Chapter 24.18

NONCONFORMING USES AND STRUCTURES*

• Editor’s Note: Chapter 24.18, Nonconforming Uses and Structures, has been amended in its entirety by Ordinance 2006-02, effective 4-14-2006. Prior ordinances contained in this chapter include portions of Ords. 85-05, 89-10, 90-15, 92-19, 94-33, 98-13 and 2000-19.

Sections:

• 24.18.010 Purpose. 24.18.020 General application. 24.18.030 Nonconforming structures – Enlargement and alterations.

• 24.18.040 Nonconforming structures – Reconstruction.

• 24.18.050 Nonconforming use – Change. 24.18.060 Nonconforming use – Expansion prohibited.

• 24.18.070 Nonconforming use – Discontinuance.

• 24.18.080 Nonconforming use – Maintenance, repairs, and nonstructural alterations to buildings.

• 24.18.090 Nonconforming use – Conversion to conditional use.

• 24.18.100 Reserved. 24.18.110 Burden of proof.

The purpose of this chapter is to provide for the control, improvement and termination of uses or structures which do not conform to the regulations of this title for the district in which they are located. This section of the Zoning Ordinance is also part of the Local Coastal Implementation Plan.

(Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

1. Any lawfully established building or structure, or lawfully established use of a building or structure, existing at the effective date of this title, or of any amendments thereto, that

does not conform to the regulations for the district in which it is located shall be deemed to be legally nonconforming and may be continued, except as otherwise provided in this chapter.

2. Any legal nonconforming use may be continued as stipulated in this chapter, provided there is no increase in the intensity of such use.

3. Any legal nonconforming building or structure shall not be made more nonconforming.

4. A building, structure or part thereof for which a building permit was issued prior to the enactment of amendments to this title making aspects of the building or structure nonconforming may be completed; provided, that work is prosecuted continuously and without delay. When completed, such building shall be deemed to be a legal nonconforming structure and shall thereafter be subject to the regulations set forth herein.

5. A building, structure, or use nonconforming only because of noncompliance with setbacks from a watercourse or wetland as required in Section 24.08.2100 shall be considered legally nonconforming.

6. Nothing in this chapter shall prevent the strengthening or restoring to a safe condition of any part of any building or structure declared unsafe by the building official.

(Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

A nonconforming structure may be enlarged or structurally altered; provided, that it is not made more nonconforming.

1. Exception. When a single-family residence has nonconforming side or rear yards, additions to such structures shall be permitted on the first floor, while maintaining side and rear yards no less than existing yards, and provided a design permit is obtained. Additions

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above the first story must conform to required setbacks.

(Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

A nonconforming structure which is damaged or destroyed by fire, flood, wind, earthquake, or other disaster may be repaired or reconstructed. A nonconforming structure damaged to more than fifty percent of its value as determined by the chief building official shall require approval of a reconstruction permit (Chapter 24.08, Part 20). Buildings or structures damaged more than fifty percent as described above that are nonconforming only because of noncompliance with setbacks from a watercourse or wetland as required in Chapter 24.08, Part 21 may be reconstructed subject to a building permit only; provided, that the general requirements in Section 24.08.2030 are met.

(Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

1. Where a nonresidential use is nonconforming because of failure to meet parking requirements, another nonconforming use may be substituted, provided its sole nonconformity pertains to parking and its parking requirement does not exceed the parking requirement for the use it replaces.

2. When a nonconforming use in a residential R-District is changed to a permitted use, it shall meet the Zoning Ordinance requirement for the permitted use.

3. Variations to Nonconforming Use Regulations for Lots with Historic Buildings Listed on the City Historic Building Survey and on Lots with Contributing Buildings within an

Historic District. Variations may be allowed in accord with Section 24.12.445.

(Ord. 2020-22 § 19, 2020; Ord. 2012-19 § 4 (part), 2012: Ord. 2006-02 § 5 (part), 2006).

Any nonconforming use may be maintained and continued, provided there is no expansion in the area or volume occupied or devoted to such nonconforming use, and further provided there is no increase in the intensity of such nonconforming use except as otherwise provided in this title. A home occupation in a nonconforming residential use shall not be considered an expansion of the use so long as the home occupation is in compliance with the home occupation regulations in Section 24.10.160 and the area devoted to the nonconforming residential use is not expanded in area or volume as a result of the home occupation.

Variations to Nonconforming Use Regulations for Lots with Historic Buildings Listed on the City Historic Building Survey and on Lots with Contributing Buildings within an Historic District. Variations may be allowed in accord with Section 24.12.445.

(Ord. 2020-22 § 19, 2020; Ord. 2012-19 § 4 (part), 2012: Ord. 2006-02 § 5 (part), 2006).

1. Any nonconforming, nonresidential use that is nonconforming due to district use regulations and/or violates performance standards and which is discontinued or abandoned or otherwise ceases operation for a period of six months or more shall not be resumed, and all subsequent use of such structure or portion of structure or site shall conform to this title. An administrative use permit shall be required for a new use exceeding the parking requirement for the use it replaces. The approving body shall find that the reduction in parking requirements will not adversely affect parking on adjacent and nearby streets and properties.

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2. Whenever any part of a building, structure or land occupied by a nonconforming use is changed to or replaced by a use conforming to the provisions of this title, regardless of the period of time such conforming use occupies the building, such premises shall not thereafter be used or occupied by a nonconforming use.

3. Any uses nonconforming by reason of noncompliance with performance standards established herein shall be deemed illegal until compliance with performance standards is achieved.

4. Notwithstanding the provisions of subsection (1), any legal nonconforming use which operates on property being acquired by the city by eminent domain or under threat of condemnation and which is required to discontinue or otherwise cease operation because of construction activities undertaken by the city may resume said use without losing its status as legal nonconforming: (1) within two years; or (2) within six months after the city’s construction activities are completed so as to enable said use to resume, whichever is later. Nothing contained in this subsection shall be construed as having any effect upon the city’s proprietary interest in property acquired by eminent domain or under threat of condemnation. (Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

1. Normal and routine maintenance or nonstructural alterations of any structure for the purpose of preserving its existing condition, retarding or eliminating wear and tear or physical depreciation, rendering the space more usable, or complying with the requirements of law shall be permitted.

2. Structural alterations or enlargement of the building containing nonconforming, nonresidential uses shall be permitted only to

accommodate a conforming use, or when made to comply with the requirements of the law.

3. Buildings containing nonconforming residential uses may be altered to improve livability, provided no structural alterations shall be made which would increase the number of dwelling units or the bulk of the building. (Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

Any use legally existing on the effective date of this title, or amendments thereto, which is listed as a conditional use in the district in which it is located but which has never obtained a conditional use permit, shall be and remain a nonconforming use until a conditional use permit is obtained as provided in this title. (Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

1. In any administrative or judicial proceeding wherein it is claimed that a structure or use is allowable as a nonconforming structure or use, the party asserting that such nonconforming status exists shall have the burden of providing proof of the same.

2. In any administrative proceeding such burden of proof shall be met only if the following findings can be made:

a. That the structure or use was lawful when commenced; and

b. No conditions have occurred since then that would require its abatement; and

c. No unlawful expansion, enlargement, or intensification of this structure or use has occurred and remains in place. (Ord. 2020-22 § 19, 2020; Ord. 2006-02 § 5 (part), 2006).

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