The purpose of this chapter is to create processes and standards to review nonconforming situations.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

This chapter applies to the following nonconforming situations:

(1)

Nonconforming uses (49.30.230);

(2)

Nonconforming residential densities (49.30.240);

(3)

Nonconforming structures (49.30.250);

(4)

Nonconforming lots (49.30.260); and

(5)

Nonconforming parking (49.30.270).

(b)

A property with more than one nonconforming situation is governed by each type of nonconforming situation.

(c)

This chapter does not apply to nonconforming signage, which is addressed in chapter 49.45.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Continuation of nonconforming situations. Except as otherwise provided in this title, situations made nonconforming by this title may remain.

(b)

Change of nonconforming situation to comply with this title. Any nonconforming situation may be changed to comply with this title. Once a nonconforming situation becomes conforming, the nonconforming rights under this chapter are relinquished with respect to that nonconforming situation, and the nonconforming situation must not be re-established.

(c)

Ownership. Change in property ownership does not alter the legal status of any nonconforming situation.

(d)

Routine maintenance and repair. Nothing in this chapter prohibits normal maintenance or routine repairs, which includes, but is not limited to, roofing repair or replacement, window replacement, and other similar minor structural repairs.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Building official determination. The building official shall determine the extent and cause(s) of damage and/or destruction under this chapter, pursuant to CBJ Title 19.

(b)

Continuation of nonconforming rights. Except as provided in this section, the cost to replace a nonconforming structure or a structure containing a nonconforming use that is damaged accidentally less than or equal to 75 percent of the assessed building value, exclusive of foundation(s), maintains the nonconforming rights.

(c)

Loss of nonconforming rights. Except as provided in this section, a nonconforming structure or a structure containing a nonconforming use is deemed destroyed when damaged accidentally and the cost to replace the structure is more than 75 percent of the assessed building value, exclusive of foundation(s). A structure that is deemed destroyed loses all nonconforming rights.

(d)

Exceptions.

(1)

Residential use in non-industrial districts. In non-industrial districts, a nonconforming situation containing exclusively residential use that was damaged or destroyed accidentally, or by any means beyond the control of the owner or the authorized agent of the owner, may be reconstructed regardless of the cost of replacement of the structure subject to the following:

(A)

The nonconforming situation is or has been certified pursuant to section 49.30.310 prior to any work that requires a building permit;

(B)

Written notice of intent to reconstruct is provided to the department within 365 days of the date the damage or destruction occurred;

(C)

The total number of dwelling units established by the certification of nonconforming status is not increased;

(D)

A temporary certificate of occupancy for the structure has been obtained within three years of issuance of the building permit; and

(E)

Upon a written request demonstrating good cause, the director may approve one 18-month extension for the reconstruction or for obtaining the temporary certificate of occupancy.

(2)

Residential use in industrial districts. On property in industrial or waterfront industrial districts, if a structure containing a nonconforming residential use was damaged or destroyed accidentally, or by any means beyond the control of the owner or the authorized agent of the owner, the following applies:

(A)

Nonconforming residential use is maintained and the structure may be rebuilt within three years if all of the following are met:

(i)

Nonconforming residential use is or has been certified pursuant to the procedures set forth in section 49.30.310;

(ii)

The cost to replace the structure is less than 75 percent of the assessed building value, exclusive of foundation(s);

(iii)

Written notice of intent to reconstruct is provided to the department within 365 days of the date the accidental damage or destruction occurred as determined by the building official;

(iv)

The reconstruction complies with applicable zoning district dimensional, development, and design standards, including, but not limited to: setbacks, parking, and landscaping that apply to new development.

(B)

If a temporary certificate of occupancy for the structure has not been obtained within three years of issuance of a building permit, the nonconforming residential use rights are relinquished.

(C)

Upon a written request demonstrating good cause, the director may approve one 18-month extension for the reconstruction or for obtaining the temporary certificate of occupancy.

(e)

Reconstruction footprint. Reconstruction allowed pursuant to this section may be in the existing footprint except for encroachments into rights-of-way or adjacent property.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

The abandonment of a nonconforming situation relinquishes all nonconforming rights associated with that situation. The existence of an abandoned nonconforming situation becomes a noncompliant situation and subjects the property to enforcement actions consistent with this title.

(b)

A nonconforming situation is abandoned if any of the following events occur:

(1)

The owner indicates in writing that the nonconforming situation is being permanently discontinued;

(2)

The nonconforming situation is damaged, destroyed, removed or demolished intentionally by the owner or intentionally by an authorized agent of the owner;

(3)

The nonconforming structure is moved;

(4)

The owner takes action consistent with an intent to abandon the nonconforming situation;

(5)

The structure(s) associated with the nonconforming situation has been vacant for 365 consecutive days;

(6)

Except for a structure with a nonconforming residential density, the nonconforming use has ceased and not substantially resumed for 365 consecutive days; or

(7)

A structure with a nonconforming residential density has been unoccupied for 1095 consecutive days.

