Nonconforming uses and development are uses and development
that do not conform to the City's current land use and development
regulations either because they were established prior to the enactment
of such regulations or because they conformed at the time they were
established but applicable City regulations have since changed.
Most nonconforming uses and development may be maintained, but
may not be altered, without land use review. Nonconforming uses and
development may be rebuilt if destroyed in some instances. In general,
however, nonconforming uses and development shall be brought into
conformance with applicable land use and development regulations when
redevelopment occurs. In particular, the City does not support the
continuation of high-impact nonconforming uses in perpetuity.
(Ord. 2025 § 2, 2011)
(Ord. 2025 § 2, 2011)
A specific site may be nonconforming because it contains a nonconforming
use, nonconforming development, or both, as defined in Section 19.201.
Determination of the legal status of a nonconforming use or development
may be requested by the property owner pursuant to Section 19.903.
The following provisions apply to all nonconforming uses and
development:
A.
Changes in ownership may occur and do not affect the status of a
nonconforming use or Development.
B.
A nonconforming use or development is allowed to change to a conforming
use or Development. Once a conforming use or development occupies
the site, the nonconforming status is lost and the nonconforming use
or development may not be reestablished.
C.
Routine maintenance and repair, as defined in Section 19.201, is
allowed. Alteration, as defined in Section 19.201 and further described
in Section 19.804, or destruction, as described in Section 19.805,
may require land use review and/or may result in the loss of the nonconforming
status of the use or development.
D.
Where other sections of the Milwaukie Municipal Code require nonconforming
uses or Development to come closer to conformance, those provisions
apply instead of the provisions of this chapter.
(Ord. 2025 § 2, 2011)
A nonconforming use or development may continue indefinitely
pursuant to the provisions in Subsection 19.802.2 unless it is discontinued
as described in this section, altered as described in Section 19.804,
destroyed as described in Section 19.805, or amortized as described
in Section 19.806.
If a nonconforming use is discontinued or abandoned, as defined
in Section 19.201, for more than 1 year, the site will lose its nonconforming
status and any subsequent use on the site shall conform to all applicable
land use and development regulations.
(Ord. 2025 § 2, 2011)
A.
Provisions
The following provisions apply to the alteration of nonconforming
uses:
1.
A nonconforming use shall not be moved, in whole or in part, to any
portion of the site other than that occupied by the nonconforming
use, except as allowed per Subsection 19.804.1.B.1.
2.
No additional development or physical alterations associated with the nonconforming use shall occur, except as allowed per Subsection 19.804.1.B.1. Additional development or physical alterations not associated with the nonconforming use and that conform to Title 19 are allowed.
3.
No intensification of the nonconforming use shall occur, except as
allowed per SubSection 19.804.1.B.1. Alterations that decrease the
intensity of the nonconforming use are allowed.
B.
Land Use Review Required
1.
A nonconforming use shall not be moved, altered, or intensified unless
such move, alteration, or intensification is approved by the Planning
Commission through a Type III review per Section 19.1006. The applicant
shall demonstrate that the proposed move, alteration, or intensification
would result in no more of a detriment to surrounding properties than
the existing nonconforming use.
2.
If a nonconforming use involving a structure is replaced by another use, the new use shall conform to Title 19 unless the Planning Commission determines that such structure is suitable only for another nonconforming use through a Type III review per Section 19.1006. The applicant shall demonstrate that the new nonconforming use would be no more detrimental to surrounding properties than the one it is replacing.
The following provisions apply to the alteration of nonconforming
development:
A.
Alterations or expansions that increase or extend the nonconformity
are not allowed unless a variance is approved pursuant to Section
19.911.
B.
Alterations or expansions that conform to Title 19 are allowed. For
example, development that does not conform to height, yard requirements,
or lot coverage may be altered provided that the alteration does not
exceed the height, yard requirements, or lot coverage requirements
of Title 19.
(Ord. 2025 § 2, 2011)
The following provisions establish when a nonconforming use
or development may be reestablished or rebuilt following its intentional
or accidental destruction:
A.
When a nonconforming use or development is intentionally destroyed
to an extent less than or equal to 50% of its replacement value, restoration
is allowed. The restoration shall not result in an increase in the
nonconformance of the use or development.
B.
When a nonconforming use or development is intentionally destroyed
to an extent exceeding 50% of its replacement value, restoration of
the use or development shall conform to all applicable land use and
development regulations.
C.
If a nonconforming use or development is partially or totally destroyed
by fire or other causes or natural hazards beyond the control of the
owner, the use or development may be restored or replaced. The restoration
or replacement shall not be more out of conformance with the land
use or development regulations than the original use or development.
