§ 21.18.090. Prior existing uses and structures.

A.

Intent. There are uses which were conducted, and structures which were under construction, or exist and were in use before the enactment of this ordinance which would be prohibited or restricted under the terms of this ordinance or future amendments. It is the intent of this section to allow these prior existing uses or structures to continue but not be increased, expanded, or intensified. Any prior existing uses or structures must still comply with other applicable laws.

B.

The burden of proof is on the applicant to show that a prior existing use or structure existed, when the use or structure was established, and the size, location, and level of use.

C.

Structures. Structures which were under construction or in use before the effective date of any provision of this chapter, but that would be prohibited or restricted under the terms of this chapter, shall be allowed to continue, provided that a structure under construction must have been substantially completed by April 16, 1998 for the anadromous waters set forth in KPB 21.18 Appendix Kenai River District, May 16, 2002, for the anadromous waters set forth in KPB 21.18 Appendix Major Waters District, January 1, 2014 for the anadromous waters set forth in KPB 21.18 Appendix West District, and January 1, 2016 for the anadromous waters set forth in KPB 21.18 Appendix South District and North District.

1.

Upon application and approval of a prior-existing structure/use permit by planning department staff principal structures may be replaced, repaired or reconstructed within three years after damage or destruction. If a principal structure is not substantially damaged and only a portion of the structure has been damaged or destroyed, only that portion may be repaired or replaced. The height of an original principal structure and area encompassed by the original footprint cannot be increased, unless necessary to comply with the requirements of KPB 21.06. The structure must be similar in size and use to the structure being repaired or replaced. Repair, replacement, or reconstruction may only encompass the same square footage that the structure occupied prior to damage or destruction, and the structure must be more compliant with this chapter which shall be determined by application of mitigation measures set forth in KPB 21.18.091 to the maximum extent practicable. Staff will determine the mitigation measures to be used consistent with the following conditions:

a.

The structure will not increase significant erosion, sedimentation, damage to the habitat protection district, an increase in ground or surface water pollution, and damage to riparian wetlands and riparian ecosystems;

b.

Permitting repair, reconstruction, or replacement shall be consistent with the purposes of this chapter as set forth in KPB 21.18.020, the borough comprehensive plan, another applicable chapters of the borough code, and other applicable planning documents adopted by the borough;

c.

The reconstruction, replacement, or repair will not physically damage the adjoining property;

d.

Removal of materials or debris remaining from the damage or destruction; and

e.

Owner's compliance with other borough permits and ordinance requirements.

2.

The right to reconstruct in nonconformity with the chapter is forever lost if:

a.

the application for reconstruction or repair is not made within 24 months after the date of accidental damage or destruction or within 6 months prior to the owner's intentional damage or destruction or

b.

the application is approved but the structure is not substantially reconstructed within 36 months of the date of the approval of the application for reconstruction.

(i)

For reasonable and sufficient cause shown for the delay, the director of planning may authorize an extension not to exceed 12 months to complete reconstruction.

(ii)

To obtain an extension of time an applicant shall submit a written request for an extension to the planning department prior to the expiration of the 36 months reconstruction period. The applicant must show reasonable and sufficient cause for the extension.

3.

Nothing in this section prohibits reconstruction at any time in compliance with this chapter.

4.

The provisions applicable to principal prior existing structures set forth in KPB 21.18.090(C)(1), (2), (3) also apply to the replacement, repair or reconstruction of accessory structures within the habitat protection district. In addition to those provisions the following rules apply to accessory structures:

a.

Accessory structures may be replaced or reconstructed outside of the habitat protection district without a KPB 21.18 permit.

b.

The applicant must document the specific circumstances that would prevent the accessory structure from being located outside of the habitat protection district in order to be permitted to replace, or reconstruct the accessory structure within the habitat protection district.

5.

Any prior existing structure which has been declared a public nuisance, health or fire hazard pursuant to KPB 21.16.010 shall thereafter not be conducted, used or occupied except in conformity with the provisions of this chapter. The Planning Department may require removal of structures which have been declared a public nuisance, health or fire hazard pursuant to KPB 21.16.010.

D.

Uses. This chapter shall not prohibit or restrict uses which were legally conducted before the effective date of this section, provided that, after the effective date, such uses are conducted in the same location and are not enlarged to include a greater number of participants or to occupy a greater area of land. Any prior existing use which has ceased to be used, for forty eight consecutive months or more, shall be considered abandoned and thereafter not be conducted, used or occupied except in conformity with the provisions of this chapter. Upon application and approval of a prior existing structure/use permit by planning department staff a change to the prior existing use may be allowed. No change shall be granted unless the change reduces the noncompliance, by use of mitigation procedures set forth in KPB 21.18.091, to the maximum extent practicable. Staff will determine the mitigation measures to be used consistent with the following conditions:

1.

The use will not increase significant erosion, sedimentation, damage to the habitat protection district, an increase in ground or surface water pollution, and damage to riparian wetlands and riparian ecosystems;

2.

Permitting the use shall be consistent with the purposes of this chapter as set forth in KPB 21.18.020, the borough comprehensive plan, another applicable chapters of the borough code, and other applicable planning documents adopted by the borough;

3.

The use will not physically damage the adjoining property;

4.

Removal of materials or debris resulting from the prior-existing use; and

5.

Owner's compliance with other borough permits and ordinance requirements.

E.

Impervious materials placed in the habitat protection district which are not structures are not allowed as either prior existing uses or prior existing structures. The planning department may require removal of these materials.

F.

Planning department determinations regarding prior existing structures and prior existing uses may be appealed to the planning commission.

G.

Nothing in this chapter shall prevent any change of tenancy, ownership or management of any prior existing structure.

( Ord. No. 2013-18, § 15, 7-2-13 ; Ord. No. 2012-37, § 8, 10-9-12; Ord. No. 2011-09, § 1, 5-17-11; Ord. No. 96-06, § 1(part), 1996)