1998-45604-Ordinance No. 98-037 Recorded 8/31/1998N REVIEWED AS TO FORM REVIEWED
169 0044
CODE REVIEW COMM. 95..45604
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC1 UTES COUNTY, O UN
An Ordinance Amending Title 18, the Deschutes * 3,:: to"
County Zoning Ordinance, Relating to Nonconforming * ;- CO
Uses and Declaring an Emergency. * -? G
r (P GI
ORDINANCE NO. 98-037 a'
rfi �
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY--v6kE N,
ORDAINS as follows: c' N
Section 1. AMENDING. Deschutes County Code Section 18.120.010, Nonconforming
uses, is amended to read as set forth in Exhibit "A," attached hereto and by this reference incorporated
herein, with new language underlined and language to be deleted in str-ikethFeegk.
Section 2. EMERGENCY. This ordinance being necessary for the immediate preservation
of the public peace, health and safety, an emergency is declared to exist, and this ordinance takes effect
on its passage.
DATED this 26h day of August, 1998.
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS OF
MICROFILMED CSE PU ii'
OC ► 141998 6z"Ti 1N' 3
PAGE I of 1 - ORDINANCE No. 98-037 (8/26/98)
EXHIBIT "A" 169 0045
18.120.010. Nonconforming uses.
Except as otherwise provided in this title,
the lawful use of a building, structure or land
existing on the effective date of this title, or -any
amendment thereto or any ordinance codified
therein may be continued although such use or
structure does not conform with the standards
for new development specified in this title. A
nonconforming use or structure may be altered,
restored or replaced subject to this section. No
nonconforming use or structure may be resumed
after a one year period of interruption or
abandonment unless the resumed use conforms
with the provisions of this title in effect at the
time of the proposed resumption.
A. Expansion or Replacement of a
Nonconforming Structure.
1. Nonconforming Structure. For the
purposes of this section, a nonconforming
structure is one that was lawfully established
and violates current setbacks of this title but
conforms with respect to use.
2. Replacement or Expansion without
Additional Encroachment in Setback Area. A
nonconforming structure may be replaced with a
new structure of the same size on the same
footprint as the preexisting nonconforming
structure or may be expanded with an addition
that does not project into the setback area at any
point along the footprint of the structure, subject
to all other applicable provisions of this title.
3. Replacement or Expansion with
Additional Encroachment in Setback Area.
Replacement or expansion of a nonconforming
structure that would involve an additional
projection into the front, side or rear yard
setback area at any point along the footprint of
the existing or preexisting structure may be
allowed provided such additional projection into
the setback area (1) does not exceed 900 square
feet; (2) does not exceed the floor space of the
existing or preexisting structure; (3) does not
cause the structure to project further toward the
front, side or rear property lines than the closest
point of the existing or preexisting structure;
and (4) meets the variance approval standards
set forth in paragraphs 18.132.025(A)(1),
(A)(2), (A)(3) and (A)(4) of this title.
Such replacements or expansions must
conform with all other applicable provisions of
this title.
B. Verification of Nonconforming Use.
1. Subject to the procedures set forth in
this section and in ehapte '',x:40 Title 22 of the
county code for processing declaratory rulings,
the planning division will verify whether or not
a use constitutes a valid nonconforming use in
accordance with the provisions of this section
and applicable state law. Verification of the
existence of a nonconforming use is required
prior to or concurrent with any application to
alter or restore the use. The bur -den of preen
shall be on the appliea-at ty-cderaenstrate its
la-wful e ;sten,,,
2. Subject to paragraph (F)(2) of this
section, the The applicant shall demonstrate all
of the following:
a4 -.The nonconforming use was lawfully
established on or before the effective date of the
provisions of this -title the zoning ordinance
prohibiting the use:
2. The nefieenfefminget, I1
of this title prohibiting the use, or had proceeded
so far toward lawful completion as of the date it
became nonconforming that a right to complete
and maintain the use would be vested.. -i
b3.The nonconforming use as it existed on
the date it became nonconforming, considering
the nature and the extent of the actual use of the
propegy, has net beeninterr pted continued
without abandonment or interruption for
periedin excess —e€ ene- year or
wed; and
c. Any alteration in the nature and extent
of the nonconforming use was done in
compliance with applicable zoning ordinance
standards governing alterations of
nonconforming uses.
3. For purposes of determining whether an
abandonment or interruption of use has occurred
the followingshall hall apply:
a. The reference period for determining
whether an abandonment or interruption of a
nonconforming use or an aspect thereof has
occurred shall be one year.
