Chapter 18.530
NONCONFORMING USES, STRUCTURES, AND PARCELS
Sections:
18.530.030 Nonconforming uses and nonconforming structures.
18.530.040 Loss of nonconforming status.
18.530.050 Nonconforming parcels.
18.530.070 Nuisance abatement and enforcement.
18.530.010 Purpose.
A. This chapter provides regulations for nonconforming uses, structures, and parcels that were lawful before the adoption or amendment of the development code, but which would be prohibited, regulated, or restricted differently under the terms of this title or future amendments.
B. It is the intent of the city to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to continue to exist under the conditions identified in this chapter.
C. This chapter does not regulate nonconforming signs which are subject to the requirements in CDC 18.180.150 (Nonconforming and abandoned signs), or nonconforming parking, subject to the requirements in CDC 18.160.040(F) (Nonconforming Parking).
D. Any use or structure which was established or constructed in violation of the applicable zoning regulations in effect at the time of establishment or construction and which does not conform to the applicable regulations of this development code is not a nonconforming use or structure, and the use or structure is in violation of this development code. [Ord. 12-4. DC 2012 § 122-1316].
18.530.020 Applicability.
Nonconforming uses, structures, and parcels may be continued, transferred, or sold only in compliance with the provisions of this chapter.
A. Nonconforming Uses. A use of land and/or a structure that was legally established and has been maintained prior to the adoption or amendment of this development code, but the use is not allowed in the applicable zoning district or the use has not been granted a permit(s) required by the applicable zoning district, or the use is not operated in conformance with applicable performance standards in the development code.
B. Nonconforming Structures. A structure that was legally constructed prior to the adoption or amendment of this development code or the city’s adopted design guidelines, but does not conform to the development standards in Division II of this title (Zoning Districts – Uses and Standards) with the exception of minimum floor area ratio (FAR).
C. Nonconforming Parcels/Lots. A parcel that was legally created prior to the adoption or amendment of this development code, but does not comply with the current requirements for lot area, width, depth, or other applicable requirements of this development code. [Ord. 12-4. DC 2012 § 122-1317].
18.530.030 Nonconforming uses and nonconforming structures.
A nonconforming use and/or a nonconforming use of a structure may continue to exist, including transfers of ownership; provided, that their continuation shall comply with the requirements of this section.
A. Nonconforming Uses. A nonconforming use may be continued or replaced; provided, that:
1. The use shall not be enlarged or expanded in size or capacity, or extended to occupy a greater area of land or building floor area than it legally occupied before it became nonconforming.
2. The use shall not be intensified so that the hours of operation are extended, the number of employees are increased, the occupancy capacity is increased, the volume of traffic or noise generated by the use is increased, or a greater amount of parking is required.
3. The use may be replaced with another nonconforming use of a similar classification or a less intensive use in compliance with subsection (A)(2) of this section.
4. Nonconforming uses within a multi-tenant commercial or industrial center or complex may be established or replaced by another similar nonconforming use when the planning division finds:
a. That the new nonconforming use is, as per Division II of this title, land use classification tables, a similar classification to or less intensive than the use previously allowed in the center or complex;
b. That the nonconforming use will not adversely affect or be materially detrimental to adjoining properties; and
c. That the use of the entire center or complex has not been vacant or discontinued for a period of one year or more.
5. An existing use that is authorized by a previously approved use permit, but is not allowed by the development code in its current location, may continue to exist in compliance with the original permit approval and shall be deemed nonconforming.
6. A use lawfully existing without a minor use permit or use permit that would be required by the development code to have such a permit approval in compliance with Division II of this title shall be allowed to operate to the extent that it previously operated (e.g., maintains the same site area boundaries, hours of operation, etc.) and shall be deemed nonconforming.
B. Nonconforming Structures. A nonconforming structure may be expanded, enlarged, repaired and maintained as follows:
1. Expansion and Enlargement. Nonconforming structures may be enlarged or extended to occupy a greater area of land or building floor area; provided, that any expansion or enlargement complies with all applicable requirements of this development code and does not increase the degree of nonconformity.
2. Repair, Maintenance and Additional Improvements. A nonconforming single-family dwelling or duplex may be maintained and repaired at the discretion of the owner. Nonconforming multifamily and nonresidential structures may be maintained, repaired and improved as follows:
a. Repairs, Maintenance and Additional Improvements up to 50 Percent of the Value of the Structure.
i. No structural alterations are allowed except as set forth in subsection (B)(3) of this section, Seismic Retrofitting, Building and Fire Code Compliance.
ii. The cost of the work done during any 12-month period shall not exceed 50 percent of the value of the structure as determined by the building official in compliance with the building code.
b. Repairs, Maintenance and Additional Improvements Greater Than 50 Percent of the Value of the Structure. Repairs, maintenance and additional improvements performed within a 12-month period, having a total cost greater than 50 percent of the value of the structure, may be authorized through a minor use permit approval; provided, that the review authority finds that the work will be a benefit to the city and the surrounding area.
3. Seismic Retrofitting, Building and Fire Code Compliance. Repairs, alterations or reconstruction to reinforce unreinforced masonry structures necessary to comply with building code and fire code requirements shall be allowed; provided, that the work is exclusively to comply with applicable earthquake safety standards and the building code and fire code.
4. For purposes of this subsection, the cost of any required foundation work shall not be counted within the 50 percent limitation. [Ord. 12-4. DC 2012 § 122-1318].
18.530.040 Loss of nonconforming status.
The nonconforming status of a use, structure or physical improvements shall terminate under the following conditions:
A. Discontinuance.
1. If the nonconforming use of land, a nonconforming use of a conforming structure, a conforming use of a nonconforming structure or use of nonconforming physical improvements is discontinued for a continuous period of 365 calendar days or more, all rights to legal nonconforming status shall terminate.
