Chapter 9.84
NONCONFORMING USES, STRUCTURES, AND PARCELS
Sections:
9.84.030 Restrictions on nonconforming uses.
9.84.040 Restrictions on nonconforming structures.
9.84.050 Loss of nonconforming status.
9.84.060 Nonconforming parcels.
9.84.070 Conditional use permits.
9.84.080 Building permits or certificates of occupancy prohibited.
9.84.090 Removal of illegal nonconforming uses and structures.
9.84.010 Purpose of chapter.
A. The purpose of this chapter is to establish provisions for the orderly termination of nonconforming uses, structures, and parcels in order to promote the public health, safety, and general welfare, and to bring these uses, structures, and parcels into conformity with goals, policies, and actions of the General Plan.
B. Within the zoning districts established by this Development Code, there exist uses, structures, and parcels that were lawful before the adoption or amendment of this Development Code, but that would be prohibited, regulated, or restricted differently under the terms of this Development Code or future amendments.
C. This chapter is intended to prevent the expansion of nonconforming uses, structures, and parcels to establish the criteria under which they may be continued, and to provide for the correction or removal of these nonconformities in an equitable and timely manner.
D. It is hereby declared that nonconforming uses, structures, and parcels within the City are detrimental to both the orderly and creative development and the general welfare of citizens and property. It is further declared that nonconforming uses, structures, and parcels shall be eliminated as rapidly as possible without infringing upon the constitutional rights of property owners. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.020 Definitions.
The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this chapter, except where the context clearly indicates a different meaning.
Nonconforming parcels. A parcel of record that was legally created before the adoption of this Development Code and which does not comply with the access, area, or dimensional requirements of this Development Code for the zoning district in which it is located.
Nonconforming structures. A structure that was legally constructed before the adoption of this Development Code and which does not conform to current provisions/standards (e.g., open space, distance between structures, etc.) prescribed for the zoning district in which the structure is located.
Nonconforming uses. A use of a structure (either conforming or nonconforming) or land that was legally established and maintained before the adoption of this Development Code and which does not conform to the current provisions governing allowable land uses for the zoning district in which the use is located.
Nonconformity upon annexation. A use, structure, or parcel that legally existed in the unincorporated territory and after annexation does not comply with the provisions of this Development Code. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.030 Restrictions on nonconforming uses.
The continuance of a nonconforming use is subject to the following:
A. No changes. A nonconforming use shall not change nor shall the intensity of the use increase;
B. Termination of nonconforming use. If a nonconforming use is terminated or ceases for a continuous period of at least ninety (90) days, it shall lose its nonconforming status, and the continued use of the property shall be required to conform to the provisions of this Development Code;
C. Development restrictions. Development of any property that has a nonconforming use may be allowed only under the following circumstances:
1. The proposed development is in compliance with all applicable provisions of this Development Code, and either:
a. The area and intensity of the nonconforming use remains unchanged; or
b. The area and intensity of the nonconforming use is reduced as part of the development proposal;
D. No resumption of nonconforming use. If a nonconforming use is converted to a conforming use, a nonconforming use may not be resumed; and
E. No change or expansion of use. No nonconforming use may be replaced by another nonconforming use, nor may any nonconforming use be expanded. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.040 Restrictions on nonconforming structures.
The continuance of a nonconforming structure is subject to the following:
A. Involuntarily damaged.
1. A nonconforming structure which is involuntarily damaged to an extent of fifty percent (50%) or more of its replacement cost immediately before the damage may be restored only if it is made to conform to all applicable provisions of this Development Code.
2. The replacement cost shall be determined by the Building Official, whose decision may be appealed to the Council.
B. Development of property with nonconforming structure. Development of any property that has a nonconforming structure may be allowed under the following circumstances:
1. The proposed development is in compliance with all provisions of this Development Code, and either:
a. The dimension of the nonconforming condition remains unchanged; or
b. The dimension of the nonconforming condition is reduced as part of the development proposal.
C. Discontinuance.
1. If the use of a nonconforming structure is discontinued for a continuous period of at least ninety (90) days, the structure shall lose its nonconforming status, and shall be removed or altered to conform to the applicable provisions of this Development Code.
2. The use of a nonconforming structure shall be considered discontinued in compliance with Section 9.84.050(A) (Termination by discontinuance).
D. Residential structure in need of repair. A nonconforming residential structure within a commercial or industrial zoning district which is ordered to be repaired by the City Building Official shall do so in compliance with the minimum requirements of the California Building Code. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.050 Loss of nonconforming status.
