AN ORDINANCE relating to land use and zoning, amending Title 23 of the Seattle Municipal Code (SMC) to consolidate land use code provisions on nonconformity, establish a new amnesty date for residential nonconformity, allow for rebuilding of nonconforming residential structures, resolve conflicts between provisions in different zones, and deleting current sections on nonconformity and replacing them with new sections in Chapter 23.42 to apply in all zones except the shoreline district.

WHEREAS, Council Resolution 30075 directed DCLU to proceed with a multiphase project to simplify the Land Use Code so that it will be more understandable and user-friendly, and can be administered and enforced in an efficient and effective manner; and

WHEREAS, Council Resolution 30075 provided that consolidating provisions in the Land Use Code related to nonconformities would be one of the first options to pursue; and

WHEREAS, DCLU has worked with a citizen advisory committee which has met numerous times in the last year to consider nonconformity issues and other simplification topics; and

WHEREAS, a public meeting to discuss the proposed Land Use Code changes was held on September 28, 2000; and

WHEREAS, the City Council finds that the proposed changes will work toward simplifying use and application of the Code on issues related to nonconforming sites, structures, uses, and developments.

NOW THEREFORE, BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. New Sections 23.42.100, 23.42.102, 23.42.104, 23.42.106, 23.42.108, 23.42.110, 23.42.112, 23.42.114, 23.42.116, 23.42.118, 23.42.120, 23.42.122, 23.42.124, 23.42.126, 23.42.128, and 23.42.130 are added to the Seattle Municipal Code to read as follows:

23.42.100 Nonconformity: applicability and intent.

A. The nonconformity provisions of this Chapter apply to uses and sites in all zones, except for the shoreline overlay district (see Chapter 23.60).

B. It is the intent of these provisions to establish a framework for dealing with nonconformity that allows most nonconformities to continue. The Code facilitates the maintenance and enhancement of nonconforming uses and developments so they may exist as an asset to their neighborhoods. The redevelopment of nonconformities to be more conforming to current code standards is a long term goal.

23.42.102 Establishing nonconforming status.

A. Any use that does not conform to current zoning regulations, but conformed to applicable zoning regulations at any time and has not been discontinued as set forth in Section 23.42.104 is recognized as a nonconforming use or development. Any residential development in a residential, commercial or downtown zone that would not be permitted under current Land Use Code regulations, but which existed prior to July 24, 1957, and has not been discontinued as set forth by Section 23.42.104, is recognized as a nonconforming use or development. A recognized nonconforming use shall be established according to the provisions of subsections B-D of this Section.

B. Any use or development for which a permit was obtained is considered to be established.

C. A use or development which did not obtain a permit may be established if the Director reviews and approves an application to establish the nonconforming use or development for the record.

D. For a use or development to be established pursuant to subsection C above, the applicant must demonstrate that the use or development would have been permitted under the regulations in effect at the time the use began, or, for a residential use or development, that the use or development existed prior to July 24, 1957 and has remained in continuous existence since that date. Residential development shall be subject to inspection for compliance with minimum standards of the Housing and Building Maintenance Code. (Chapters 22.200 through 22.208). Minimum standards of the Housing and Building Maintenance Code must be met prior to approval of any permit to establish the use and/or development for the record.

E. Nonconforming uses commenced after July 24, 1957 and not discontinued (Section 23.42.104) are also subject to approval through the process of establishing use for the record, if not established by permit. Residential nonconforming uses are subject to inspection under the Housing and Building Maintenance Code if in existence before January 1, 1976. Conformance to the Seattle Building Code in effect at the time a use first began is required if the use first existed after January 1, 1976.

23.42.104 Nonconforming uses.

A. Any nonconforming use may be continued, subject to the provisions of this section.

B. A nonconforming use that has been discontinued for more than twelve (12) consecutive months shall not be reestablished or recommenced. A use is considered discontinued when:

1. A permit to change the use of the lot or structure was issued and acted upon; or

2. The structure, or a portion of a structure is not being used for the use allowed by the most recent permit; or

3. The structure is vacant, or the portion of the structure formerly occupied by the nonconforming use is vacant. The use of the structure shall be considered discontinued even if materials from the former use remain or are stored on the property. A multifamily structure with one (1) or more vacant dwelling units is not considered vacant and the use is not considered to be discontinued unless all units in the structure are vacant.

