004-17 - Ordinance - Adopting Interim Regulations Related to Nonconforming Uses and StructuresORDINANCE NO. 004-17
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
ADOPTING INTERIM REGULATIONS RELATING TO
NONCONFORMING USES AND STRUCTURES, ESTABLISHING A
PROCEDURE FOR PROPERTY OWNERS TO OBTAIN A
NONCONFORMING PERMIT TO ESTABLISH A LEGAL
NONCONFORMING USE OR STRUCTURE FOR THE RECORD,
RELYING UPON EXISTING DEFINITIONS AND REGULATIONS IN
CHAPTER 16.08, 16.20, 16.35 AND 18.02 OF THE PORT ORCHARD
MUNICIPAL CODE, SUCH INTERIM REGULATIONS TO BE IN
EFFECT FIVE DAYS AFTER ADOPTION AND EXTEND FOR A PERIOD
OF SIX MONTHS, WHILE THE CITY CONSIDERS THE ADOPTION OF
A NEW PROCEDURE FOR NONCONFORMING PERMITS, AND
ESTABLISHING THE DATE OF A PUBLIC HEARING ON THE
MAINTENANCE OF THE INTERIM REGULATIONS FOR THE SIX
MONTH PERIOD, ALL AS REQUIRED BY RCW 36.70A.390.
WHEREAS, the City of Port Orchard has regulations relating to nonconforming
structures and uses, which include related definitions, the manner in which legally
nonconforming uses and structures may be maintained and repaired and for the
evaluation of uses and structures to determine whether they are legally nonconforming;
and
WHEREAS, a determination that a use of property or a structure is legally
nonconforming is extremely important, as it may affect the fair market value of a piece
or property, determine the amount of money for which a bank may mortgage the
property or use, allow the City to issue a permit for a particular use or prevent the City's
code enforcement action; and
WHEREAS, some cities have adopted procedures for property owners to follow
in order to obtain a permit or determination to establish for the record that a structure
or use is legally nonconforming; and
WHEREAS, the City Council of the City of Port Orchard finds that it is in the best
interest of its citizens to establish such procedure, so that individual property owners
may use, sell and/or mortgage their properties with knowledge of the legal
nonconforming status of the property; and
WHEREAS, RCW 36.70A.390 allows a 2nd Class City like the City of Port Orchard
to adopt interim zoning regulations for a period of six (6) months, as long as the City
holds a public hearing within sixty (60) days of the adoption of the interim ordinance
and complies with other procedural requirements; and
Ordinance No. 004-17
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WHEREAS, the City Council held a public hearing regarding this interim zoning
ordinance during a special Council meeting held on December 20, 2016; and
WHEREAS, the City Council considered this interim zoning ordinance during its
regular City Council meeting held on January 10, 2017; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO
ORDAIN AS FOLLOWS:
SECTION 1. Definitions.
A. The definitions in Port Orchard Municipal Code ("POMC") Sections 16.08.500
(Nonconforming --Structure), 16.08.502 (Nonconforming --Use) and 16.08.504
(Nonconformance) shall apply to this Interim Ordinance.
B. The following sections of the POMC shall apply to this Interim Ordinance: POMC
Section 16.20.202 (Nonconforming uses), 16.35.030 (Nonconforming uses --
Applicability), 16.35.040 (Nonconforming uses --Determining Status), 16.35.050
(Nonconforming lots), 16.35.060 (Continuation and maintenance of
nonconformance), 16.35.070 (Discontinued nonconforming use or structure),
16.35.080 (Repair or reconstruction of nonconforming structure), 16.35.090
(Alteration of nonconforming structure), 16.35.100 (Nonconformance --Expansion
of nonconformance), 18.02.170 (Nonconforming use or structure).
SECTION 2. Establishing a Legal Nonconforming Use or Structure for the Record --
Permit Required. A property owner may obtain a nonconforming permit to establish a legal
nonconforming use or structure for the record. This permit is not required, unless the City has
brought a code enforcement action relating to the property, or if the property owner desires
the permit for another purpose, such as to obtain a building permit or certificate of occupancy
consistent with the desired status of legal nonconforming use/structure. In such event, the
property owner has the burden to follow the procedures set forth herein to establish that the
condition of the property qualifies as legally nonconforming. In the case of a code enforcement
action, the Director may place the code enforcement action in abeyance for a reasonable time
in order to allow a property owner to gather the necessary information to apply for legally
nonconforming status as provided herein.