2. The planning division shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconformity, disconnected or discontinued utilities, or no business receipts or records to document continued operation.
3. Without further action by the city, any further use of the land, structure or physical improvements shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this development code and city-adopted design guidelines.
B. Destruction. Nonconforming status shall terminate if a nonconforming structure, conforming structure occupied by a nonconforming use or nonconforming physical improvements are involuntarily damaged or destroyed by earthquake, explosion, fire, or other calamity, except for single-family, duplex and multifamily structures as provided by CDC 18.530.060(B), except as follows:
1. Less Than 50 Percent. If the cost of repairing or replacing the damaged portion of the nonconforming structure or physical improvements is 50 percent or less of the assessed value immediately before the involuntary damage, the structure or physical improvements may be restored to the same size, and the use continued as before; provided, that permits have been obtained and the restoration work is started within 180 days of the date of the damage, and the work is continuously pursued to completion within 12 months from the date building permits were issued.
2. Greater Than 50 Percent. If the cost of repairing or replacing the damaged portion of the nonconforming structure or physical improvements is greater than 50 percent of the assessed value immediately prior to the involuntary damage, neither the structure nor the physical improvement shall be reconstructed, repaired, or restored, except in conformity with the requirements of the applicable zoning district. [Ord. 12-4. DC 2012 § 122-1319].
18.530.050 Nonconforming parcels.
A. Legal Building Site. A nonconforming parcel that does not comply with the applicable area, width, or depth requirements of the development code shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the planning division with evidence furnished by the applicant.
1. Approved Subdivision. The parcel was created by a recorded subdivision;
2. Individual Parcel Legally Created By Deed. The parcel is under one ownership and of record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel nonconforming;
3. Variance or Lot Line Adjustment. The parcel was approved through a variance procedure or resulted from a lot line adjustment; or
4. Partial Government Acquisition. The parcel was created in compliance with the provisions of this development code, but was made nonconforming when a portion was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing a public right-of-way was decreased not more than 50 percent.
B. Subdivision or Lot Line Adjustment.
1. No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel.
2. No subdivision or lot line adjustment shall be approved for a parcel that contains a nonconforming use on the parcel. [Ord. 12-4. DC 2012 § 122-1320].
18.530.060 Exemptions.
A. Historic Structures. Nonconforming structures of historical significance may be altered or enlarged without conforming to the zoning district requirements, provided the historic structure is:
1. Designated by the city as an historic site or structure as listed in the general plan;
2. Designated as a California State Historic Landmark or a National Register Site; and
3. Proposed to be altered or enlarged in such a way that once completed the entire structure represents an authentic replica of the original structure.
B. Nonconforming Residential Structures.
1. Nonconforming single-family, duplex and multifamily dwelling units that have been involuntarily damaged or destroyed by earthquake, explosion, fire, flood, wind, riot, war, or other calamity, may be reconstructed or replaced with a new structure using the same development standards applied to the damaged or destroyed structure (e.g., building footprint, building height, density standards, number of dwelling units, setbacks, and square footage), provided:
a. The applicant provides sufficient documentation supporting the claim that the damage or destruction occurred involuntarily;
b. There is no expansion of the gross floor area or number of dwelling units;
c. The replacement structure complies with the building code, and will not be detrimental to the public health, safety, or welfare or materially injurious to the properties or improvements in the immediate vicinity of the replacement structure; and
d. A building permit is issued no later than 12 months after the date of destruction, and construction is diligently pursued to completion.
2. If the preceding requirements are not met, the replacement structure shall comply with all of the regulations of the applicable zoning district in effect on the date of application for a building permit.
C. Nonconforming Upon Annexation. Nonconforming uses, structures, and/or physical improvements which lawfully exist on the date the property is annexed to the city, and which do not conform to this development code and the city’s adopted design guidelines, may continue to exist and, upon annexation, shall be deemed nonconforming and subject to the provisions of this chapter.
D. Approved Uses, Structures and Physical Improvements Not Yet Established or Constructed.
1. A use, structure or physical improvements for which a planning or building permit was approved and issued, but not yet established or construction completed before the effective date of the ordinance codified in this title, may be completed, provided the work is diligently pursued to completion.
2. If upon establishment or completion, a use, structure or physical improvements, referenced in subsection (D)(1) of this section, or parts thereof, are not in compliance with this development code, they shall be deemed to be nonconforming and shall thereafter be subject to the provisions of this chapter.
3. For the purpose of this section, the provisions of Chapter 18.505 CDC (Permit Implementation, Time Limits, Extensions, and Amendments) shall govern the determination of whether the permit has been exercised in a timely manner.
E. Floor Area Ratio (FAR) of Existing Development. At the time of adoption of this development code, existing development that does not meet the minimum FAR standards shall not be classified as nonconforming. [Ord. 12-4. DC 2012 § 122-1321].
18.530.070 Nuisance abatement and enforcement.
A. Violations. Uses, structures and physical improvements which do not comply with the applicable provisions of this development code when established are violations of this development code and are subject to the regulations of the municipal code.
B. Continuance of Public Nuisances Prohibited. The provisions of this chapter do not allow, and shall not be interpreted to allow, the continuance of a use, structure or physical improvement which is deemed a public nuisance, or which is prohibited or otherwise made unlawful, in whole or in part, by the municipal code (including the building code and fire code) or by laws enacted by the state or federal government which are applicable to the city.
C. Enforcement. In the event that a nonconforming use, structure or physical improvement is found to constitute a public nuisance, appropriate action shall be taken by the city in compliance with the municipal code. Any violation of the development code can be deemed to be evidence of a public nuisance. [Ord. 12-4. DC 2012 § 122-1322].