(c)

Determination of abandonment shall be made by the director and supported by written findings. An abandonment determination may be reconsidered within 20 days of the date of the determination. No appeal of an abandonment determination may be made unless reconsideration is first sought.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

A director's determination of abandonment under 49.30.220 may be reconsidered if information submitted establishes all of the following:

(1)

The owner has been maintaining the land and structure(s) in accordance with applicable building, fire, and other codes and regulations;

(2)

The owner has been maintaining or pursuing applicable permits and licenses; and

(3)

The owner has filed applicable tax documents.

(b)

Other factors that may be considered include whether:

(1)

The applicant has been engaged in activities that are consistent with or would affirmatively prove there was no intent to abandon, such as actively and continuously marketing the land, business, or structure for sale or lease; and

(2)

The applicant has applied for a nonconforming certificate in accordance with section 49.30.310.

(c)

The burden of proof for overcoming a determination of abandonment is on the applicant.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Expansion of nonconforming use. A nonconforming use within a structure may not be expanded to other structures or to other land beyond the original structure. A nonconforming use of land may not be increased or extended.

(b)

Modifications to nonconforming use. Modifications to a nonconforming use are permissible and do not constitute a change or expansion of the nonconforming use provided the modification does not impose a significant or new impact that is out of harmony with the neighborhood, as determined by the director.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Applicable zoning districts. This section applies only to nonconforming residential density situations on property located in zoning districts other than industrial and waterfront industrial.

(b)

Modification of existing dwelling units. A structure containing nonconforming residential density may be modified subject to the following:

(1)

The nonconforming residential density is certified pursuant to the procedures provided in section 49.30.310 prior to commencing any modification that requires a building permit; and

(2)

Applicable dimensional standards and parking requirements are met unless otherwise provided in this title.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Except as otherwise provided in this chapter, a nonconforming structure may be enlarged, altered, or reconstructed as long as the enlargement, alteration, or reconstruction does not increase or aggravate the nonconforming situation and complies with other dimensional and parking standards of this title. (See Figure 1.)

Figure 1 (plan view)

(b)

Certification of nonconforming status pursuant to section 49.30.310 must be obtained prior to any enlargement, alteration, or reconstruction of a nonconforming structure.

(c)

Renovations within an existing structure shall not be considered an enlargement, alteration, or reconstruction for purposes of this section.

(d)

Projections allowed in yard setbacks under CBJ 49.25.430(4) shall not be considered to increase or aggravate a nonconforming situation.

(e)

This subsection shall not be interpreted to allow the expansion of a nonconforming use or nonconforming residential density, which are governed by sections 49.30.230 and 49.30.240.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

A property owner of a nonconforming lot has the same development rights as a property owner of a conforming lot, provided the owner first obtains nonconforming certification pursuant to section 49.30.310.

(b)

An undeveloped nonconforming lot that adjoins one or more lots under common ownership and each lot has frontage on a right-of-way, the undeveloped lot(s) may each be developed with a single-family dwelling or as otherwise provided in this title.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

A nonconforming parking situation may be reconstructed if:

(1)

The number of parking spaces does not decrease;

(2)

The type of parking spaces remain the same or become more conforming; and

(3)

The government entity that controls the right-of-way determines the reconstruction does not endanger public health, safety, or welfare.

(b)

When a nonconforming parking situation is changed to become more compliant with [chapter] 49.40, the provided off-street parking may not be removed. This section does not preclude the applicant's right to obtain a parking waiver or variance in accordance with this title.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)

(a)

Purpose. The purpose of nonconforming certification review is to determine whether nonconforming status under this chapter exists, and whether nonconforming certification is justified.

(b)

When to seek certification of nonconforming status. An owner may apply for a nonconforming certificate at any time, but an owner must apply for a nonconforming certificate prior to seeking nonconforming situation review.

(c)

Nonconforming certification review prior to issuance of permit. Prior to the issuance of a permit for development related to a nonconforming situation, a nonconforming certification must be obtained pursuant to this section.

(d)

Certification. Upon finding the applicant's information establishes all of the following, the director must issue the nonconforming certificate:

(1)

When there is a nonconforming situation; and

(2)

The nonconforming situation has not been abandoned.

(e)

Application. An application for nonconforming certification shall be submitted to the department on forms approved by the director with relevant information establishing the factors set out in subsection (d). The application should identify and include each nonconforming situation known to exist on the subject property.

(f)

Relevant information. The following information may be relevant for the director's review:

(1)

Building, land use, or development permits;

(2)

Zoning codes or maps;

(3)

Recorded plats;

(4)

Dated photographs;

(5)

Insurance records and maps that identify use or development, e.g. Sanborn Maps;

(6)

Utility bills;

(7)

Property tax records;

(8)

Business licenses;

(9)

Telephone listings;

(10)

Advertisements in dated publications; or

(11)

Leases.

(g)

Decision. The director shall review the applicant's information and issue a written decision that includes separate certification findings on each nonconforming situation included in the application.

(h)

Burden of proof. The burden of proof is on the applicant.

(i)

Fee. An application for a nonconforming certification shall include a fee as established by chapter 49.85.

(j)

Failure of a situation to qualify for nonconforming certification. If a situation does not qualify for or is denied nonconforming certification, it is noncompliant and the property is subject to enforcement actions consistent with this title.

(Serial No. 2019-37, § 5, 3-16-2020, eff. 4-16-2020)