4. If a complete application for a permit that would allow the nonconforming use to continue, or that would authorize a change to another nonconforming use, has been submitted before the structure has been vacant for twelve (12) consecutive months, the nonconforming use shall not be considered discontinued unless the permit lapses or the permit is denied. If the permit is denied, the nonconforming use may be reestablished during the six (6) months following the denial.

C. A nonconforming use that is disrupted by fire, act of nature, or other causes beyond the control of the owners may be resumed. Any structure occupied by the nonconforming use may be rebuilt in accordance with applicable codes and regulations to the same or smaller configuration existing immediately prior to the time the structure was damaged or destroyed.

1. Where replacement of a structure or portion of a structure is necessary in order to resume the use, action toward that replacement must be commenced within twelve (12) months after the demolition or destruction of the structure. Action toward replacement shall include application for a building permit or other significant activity directed toward the replacement of the structure. If this action is not commenced within this time limit, the nonconforming use shall lapse.

2. When the structure containing the nonconforming use is located in a PSM zone, the Pioneer Square Preservation Board shall review the exterior design of the structure before it is rebuilt to ensure reasonable compatibility with the design and character of other structures in the Pioneer Square Preservation District.

23.42.106 Expansion of nonconforming uses

A. A structure occupied by a nonconforming residential use may be maintained, repaired, renovated or structurally altered:

1. As necessary to improve access for the elderly or disabled; or

2. To construct structural features including, but not limited to, exterior decks and balconies, bay windows, dormers, eaves and solar collectors added to a principal structure, or a new or expanded accessory structure may be constructed; provided that the addition or new accessory structure conforms to the development standards of the zone.

B. In addition to the standards in subsection A, a structure in a Single Family zone occupied by a nonconforming residential use may be allowed to expand subject to the following:

1. The number of dwelling units shall not be increased, except as may be allowed pursuant to Section 23.40.040 or Section 23.44.015.

2. For a nonconforming residential use that is not a multifamily use, except as may be allowed pursuant to Section 23.40.040 or Section 23.44.015, the number of residents may not be increased beyond the maximum number that was allowed by the standards of the zone at the time of approval; if originally permitted by conditional use, the number shall not be allowed to increase above the number permitted by the conditional use approval.

3. On lots less than ten thousand (10,000) square feet, an expansion of no more than 500 square feet of gross floor area, meeting the development standards for single family construction and not exceeding the average height of the closest principal structures on either side, is allowed.

4. On lots less than ten thousand (10,000) square feet, an expansion greater than 500 square feet of gross floor area and/or exceeding the average height of the closest principal structures on either side may be approved by DCLU through a special exception, Type II Master Use Permit, if the proposed expansion meets the development standards for single family construction and is compatible with surrounding development in terms of:

a. Architectural character,

b. Existing streetscape and pattern of yards, and

c. Scale and proportion of principal structures.

5. If an addition proposed under subsection 3 or 4 above would require additional parking under the requirements of Section 23.54.015 for multifamily structures, that additional parking must be provided.

C. In Multifamily zones, except in Lowrise Duplex/Triplex and Lowrise 1 zones, dwelling units may be added to a structure containing one or more nonconforming uses, even if in a structure nonconforming to development standards; provided that limitations on density shall apply. The structure may be expanded or extended; provided that the expansion or extension shall be for residential use, shall conform to the development standards of the zone, and shall not cause an already nonconforming structure to become more nonconforming to development standards.

D. A nonconforming nonresidential use shall not be expanded or extended, except as follows:

1. A structure occupied by a nonconforming nonresidential use may be maintained, repaired, renovated or structurally altered but shall not be expanded or extended except as otherwise required by law, to improve access for the elderly or disabled or as specifically permitted elsewhere in this Code.

2. In the Seattle Cascade Mixed zone, general manufacturing uses exceeding twenty-five thousand (25,000) square feet of gross floor area and heavy manufacturing uses may be expanded or extended by an amount of gross floor area not to exceed twenty (20) percent of the existing gross floor area of the use, provided that this exception may be applied only once to any individual business establishment.

