Chapter 18.180 NONCONFORMING USES AND STRUCTURES

(a) This chapter provides regulations for nonconforming uses, structures or buildings and lots, that were lawful before the adoption or amendment of this title but which would be prohibited, regulated, or restricted differently under the current terms of this title or future amendments. Nonconforming lots, structures or buildings, and uses are defined respectively in Sections 18.25.2010, 18.25.2020, and 18.25.2030. Nonconforming signs are addressed in Section 18.193.205 and are defined in Section 18.25.2600(tt).

(b) It is the intent of this chapter to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to exist under the conditions identified in this chapter. The continuance of a nonconforming use or structure is generally detrimental to the orderly development of the city and the general welfare of its residents.

(c) Any use, structure, or sign which was established or constructed in violation of the applicable zoning regulations in effect at the time of establishment or construction and which is not in conformity with the regulations of this title is not considered a nonconforming use, structure, or sign, and that use, structure, or sign is in violation of this title.

(d) Special provisions for parcels containing unreinforced masonry buildings are established in Section 18.190.570. (Ord. 9-2014 § 25, 3-4-14.)

18.180.020 Nonconforming uses of land.

(a) A nonconforming use of land as used in this section includes use of either unimproved land or land containing only a minor structure, such as a fence, sign, and building less than 400 square feet in area.

(b) A use of land that becomes nonconforming may be continued for a period of 20 years from the date the use becomes nonconforming, at which time such nonconforming use shall immediately be removed, discontinued and abated or changed so as to conform with the requirements of this code. No nonconforming use of land shall be enlarged, increased, or extended to occupy a greater area of land than was occupied when it became nonconforming.

(c) Where a nonconforming use of land on a lot has been abandoned for a 90-day period, the nonconforming use shall not be resumed. (Ord. 9-2014 § 25, 3-4-14.)

18.180.030 Nonconforming uses of structures or buildings.

(a) A nonconforming use of a structure or building may be maintained indefinitely, except as otherwise provided in this section.

(b) A nonconforming use of a structure or building may be changed to a similar use or a use of lesser intensity upon a determination by the zoning administrator. The zoning administrator may refer the request to the planning commission for a determination. As used in this section, a use of lesser intensity shall mean a use which is found by the zoning administrator or commission to require fewer employees or less public contact, less storage capacity or fewer demands on public services, facilities or energy, and is more compatible with adjacent and future planned uses.

(c) A nonconforming use of a structure or building shall not be expanded. However, minor additions may be allowed to single-family dwellings in the C-O, TC-P and TC-T districts. Minor additions are subject to the following limitations:

(1) The total cumulative floor area added to the principal structure and/or to detached accessory structures after May 7, 1991, shall not exceed 500 square feet.

(2) The required yard and height limit for additions shall be those prescribed for the R-1-6 zoning district.

(d) The nonconforming use of a structure or building shall not continue if the use has been abandoned for 12 consecutive months. When such an abandonment of use has occurred, the building or structure shall only be used for the uses allowed in the district in which it is located.

(e) Except as provided in Sections 18.180.070 and 18.180.080, where a structure or building containing a nonconforming use is damaged or destroyed by any means and replacement in kind exceeds 50 percent of the property’s fair market value, it shall not resume its nonconforming use but may be restored and used in conformity with the provisions of the district in which it is located, with the following exceptions:

(1) A single-family dwelling in a C-O, TC-P or TC-T district or on lands above the toe of the hill1 that is destroyed by an act of nature or other force majeure may be reconstructed to its original size, configuration and appearance, except that in the C-O, TC-P or TC-T district it may incorporate an addition as provided in subsection (c) of this section. Additions to single-family dwellings above the toe of the hill1 may be allowed pursuant to Sections 18.55.040 and 18.55.090 for open space districts and Section 18.110.100 for planned districts. Any such rebuilding on a site in an HOD (historical overlay district) shall be subject to review by the historical architectural review board.

(2) The planning commission may grant a conditional use permit allowing the reconstruction of a structure or building damaged or destroyed as provided above, other than as set forth in subsection (e)(1) of this section, to the same condition as when destroyed, for the continued operation of the nonconforming use; provided, that all of the following findings can be made:

(A) That the particular location is necessary for the use because of the uniqueness of the site, such as the availability of a natural resource, or preservation of a unique topographic or geologic feature;

(B) That no other site is available to allow the continued operation of the use in an economically feasible manner; and

(C) That the use in the existing location would not have an adverse impact on adjacent land uses in terms of traffic, circulation and access, noise, light and glare, and would not adversely impact the area in terms of public facilities and services.

