By LEAH WEATHERSBY

When Tawny Bates bought her home in Wallingford 16 years ago, it came with a small cottage in the backyard, which had been used as a residence and sometimes rental unit since 1948.

Bates continued renting out the cottage as a way to help offset her mortgage payments. It is currently occupied by her sister, a single mother with two children, who moved in last year. But when a neighbor called the City to complain about the noise the children in the cottage were making, Bates got the shock of her life.

The City's Department of Construction and Land Use informed Bates that her backyard cottage is illegal.

While the structure itself has a permit which was issued in 1946, Bates was told that the permit lists it as a garage, not a residence.

In land-use code parlance, Bates' backyard cottage is considered a "nonconforming structure." Bates was informed by DCLU that she must remove the cottage's kitchen and bathroom to comply with the law. Furthermore, she must evict her sister and give up rental income from the property.

Bates, who ironically works for the City as an energy management analyst with Seattle City Light, isn't the only one facing this problem.

According to Bill Mills, a land-use planner with DCLU, many property owners throughout the city could have a nonconforming structure on their lot without being aware of it.

Nonconforming structures range from backyard cottages, like Bates', to garages, porches, or any use of a building that does not conform to current land use standards. Buildings which can be proven to have existed before 1923, the year in which Seattle's first land use code was adopted, have been granted "amnesty." If the building is in an area that was annexed after 1923, the amnesty date is the date of annexation.

Usually, DCLU will discover a structure is illegal if someone calls to make a complaint about it or if the owner requests a permit for a project on the property. A DCLU inspector will research the permit history of the suspect structure.

If no permit is found for the building or the use, a notice will be issued telling the property owner to either make the structure legal (by getting a permit or perhaps altering the structure) or, if that isn't possible, to tear it down. Because tax assessors typically do not cross check their information with DCLU, people could end up paying property taxes on a building that DCLU may eventually tell them is illegal.

DCLU says it wants to change the land-use code to benefit both the City and property owners such as Bates. The department is recommending that the City Council change the land-use code to grant an amnesty for all nonconforming built before July 24, 1957, the date when a more modern zoning code was adopted. DCLU claims that establishing a new amnesty date and making rules regarding nonconformity more flexible would save the department as much as $125,000 per year.

DCLU's recommended changes would also allow these nonconforming structures to be torn down by the owners and completely rebuilt, with the same nonconforming aspects as before.

Currently, property owners in Seattle are allowed to rebuild nonconforming structures only in the event of a fire or other disaster beyond their control. Some property get around these rules by getting several permits and rebuilding one section of their structure at a time.

DCLU's proposal would make it easier for property owners to repair and maintain these buildings.

While Bates, and some community groups such as the Fremont Neighborhood Council are in favor of the change, other neighborhood groups, including the Laurelhurst Community Club, the Ravenna-Bryant Neighborhood Association, the Northeast District Council and the Seattle Community Council Federation oppose it.

Toby Thaler, president of the Fremont Neighborhood Council, said his group favors DCLU's proposed code change because it will allow older, nonconforming buildings to be renovated, thus helping to preserve the character of neighborhoods.

Kate Hemer of the Laurelhurst Community Club says her group opposed the proposed code change because it could thwart community attempts to make their neighborhoods conform to newer, more desirable land-use codes and neighborhood plans.

Laurelhurst Community Club President Jeannie Hale and Hemer, the club's land use committee chair, wrote a letter dated Sept. 28 to DCLU criticizing the City's current practice of allowing piecemeal rebuilds and believes that allowing people to intentionally tear down and structure and then rebuild it constitutes a special right. They also disagree that the new rules would save DCLU money, arguing that a more resent amnesty date would encourage more property owners to come forward and try to establish the existence and use of their nonconforming structures prior to 1957.

Bates considers herself lucky in the sense that she has been able to obtain documents showing that her cottage existed and was used as a residence prior to July 24, 1957.

According to DCLU, historical records such as phone directories, and tax and business records, which constitute proof of a building's status can be difficult to find and interpret.

Property owners on both sides of the issue will have to wait until this coming February for the City Council to make its final decision on DCLU's proposal.

In the meantime, Mills says DCLU will typically not take action against a nonconformity simply because a property owner comes in to ask whether or not a structure is illegal because it would discourage people from coming in to get information. Would-be home buyers who are considering purchasing a property with more than one residence should obtain a Certificate of Land Use and Local Assessment, proving that the use of the building is established, he said.

Comments and questions on DCLU's proposed changes to the land-use code relating to nonconformity may be addressed to Bill Mills at DCLU, 684-8738. Comments may also be sent to Jill Berkey in City Council member Judy Nicastro's office, 600 Fourth Avenue, 11th floor. Seattle, WA 98104.