23.42.108 Change from nonconforming use to conforming use.

A. In any zone, a nonconforming use may be converted to any conforming use if all development standards are met.

B. In single family zones, a nonconforming use may be converted to single family dwelling unit, even if all development standards are not met.

C. In multifamily zones, a nonconforming nonresidential use may be converted to residential use, even if all development standards are not met; provided that the density limitations of the zone must be met and provided that parking nonconformity shall not be increased as a result of the conversion; in Lowrise Duplex/Triplex zones the total number of dwelling units in any structure is limited to three (3).

D. In commercial and industrial zones, a nonconforming use may be converted to any conforming use even if all development standards are not met, provided that parking nonconformity shall not be increased as a result of the conversion.

23.42.110 Change from one nonconforming use to another nonconforming use.

A nonconforming use may be converted by an administrative conditional use authorization to another use not otherwise permitted in the zone subject to the following limitations and conditions.

A. In single family, residential small lot, and Lowrise, Duplex/Triplex zones, a nonconforming multifamily use or structure may not be converted to any nonresidential use not otherwise permitted in the zone.

B. The proposed new use must be no more detrimental to properties in the zone and vicinity than the existing use. This determination shall be based on consideration of the following factors:

1. The zones in which both the existing use and the proposed new use are allowed;

2. The number of employees and clients associated or expected with the proposed use;

3. The relative parking, traffic, light, glare, noise, odor and similar impacts of the two uses and how these impacts could be mitigated.

C. The existence of a single residential unit, such as a caretaker's or proprietor's unit, accessory to a nonconforming commercial use shall not be treated as having established a residential use, and such a unit may be converted or changed provided that it is the only residential use in the structure and comprises less than half of the total floor area of the structure.

D. Parking requirements for the proposed use shall be determined by the Director.

E. If the new use is permitted, the Director may require mitigation measures, including but not limited to landscaping, sound barriers or fences, mounding or berming, adjustments to yards or parking standards, design modification, or limiting hours of operation.

23.42.112 Nonconformity to development standards.

A. A structure nonconforming to development standards may be maintained, renovated, repaired or structurally altered but shall be prohibited from expanding or extending in any manner that increases the extent of nonconformity or creates additional nonconformity, except as otherwise required by law, as necessary to improve access for the elderly or disabled or as specifically permitted for nonconforming uses and nonconforming structures elsewhere in this Code.

B. A structure nonconforming to development standards and occupied by or accessory to a residential use may be rebuilt or replaced but may not be expanded or extended in any manner that increases the extent of nonconformity unless specifically permitted by this code.

1. A survey by a licensed Washington surveyor, or other documentation acceptable to the Director, documenting the extent of nonconformity and confirming that the plans to rebuild or replace a residential structure create no unpermitted increase in nonconformity shall be required prior to approval of any permit to rebuild or replace a nonconforming residential structure.

2. Additions to a rebuilt nonconforming residential structure that meet current development standards are allowed.

C. Any structure nonconforming to development standards that is destroyed by fire, act of nature, or other causes beyond the control of the owner, may be rebuilt to the same or smaller configuration existing immediately prior to the time the structure was destroyed.

D. Where replacement of a nonconforming structure or portion of a structure is permitted under this section, action toward that replacement must be commenced within twelve (12) months after the demolition or destruction of the structure, except for a nonconforming structure designated as a Landmark pursuant to Chapter 25.12. Action toward replacement of Landmark structures must be commenced within three (3) years after the demolition or destruction of the structure. Action toward replacement shall include application for a building permit or other significant activity directed toward the replacement of the structure. If this action is not commenced within this time limit, any replacement must conform to the existing development standards.

E. When the structure is located in a PSM zone, the Pioneer Square Preservation Board shall review plans for the exterior design of the structure to ensure compatibility with the design and character of other structures in the Pioneer Square Preservation District.

23.42.114 Multifamily structures nonconforming to development standards.

The following provisions apply to multifamily structures that do not comply with current development standards.

A. A nonconforming ground-related multifamily structure or apartment located in a Lowrise Duplex/Triplex (LDT) or Lowrise 1 (L1) zone may be expanded or extended provided the expansion or extension shall conform to the development standards of the zone and shall not cause an already nonconforming structure to become more nonconforming to development standards.

