This chapter shall be entitled "Nonconforming Buildings and Uses."
(Ord. 1591 § 37, 2014)
(1)
The foregoing regulations set forth in this Title and Title 16 DMMC shall be subject to the general provisions, conditions, and exceptions contained in this chapter.
(2)
The provisions of this chapter shall apply to buildings, structures, land, and uses which become nonconforming as a result of the application of this Title and Title 16 DMMC to them, from classification or reclassification of the property under this Title or any subsequent amendments thereto, or from governmental acquisition of property for right-of-way expansion or essential public facility construction. If a use originally authorized by a variance, conditional use permit, or other valid use permit prior to August 3, 1964, is located within a zone in which such use is not permitted by the terms of this Title, such use shall be a nonconforming use. Uses validly established prior to August 3, 1964, shall not be deemed nonconforming only because of failure to secure a conditional use permit required under this Title.
(3)
If a building, structure or land becomes nonconforming solely because of governmental acquisition of a portion of the property for an essential public transportation facility, the property shall be a legal nonconforming lot and the building, structure or use may continue.
(Ord. 1591 § 38, 2014; Ord. 1655 § 3, 2016; Ord. 1695 § 1, 2017; Ord. 1737 § 2, 2020)
This chapter regulates legal nonconforming lots, structures, uses, and other development situations which were made nonconforming through the adoption of, or amendments to, this code, or from governmental acquisition of property for right-of-way expansion for the construction of essential public transportation facilities. This chapter also specifies those circumstances, conditions, and procedures under which such nonconformities may be permitted to continue, expand, or be modified.
(Ord. 1591 § 39, 2014; Ord. 1695 § 2, 2017)
This chapter is adopted pursuant to the authority set forth in DMMC § 18.01.040.
(Ord. 1591 § 40, 2014)
(1)
Except as provided in subsection (2) of this section, if any nonconforming building is, in the judgment of the Planning, Building and Public Works Director, removed, destroyed by means to an extent of more than 50 percent of its replacement cost at time of destruction, every future building constructed, reconstructed or otherwise permitted to remain on the land on which the building was located shall conform to the provisions of this Title. The Planning, Building and Public Works Director may issue written notice to owners of property deemed to be subject to the provisions of this section. The Planning, Building and Public Works Director's determination to the extent of removal or destruction shall be considered a Type I land use action, which is subject to appeal to the Hearing Examiner as provided in DMMC § 18.20.150.
(2)
Reconstruction Conditions for Nonconforming Single-Family and Condominium-Residential Buildings. In any Residential Zone, nonconforming single-family residential buildings and condominiums destroyed by catastrophe or disaster such as fire, explosion, earthquake, flooding, etc., may be reconstructed as existed prior to the catastrophic event, subject to the following limitations:
(a)
This subsection (2) shall not apply to reconstruction necessitated by a criminal act involving the property owner, including but not limited to arson.
(b)
Reconstructed building height and lot coverage shall not exceed preexisting height and lot coverage or the provisions of this Title, whichever is greater.
(c)
Reconstructed yard areas shall not be less than preexisting yards or the provisions of this Title, whichever is less.
(d)
When new building area is proposed in addition to reconstruction of a nonconforming building, the new building area shall conform to the provisions of this Title.
(e)
Reconstructed building area shall conform to the requirements of Title 14 DMMC, Buildings and Construction.
(Ord. 1591 § 41, 2014)
(1)
Except as provided in subsection (2) of this section, a nonconforming building damaged or partially destroyed by fire, explosion, or other casualty or act of God or the public enemy may be restored within the preexisting building footprint within the nonconforming portion of the site and the occupancy or use of such building or part thereof which existed at the time of such partial destruction or damage may be continued so long as the existing nonconformities are not being increased or expanded in any way and subject to all other provisions of this chapter.
(2)
In a Single-Family Residential Zone, nonconforming single-family residential buildings partially destroyed by catastrophe or disaster such as fire, explosion, earthquake, flooding, etc., may be reconstructed as existed prior to the catastrophic event, subject to the following limitations:
(a)
This subsection shall not apply to reconstruction voluntarily initiated by the property owner.
(b)
The work must be vested by permit application within one year of such happening and any restoration or reconstruction not vested by permit application within 12 months from the date of the fire or other casualty shall be deemed abandoned and not allowed to be restored.
(c)
Reconstructed building height and lot coverage shall not exceed preexisting height and lot coverage or the provisions of this Title, whichever is greater.
(d)
Reconstructed yard areas shall not be less than preexisting yards or the provisions of this Title, whichever is less.
(e)
The City Manager or his designee may require minor upgrades to the rebuilt improvements that are intended to achieve a greater level of compliance with the site and design guidelines in this Title.
(f)
When new building area is proposed in addition to partial reconstruction of a nonconforming building, the new building area shall conform to the provisions of this Title.
(g)
Reconstructed building area shall conform to the requirements of Title 14 DMMC, Buildings and Construction.
(Ord. 1591 § 42, 2014; Ord. 1655 § 4, 2016)
(1)
Unless otherwise specifically provided in this Title, nonconforming buildings may not be enlarged or structurally altered unless an enlargement or structural alteration makes the building more conforming, or is required by law; however, where a building or buildings and customary accessory buildings are nonconforming only by reason of substandard yards, open spaces, area, or height, the provisions of this Title prohibiting structural alterations or enlargements shall not apply; provided, any structural alterations or enlargements of an existing building under such circumstances shall not increase the degree of nonconformity and any enlargements or new buildings and structures shall observe the yards and open spaces required.
