Bethel City Zoning Code
18.80 Nonconforming
Lots, Structures and Uses
18.80.010 Intent.
Within the land use districts there may be nonconforming lots of record, structures, uses of land and uses of structures that were lawful upon the effective date of the provisions of this title or an amendment thereto but which are made unlawful by the adoption of the provisions of this title or an amendment thereto. It is the intent of this chapter to permit these preexisting lawful nonconformities to continue until they are removed, abandoned, substantially damaged, or sold, but not to encourage their perpetuation. Such nonconformities should be discontinued or brought into conformity with the current requirements of this title at the earliest possible time. As used in this chapter, “current” refers to the requirements applicable after the effective date of the applicable provisions of this title or an amendment thereto. [Ord. 01-05 § 8.]
18.80.020 Date of construction.
To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any structure which was lawfully constructed or lawfully under construction prior to the effective date of the applicable provisions of this title or amendment thereto and upon which actual building construction has been carried on diligently. [Ord. 01-05 § 8.]
18.80.030 Nonconforming lots of record.
In any district, any lot which is of record on the effective date of the applicable provisions of this title or amendment thereto may be the site upon which currently permitted principal and accessory uses and structures may be erected in compliance with the current provisions of this title. This provision applies even though such lot fails to meet the minimum lot size or dimensions applicable in the district, unless the nonconforming lot and an abutting lot are under common ownership or were under common ownership at any time following the effective date of the applicable provisions of this title or amendment thereto and the combination of the lots would make a conforming lot or a lot with less nonconformity. A nonconforming lot that abuts a conforming or nonconforming lot under common ownership at any time after the effective date of the applicable provision of this title or amendment thereto that caused the lot to be nonconforming may not be used unless the nonconformity has been cured or minimized by a replat of the lot. The nonconformity may be cured or minimized by a replat that combines the nonconforming lot with an abutting lot or with sufficient area from an abutting lot to cure or minimize the nonconformity. [Ord. 01-05 § 8.]
18.80.040 Nonconforming structures and uses of land.
A. A nonconforming use of land or a structure shall not be enlarged to occupy a greater or different area than occupied when the use became nonconforming nor may the use be changed to a different prohibited use or altered in a way which increases its nonconformity. An alteration increases the nonconformity if it increases the negative impact of the use on neighboring property. An increase in the intensity, volume or period of the use may cause an increase in the nonconformity.
B. Should a nonconforming structure be damaged by any means to an extent of more than seventy-five (75) percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this title.
C. A structure that is nonconforming because of an encroachment into a required setback or yard area or because it exceeds a floor area ratio, or similar restriction may not be expanded in any manner that increases the area, depth, height or volume of the part of the structure within the prohibited area or space or in any other manner that increases the nonconformity. The conforming part of a structure may be enlarged so long as the addition to the structure conforms to all the requirements of this title.
D. A nonconforming use that ceases for twelve (12) continuous months may not be continued or reestablished. [Ord. 01-05 § 8.]
18.80.050 Conversion of nonconformity.
A. Except as provided in subsection C of this section, the right to continue a nonconformity is not transferable.
B. Except as provided in subsection C of this section, a person acquiring an interest in any nonconforming lot, structure, or use shall either bring the nonconforming lot, structure or use into conformance within two (2) years from the date the interest was acquired or apply for and be granted a conditional use permit or a variance, if applicable, within two (2) years of the date the interest was acquired. The right to continue a nonconformity terminates two (2) years after the interest is acquired and may not thereafter be continued or reestablished unless and until converted to a permitted conditional use or a variance, if justified, granted by the planning commission pursuant to an application that was filed within two (2) years of the date of the acquisition.
C. The owner of any property with a structure that has been continuously nonconforming since at least December 31, 1990, because it encroaches into a required setback or yard area may submit an application to the land use administrator for a permit allowing the nonconforming structure to continue.
1. The applicant shall complete and submit the application form provided in BMC 18.60.020, requesting a permit allowing the nonconforming structure to continue. The application does not need to contain a complete site plan permit application under BMC 18.60.020(A)(8).
2. The notification and hearing provisions in BMC 18.60.030 shall be followed to consider the application.
3. The land use administrator and the planning commission shall review the application in accordance with BMC 18.60.040(A) and 18.60.050. Notwithstanding the standards of review set out in BMC 18.60.040(B) and 18.60.060, the land use administrator and the planning commission shall apply only the following standards of review in determining whether to grant the permit:
a. A complete application has been submitted in accordance with subsection (C)(1) of this section;
b. The notification and hearing provisions have been followed in accordance with subsection (C)(2) of this section;
c. The nonconformity of the structure is only because of an encroachment into a required setback or yard area, and for no other reason;
d. The nonconformity of the structure due to encroachment into a required setback or yard area has continuously existed since at least December 31, 1990; and
e. Granting the application will not be detrimental to the general public’s health, safety or welfare, or to the environment.
4. The permit shall remain in effect unless revoked in accordance with Chapter 18.84 BMC. The permit shall be recorded with the State of Alaska Recorder’s Office for the Bethel recording district.
5. Any appeal by the applicant or any property owner adversely impacted by the decision of the planning commission shall be in accordance with Chapter 18.75 BMC. [Ord. 04-08 § 2; Ord. 01-05 § 8.]