A. Termination by discontinuance.
1. Termination of rights. All rights to a legal nonconforming status shall terminate, regardless of the owner’s intention(s), if the nonconforming use of land or a nonconforming use of a conforming structure is discontinued for continuous period of at least ninety (90) days.
2. Abandonment. The determination of abandonment (discontinuance) shall be supported by evidence, satisfactory to the Director (e.g., the actual removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, the turning-off of the previously connected utilities, or where there are no business receipts/records available to provide evidence that the use is in continual operation).
3. Loss of legal nonconforming status. Without further action by the City, further use of the structure or parcel shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this Development Code.
B. Termination by destruction.
1. Involuntarily damaged.
a. If a nonconforming structure, or a conforming structure used for a nonconforming use, is involuntarily damaged, destroyed, or demolished due to a catastrophic event (e.g., explosion, fire, or other casualty, or by act of God, or by act of war), the right to continue occupancy of the nonconforming structure, or to continue the nonconforming use, shall cease.
b. The only exception to this provision shall be for multifamily dwelling units involuntarily damaged, destroyed, or demolished in compliance with State law (Government Code Section 65852.25).
2. Costs.
a. The structure may be repaired or rebuilt and reoccupied only if the cost of repairing or replacing the damaged portion of the structure does not exceed fifty percent (50%) of the replacement cost of the structure, immediately before the damage or destruction.
b. The replacement cost shall be determined by the Building Official, whose decision may be appealed to the Council.
3. Timely restoration. The restoration (reconstruction, repair, or replacement) may only occur if a building permit for the restoration is obtained within twelve (12) months of the date of damage or destruction, and is diligently pursued to completion in compliance with this Development Code and the City’s adopted California Building Code. Otherwise, all rights to restore, in compliance with this section, are terminated.
C. Termination by operation of law.
1. Amortization schedule.
a. Length of amortization. Commencing with the service of notice described in subsection (C)(2) of this section (Notice), all nonconformities (uses/structures), except multifamily residential structures in compliance with subsection (B)(1)(b) of this section, shall be discontinued or brought into conformity with this Development Code. The length of the amortization period shall be as identified in Table 6-1 (Amortization Schedule).
|
DESCRIPTION OF NONCONFORMITY |
LENGTH OF AMORTIZATION (1) |
|---|---|
|
Where the property is unimproved. |
One year |
|
Where the property is unimproved except for structures of a type for which the City Building Code does not require a building permit. |
Two years |
|
Where the property is unimproved except for structures which contain less than 100 square feet of gross floor area. |
Three years |
|
The nonconforming use of a conforming structure. |
Five years (2) |
|
Signs. |
See 9.34.150(B) |
|
A nonconforming use conducted in a structure designed to serve a use allowed in the zoning district. |
Five years |
|
Type I and Type II structures (fire resistive). (3) |
20 years |
|
Type III (heavy timber construction and ordinary masonry construction) and Type IV (light incombustible frame and wood frame construction). (3) |
30 years |
|
Type V structures (light incombustible frame and wood frame construction). (3) |
20 years |
Notes:
(1) The length of amortization shall be measured from the effective date, or operative date where later, of the ordinance or amendment establishing the nonconformity.
(2) The length of amortization shall be five (5) years from the date the use first becomes nonconforming.
(3) Type of construction, as defined in the California Building Code.
b. Residential uses. The nonconforming residential use of a conforming structure may exceed the five (5) year amortization schedule, identified in Table 6-1, when approved by resolution of the Council in compliance with the following:
(1) A letter and filing fee requesting the continuation shall be submitted by the property owner which shall include the following information:
(a) Location and address of the affected residence;
(b) The zoning district in which the residence is located; and
(c) Names of individuals residing within the residence.
(2) The request shall be accompanied by an evaluation by the Director indicating any potential area impacts caused by the continued use of this residence and a report from the Building Inspection Division verifying that the structure is safe and habitable.
(3) Based on this information, the Council may grant an extension of up to five (5) additional years for continued nonconforming residential uses.
c. Conformance with abatement standards. Owners of property which are in receipt of an official City notice regarding the property’s nonconformity before the adoption of this Development Code shall conform with the standards for abatement in effect at the time of original notice.
d. Failure to comply. Any use which does not comply with this subsection shall be deemed a public nuisance and shall be abated accordingly, unless an exception/extension is granted by the Commission.
e. Future uses and structures shall comply. When a nonconforming structure is removed from the site at or before the end of the amortization period, every future use and structure shall be in conformity with the applicable provisions of this chapter.
f. Necessary repairs. Repairs necessary to maintain a nonconforming structure shall not be construed as lengthening the amortization period identified in Table 6-1 (Amortization Schedule).
