A.
Purpose.
Legally compliant Uses, structures or lots become non-conforming when
a zone or development standard applicable to the Use or site changes,
and the existing Uses or structures would no longer be allowed under
the changed zoning. Requiring non-conforming Uses or structures to
immediately conform to the changed zoning would be a significant hardship
on property owners, residents, and businesses. Regulating non-conforming
situations such as Uses, structures and lots limits the expansion
of such situations over time and encourages future Uses and development
toward consistency with the Code, eventually bringing such situations
into conformance.
B.
Examples
of Non-Conforming Situations.
1.
Uses.
Lawfully established, pre-existing residential Uses in commercial
or industrial zones, or residential development with a density lower
than the minimum density standard in the base zone or higher than
the maximum density standard.
2.
Structures.
Lawfully established, pre-existing structures with setbacks, lot coverage,
or building heights that are not compliant with existing base zone
standards.
3.
Lots.
Lawfully established, pre-existing lots of record that do not meet
currently applicable base zone dimension or area standards.
4.
Developments.
Lawfully-established, pre-existing projects (usually non-residential)
which conform to current standards as to use but which have elements
such as parking, landscaping, or screening which do not conform with
current development standards.
(Ord. 6401 § 1, 2022)
A.
Legal
Status Required. Non-conforming situation regulations apply only to
Uses, structures or lots which were lawfully permitted and compliant
with applicable codes when they were created or established or that
were approved through a previous land use review. Non-conforming situations
not permitted or created in compliance with the applicable standards
at the time are not protected as non-conforming situations.
B.
Documentation
Required.
1.
To
establish the validity of a non-conforming situation, the property
owner or applicant must provide documentation to the Planning Director
that a non-conforming Use, structure or lot was permitted and compliant
when it was created or established.
2.
The
property owner or applicant must also provide documentation to the
Planning Director that the non-conforming situation has been continuously
maintained since its establishment.
3.
Satisfactory
documentation of the non-conforming situation may include, but is
not limited to the following:
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Building permits
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Utility hookups
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Tax records
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Business licenses
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Telephone directory listings
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Insurance policies
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Leases or other legal instruments
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Dated aerial photos
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Insurance maps identifying the Use (such as Sanborn Fire Insurance
Maps)
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Land use or development inventories prepared by a government
agency
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(Ord. 6401 § 1, 2022)
A.
Non-Conforming
Lots of Record. Lots of record or the aggregate of contiguous lots
of record under the same ownership, which do not meet the dimensional
or area requirements of the applicable base zone, may be developed.
Any new structure built on the lot(s) must conform to the development
standards for the applicable base zone (such as setbacks, lot coverage,
etc.). If the lot area is less than the minimum lot area for a single
detached dwelling in the applicable zone, any permitted residential
use shall be limited to a single detached dwelling, a duplex, or a
townhouse.
B.
Exceptions Regarding Incomplete Projects. This section does not require changes in plans, construction, or proposed use of a structure for which a land use approval or building permit was issued and substantial construction accomplished (as defined in Section 12.01.500) before adoption of a Code amendment creating the non-conforming situation. However, if the proposed Use would be non-conforming under the revised zoning provision, the Use shall be considered discontinued if it has not begun within 2 years of the date the building permit was issued.
(Ord. 6401 § 1, 2022)
A.
Continuation
of Non-Conforming Uses and Structures. A non-conforming Use may be
continued indefinitely. The expansion of a non-conforming Use within
the same structure is considered a continuation of that use. A non-conforming
structure may continue in use indefinitely, provided it is maintained
in reasonable repair.
B.
Ownership
Status. The status of a non-conforming Use, structure or lot is not
affected by changes in ownership.
C.
Alteration of a Non-Conforming Structure. A structure non-conforming as to height, setback, or coverage may be altered, providing the alteration does not increase the deviation from the standards of this Ordinance. Alterations which do not enlarge or expand a non-conforming structure are not subject to the provisions of Section 12.30.800.