18.80.010 Intent.
Within the land use districts there may be nonconforming lots of record, structures, uses of land and uses of structures that were lawful upon the effective date of the provisions of this title or an amendment thereto but which are made unlawful by the adoption of the provisions of this title or an amendment thereto. It is the intent of this chapter to permit these preexisting lawful nonconformities to continue until they are removed, abandoned, substantially damaged, or sold, but not to encourage their perpetuation. Such nonconformities should be discontinued or brought into conformity with the current requirements of this title at the earliest possible time. As used in this chapter, “current” refers to the requirements applicable after the effective date of the applicable provisions of this title or an amendment thereto. [Ord. 01-05 § 8.]
18.80.020 Date of construction.
To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any structure which was lawfully constructed or lawfully under construction prior to the effective date of the applicable provisions of this title or amendment thereto and upon which actual building construction has been carried on diligently. [Ord. 01-05 § 8.]
18.80.030 Nonconforming lots of record.
In any district, any lot which is of record on the effective date of the applicable provisions of this title or amendment thereto may be the site upon which currently permitted principal and accessory uses and structures may be erected in compliance with the current provisions of this title. This provision applies even though such lot fails to meet the minimum lot size or dimensions applicable in the district, unless the nonconforming lot and an abutting lot are under common ownership or were under common ownership at any time following the effective date of the applicable provisions of this title or amendment thereto and the combination of the lots would make a conforming lot or a lot with less nonconformity. A nonconforming lot that abuts a conforming or nonconforming lot under common ownership at any time after the effective date of the applicable provision of this title or amendment thereto that caused the lot to be nonconforming may not be used unless the nonconformity has been cured or minimized by a replat of the lot. The nonconformity may be cured or minimized by a replat that combines the nonconforming lot with an abutting lot or with sufficient area from an abutting lot to cure or minimize the nonconformity. [Ord. 01-05 § 8.]
18.80.040 Nonconforming structures and uses of land.
A. A nonconforming use of land or a structure shall not be enlarged to occupy a greater or different area than occupied when the use became nonconforming nor may the use be changed to a different prohibited use or altered in a way which increases its nonconformity. An alteration increases the nonconformity if it increases the negative impact of the use on neighboring property. An increase in the intensity, volume or period of the use may cause an increase in the nonconformity.
B. Should a nonconforming structure be damaged by any means to an extent of more than seventy-five (75) percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this title.
C. A structure that is nonconforming because of an encroachment into a required setback or yard area or because it exceeds a floor area ratio, or similar restriction may not be expanded in any manner that increases the area, depth, height or volume of the part of the structure within the prohibited area or space or in any other manner that increases the nonconformity. The conforming part of a structure may be enlarged so long as the addition to the structure conforms to all the requirements of this title.
D. A nonconforming use that ceases for twelve (12) continuous months may not be continued or reestablished. [Ord. 01-05 § 8.]
18.80.050 Conversion of nonconformity.
A. Except as provided in subsection C of this section, the right to continue a nonconformity is not transferable.
B. Except as provided in subsection C of this section, a person acquiring an interest in any nonconforming lot, structure, or use shall either bring the nonconforming lot, structure or use into conformance within two (2) years from the date the interest was acquired or apply for and be granted a conditional use permit or a variance, if applicable, within two (2) years of the date the interest was acquired. The right to continue a nonconformity terminates two (2) years after the interest is acquired and may not thereafter be continued or reestablished unless and until converted to a permitted conditional use or a variance, if justified, granted by the planning commission pursuant to an application that was filed within two (2) years of the date of the acquisition.
C. The owner of any property with a structure that has been continuously nonconforming since at least December 31, 1990, because it encroaches into a required setback or yard area may submit an application to the land use administrator for a permit allowing the nonconforming structure to continue.
1. The applicant shall complete and submit the application form provided in BMC 18.60.020, requesting a permit allowing the nonconforming structure to continue. The application does not need to contain a complete site plan permit application under BMC 18.60.020(A)(8).
2. The notification and hearing provisions in BMC 18.60.030 shall be followed to consider the application.
3. The land use administrator and the planning commission shall review the application in accordance with BMC 18.60.040(A) and 18.60.050. Notwithstanding the standards of review set out in BMC 18.60.040(B) and 18.60.060, the land use administrator and the planning commission shall apply only the following standards of review in determining whether to grant the permit:
a. A complete application has been submitted in accordance with subsection (C)(1) of this section;
b. The notification and hearing provisions have been followed in accordance with subsection (C)(2) of this section;
c. The nonconformity of the structure is only because of an encroachment into a required setback or yard area, and for no other reason;
d. The nonconformity of the structure due to encroachment into a required setback or yard area has continuously existed since at least December 31, 1990; and
e. Granting the application will not be detrimental to the general public’s health, safety or welfare, or to the environment.
4. The permit shall remain in effect unless revoked in accordance with Chapter 18.84 BMC. The permit shall be recorded with the State of Alaska Recorder’s Office for the Bethel recording district.
5. Any appeal by the applicant or any property owner adversely impacted by the decision of the planning commission shall be in accordance with Chapter 18.75 BMC. [Ord. 04-08 § 2; Ord. 01-05 § 8.]