2. Notice.
a. Upon determination that the provisions of this subsection apply to a given parcel of land, the Director shall send a notice by certified mail, return receipt requested, to the owner as shown on the current tax assessor’s rolls, shall cause the property to be posted with a similar notice, and shall publish the notice at least once in a newspaper of general circulation.
b. The notice provided for in this subsection shall state the following:
(1) That the property in question is nonconforming;
(2) The date of abatement established in subsection (C)(1) of this section (Amortization schedule); and
(3) That the date of abatement may be appealed to the Commission within thirty (30) days of the date indicated on the notice, in compliance with Chapter 90 of this title (Appeals).
c. The City has no legal obligation to notify subsequent owners of the affected parcels of land.
3. Appeal. The owner of any parcel upon which a nonconforming structure or use is being maintained may appeal the length and/or the classification of the amortization period described in the notice provided in compliance with subsection (C)(2) of this section (Notice) by submitting an appeal, on a form provided by the Director and accompanied by any required fee in compliance with the City’s Fee Schedule, within thirty (30) days of the date indicated on the notice, in compliance with Chapter 90 of this title (Appeals).
4. Hearing.
a. Within sixty (60) days after receipt of an appeal, the Commission shall hold a public hearing to determine whether the nonconformity should be abated as indicated in the notice, or whether a time extension should be granted as identified in subsection (C)(8) of this section (Extension of time);
b. Notice of the hearing shall be provided in the same manner as the notice of abatement. In addition, notice shall be provided by mail to the owners of abutting parcels;
c. The Commission shall receive written and oral testimony at the hearing relating to the term of abatement. During the hearing, the owner shall be allowed to call witnesses and be represented by counsel;
d. At the close of the hearing, the Commission shall determine whether the nonconformity should be abated, and whether the owner of the parcel can amortize the investment in the term for abatement provided in subsection (C)(1) of this section (Amortization schedule), and if not, what term for abatement should be provided. The burden of proof shall be upon the owner to demonstrate, by a preponderance of the evidence, that the owner is entitled to a longer abatement period than provided for in subsection (C)(1) of this section (Amortization schedule);
e. In the case of a nonconforming use, the Commission shall also determine whether the structure including the nonconforming use can economically be used in its present condition or can successfully be modified for a purpose allowed by the zoning district in which it is located; and
f. The Commission may require reasonable modifications or alterations to any nonconformity to improve the nonconformity’s appearance or compliance with this Development Code, Municipal Code, or State law, except that any modification or alteration which would extend the useful life of the nonconformity is expressly prohibited.
5. Decision and order.
a. The decision of the Commission and the findings in support thereof shall be in the form of a written order and shall be served upon the property owner personally or by certified mail, return receipt requested, within ten (10) days after the decision is rendered.
b. The order shall be binding upon the owner, and the owner’s successors-in-interest, heirs, and assignees.
6. Right of further appeal.
a. Any interested person may appeal the decision of the Commission to the Council within fifteen (15) days of service of the order upon the owner. The appeal hearing shall be noticed in the same manner as the original hearing before the Commission;
b. The appeal shall be accompanied by any documents, information, and fee the Director deems necessary to adequately explain and to provide proper notification for the appeal. The appeal shall outline specifically and in detail the grounds for the appeal. The Council may refuse to consider issues not raised in the written appeal of the Commission’s decision;
c. When an appeal has been accepted, the Director shall forward to the Council all documents and information on file pertinent to the appeal, together with the minutes or official action of the Commission, and a report on the basis of the decision and the appropriateness of the appeal;
d. The Council shall consider the appeal at a public hearing, including all information and evidence submitted with the original application, and any additional information and evidence the appellant may submit which the Council finds to be pertinent, in compliance with Chapter 90 of this title (Appeals); and
e. The action of the Council shall be to sustain, disapprove, conditionally sustain, or refer the appeal back to the Commission with direction(s), all in compliance with the same requirements and procedures that were applicable to the Commission.
7. Recordation of order. At the conclusion of all hearings, notice of the decision and order of the Commission, or the Council in the case of an appeal, shall be recorded in the office of the County Recorder.
