(9) Construction, Alteration, or Demolition in a Historic Area.

See § 14-1005 (Regulation).

§ 14-305. Nonconformities.

(1) Purpose.

This section recognizes that many land uses, buildings, parking areas, lots, signs, non-accessory signs, and site improvements in the City do not conform with the requirements of this Zoning Code either because (a) they were established before the adoption of zoning, or (b) they were legal when established but have become nonconforming due to later zoning amendments. It is the purpose of this section to regulate these nonconformities and to allow for the continued existence, use, modification, and expansion of these uses, buildings, parking areas, lots, signs, and site improvements subject to the limitations set forth in this section.

(2) Types of Nonconformities.

Six different types of nonconformities exist and are subject to the requirements of this § 14-305 (Nonconformities).

(a)   Nonconforming Uses. 274

(b)   Nonconforming Structures.

(c)   Nonconforming Parking.

(d)   Nonconforming Site Improvements.

(e)   Nonconforming Lots.

(f)   Nonconforming Signs. 275

 

Notes

274	Amended, Bill No. 120774-A (approved January 14, 2013).
275	Amended, Bill No. 120774-A (approved January 14, 2013).

(3) Exceptions.

Notwithstanding the provisions of § 14-305(2) (Types of Nonconformities), the following situations are not nonconformities. Properties in these categories are considered to comply with the Zoning Code.

(a)   If this Zoning Code is or has been amended to increase minimum off-street parking requirements, or to lower the maximum amount of off-street parking that can be provided, no use in existence prior to those amendments shall be considered a nonconforming use simply because it no longer complies with the revised minimum or maximum parking requirements.

(b)   A nonconformity that would not be permitted by this Zoning Code but that has been authorized through a variance or other action of the Zoning Board, or that has been authorized by court order, is not a nonconformity, so long as it complies with the terms of that authorization. This exception applies only to the portion of the property that was expressly approved by Zoning Board action or court order. If, for example, the Zoning Board granted a use variance on a lot that does not comply with applicable lot size requirements, the lot retains its nonconforming status despite the granting of the use variance.

(4) General Requirements.

(a)   A nonconformity may continue following any amendment to this or any prior Zoning Code that creates a condition in which a use, structure, parking area, site improvement, lot, or sign has been made nonconforming.

(b)   Any rights conferred on a nonconformity run with the property. They are not affected by changes in tenancy or ownership.

(c)   The operation, expansion, and replacement of a nonconformity shall be subject to the limitations in this § 14-305 (Nonconformities).

(d)   The burden of establishing the prior existence of a nonconformity is on the applicant. When applying for any permit or approval relating to a nonconformity, L&I may require the applicant to submit evidence of a prior permit or other documentation showing that the nonconformity existed before the date on which it became nonconforming.

(5) Nonconforming Uses.

(a)   Expansion. 276

(.1)   Expansion of nonconforming regulated uses that are listed in § 14-603(13) (Regulated Uses) is prohibited.

(.2)   For uses other than those specified in § 14-305(5)(a)(.1) above: A nonconforming use that is located in a conforming building may be expanded within that building, or within any expansion of that building that complies with § 14-701 (Dimensional Standards), provided that the cumulative expansion since the use became nonconforming shall not increase the floor area occupied by the nonconforming use by more than ten percent (10%). 277

(b)   Replacement.

(.1)   Abandoned Uses.

(.a)   A nonconforming use that has been discontinued (as determined by § 14-305(5)(b)(.3) (Determination of Discontinued Nonconforming Use)) for more than three consecutive years shall be considered abandoned and may not be resumed or replaced by another nonconforming use. Any subsequent use of the land or structure must comply with the use requirements of the district in which the land is located.

(.b)   A successful zoning application for a permitted use or use approved by special exception in the district where the land is located shall not constitute abandonment of the nonconforming use until the permitted use or use approved by special exception is initiated on the property. 278

(.2)   Uses Discontinued for Three Years or Less.

(.a)   Replacement and discontinuance of nonconforming regulated uses that are listed in § 14-603(13) (Regulated Uses) is governed by § 14-603(13)(b)(.2) (Discontinuance of Operations).

(.b)   For uses other than those specified in § 14-305(5)(b)(.2)(.a) above: A nonconforming use that is currently in operation or has been discontinued (as determined by § 14-305(5)(b)(.3) (Determination of Discontinued Nonconforming Use)) for three consecutive years or less may be replaced with another use not allowed by the base zoning and any applicable overlay zoning if the existing or discontinued use and the proposed replacement use are in the same use subcategory as shown in § 14-601 (Use Categories), provided, however, that:

(i)   the existing or discontinued use shall not be replaced by a regulated use as set forth in § 14-603(13) (Regulated Uses);

(ii)   if the existing or discontinued use is listed as a specific use type in § 14-601 (Use Categories), then it may only be replaced by the same specific use type; and

(iii)   if the existing or discontinued use is not listed as a specific use type, then it may not be replaced by any specific use type listed in the same use subcategory.

(.3)   Determination of Discontinued Nonconforming Use.

(.a)   A "discontinued use" is a nonconforming use that is no longer being actively operated on the property or for which there is evidence that the owner or lessee no longer intends to use the property for that purpose. Evidence of a discontinued nonconforming use may include, but shall not be limited to: (1) removal of improvements necessary to that use, (2) modifications to the property that make it unsuitable for that use, (3) lapsing of permits or licenses necessary to operate that use, or (4) failure to pay property taxes or taxes related to the nonconforming use. L&I shall record such discontinuation of use in the file of the subject property. 279

(.b)   Upon receipt of an application for a zoning permit relating to a property on which a nonconforming use is situated, L&I shall notify the applicant that a determination of discontinued use is under review and request any evidence that the use has not been discontinued. Evidence that a use has not been discontinued may include but is not limited to (1) improvements made to the property to accommodate that use during a time when the use was not actively operating, (2) efforts to market the property or improvements for that use during the time when the use was not actively operating, or (3) the maintenance of any licenses or permits necessary for the use or business during the time it was not actively operating. L&I's determination shall take into consideration any response received from the applicant, but that response shall not be determinative if other evidence suggests that the use has been discontinued.

 

Notes

276	Amended, Bill No. 120774-A (approved January 14, 2013).
277	Amended, Bill No. 161003-A (approved May 8, 2017).
278	Amended, Bill No. 120774-A (approved January 14, 2013).
279	Amended, Bill No. 120774-A (approved January 14, 2013).