(Ord. 6401 § 1, 2022)
A.
Discontinuance
of Non-Conforming Status. A non-conforming Use of a building, structure,
or property shall be considered discontinued if the building, structure,
or property ceases for any reason to be occupied by the non-conforming
use for 1 continuous year. The determination of discontinued status
may be delayed for up to 1 year by the Planning Director upon written
request, if the applicant provides documentation that the property
has been actively marketed for at least 6 months during the previous,
first year.
B.
Permitted Use Required after Discontinuance. If a non-conforming Use is discontinued pursuant to subsection A above, further use of the building, structure or property shall consist of a use or Uses permitted or permitted as Conditional Uses.
C.
Change
of a Non-Conforming Use or Structure. The following standards apply
to changes of non-conforming uses or structures:
1.
A
non-conforming use or structure may be changed or altered by right
to bring it into conformity.
2.
In
Middle Housing Zones, non-conforming residential structures may be
converted to middle housing under the following circumstances, provided
the conversion does not increase any non-conformity with applicable
standards in this Code:
3.
After
a conforming use occupies a site, the non-conforming rights are terminated
and the previous non-conforming use or a different non-conforming
use may not be reestablished.
4.
A non-conforming use may also be changed to a use permitted or as a conditional use in the base zone, subject to review and approval under Section 12.80.020. After an approved conditional use occupies the site, the non-conforming rights are terminated and the previous non-conforming use or a different non-conforming use may not be reestablished.
(Ord. 6294 § 1, 2019; Ord. 6401 § 1, 2022)
A.
Continuation
of Non-Conforming Developments. Non-conforming developments may continue
in the previous use unless specifically limited by other regulations
in this Code.
B.
Alterations or Expansions of Non-Conforming Development. Where alteration or expansion of non-conforming developments is subject to the Development Review process pursuant to Section 12.80.040, Development Review approval may be conditioned to require compliance with the following base zone standards, to an extent proportional to the proposed changes:
1.
Landscaped
setbacks for surface parking and exterior development areas;
2.
Interior
parking lot landscaping;
3.
Landscaping
in existing building setbacks;
4.
Minimum
landscaped area (where land is not used for structures, parking, or
exterior improvements);
5.
Screening;
and
6.
Paving
of surface parking and exterior storage and display areas.
(Ord. 6401 § 1, 2022)
A.
Percentage Destroyed. Except as provided in Subsection C below, if a non-conforming structure or a structure containing a non-conforming use is destroyed by any cause to an extent exceeding 80% of the value of the structure, a future structure or use on the property shall comply with the provisions for a conforming use and structure in the zone.
B.
Structural Value. For purposes of subsection A above, the value of the structure shall be determined by the Building Official based on its replacement cost using current values for labor and new materials. The Building Official's determination may be appealed to the Oregon State Department of Consumer and Business Services pursuant to the Oregon State Residential Code or the Oregon State Structural Specialty Code as applicable.
C.
Provisions
for Single Detached Dwellings and Middle Housing. Single detached
residential structures may be rebuilt in any zone, and middle housing
structures may be rebuilt in middle housing zones, if not deliberately
destroyed by the owner, provided the reconstruction of the residence
complies with the following standards:
1.
The
residence is rebuilt on the same location on the lot, or in compliance
with the setback standards for the underlying zone; and
2.
The
square footage of the replacement structure does not exceed the square
footage of the original structure by more than 20%; and
3.
If
the property is within a zone or Plan District subject to architectural
standards, the style of the replacement structure complies with those
architectural standards.
(Ord. 6120 § 1, 2015; Ord. 6401 § 1, 2022)
A.