8. Extension of time.
a. The Commission may grant an extension of the time for abatement of a nonconformity where it finds that an unreasonable hardship would otherwise be imposed on the property owner; and
b. The Commission shall base its decision as to the length of the allowed amortization period on any competent evidence presented, including the following:
(1) The nature of the use;
(2) The amount of the owner’s investment in improvements;
(3) The convertibility of improvements to allowed uses;
(4) The character of the neighborhood;
(5) The detriment, if any, caused to the neighborhood by continuance of the nonconforming use;
(6) The amount of time needed to amortize the investment; and
(7) The depreciation schedule attached to the owner’s latest Federal income tax return. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.060 Nonconforming parcels.
A. Legal building site. A nonconforming parcel of record that does not comply with the access, area, or dimensional requirements of this Development Code for the zoning district in which it is located shall be considered a legal building site if it meets at least one of the criteria identified in subsection C of this section (Responsibility of applicant).
B. New development shall conform. New development on nonconforming parcels shall conform to the current development standards established by this Development Code and other applicable City regulations.
C. Responsibility of applicant. It shall be the responsibility of the applicant to produce sufficient evidence to establish the applicability of one or more of the following criteria:
1. Approved subdivision. The parcel was created through a subdivision approved by the City;
2. Individual parcel legally created by deed. The parcel is under one ownership of record, and was legally created by a recorded deed before the effective date of the amendment that made the parcel nonconforming;
3. Variance or lot line adjustment. The parcel was approved through the variance procedure, in compliance with Chapter 68 of this title or resulting from a lot line adjustment; and
4. Partial government acquisition. The parcel was created in compliance with the provisions of this Development Code, but was made nonconforming when a portion of the parcel was acquired by a governmental entity so that the parcel size or dimensions are decreased beyond that required by the applicable zoning district.
D. Allowable residential uses and development standards.
1. R-1 District. A nonconforming parcel of record under separate ownership at the time it became nonconforming may be used for or occupied by any use allowed in the R-1 District.
a. If, on September 15, 1971, two (2) or more nonconforming parcels, each with a separate and distinct number or other designation on an official map or approved record of survey recorded in the office of the County Recorder, or delineated on an approved lot split map on file in the Department, and abutting at least one public street or right-of-way, are held in separate ownership:
(1) Each parcel may be used as a separate parcel if it contains at least five thousand (5,000) square feet of parcel area, with a minimum width of fifty feet (50') and a minimum depth of one hundred feet (100');
(2) If three (3) or more nonconforming parcels are held in separate ownership, they may be divided into parcels each of which contains at least five thousand (5,000) square feet of parcel area, with a minimum width of fifty feet (50') and a minimum depth of one hundred feet (100'); and
(3) Each parcel may be developed if each is first determined to be suitable for R-1 type residential construction by the Director.
b. If the division requires a change of any existing lot line shown on an official map or record of survey recorded in the office of the County Recorder or on an approved lot split map on file in the Department, a lot split map shall be filed with the Department in compliance with the requirements of this chapter.
2. R-2 District. A nonconforming parcel of record under separate ownership at the time it became nonconforming may be used for, or occupied by, any use allowed in the R-2 and R-2-A Districts, subject to the following limitations:
a. Where a parcel has less than five thousand (5,000) square feet of parcel area, the parcel shall not be used for more than one dwelling unit; and
b. Where the parcel has five thousand (5,000) square feet or more of parcel area, but less than seven thousand two hundred (7,200) square feet of parcel area, the parcel shall not be used for more than two (2) dwelling units.
3. R-3 District. A nonconforming parcel of record under separate ownership at the time it became nonconforming may be used for, or occupied by, any use allowed in the R-3 and R-3-A Districts, subject to the following limitations:
a. Where the parcel has less than five thousand (5,000) square feet of parcel area, the parcel shall not be used for more than one dwelling unit;
b. Where the parcel has five thousand (5,000) square feet or more of parcel area, but less than seven thousand two hundred (7,200) square feet of parcel area, the parcel shall not be used for more than two (2) dwelling units; and
c. Where the parcel has seven thousand two hundred (7,200) square feet or more of parcel area, but less than eight thousand four hundred (8,400) square feet of parcel area, the parcel shall not be used for more than three (3) dwelling units.