B. Additional residential units may be added to a nonconforming ground-related multifamily structure or apartment structure, provided the addition shall conform to the development standards of the zone and shall not cause an already nonconforming structure to become more nonconforming to development standards.

C. In Lowrise Duplex/Triplex zones, a nonconforming ground related multifamily structure or an apartment may be converted to any permitted use if all development standards are met except for open space and ground level access.

23.42.116 Downtown structures nonconforming to development standards.

A. Portions of structures that do not conform to the standards for minimum street facade height and/or facade setback limits for the downtown zone in which they are located may be expanded if the expansion reduces the nonconformity as regards one or both of these standards and, in the opinion of the Director, is consistent with the intent of the Code. If the Director determines that greater conformity is not structurally feasible, the expansion may increase the nonconformity in respect to these standards if all other standards are met.

B. Portions of structures that do not conform to the standards for required street-level uses and/or the street facade requirements for transparency, blank facades, or screening of parking for the downtown zone in which they are located may be expanded if:

1. The expansion does not cause the structure to exceed the base FAR for the zone and the nonconformity is not increased; or

2. When the nonconformity of the structure as regards these development standards is reduced, expansion of the structure up to the maximum FAR for the zone may be permitted by the Director through the use of the bonus system or transfer of development rights. The appropriate level of expansion and the required reduction or elimination of nonconformity shall be determined by the Director according to the following criteria:

a. The extent of the proposed expansion,

b. The impact of the proposed expansion on the pedestrian environment,

c. The amount of the existing nonconformity, and

d. The structural feasibility of remodeling the structure to meet these development standards.

23.42.118 Landmark structures.

A. Landmark structures may be expanded even if the expansion increases the extent of nonconformity, when the Landmarks Board determines that there is no feasible alternative that meets the development standards of the zone while preserving the integrity of the landmark structure.

B. The Director may permit the proposed expansion if it is approved by the Landmarks Board and if:

1. The expansion does not have a significant adverse effect on the light, air, solar and visual access of properties within a three hundred (300) foot radius; and

2. The expansion does not adversely affect the pedestrian environment in the vicinity.

23.42.120 Access easement nonconformity.

A structure located on a lot nonconforming as to access easement requirements may be replaced, provided that the number of dwelling units to which access is provided by the easement shall not be increased and the new structure shall conform to all other development standards of the zone.

23.42.122 Height nonconformity.

A. In single family and multifamily zones, a structure nonconforming as to height may be expanded or extended to add eaves, dormers and /or clerestories to an existing pitched roof provided the additions are constructed below the highest point of the roof. An existing pitched roof that is above the height limit shall not be converted into a flat roof nor shall the slope of the roof be lowered below a four in twelve (4:12) pitch.

B. Structures originally constructed in Manufacturing zones, under Seattle Municipal Code Title 24, that exceed the permitted height in zones with height limits of thirty feet (30'), forty feet (40'), or sixty-five feet (65') shall be limited to an FAR (floor area ratio) of two and one-half (2 1/2 ). Structures that exceed the permitted height in zones allowing heights greater than sixty-five feet (65') shall be limited to the FAR permitted in the respective zones.

23.42.124 Light and glare standards nonconformity.

When nonconforming exterior lighting is replaced, new lighting shall conform to the requirements of the light and glare standards of the respective zone. See subsection H of Section 23.44.008 for single family zones; Section 23.45.017 for lowrise zones; Section 23.45.059 for midrise zones; Section 23.45.075 for highrise zones; Section 23.46.020 for residential commercial zones; Section 23.47.022 for commercial zones; Section 23.49.010 for downtown zones; and Section 23.50.046 for industrial buffer and industrial commercial zones.

23.42.126 Outdoor storage areas nonconformity.

A. An outdoor storage area nonconforming as to screening and landscaping shall be required to be screened and landscaped at the time of any structural alteration or expansion of the outdoor storage area or the structure with which it is associated according to the provisions of:

1. Subsection D5 of Section 23.47.016, if located in a commercial zone;

2. Section 23.48.024, if located in the Seattle Cascade Mixed (SCM) zone;

3. Subsection C of Section 23.50.016, if located on an industrial street designated for landscaping;

4. Section 23.50.036, if located in an Industrial Buffer zone; and/or

5. Section 23.50.038, if located in an Industrial Commercial zone.

B. A business establishment in an NC1, NC2, NC3, or SCM zone with a nonconforming outdoor storage area may be extended, structurally altered or expanded if the outdoor storage area is not expanded and if it is screened and landscaped according to the standards of subsection D5a of Section 23.47.016, or Section 23.48.024 if the business is in the SCM zone.