SECTION 3. Administration of Nonconforming Permits.
A. The following steps shall be followed in the processing of nonconforming permits:
(hyperlink to appropriate section of the City's Project Permit Processing code):
1. Determination of complete application {Section 23.20.040)
Ordinance No. 004-17
Page 3 of 6
2. Determination of consistency (Section 23.40.020)
3. Notice of decision by Director (Section 23.50.100)
4. Administrative appeal, if any (open record hearing, Section
23.50.110).
B. Because the processing of these permit applications requires the submission of
different information for approval, imposes different burdens on the applicant and
the City, and varies in other material respects from the processing of a project
permit application, these permits are exempt under RCW 36.70B.140 from all
project permit processing requirements (identified in the City's Permit Processing
Chapter (currently interim ordinance 008-16)), other than those set forth in this
chapter.
SECTION 4. Requirements for a Complete Application. A complete application for a
Nonconforming Permit application shall include:
A. Application form. One (1) hard copy of a completed application form;
B. Date of application and name, address, telephone number and e-mail address of the
applicant;
C. Name, address, telephone number and e-mail address of the owner of the property
identified in the application;
D. Legal description, street address and Assessor's Parcel Number of the subject
property;
E. The use of the subject property or structure on the subject property that is allegedly
legally nonconforming. Description and photographs of existing site conditions, any
plans and/or other information relevant to the proposed applicant's demonstration
of a legal nonconforming use/structure;
F. Information demonstrating that:
(1) the use or structure is not permitted outright under the City's Code, including,
but not limited to, the use standards of the current zoning or applicable district;
(2) the current Zoning Code or Building Code standards for the use or structure are
not met; and
(3) for nonconforming use status, the use has not been abandoned or discontinued
for the period identified in Section 16.35.070;
G. Proof of legal nonconforming status, including, but not limited to, planning
permits/approvals, building permits, leases, aerial maps showing the structure and
footprint, listings in business or phone directories (or directory with a list of
businesses and residents referenced by address), etc.;
H. If the application is for a remodel, a complete description of the proposed
remodeling relating to such section(s) of the structure or the entire structure;
I. The applicant's narrative statement describing the manner in which the application
satisfies the criteria for approval in Section 5 of this Ordinance;
J. A SEPA Checklist (unless categorically exempt);
K. The application fee established by the City; and
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L. An electronic copy of all submitted materials, including the application form,
provided in appropriate document formats either as email attachments or
downloadable files or on a CD/DVD.
SECTION 5. Criteria for Approval -Permit to Establish Legal Nonconforming Use or
Structure for the Record.
A. Criteria. A permit will be approved establishing the legal nonconforming status of
the use or structure if the applicant provides sufficient evidence and demonstrates
to the Director's satisfaction:
1. That the use or structure satisfies the definition for a legal nonconforming use as
set forth in Section 1 of this Interim Ordinance; and
2. That the use or structure has been in existence and maintained continuously,
with no interruption that would constitute abandonment or discontinuance under
either former or current City Codes.
B. Acceptable Documentation. The evidence presented by the applicant may include,
but is not limited to, the following as documentation of the existence of a use from a
time when it would have been permitted outright and as documentation of its
uninterrupted continuation:
1. Signed written statements from persons having no financial interest in the
property and who are not relatives of the applicant or property owner. Notarization
is not required.
2. Occupancy listing from the Polk Directory or Reverse Telephone Directories.
3. Business and/or licensing records.
4. County records showing the previous permitted use if the property was formerly
not part of the City.
5. Assessment records.
6. Utility Billing Records.
7. Other evidence that the Director deems useful and reliable, based on the
circumstances of the individual case. Examples include, but are not limited to,
photographs, U.S. Census reports, and signed written statements of experts.
Ordinance No. 004-17
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C. It is the responsibility of the applicant to furnish at least two different types of
documentation from the sources listed above. The City may, in its discretion,
require further documentation if the documentation submitted by the applicant
does not demonstrate the existence of the use from a time when it was permitted
outright, or fails to show continuous, uninterrupted maintenance of the use. The
City may also accept only one type of documentation from the sources listed above,
if that documentation is particularly persuasive. Any number of written, signed
statements, however, are not sufficient by themselves to document the existence of
a use.