4. R-4 District. A nonconforming parcel of record under separate ownership at the time it became nonconforming may be used for, or occupied by, any use allowed in the R-4 District, subject to the following limitations:
a. Where the parcel has less than three thousand (3,000) square feet of parcel area, the parcel shall not be used for more than one dwelling unit;
b. Where the parcel has three thousand (3,000) square feet or more of parcel area, but less than four thousand (4,000) square feet of parcel area, the parcel shall not be used for more than two (2) dwelling units;
c. Where the parcel has four thousand (4,000) square feet or more of parcel area, but less than five thousand (5,000) square feet of parcel area, the parcel shall not be used for more than three (3) dwelling units;
d. Where the parcel has five thousand (5,000) square feet or more of parcel area, but less than six thousand (6,000) square feet of parcel area, the parcel shall not be used for more than four (4) dwelling units;
e. Where the parcel has six thousand (6,000) square feet or more of parcel area, but less than seven thousand (7,000) square feet of parcel area, the parcel shall not be used for more than five (5) dwelling units;
f. Where the parcel has seven thousand (7,000) square feet or more of parcel area, but less than eight thousand (8,000) square feet of parcel area, the parcel shall not be used for more than six (6) dwelling units;
g. Where the parcel has eight thousand (8,000) square feet or more of parcel area, but less than nine thousand (9,000) square feet of parcel area, the parcel shall not be used for more than seven (7) dwelling units;
h. Where the parcel has nine thousand (9,000) square feet or more of parcel area, but less than nine thousand five hundred (9,500) square feet of parcel area, the parcel shall not be used for more than eight (8) dwelling units; and
i. Where the parcel has nine thousand five hundred (9,500) square feet or more of parcel area, but less than ten thousand (10,000) square feet of parcel area, the parcel shall not be used for more than nine (9) dwelling units.
5. Nonconforming residential parcels with substandard widths and/or depths.
a. Legally created, nonconforming single-family residential parcels having either a substandard width or a substandard depth may utilize the front or side setback requirement of another single-family residential zoning district, with the exception of the R-1-MD and the R-1-PD Districts, where a lesser width or depth is allowed.
b. Where both width and depth are substandard, this provision shall apply to both the front and side setbacks. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.070 Conditional use permits.
None of the uses identified in this Development Code as “uses subject to a conditional use permit” which were lawfully in existence as of the effective date of these regulations shall be deemed nonconforming solely by reason of the application of the conditional use permit procedural requirements, in compliance with Chapter 64 of this title; provided, that:
A. Use allowed with conditional use permit approval.
1. A use of a structure or land for which a conditional use permit is required, or for which a conditional use permit is granted, which use is existing at the time of adoption of this Development Code, in any zoning district in which the use is allowed subject to the granting of a conditional use permit, shall without further City action be considered a conforming use.
2. A land use that was legally established without a conditional use permit, but would be required by current Development Code provisions to have conditional use permit approval, shall not be altered in any way unless a conditional use permit is first obtained before the end of the amortization period established by Table 6-1 (Amortization Schedule), Section 9.84.050.
B. Use no longer allowed with conditional use permit approval.
1. A land use that was established with conditional use permit approval, but is not allowed with conditional use permit approval by the current Development Code, may continue only in compliance with the conditions and regulations of the original conditional use permit.
2. If the original conditional use permit specified a termination date, then the use shall terminate in compliance with the requirements of the conditional use permit or the amortization period established by Table 6-1 (Amortization Schedule), whichever first occurs. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.080 Building permits or certificates of occupancy prohibited.
A. No further building permits. When any nonconforming use, structure, or parcel is no longer allowed in compliance with the provisions of this chapter, no building permit shall thereafter be issued for further alteration, continuance, or expansion.
B. Permits issued in error. Any permit issued in error shall not be construed as allowing the continuation of the nonconforming use, structure, or parcel. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.090 Removal of illegal nonconforming uses and structures.
A. Illegal nonconformities. Nothing contained in this chapter shall be construed or implied so as to allow for the continuation of illegal nonconforming uses and structures.
B. Shall be removed immediately. The uses and structures shall be removed immediately subject to the provisions of Chapter 92 of this title (Enforcement) and State law. (§ 2, Ord. 14-13, eff. October 8, 2014)
9.84.100 Nuisance abatement.
In the event that a legal nonconforming use, structure, or parcel is found to constitute a public nuisance, appropriate action shall be taken by the City, in compliance with Chapter 28 of Title 5. (§ 2, Ord. 14-13, eff. October 8, 2014)