Limitations on Enlargement or Expansion. In case of practical difficulty or unnecessary hardship, non-conforming uses or structures outside light rail zones, the Amberglen Plan District, and the Jackson East-North Sub-Area may be enlarged or expanded up to 10% in land area, or up to 20% in floor area where structures are involved. Such enlargements or expansions shall not increase the number of dwelling units above the maximum density permitted in the applicable base zone. Requirements for enlargements or expansions in light rail zones are provided in subsections C and D, below, and in Section 12.30.900. Enlargement or expansion of non-conforming Uses or structures in Plan Districts shall be subject to the standards in the Plan District. The requirements for enlarging or expanding a non-conforming uses or structures in the Jackson East-North Sub-Area are provided in subsection F below.
B.
Application Required. Except as provided in specific Plan District standards, non-conforming uses or structures may be enlarged or expanded only upon approval of a Non-Conforming Use application as described in Section 12.80.110.
D.
Expansions of Non-Conforming Structures in Light Rail Zones. Except as provided in Section 12.30.900, expansions of non-conforming structures in light rail zones may be approved as listed in paragraphs 1, 2, and 3 below, subject to approval of a Non-Conforming Use application pursuant to Section 12.80.110.
1.
Additions
Between the Existing Structure and the Street. Front yard additions
may be permitted without regard to maximum setback requirements subject
to compliance with the following criteria:
a.
The front façade of the addition is set back no further from
the front property line than the front façade of the existing
structure;
b.
No additional parking is proposed between the addition and the front
property line;
c.
The addition increases the Floor Area Ratio of the project; and
d.
The construction of the addition does not prevent further additions
and increases to the Floor Area Ratio of the project.
2.
Expansion
on the Same Property. Additions to non-conforming structures, or construction
of new structures on the same property, is allowed without regard
to minimum Floor Area Ratios if the resulting Floor Area Ratio exceeds
the original, and the siting of the new structures does not prevent
further intensification of the use on the same property.
3.
Expansion
onto Adjacent Property. Where existing non-conforming structures are
expanded and some portion of the expansion is sited on an adjacent
property, the expansion area shall meet the minimum FAR of the applicable
base zone if the gross floor area of the expansion on the adjacent
property is 40% of more of the net acreage of the adjacent property.
If the expansion on the adjacent property is less than 40% of the
net acreage, the expansion is exempt from the minimum FAR, provided
that the location of the expansion does not prevent further construction
on the combined properties.
E.
Enlargement of Existing Parking Facilities in Light Rail Zones. Existing parking facilities may be enlarged only if the associated uses of the facility are enlarged. Parking facility enlargements shall comply with the parking ratios in Section 12.50.320 and the design standards in Section 12.50.360. Commercial parking facilities are exempt from this standard.
F.
Expansion
of Non-Conforming Residential Uses or Structures in Jackson East-North
Sub-Area. Existing residential uses and structures in the Jackson
East-North Sub-Area may be expanded with no limitation on floor area
and no land use review provided the expansion area meets the development
standards of the I-S Industrial Sanctuary zone.
(Ord. 6401 § 1, 2022; Ord. 6410 § 1, 2022)
A.
Restricted
Non-Conforming Uses. To promote high intensity land Uses in light
rail zones, certain low intensity Uses are restricted due to their
low transit ridership. The following land Uses are considered restricted
non-conforming Uses where they existed as of August 31, 1996:
1.
Book
bindery, except in the SCI or SCBP zone.
2.
Building
materials sales and supplies, excluding hardware stores 10,000 sq.
ft. or less in area.
3.
Retail
or wholesale "warehouse" facilities occupying 40,000 sq. ft. or more,
where products are sold in institutional sizes or multi-packs.
4.
Car
washes.
5.
Cemeteries.
6.
Cold
storage plants.
7.
Commercial
or accessory parking structures within 400 feet of a light rail station,
unless the first floor is or can be occupied by retail goods and services
Uses.
8.
Commercial
or accessory surface parking within 850 feet of a light rail station
site, unless the lot is located behind a building.
10.
Electric power generation.
11.
Farm machinery, equipment or implement sales or service.
12.
Fuel dealerships and storage yards (including card locks).
13.
Furniture and appliance stores, excluding stores not exceeding 10,000
square feet in area which provide home delivery.
