Chapter 23.170 — Nonconforming Uses And Structures

This chapter establishes special regulations for nonconforming land uses and structures that were lawful before the adoption or amendment of this zoning code, but which would be prohibited, regulated, or restricted differently under the current terms of this zoning code or future amendments. It is the intent of these regulations to allow the continuation of nonconformities under limited conditions outlined herein and reconstruction in the event of natural disaster. Generally, any expansion of nonconforming uses or structures is prohibited. However, this chapter establishes special regulations for the potential expansion of nonconformities in limited areas of the city on a case-by-case basis where specific findings can be made.

(Ord. 27-2008 § 1 (Exh. A § 1.24.010); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

• A. A nonconforming use may continue to operate in perpetuity, be transferred, or be sold; provided, that the use shall not be enlarged or intensified, nor be expanded to occupy a greater area than it lawfully occupied before becoming nonconforming. Likewise, plans for any use approved as of the date the ordinance codified in this chapter becomes effective may be carried out as approved. Any extension of such approval for which the applicant was entitled to apply as of the effective date may be granted according to the regulations in effect prior to the effective date; if granted, such extension will be considered the same as an approval granted before the effective date. The person asserting the nonconforming use must present evidence that the use existed before the enactment of the zoning code provision prohibiting the use.

• B. A nonconforming structure may be maintained or improved as follows:

  1. Maintenance and Repair. A nonconforming structure may be maintained and repaired. Maintenance may include repair work necessary to keep the building or structure in sound condition but maintenance shall not include the replacement of a building or structure.

  2. Seismic Retrofitting and Building Code Compliance. Repairs, alterations, or reconstruction to reinforce unreinforced masonry structures or to comply with building code requirements shall be allowed; provided, that the work is exclusively to comply with applicable earthquake safety standards and the building code.

3. Structural alteration of a nonconforming structure to improve safety or to reduce fire hazard.

(Ord. 27-2008 § 1 (Exh. A § 1.24.030); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

A nonconforming use or structure may be modified or expanded as listed below, subject to the provisions of RCMC § 23.170.070 (Nonconforming use permit procedures):

• A. Structural Modification. Addition, enlargement, extension, or relocation of a nonconforming structure may be allowed if the changes to the structure conform to applicable provisions of this zoning code. Such modifications may not expand the extent of the nonconforming aspect of the structure or result in any new nonconforming conditions for the subject property.

• B. Expansion of Use. Expansion or modification of a nonconforming use may be allowed in limited areas of the city.

• C. Exterior improvements or expansion of structures may also require design review approval pursuant to Chapter 23.140 RCMC (Minor Design Review) or Chapter 23.141 RCMC (Major Design Review).

• (Ord. 27-2008 § 1 (Exh. A § 1.24.040); Ord. 12-2011 § 3 (Exh. A); Ord. 13-2013 § 4 (Exh. B); Ord. 4-2017 § 3 (Exh. B))

If a nonconforming structure, or a conforming structure occupied by a nonconforming use, is involuntarily damaged or destroyed, the structure may be repaired or rebuilt and reoccupied in the same manner in which it originally existed if the restoration is started within one year of the date of the damage and is diligently pursued to completion.

(Ord. 27-2008 § 1 (Exh. A § 1.24.050); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

If a nonconforming use is discontinued for a continuous period of six months or more, rights to nonconforming status shall terminate. A determination that a use has been abandoned requires both (A) evidence of an intention to abandon, and (B) an act or failure to act which shows or implies that the owner does not continue to claim or retain an interest in the nonconforming use. Evidence may include, but is not limited to, removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, or no business records to document continued operation. Maintenance of a valid business license shall of itself not be considered a continuation of the use. Without further action by the city, any subsequent use of the site or structure shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this zoning code. (Ord. 27-2008 § 1 (Exh. A § 1.24.060); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))

• A. Purpose. The purpose of the nonconforming use permit is to allow for individual review of requests to expand or modify a nonconforming use in a manner that ensures compatibility with surrounding areas and uses.

• B. Applicability. Nonconforming use permits may only be requested and considered for nonconforming uses and structures on property zoned for mixed-use.

• C. Permit Requirements. A nonconforming use permit is required for the expansion or modification of existing nonconforming structures or uses.

• D. Application Required. An application for a nonconforming use permit shall be filed in accordance with RCMC § 23.110.040 (Application requirements).

• E. Approval Authority. Nonconforming use permits shall be approved by the specified approval authority as designated in RCMC § 23.104.030 (Recommending and approval authority).

• F. Public Hearing Notice and Procedures. No public hearing is required for the review and processing of a nonconforming use permit.

• G. Notice of Decision. The notice of decision shall be issued pursuant to RCMC § 23.110.140 (Notice of decision).

• H. Approval Findings. A nonconforming use permit shall be granted only when the approval authority makes all of the following findings:

  1. The establishment, maintenance, or operation of the use expansion applied for will not, under the circumstances of the particular case (location, size, design, and operating characteristics), be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the neighborhood of such use or to the general welfare of the city.

  2. The benefit to the public health, safety, or welfare exceeds the detriment inherent in the expansion of nonconformity.

  3. The modified or expanded nonconforming structure or use would not be incompatible with reasonably foreseeable uses as allowed under the applicable zoning regulations.

• I. Conditions of Approval. The approval authority may impose conditions and/or require guarantees for the nonconforming use permit to ensure compliance with this section and other applicable provisions of this title and satisfy the required approval findings.

• J. Appeals. Appeals of a nonconforming use permit may be filed in accordance with RCMC § 23.110.160 (Appeals).

• K. Permit Expiration. Nonconforming use permits shall expire three years from the original date of approval, unless:

  1. Substantial construction of the permitted use has commenced and is diligently pursued to completion, or actual occupancy of an existing building or land occurs under the terms of the permitted use; or

  2. An extension is approved in accordance with RCMC § 23.110.070 (Extension of land use entitlement).

• L. Amendments. An applicant may request an amendment to a nonconforming use permit after the final written decision is issued. Amendments shall be processed in accordance with RCMC § 23.110.180 (Amendments).

• (Ord. 27-2008 § 1 (Exh. A § 1.24.070); Ord. 12-2011 § 3 (Exh. A); Ord. 4-2017 § 3 (Exh. B))