conditionally approve, or deny such request for modification. The Planning Commission may also impose such conditions as they may deem

necessary to protect the public health, safety and general welfare, to provide greater compatibility with the surrounding property and to secure the objectives of the General Plan. In no event may any modification of a Termination Order be approved for a period of more than 15 additional years beyond the date the City Council ordered the elimination of the nonconforming use.

E. Planning Commission Determination.

1. Before making a determination whether or not to grant an application for modification of the Termination Period, as defined herein, the Planning Commission may direct that an amortization analysis be prepared, at the applicant’s cost, to assist them in evaluating the application. The amortization analysis shall be conducted by a reputable firm, selected by and retained under contract to the City. Said firm should have the appropriate knowledge and expertise in conducting amortization analyses, including, but not limited to, experience in analyzing operations, relevant accounting and financial reporting standards, compliance demands and valuation of facilities for the use or uses being conducted on the property.

cted by a reputable firm, selected by and retained under contract to the City. Said firm should have the appropriate knowledge and expertise in conducting amortization analyses, including, but not limited to, experience in analyzing operations, relevant accounting and financial reporting standards, compliance demands and valuation of facilities for the use or uses being conducted on the property.

2. Applicant shall make a deposit with the City of the estimated cost of the amortization analysis, staff time and hearing costs relating to the application and shall thereafter promptly pay any additional costs over the initial estimate. Failure to make the required deposit within seven days of being advised by the City of the estimated costs for the application for modification, including the amortization analysis shall be deemed a withdrawal of the Application for Modification of the Termination Period and no further action will be taken by the City on such application. The time period to make the deposit may be extended by the City Manager for an additional seven days.

3. The Planning Commission may continue the hearing on the application for modification as necessary to complete such amortization analysis.

4. The Planning Commission must consider all documentary and oral evidence and testimony submitted for or at the hearing, and in making its decision to modify the Termination Order shall consider the following, where applicable:

   • a. The total cost of land and improvements when the property was first constructed and/or began operating, including any expansions or modifications during the period when the use was a lawful (conforming) use;

   • b. The total length of time the use has existed since it was first constructed and/or became operational;

   • c. The length of time the use has been nonconforming;

   • d. The intended scope of the business operating on the property at the time the use became nonconforming (e.g., business permits, licenses, applications, etc.);

   • e. Whether the intended scope of the business operating on the property before it became nonconforming has been or is proposed to be expanded or intensified since the property became nonconforming;

   • f. Whether and to what extent the investment in the improvements on the property before it became a nonconforming use was recouped;

   • g. The extent to which the use on the property is incompatible with surrounding uses and properties within the zone, the General Plan and any applicable land use elements;

   • h. The possible threat to public health, safety, or general welfare by the continuation of the nonconforming use beyond the five-year elimination period;

   • i. The cost of moving and re-establishing the use elsewhere; and

   • j. Any other relevant factors.

• F. Appeal. The Planning Commission determination may be appealed to the City Council pursuant to Section 17.52.120 , Common Procedures—Appeals.

• (Ord. 20-03 § 6)

• A. Right to Continue. Any nonconforming structure may only be continued and maintained provided there is no alteration, enlargement, or addition; no increase in occupant load; nor any enlargement of the area, space, or volume occupied by or devoted to any use therein, except as provided in this section. The right to continue to use a nonconforming structure attaches to the land and is not affected by a change in ownership. No substitution, expansion, or other change in use and no alteration or other change in structures is permitted, except as provided in this section.

• B. Right to Repair or Restore. Nonconforming structures may be repaired, maintained, or restored in compliance with the requirements of this section, unless deemed to be a public nuisance because of health or safety conditions.

• C. Enlargements or Alterations. Nonconforming structures may be enlarged, extended, structurally altered, or repaired in compliance with all applicable laws, subject to the following provisions:

  1. Alterations and enlargements that comply with the following, subject to approval of the Director.

     • a. Alterations or enlargements necessary to meet City or State requirements;

     • b. Alterations or enlargements consistent with the current requirements of the zoning district in which the structure is located or otherwise allowed in that zoning district; and

     • c. Energy-efficient upgrades, including replacement of lamps within light fixtures.

  2. Alterations and enlargements that comply with the following are subject to approval of a Major Conditional Use Permit.

     • a. Alterations or enlargements that extend into a nonconforming setback, where the alteration or enlargement would not:

       • i. Further reduce any existing nonconforming setback;

       • ii. Exceed applicable building height limits;

       • iii. Further increase any existing nonconforming lot coverage; nor

       • iv. Increase the required number of off-street parking spaces unless parking is provided under current standards for the additional floor area.

• D. Restoration of a Damaged Structure.

  1. Up to 75 Percent Damaged. A nonconforming building or structure that is damaged or partially destroyed by fire, flood, earthquake, or other natural disaster may be restored or rebuilt if the cost of repair or reconstruction does not exceed 75 percent of the replacement cost of the nonconforming structure as determined by the Building Official. Replacement of the damaged portions of the building is allowed by-right provided that the replaced portions are the same size, extent, and configuration as previously existed, and repair work commences within 24 months of the date of damage.

  2. More Than 75% Damaged. If the cost of repair or reconstruction of a nonconforming building or structure exceeds 75 percent of the replacement cost of the nonconforming structure as determined by the Building Official, the land and building will be subject to all of the requirements and applicable standards of this Title in effect at the time of the loss.

• E. Reconstruction of a Damaged Structure. Where nonconforming structures dedicated to residential uses, except in the IS and IG Zone Districts, are damaged or destroyed by fire, flood, earthquake, other catastrophic event, or the public enemy, such structures may be reconstructed to the same or lesser size, in the same general footprint location, and to its predamaged size and number of dwelling units provided that reconstruction shall commence within 24 months of the time of damage and be diligently carried out to completion.

• (Ord. 20-03 § 6)

Notwithstanding any other provision of this chapter, no lot, structure, or use will be considered nonconforming as a result of a conveyance of any interest in the subject lot to a public entity through eminent domain proceedings, under threat of eminent domain proceedings, or to meet a requirement of any public entity having jurisdiction.

(Ord. 20-03 § 6)