(f) Whenever a nonconforming use of a structure or building has been changed to a conforming use, such conforming use shall not thereafter be changed to a nonconforming use. (Ord. 9-2014 § 25, 3-4-14; Ord. 04-2016 § 29, 3-1-16.)

18.180.040 Nonconforming structures or buildings.

(a) A nonconforming structure or building may be maintained indefinitely in its original condition except as otherwise provided in this chapter.

(b) A nonconforming structure or building may not be enlarged or altered in any manner that increases the degree of any nonconformity such as: height, building setback, yard area, lot coverage, floor area, or parking requirements.

(c) Repairs of an ordinary nature may be made in any period of 12 consecutive months including repair or replacement of nonbearing walls, wiring and plumbing, the costs of which shall not exceed 10 percent of the fair market value of the building. Work which is required to strengthen, restore or modify the structure or building as determined and ordered by the chief building official or other city or state officer by reason of statute or ordinance shall not be included within the 10 percent limitation.

(d) Except as provided in Sections 18.180.060, 18.180.080, and 18.180.085, if a nonconforming structure or building is damaged or partially destroyed by any means and the costs of reconstruction exceed 50 percent of its fair market value at the time of its destruction or damage, it shall not be reconstructed except in conformity with the provisions of this title.

(e) If a nonconforming structure or building is moved for any reason or for any distance whatever, it shall thereafter conform to the regulations of the district in which it is located. (Ord. 9-2014 § 25, 3-4-14; Ord. 17-2017 § 5, 11-7-17.)

18.180.050 Nonconforming lots.

(a) A nonconforming lot shall not be reduced in area or width, except upon determination of the planning manager that the reduction in area or width would decrease the overall degree of nonconformity of the affected lot(s) or structure(s).

(b) Any conforming use or conforming building or structure on a nonconforming lot or parcel may be enlarged, extended, reconstructed or relocated in compliance with other requirements of this title.

(c) A nonconforming lot to be used for residential purposes shall be subject to the density requirements of the zoning district in which it is located; except that a single-family dwelling and accessory building may be erected on a nonconforming lot located in any district in which a single-family dwelling is permitted if the yards on the lot meet the minimum requirements of an R-1-6 district. (Ord. 9-2014 § 25, 3-4-14; Ord. 02-2020 § 21, 1-14-20.)

18.180.060 Post-disaster repair/reconstruction of nonconforming structures.

(a) Notwithstanding other provisions of this chapter, dwellings or commercial structures, as defined by this title, which were legal nonconforming structures when destroyed by an event, as defined in Section 15.90.040(a), or were legal nonconforming when ordered demolished due to the threat posed to public health and safety as a result of damages caused by an event (per Section 15.90.040(a)), may be reconstructed in the same location, configuration, floor area, and height as the original structure, provided:

(1) They are constructed of approved materials which maintain the aesthetic characteristics and aspects of the damaged structure.

(2) Construction shall comply with the then-current building code as adopted in Title 15.

(3) All parts or portions of the original construction are completely removed, except as approved by the building official.

(4) The site is prepared in accordance with a foundation report prepared by an individual registered by the state to perform foundation investigations whenever required by the city building code in effect at the time of reconstruction.

(5) The owner shall conform to the timetable of Chapter 15.70.

(b) Reconstruction of a partially damaged building shall be compatible with the architecture of the remaining portion of the building.

(c) Reconstruction will be allowed pursuant to subsection (a) of this section only if a building permit is obtained and construction commences within two years of the date of the declaration of emergency. In the event it can be demonstrated that the failure to obtain a building permit was caused by factors outside of the control of the property owner, an extension may be granted by the building official up to a maximum of three years from the date of the declaration of emergency. The burden of proof as to the legal nonconforming status of the structure shall be borne by the property owner. (Ord. 9-2014 § 25, 3-4-14.)

18.180.070 Post-disaster nonconforming land use.

For those dwelling and commercial buildings or structures which housed legal nonconforming uses prior to an event, as defined in Section 15.90.040(a), the same nonconforming use may be maintained or reestablished in the new or repaired building; provided, that the use was established in conformance with the applicable zoning regulations in effect at the time of establishment. The burden of proof as to the legal nonconforming use of the structure shall be borne by the property owner. (Ord. 9-2014 § 25, 3-4-14.)

18.180.080 Reconstruction of multifamily dwellings.

Where a multifamily dwelling consisting of two or more dwelling units is involuntarily damaged or destroyed by fire, other catastrophic event, or an event as defined in Section 15.90.040(a), the city shall allow the dwelling to be reconstructed, restored, or rebuilt up to its pre-damaged size and number of dwelling units, unless the city makes the findings contained in Cal. Gov’t Code § 65852.25(b) or the building is located in an industrial district. Any reconstruction, restoration, or rebuilding of a multifamily building authorized by this section shall conform to all of the standards contained in Cal. Gov’t Code § 65852.25(d). (Ord. 9-2014 § 25, 3-4-14.)