(2)
Structural alterations may be permitted if necessary to adapt a nonconforming building to new technologies or equipment pertaining to uses housed in such building. Any enlargement necessary to adapt to new technologies shall be authorized only by a variance.
(3)
Upkeep, repairing, and maintenance of nonconforming buildings is permitted.
(Ord. 1591 § 43, 2014)
Where this Title requires a use to be contained within an entirely enclosed building as such term is defined in this Title, and a use existing on August 3, 1964, is not in an entirely enclosed building, the building or structure containing such use shall be made to conform to the requirements of this Title with respect to such enclosure within a period of not more than three years from the date of notification as required in DMMC § 18.15.110.
(Ord. 1591 § 44, 2014)
Where a use exists on August 3, 1964, and such use is nonconforming only because it does not meet the requirements of this Title with respect to improvement of outside areas used for storage, parking, or outside activities, or if the property on which any use is located has a property line common with residential property and no wall, fence, or hedge exists on such property line where required by this Title, such use shall be made to conform to the requirements of this Title with respect to such features within a period of not to exceed two years from the date of notification as required in DMMC § 18.15.110.
(Ord. 1591 § 45, 2014)
(1)
A nonconforming use in a nonconforming building may be continued, and may be expanded or extended throughout such building so long as such nonconforming building remains nonconforming; provided, no structural alterations or additions are made except those that may be required by law or which are specifically permitted in this chapter. A nonconforming use in a nonconforming building may be changed to another use of the same or more conforming zone.
(Ord. 1591 § 46, 2014)
Nonconforming uses of land, buildings, or structures shall be subject to abatement as follows:
(1)
By resolution of the City Council, the Hearing Examiner shall be directed to conduct a public hearing, which shall be evidentiary in nature, to take testimony relative to abatement schedules for any class of nonconforming use. The Hearing Examiner shall schedule a public hearing within 45 days of receipt of such resolution. Notice of the public hearing shall be given by publication in the official newspaper of the City not less than 15 days prior to the scheduled hearing date and by mailing an appropriate notice, by certified mail, within 15 days of the hearing date to the owner of record and to the occupant/tenant of real property which may be affected by the proceedings. Thereafter, the Hearing Examiner shall conduct a public hearing and evidentiary hearing in general conformity with the Hearing Examiner code. At the conclusion of the hearing, the Hearing Examiner shall transmit findings and recommendations to the City Council. Such findings and recommendations shall be based on the factors described in subsection (3) of this section.
(2)
Upon receipt of the findings and recommendations of the Hearing Examiner, the City Council shall set a public hearing to consider the issue, giving again such public notice as is described in subsection (1) of this section. Abatement proceedings shall not be subject to the one open record public hearing requirement for a proposed land use action specified in chapter 18.20 DMMC, Land Use Review Procedures. All persons wishing to be heard shall be heard; provided, however, testimony and evidence may not go beyond the scope of that presented to the Hearing Examiner. Following such public hearing, the City Council shall adopt by ordinance an appropriate abatement period for the nonconforming use.
(3)
The period of abatement for a nonconforming use shall be determined by providing a sufficient residue of reasonable use through "amortization of nonconforming uses." Factors that may be considered in establishing the abatement period through amortization are investment of the property owner, estimated remaining economic life of investment, depreciated value from federal income tax records, value and condition of the improvement, nature of the use, possibility of alternative uses that conform or that are more conforming, degree of incompatibility of the use with current zoning, impact of the use on other uses in the area where it is located, existence or nonexistence of a lease and contingency clauses permitting lease termination, and such other factors that tend to permit the nonconforming user to amortize investment during the period of permitted nonconformity, bearing in mind that the public interest in eliminating undesirable nonconforming uses is sufficient to justify the reduction of property value.
(Ord. 1591 § 47, 2014)
Nonconforming churches may be structurally altered or enlarged; provided, the requirements of this Title for off-street parking shall be met and maintained for any seating capacity in excess of that which existed immediately prior to the alterations or additions whether provided by additional seats in the nave or by additional floor space to be used simultaneously for assembly purposes if there are no fixed seats.
(Ord. 1591 § 48, 2014)
Residential buildings and buildings containing dwelling units on the ground floor existing in Commercial Zones on August 3, 1964, shall be considered as nonconforming buildings but, as such, shall be subject only to those provisions of this chapter pertaining to abatement which provide that a nonconforming building removed or destroyed shall not be replaced by other than a conforming building, that the nonconforming building may not be enlarged or expanded unless such enlargement or expansion makes the building more conforming, and that the degree of nonconformity may not be increased by changing to a less restrictive residential use.
(Ord. 1591 § 49, 2014)
Dwelling units in Commercial Zones existing on February 4, 1985, shall be considered nonconforming uses and shall be subject to DMMC § 18.15.130, governing nonconforming residential uses in Commercial Zones; provided, however, should any dwelling unit or building containing a dwelling unit be damaged or destroyed by fire, explosion, or other casualty or act of God or the public enemy, it may be restored and the occupancy or use which existed at the time of such damage or destruction may be continued.
(Ord. 1591 § 50, 2014)