NonconformingUses and Structures

Washington Dept. of EcologyBetty Renkor

October 25, 2007

Nonconforming structures

Beach Drive house Beach Drive beach

Nonconforming structures

North Vashon garage North Vashon beach

Nonconforming structures

Nonconforming and SMPs

Isn’t this in the WAC?Yes, but… (applies only if your SMP doesn’t cover it)

Your SMP can be different than WAC

Nonconforming and SMPs

Basic informationSHB and court casesWAC 173-27-080PermitsSMP examplesConsiderations

Nonconforming basics

Lawfully established or builtPrior to effective date of SMA/SMPDo not conform to current SMP

Use - no longer allowed in environmentStructure –inconsistent with bulk, setback, height, density

Not consistent w/ community vision

Nonconforming basics

Can continue to exist Long term goal: eliminateNonconformity cannot increaseAbandoned: NC status expiresReality: many exist for a long time

SHB and Court cases

Rhod-a-zalea v. Snohomish CountyNC uses disfavored; restrict so they phase out

Jefferson Co. v. Seattle Yacht ClubNC uses disfavored

SHB 95-6If setbacks not intended to phase out residential use, invites piecemeal granting of variances

SMA & Guidelines

SMA: silent on nonconformingGuidelines: address nonconforming uses and properties (WAC 173-26-191(2)(a)(iii)(A)

WAC 173-27-080

Conforming use, NC structuresOK to maintain & repairCan expand, but not increase extent of nonconformity

NC uses cannot expand, except for SFRStructure that needed variance

Legal nonconforming structureNC regulations apply

WAC 173-27-080

NC development that is damagedUp to 75%, may be rebuilt to prior configurationsApply within 6 monthsComplete restoration within 2 years of permit

NC use that is discontinuedNC rights expireSubsequent use shall be conforming

Recent permits

Snohomish County Proposal – add 2nd

story, unheated attic, same footprintNew house underwayEcology denied varianceSHB

Adding 16’ of height increases encroachmentSetback line extends into the air

Recent permits

West Seattle Proposal – Add partial 3rd story, additionsStringline setback –nearest shoreside cornersSMP – No expansion in any manner that increases extent of NCEcology denied variance

SMP examples

BellinghamCUP needed to expand NC structureNo expansion toward shorelineMust meet 35–ft height restrictionNo increase in impervious surfaceCommercial – public access, restoration may be required Residential - buffer enhancement may be required

SMP examples

Port TownsendNC use discontinued for 365 continuous days loses NC statusNC structure damaged more than 50% replacement cost must conform to SMP to be restoredNC residential structures destroyed may be rebuiltCommercial, marine, etc. – interior, nonstructural changes OK, limited to 50% replacement cost over 5 years

SMP examples

Whatcom CountyExpansion of SFR needs CUPCan go upland & into side yardsNo expansion waterward or into side yard setbackCan go higher if meet view blockage requirementsBuffer planting neededExpanding waterward, into side yard setback or above height standards needs variance

SMP examples

Pt. Roberts salmon cannery Whatcom proposed SMP revisionsCUP to require public access, beach plantingHotel/restaurant -change roofline, water views for guests

Considerations

Vashon shoreline Shoreline with lots of NC structuresIs variance needed for new developmentConsider appropriate designations and regulations

Considerations

Address nonconforming regulations in cumulative impact analysisIs no net loss achieved?Time frame for abandonmentMaximum % destroyed & allowed to rebuildWhat does zoning code allow?NC structures can be rebuilt to same footprint & height prior to destruction

Conclusion

Guidelines allow some flexibilityNonconformities need to be managedThink it through; show your workEcology considers statewide interest, public access, habitat restoration