SECTION 6. Final Decision. Because this procedure is exempt under RCW 36.708.140,
there is no deadline for the City's issuance of a final decision.
SECTION 7. Appeals. If an appeal is filed of the Director's decision, the procedures in
Section 23.60.050 shall be followed. Appeals shall be heard and decided by the Hearing
Examiner. The decision of the Hearing Examiner shall be final and there shall be no additional
administrative appeal of the Examiner's decision.
SECTION 8. Interim Ordinance Adopted. This interim ordinance is adopted for a period
of six months in order to provide the City adequate time to:
A. Study the various sections of the Port Orchard Code relating to legal nonconforming
uses/structures, and to draft a new ordinance that will combine all legal
nonconforming use/structure regulations into one chapter. This work will begin
upon adoption of this ordinance and is expected to take 6 months.
B. Hold a public hearing(s) on the draft ordinance, obtain public input on such
ordinances, perform SEPA on the draft ordinance, allow the Planning Commission to
make recommendations to the City Council, for the City Council to review the draft
ordinance and, if desired, to adopt new regulations on nonconforming
uses/structures. This work will begin immediately after the activities described in
Section 8(A) are complete.
SECTION 9. Effect of Interim Zoning Ordinance. After the effective date of this Interim
Zoning Ordinance, the City may accept applications for Nonconforming Permits under the
procedures set forth herein.
SECTION 10. Duration of Interim Zoning Ordinance. This interim zoning ordinance shall
be effective on the date set forth in Section 14 herein. As long as the City holds a public hearing
on the Interim Zoning ordinance and adopts findings and conclusions in support of the Interim
Zoning ordinance (as contemplated by Section 11 herein), the Interim Zoning ordinance shall
not terminate until six (6) months after the date of adoption, or at the time all of the events
described in Section 8 have been accomplished, whichever is sooner.
Ordinance No. 004-17
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SECTION 11. Public Hearing on Interim Zoning Ordinance. Pursuant to RCW 36. 70A.390
and RCW 35.63.200, the City Council shall hold a public hearing on this interim zoning
ordinance within sixty (60) days of its adoption, or before March 11, 2017. The Council hereby
schedules this hearing for February 14, 2017. During the next Council meeting immediately
following, the City Council shall adopt findings of fact on the subject of this interim zoning
ordinance and either justify its continued imposition or repeal this ordinance.
SECTION 12. Severability. If any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this Ordinance.
SECTION 13. Publication. This Ordinance shall be published by an approved summary
consisting of the title.
SECTION 14. Effective Date. This Ordinance shall take effect and be in full force and
effect five days after publication, as provided by law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the Clerk in authentication of such passage this 10th day of January, 2017.
ATTEST:
~ CMC:;Clerk
APPROVED AS TO FORM:
~aeu sroncate;,citY Attorney
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PUBLISHED:
EFFECTIVE DATE:
January 20, 2017
January 25, 2017
tion made by: Councilmember John Clauson
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council
meeting held January 10, 2017.
ORDINANCE NO. 004-17
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
ADOPTING INTERIM REGULATIONS RELATING TO NONCONFORMING
USES AND STRUCTURES, ESTABLISHING A PROCEDURE FOR PROPERTY
OWNERS TO OBTAIN A NONCONFORMING PERMIT TO ESTABLISH A
LEGAL NONCONFORMING USE OR STRUCTURE FOR THE RECORD,
RELYING UPON EXISTING DEFINITIONS AND REGULATIONS IN CHAPTER
16.08, 16.20, 16.35 AND 18.02 OF THE PORT ORCHARD MUNICIPAL CODE,
SUCH INTERIM REGULATIONS TO BE IN EFFECT FIVE DAYS AFTER
ADOPTION AND EXTEND FOR A PERIOD OF SIX MONTHS, WHILE THE CITY
CONSIDERS THE ADOPTION OF A NEW PROCEDURE FOR
NONCONFORMING PERMITS, AND ESTABLISHING THE DATE OF A PUBLIC
HEARING ON THE MAINTENANCE OF THE INTERIM REGULATIONS FOR
THE SIX MONTH PERIOD, ALL AS REQUIRED BY RCW 36. 70A.390.
Copies of Ordinance No. 004-17 are available for review at the office of the City Clerk of the City of Port Orchard.
Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without
charge. Thirty days after publication, copies of Ordinance No. 004-17 will be provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Published: Friday, January 20, 2017