(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).

(6) Nonconforming Structures.

Nonconforming structures may be expanded or extended, provided that the expanded or extended area (a) complies with all provisions of § 14-701 (Dimensional Standards) and § 14-702 (Floor Area, Height, and Dwelling Unit Density Bonuses) applicable to the zoning district where the property is located, (b) complies with the provisions of this § 14-305(6) (Nonconforming Structures), and (c) does not increase any existing nonconformity. 280

(a)   All expansions or extensions of nonconforming structures shall be limited to the lot occupied by the structure at the time it became nonconforming. 281

(b)   In those zoning districts that limit maximum floor area, any nonconforming structure that contains more than the permitted amount of floor area may not be modified so as to create more floor area. Any nonconforming structure that contains less than the maximum permitted floor area may expand up to that limit provided that the addition complies with all other applicable requirements of this Zoning Code.

(c)   Where a front or side wall does not meet a required setback or side yard requirement, a vertical extension of that wall that complies with the height limit and gross floor area ratio limit in Tables 14-701-1 through 14-701-3 is not an increase of that specific nonconformity, and is permitted. (See figure "Vertical Extension of a Nonconforming Side Wall".)

{For printable PDF version of image, click HERE}

(d)   Where a rear wall does not meet a rear yard minimum depth requirement, a vertical extension of that wall is an increase of that specific nonconformity, and is not permitted. Vertical extensions of a rear building wall that do not comply with minimum required rear yard minimum depth or yard areas must meet the requirements in Tables 14-701-1 through 14-701-3. (See figure "Vertical Extension of a Nonconforming Rear Wall".)

{For printable PDF version of image, click HERE}

(e)   Where a side wall does not meet a required side yard requirement: 1) a horizontal extension of that wall into a front yard, rear yard, or side yard is an increase of that specific nonconformity, and is not permitted, and 2) a horizontal extension of a side wall into a rear yard is permitted, provided the extension complies with applicable rear setback and open space requirements. (See figure "Horizontal Extension of a Nonconforming Side Wall".) 282

{For printable PDF version of image, click HERE}

(f)   Elevator shafts or fire towers that existed at the time a structure became nonconforming may be extended in height without respect to the height regulations of the district in which such structures are located.

(g)   Repairs to or renovation of a nonconforming structure or site improvement that brings the structure or site improvement into greater compliance with the building code is permitted. For the purposes of this subsection (6), a repair shall be defined as any one of the following: (a) interior work which does not result in increased gross floor area; (b) the replacement of up to two-thirds of the structural framing members when work involves the replacement of any portion of the exterior wall; or (c) the replacement of portions of nonconforming structures in their original footprint or height. A building may be "repaired" to the original or lesser height and area. 283

 

Notes

280	Amended, Bill No. 210075 (approved March 29, 2021).
281	Amended, Bill No. 120774-A (approved January 14, 2013).
282	Amended, Bill No. 120774-A (approved January 14, 2013); amended, Bill No. 210075 (approved March 29, 2021).
283	Amended, Bill No. 120774-A (approved January 14, 2013); amended, Bill No. 130764 (approved December 18, 2013).

(7) Nonconforming Lots.

(a)   If a lot is nonconforming because it does not meet the minimum lot requirements of § 14-701 (Dimensional Standards), nothing in this Zoning Code shall prohibit (a) the use of that lot, or (b) the erection, construction, or alteration of structures upon that lot, or (c) in the case of a group of adjacent nonconforming lots, the erection or construction of an equal or lesser number of structures upon such lots, provided that such use, erection, construction, or alteration otherwise complies with the regulations of the district in which that lot is located.

(b)   New subdivisions or re-subdivisions of land that are subject to § 14-304(7) (Subdivisions and Subdivision Plats) after the effective date of this Zoning Code must meet the requirement of § 14-701 (Dimensional Standards) as well as all other applicable provisions of this Zoning Code. All other lot adjustments and subdivisions of nonconforming lots are permitted provided the lot adjustment or subdivision does not increase an existing nonconformity. 284

 

Notes

284	Amended, Bill No. 130764 (approved December 18, 2013).

(8) Nonconforming Signs. 285

(a)   Except for signs specifically prohibited by this Zoning Code, a permit shall be granted for the continued maintenance of any sign lawfully in existence on March 28, 1946, regardless of compliance with any of the other provisions of this Zoning Code.

(b)   A nonconforming sign may be maintained in the same location and position in any way that (1) does not increase the size, height, or degree of illumination of the sign, (2) does not create a new nonconformity, and (3) does not increase an existing nonconformity. Without limiting the previous sentence, customary maintenance of the sign face or sign structure and changes to the sign message are permitted as long as no new violation of this Zoning Code is created.

 

Notes

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

(9) Nonconforming Parking or Site Improvements. 286

Where the amount, design, or location of off-street parking or site improvements (for example, landscape area) does not meet the requirements of this Zoning Code, the nonconformity may remain and be used notwithstanding those nonconformities. However, all provisions of § 14-705 (Landscape and Trees) and Chapter 14-800 (Parking and Loading) shall apply to the entire lot for any development or changes to structures or uses on the lot.

 

Notes

286	Amended, Bill No. 120774-A (approved January 14, 2013); amended, Bill No. 220414 (approved September 13, 2022). For effective date provisions, see note 165.

(10) Reconstruction of Destroyed Structures.

(a)   Applicability.

Notwithstanding the provisions of § 14-305(1) (Purpose) through § 14-305(9) (Nonconforming Parking or Site Improvements) above, the provisions of this § 14-305(10) (Reconstruction of Destroyed Structures) shall apply when nonconforming buildings, uses, lots, parking, site improvements, or accessory signs are destroyed or rendered unusable by fire or an act of God or a third party over which the owner has no control.

(b)   Rights Following Destruction.

Following destruction, as defined in § 14-305(10)(a) (Applicability): (a) a replacement structure that does not reduce the nonconforming setbacks or exceed the nonconforming area or height of the destroyed structure may be constructed, and (b) the nonconforming use that existed prior to the destruction may be re-established, and (c) the property need not provide any more off-street parking spaces or loading areas than the property had before the destruction. These provisions shall apply only if reconstruction begins within three years after the destruction and is completed without interruption; otherwise the building, use, lot, parking, site improvement, or accessory sign may only be reconstructed in compliance with the Zoning Code for the zoning district where it is located.

(c)   Voluntary Destruction.

Any nonconforming structure, use, lot, parking area, site improvement, or accessory sign destroyed through means other than described in § 14-305(10)(a) (Applicability) shall be reconstructed in compliance with the Zoning Code for the zoning district where it is located.