C. A nonconforming use with a nonconforming outdoor storage area may be structurally altered, but not expanded, if the outdoor storage area is not expanded and if it is screened and landscaped according to the standards of subsection D5a of Section 23.47.016 or Section 23.48.024 if the nonconforming use with the nonconforming outdoor storage area is in the SCM zone.

23.42.128 Parking nonconformity.

A. Existing parking deficits of legally established uses shall be allowed to continue even if a change of use occurs. This provision shall not apply to a change of use to one defined as a heavy traffic generator.

B. Nonconforming parking areas or nonconforming parking within structures may be restriped according to the standards of Section 23.54.030, Parking space standards.

C. Parking areas that are nonconforming uses may be restriped according to the standards of Section 23.54.030, Parking space standards.

D. In commercial zones, surface parking areas that are nonconforming due to lack of required landscaping and are proposed to be expanded by ten percent (10%) or more in number of parking spaces or in area are required to be screened and landscaped according to the standards of Section 23.47.016, or in the Seattle Cascade Mixed (SCM) zone, according to Section 23.48.024, to the extent feasible as determined by the Director.

E. See subsection C6 of Section 23.71.008 for requirements in the Northgate Overlay District regarding elimination of nonconformities with respect to location, screening and landscaping of existing parking areas along major pedestrian streets.

23.42.130 Nonconforming Solar Collectors

The installation of solar collectors that cause a structure to become nonconforming or increase an existing nonconformity may be permitted as follows

A. In single family zones, pursuant to subsection B of Section 23.44.046;

B. In multifamily zones, pursuant to subsection D of Section 23.45.146;

C. In commercial zones, pursuant to subsection H of Section 23.47.012.

Section 2. Section 23.84.026 of the Seattle Municipal Code, which Section was last amended by Ordinance 119239 is further amended as follows:

SMC 23.84.026 Definitions -N.

***

"Nonconforming structure" means a structure which was lawful when established which does not now conform to the development standards of the zone in which it is located. A structure shall be considered established if it conformed to applicable zoning regulations at any time, or when it is built under permit, a permit for the structure has been granted and has not expired, or the structure is substantially underway in accordance with

Section 23.04.010 D.

"Nonconforming to development standards" means a structure, site or development that met applicable development standards at the time it was built or established, but that does not now conform to one or more of the applicable development standards. Development standards include, but are not limited to height, setbacks, lot coverage, lot area, number and location of parking spaces, open space, density, screening and landscaping, lighting, maximum size of nonresidential uses, maximum size of nonindustrial use, view corridors, sidewalk width, public benefit features, street level use requirements, street famayade requirements, and floor area ratios.

"Nonconforming use" means a use of land or a structure that was lawful when established and that does not now conform to the use regulations of the zone in which it is located, or means a residential use or development commenced prior to July 24, 1957, that has remained in continuous use since that date, subject to approval through the process of establishing the use for the record. See Section 23.42.102. A use that was legally established but which is now permitted only as a conditional use is not a nonconforming use and shall be regulated as if a conditional use approval had earlier been granted.

***

Section 3. The following Sections of the Seattle Municipal Code are repealed: Sections 23.43.080, 23.43.082, 23.44.080, 23.44.082, 23.45.180, 23.45.182, 23.45.184, 23.45.190, 23.47.036, 23.47.038, 23.48.036, 23.49.028, 23.49.030, 23.50.008, 23.50.010, 23.69.016, and 23.69.017.

Section 4. Subsection F of Section 23.44.008 of the Seattle Municipal Code, which Section was last amended by Ordinance 119792, is further amended as follows:

23.44.008 Development standards for uses permitted outright.

***

F. A structure occupied by a permitted use other than single-family residential use may be converted to singlefamily residential use even if the structure does not conform to the development standards for single-family structures. Expansions of converted nonconforming structures shall be regulated by Section 23.42.108((23.44.082. Conversion of structures occupied by nonconforming uses shall be regulated by Sections 23.42.108 and 23.42.110 23.44.080.