Restoration or replacement of nonconforming uses or development
that have been partially or totally destroyed, whether intentional
or by accident, must commence within 1 year from the date of destruction.
If restoration or replacement does not commence within the 1-year
period, the use or development will lose its nonconforming status,
and any subsequent use or development on the site shall conform to
all applicable land use and development regulations.
(Ord. 2025 § 2, 2011)
The purpose of this section is to provide a process whereby
the City could require the discontinuance of nonconforming uses through
amortization in a manner that is fair, predictable, and transparent.
A.
All legally established high-impact nonconforming uses, as defined
in Section 19.201 and as identified on the City's inventory pursuant
to Subsection 19.806.3.B, are subject to amortization and discontinuance.
Illegally established uses are subject to enforcement proceedings
by the City if not immediately discontinued or converted to a conforming
use.
B.
The following nonconforming uses are not subject to amortization
and discontinuance:
1.
Nonconforming uses that can be made conforming within 6 months, where
the owner also enters into an agreement with the City to bring the
use into conformance within 6 months.
2.
Nonconforming uses that are protected under the Religious Land Use
and Institutionalized Persons Act.
3.
Nonconforming uses that are identified as low-impact nonconforming
uses, as defined in Section 19.201.
A.
The City Council may direct the Planning Director to evaluate existing
land uses within the city for the purpose of compiling an inventory
of uses subject to amortization and discontinuance. Such direction
shall be made by resolution at a public meeting.
B.
The Planning Director's evaluation shall be undertaken as follows:
1.
Create a list of all nonconforming uses pursuant to City Council
direction as provided in Subsection 19.806.3.C below.
2.
Remove all properties that are exempt under Subsection 19.806.2.B
from the list.
3.
Determine which nonconforming uses that remain on the list are high-impact
nonconforming uses, as defined by Section 19.201.
4.
Compile an inventory of all properties containing a high-impact nonconforming
use.
C.
At the time of a vote directing the Planning Director to perform
an evaluation of nonconforming uses, the Council shall specify the
following:
D.
No less than 60 days after the Planning Director's completion of
the inventory, City Council shall review and adopt the inventory by
resolution. Upon review of the Planning Director's evaluation and
inventory, Council may add or remove properties from the inventory
prior to its adoption.
E.
No more than 30 days after the adoption of the inventory by City
Council, the Planning Director shall provide notice to all property
owners listed in the nonconforming use inventory. Such notice shall
include the following:
1.
A statement that the City has determined that the subject property
contains at least one nonconforming use that is subject to discontinuance
through amortization.
2.
The findings from the Planning Director's evaluation.
3.
A copy of this section.
4.
The date of the first evidentiary hearing before the Planning Commission
to determine the schedule of amortization and discontinuance. Such
a hearing shall be scheduled no less than 60 days after the mailing
of the notice.
A.
For all properties with identified nonconforming uses that are included
in the adopted nonconforming use inventory, the City shall require
the discontinuance of such uses under a plan whereby the full value
of any use-dependent structures and facilities are amortized within
a definite and reasonable period of time. This action is a quasi-judicial
action and shall utilize the Type IV review process pursuant to Section
19.1007. A separate hearing shall be conducted for each nonconforming
use to determine the appropriate amortization schedule.
B.
The City Council may, by ordinance, execute a compliance agreement
with the owner of any property found to contain a high-impact nonconforming
use. Such an agreement shall include a schedule for the property owner
to bring the property into conformance through discontinuance of all
nonconforming uses in a certain amount of time or by other means acceptable
to the City. Such an agreement shall alleviate the City's obligation
to schedule a hearing to determine an amortization period pursuant
to Subsection 19.806.4.A or, alternatively, shall supersede the established
amortization period for the subject property.
C.
The City shall record in the Clackamas County real estate records
all ordinances adopted pursuant to this subsection.
The City's review authorities shall consider the following criteria,
at a minimum, in determining a reasonable length of time for the amortization
period:
A.
Nature of the use, its operations, and structures.
B.
Character of the land and land uses in the surrounding area.
C.
Location of the use in relation to surrounding uses.
D.
Value of the land and its improvements.
E.
Length of time the use has been in existence and the length of time
the use has been nonconforming.
F.
Amount of capital investment in the structures or improvements on
the property at the time the use became nonconforming.
G.
Amount of investment realized to date and the amount remaining, if
any, to be recovered during the amortization period.
H.
Existence or nonexistence of lease obligations.
I.
Removal costs that are directly attributable to the establishment
of a discontinuance date.
J.
Other costs and expenses that are directly attributable to the establishment
of a discontinuance date.
K.
Burden on the property owner resulting from discontinuance of the
use.
L.
Benefit to the public resulting from discontinuance of the use.