PAGE 1 OF 3 - EXHIBIT "A" TO ORDINANCE NO. 98-037 (8/26/98)
EXHIBIT "A"
b. An abandonment or interruption in a use
or portion thereof may arise from the complete
cessation of actual use of a property for a one-
year period or may arise from a change in the
nature or extent of the use made of the property
for a one -:year period or more.
c. An interruption or abandonment that
constitutes less than full cessation of the use or a
portion thereof may, in accordance with
paragraph (F)(4) of this section, result in a
declaration of a continuing use, but of a lesser
intensity or scope than what would have been
allowable if the nature and extent of the use as of
the date it became nonconforming had continued.
d. Absent an approved alteration, a change
in the nature of the use may result in a
determination that the use has been abandoned or
has ceased if there are no common elements
between the activities of the previous use and the
current use.
e. Change of ownership or occupancy shall
not constitute an interruption or abandonment
provided that, absent an approved alteration the
continuing use made of the property falls within
the allowed scope of use made of the property by
previous owners or occupants.
f. Factors to be considered in determining
whether there has been a change in the nature
and/or extent of a use shall include, but are not
limited to, consideration of the type of activities
being conducted, the operating characteristics of
the activities associated with the use (including
off-site impacts of those activities), the frequency
of use, the hours of operation, changes_ in
structures associated with the use and changes in
the degree to which the activities associated with
the use occupy the site.
C. Maintenance of a Nonconforming Use.
Normal maintenance of a verified
nonconforming use or structure shall be
permitted. Maintenance does not include
alterations which are subject to paragraph
subsection (E) below -of this section.
D. Restoration or Replacement of a
Nonconforming Use. A verified nonconforming
use may be restored or replaced if all of the
following criteria are met:
1. Restoration is made necessary by fire,
natural disaster or other casualty.-,
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2. The nonconforming use is restored or
replaced on the same location and is the same size
or smaller than it was prior to the damage or
destruction.-; and
3. The restoration or replacement of the
nonconforming use is commenced within one
year of the damage or destruction.
E. Alteration of a Nonconforming Use.
1. The alteration of a nonconforming use
shall be permitted when necessary to comply
with any lawful requirement.
2. Any other alteration to a nonconforming
use . i ' I u :dcr this eeti shall t may be
permitted subject to all applicable provisions of
this title, including site plan review and upon a
finding that the . Ater-atien doet a
f , use of s fiufes asseeiated with
that , o eh e in use.
vR Of a fiefle0fififffflifig Use
shall be permiaed when neeessar-y to eemply
with any la-wful fequir-ement.
2. in all eases ether- thaft that deSGFibe
physieal or,s b� Waw t
t...� ., .:::1„:...,.,.�.,may be
heafings A'A"hen both of the folio -wing
s ite o et!
a. The altefation is neeessai=y to feasonably
b. The alteration will have no greater
adverse impact on the neighborhood.
3. For the purposes of paragraph (E)(2)of
this subsection, an "alteration of a
nonconforming use" shall include any change in
the use of the property that would constitute a
change in the nature or extent of the use of the
ro e
F. Procedure.
1. Any application for verification of a
nonconforming use or to expand, alter, restore
or replace a nonconforming use shall be
processed in conformance with the applicable
procedures set forth in this section and the
applicable procedures for deel . fpAen, full g
unde of Title 22, the Deschutes County
Uniform Development Procedures Ordinance.
2. Notwithstanding section 22.20.010 of the
Deschutes County Code, the initial decision on an
application for an alteration of a nonconforming
use shall be made administratively, without a
PAGE 2 OF 3 - EXHIBIT "A" TO ORDINANCE NO. 98-037 (8/26/98)
EXHIBIT "A"
public hearing. The Planning Director may give
prior notice of the pending application pursuant
to section 22.20.020 of the Deschutes County
Code.
3. Except as allowed by subparagraph (a) of
this paragraph, the burden of proof shall be on a
verification applicant to prove the existence
continuity, nature and extent of the use.
a. Notwithstanding section 22.24.050 of the
Deschutes County Code, if an applicant
demonstrates by a preponderance of the evidence
that the nature and extent of the use sought to be
verified is of the same nature and extent as the
use of the properly for the 10 -year period
immediately precedingthe he application, without
interruption or abandonment, it shall be presumed
that the nonconforming use, as proven, lawfully
existed at the time the use became nonconforming
and has continued without interruption or
abandonment until the date of application.
b. The presumption may be rebutted by a
preponderance of evidence showing that the use
was unlawful prior to the time it became
nonconforming, or that the use prior to the 10 -
year period was of a different nature or different
in extent than the use, as proven, or that the use
prior to the 10 -year period was interrupted or
abandoned. If the presumption is so rebutted, the
presumption shall disappear and be of no further
aid to the applicant.
4. If the proof demonstrates the continued
existence of a valid non -conforming use, but of a
different nature or extent than that claimed by the
applicant, the hearings body may declare there to
be a valid nonconforming use to the extent
proven.
5. An approval of a verification,
replacement or restoration of a nonconforming
use verification shall not be conditioned; an
approval shall be sufficiently detailed to describe
the allowed parameters of the verified use.
However, an approval of an alteration of a
nonconforming use may be conditioned in a
manner calculated to ensure mitigation of adverse
impacts so that the change has no greater adverse
impact to the neighborhood.
6. After a decision has been rendered on
an application for a verification of a
nonconforming use (including any appeals
169 - 0047
provided for under Title 22 and under state law),
the applicant shall not be entitled to reapply
under section 22.28.040 for another verification
determination involving the same use of the
property. (Ord. 98-037 § 1, 1998; Ord. 95-050 §
1, 1995; Ord. 93-043 § 20, 1993; Ord. 91-038 §
1, 1991)
PAGE 3 OF 3 - EXHIBIT "A" TO ORDINANCE No. 98-037 (8/26/98)