Section 5. Section 23.44.032 of the Seattle Municipal Code, which Section was last amended by Ordinance 118414, is further amended as follows:

23.44.032 Certain nonconforming uses.

Nonconforming uses which are authorized pursuant to Section 23.42.110 23.44.080 H may be permitted as a conditional use.

Section 6. Subsection A of Section 23.45.006 of the Seattle Municipal Code, which Section was last amended by Ordinance 119242, is further amended as follows:

23.45.006 General development standards for structures in multifamily zones.

A. Included within Sections 23.45.006 through 23.45.166 190)) are the development standards for structures in each multifamily zone. These standards shall also apply to uses accessory to multifamily structures unless specifically modified by development standards for those accessory uses.

Section 7. Subsection G of Section 23.45.006 of the Seattle Municipal Code, which Section was last amended by Ordinance 119242, is further amended as follows:

23.45.006 General development standards for structures in multifamily zones.

***

G. A structure occupied by a permitted use other than singlefamily or multifamily residential use may be partially or wholly converted to single-family or multifamily residential use even if the structure does not conform to the development standards for residential uses in the multi-family zones. One (1) unit may be added without a parking space according to provisions of Section 23.54.020. If the only use of the structure will be residential and if two (2) or more units are being created and there is no feasible way to provide the required parking, then the Director may authorize reduction or waiver of parking as a special exception according to the standards of Section 23.54.020 E. Expansions of nonconforming converted structures and conversions of structures occupied by nonconforming uses shall be regulated by Sections 23.42.108 and 23.42.110 Subchapter IV, Nonconforming Uses and Structures, of this chapter.

Section 8. Section 23.48.038, which Section was last amended by Ordinance 118302, is further amended as follows:

23.48.038 Relocating landmark structures Nonconforming structures The standards for nonconforming structures in Section 23.47.038 shall apply except as follows When an historic landmark structure is relocated, any nonconformities with respect to development standards shall transfer with the relocated structure.

Section 9. Subsection C of Section 23.54.020 of the Seattle Municipal Code, which section was last amended by Ordinance 119239, is further amended as follows:

23.54.020 Parking quantity exceptions.

C. Parking Exception for Landmark Structures. The Director may reduce or waive the minimum accessory off-street parking requirements for a use permitted in a Landmark structure, or when a Landmark structure is completely converted to residential use according to Sections 23.42.108 or 23.45.006, or for a use in a Landmark district which is located in a commercial zone, or 23.45.184 as a special exception,pursuant to Chapter 23.76, Procedures for Master Use Permits and Council Land Use Decisions, or for a use in a Landmark district which is located in a commercial zone.

1. In making any such reduction or waiver, the Director shall assess area parking needs. The Director may require a survey of onand off-street parking availability. The Director may take into account the level of transit service in the immediate area; the probably relative importance of walk-in traffic; proposals by the applicant to encourage carpooling or transit use by employees; hours of operation; and any other factor or factors considered relevant in determining parking impact.

2. The Director may also consider the types and scale of uses proposed or practical in the Landmark structure, and the controls imposed by the Landmark designation.

3. For conversion of structures to residential use, the Director shall also determine that there is no feasible way to meet parking requirements on the lot and that the proposal meets the objectives of the Multi-Family Land Use Policies.

Section 10. Section 23.72.014 of the Seattle Municipal Code, which section was last amended by Ordinance 118624, is further amended as follows:

23.72.014 Nonconformity((Nonconforming structures)) .

The provisions of Chapter 23.42 the underlying zone pertaining to nonconformity apply except that further subdivision of property may be permitted by the Director even if nonconformity would be created with respect to a structure's relationship to lot lines or lot area. This provision shall only apply to structures in existence on the effective date of this chapter.

Section 11. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the _____ day of _______________, 2001, and signed by me in open session in authentication of its passage this _____ day of _______________, 2001. ___________________________________ President of the City Council

Approved by me this _____ day of _______________, 2001. ___________________________________ Paul Schell, Mayor

Filed by me this _____ day of _______________, 19____. ___________________________________ City Clerk

3-22-01 V #2 As amended in LTLU