14.
Junk yards and motor vehicle wrecking yards.
15.
Kennels, excluding those accessory to veterinary clinics or medical
research facilities.
16.
Land-extensive recreational facilities, except in the SCFI zone.
17.
Manufactured home sales lots.
18.
Mini-warehouses and/or mini-storage units.
19.
Motels.
20.
Vehicle servicing and repair within 400 feet of a light rail station
site boundary, excluding retail or wholesale facilities selling parts
and accessories without on-site installation.
21.
Motor vehicle, recreational vehicle, boat and travel trailer sales,
leasing, rental or storage facilities, except offices where the rental
vehicles are not stored within 2,600 feet of a light rail station
site.
22.
Movie theaters with 4 or more screens, unless structured or joint
use parking is available within 800 feet to accommodate 80% of theater
patrons. In the SCC-DT zone movie theaters with up to 8 screens are
permitted without complying with this parking restriction.
23.
Nurseries and greenhouses, retail and wholesale. In the SCC-DT zone
such Uses are not considered restricted if they occupy less than 5000
sq. ft.
24.
Recreational vehicle parks and campgrounds.
25.
Seasonal Uses. In the SCC-DT zone, such Uses are not considered restricted.
26.
Solid waste transfer stations.
27.
Truck stops.
28.
Warehouse storage of materials or products not manufactured, assembled,
or used in an on-site process, or used in maintenance or operation
of on-site facilities.
B.
New Restricted Uses Not Permitted. In a light rail zone, the Uses listed in subsection A above shall not be established as new Uses, and existing structures shall not be converted or remodeled for occupancy by such Uses.
C.
Destruction of Restricted Non-Conforming Uses. The structures occupied by Uses in subsection A above, if lawfully pre-existing as of August 31, 1996, may be rebuilt if unintentionally destroyed if the following criteria are met:
D.
Expansion
of Restricted Non-Conforming Uses.
1.
No
Expansion Permitted. Drive-through or drive-in facilities within 400
feet of a light rail station site and surface parking lots adjacent
to light rail transit station sites shall not be enlarged or expanded.
All other restricted non-conforming Uses may be enlarged or expanded
under paragraph 2 or 3 below.
2.
Up
to 20% Expansion Permitted. Except as provided in paragraph 3 below,
all other restricted Uses legally established as of August 31, 1996
may be enlarged or expanded up to 20% of the gross floor area existing
as of August 31, 1996. The expansion shall be subject to the following
standards and criteria:
3.
No
Limit on Expansion. The restricted Uses listed below, if legally established
in the SCC-DT zone as of August 31, 1996, may be enlarged or expanded
with no percentage limitation on the size of the expansion. The expansion
shall be subject to the standards and criteria listed in paragraph
2 above:
E.
Drive-in
and Drive-Through Facilities in Light Rail Zones. New drive-in and
drive-through facilities in light rail zones shall be restricted as
follows:
1.
Within
400 Feet of a Light Rail Station Site. New facilities Not Permitted
except in the SCC-DT zone as provided in paragraph 4 below.
2.
Between
401 and 850 Feet from a Light Rail Station Site. New facilities may
be permitted if the facility has been documented by the applicant
not to be the primary method of sales of service. If such facilities
are Not Permitted or restricted in a particular light rail zone, the
more restrictive provisions shall apply.
3.
Farther
than 850 Feet from a Light Rail Station Site. New facilities may be
permitted if the use is permitted in the district, subject to the
following standards and criteria:
4.
In
the SCC-DT Zone. New facilities may be permitted subject to the standards
and criteria in paragraph 3 above and the following criteria:
a.
The facility consists of only 1 drive-through lane or window;
b.
The drive-through lane or window and its access drive are designed
to minimize disruption of on- and off-site pedestrian and bicycle
traffic; and
c.
The facility has been documented by the applicant not to be the primary
method of sales or service.
(Ord. 6294 § 1, 2019; Ord. 6401 § 1, 2022)