18.180.085 Reconstruction of single-family dwellings.

Where a single-family dwelling unit is involuntarily damaged or destroyed by fire, other catastrophic event, or an event as defined in Section 15.90.040(a), the city shall allow the dwelling to be reconstructed, restored, or rebuilt only when it complies with the following standards:

(a) The dwelling is located in a zoning district that allows for single-family dwellings as a permitted or conditionally permitted use.

(b) The work on the dwelling conforms to current California Building Standards Code and any more restrictive local building standards authorized pursuant to Cal. Health & Safety Code §§ 13869.7, 17958.7, and 18941.5.

(c) The work on the dwelling conforms to the State Historical Building Code (Cal. Health & Safety Code Part 2.7 (commencing with Section 18950) of Division 13) for work on qualified historical buildings or structures.

(d) The work on the dwelling conforms to zoning ordinances, design rules and design guidelines, so long as their application accommodates any predamage nonconformities (e.g., lot coverage, second floor allowance, building height, setbacks, etc.).

(e) A building permit is obtained within two years after the date of the damage or destruction and such building permit may only be extended in accordance with the provisions of the California Building Standards Code in effect at the time of permit issuance. (Ord. 17-2017 § 6, 11-7-17.)

18.180.090 Abandonment of nonconforming use.

Procedures regarding the abandonment of a nonconforming use are described in Chapter 18.330. (Ord. 9-2014 § 25, 3-4-14.)

18.180.100 Nonconforming signs.

Procedures regarding nonconforming signs are found in Section 18.193.205. (Ord. 9-2014 § 25, 3-4-14.)

18.180.110 Uses which do not conform to screening, fencing or landscaping requirements.

(a) This section is applicable to any use which, at the time of its commencement, complied with the applicable requirements of this title as to screening, landscaping and fencing, but does not conform to existing requirements for screening, landscaping, or fencing. Such a use may be continued indefinitely, except as otherwise provided herein or in this title.

(b) If a new use on the site utilizes existing buildings, structures, and off-street parking and loading areas, no additional screening, fencing or landscaping shall be required as a condition of the new use.

(c) Where an addition, enlargement or expansion of one or more buildings or structures on the site is proposed in excess of 25 percent of the floor area of the existing building or structure, the entire lot shall be brought into conformance with existing requirements of this title regarding landscaping and screening of off-street parking areas.

(d) Notwithstanding any provision of this section to the contrary, when a conditional use permit is granted pursuant to Section 18.190.190(c) and/or (d), the lot shall conform to the current requirements of this title as to off-street parking and loading, screening, landscaping and fencing. (Ord. 9-2014 § 25, 3-4-14.)

18.180.120 Conditional uses.

Any nonconforming use which is designated pursuant to this title as a conditional use in the district where located shall be and remain a nonconforming use until a conditional use permit shall have been obtained pursuant to Chapter 18.230. (Ord. 9-2014 § 25, 3-4-14.)

18.180.130 Construction or use permit approved prior to title amendments.

(a) Nothing in this chapter shall require any change in the site plan, construction, size or designated use of any development, building, or structure, where official approvals and required building permits were granted before the enactment of this title or any amendment, if the construction of the building or development started before the effective date of this title or amendment, and construction was diligently pursued within the subsequent six-month period, and not discontinued until completion except for reasons beyond the builder’s control.

(b) Whenever a rezoning of land or other amendment to this title eliminates a particular conditional use from a district or changes the conditions under which a particular conditional use may be allowed, unless the ordinance enacting such rezoning or amendment provides to the contrary, any conditional use permit granted pursuant to this title prior to such rezoning or amendment will remain in force and effect, and extensions of time may be granted for such conditional use permit as provided in Chapter 18.330; provided, that the applicant makes a showing satisfactory to the planning commission that there have been substantial expenditures made or substantial detriment suffered in reliance upon the continued effectiveness of the conditional use permit. (Ord. 9-2014 § 25, 3-4-14.)

18.180.140 Amortization of nonconforming adult uses.

Notwithstanding the provisions of Section 18.180.030, any use of real property existing on April 1, 1997, which does not conform to the provisions of Section 18.190.010, but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until two years following final adoption of the ordinance from which this section derives, at which time such nonconforming use shall immediately be removed, discontinued and abated or changed so as to conform with the requirements of this code unless an extension of time has been approved by the city manager in accordance with the provisions of Section 18.180.160. (Ord. 9-2014 § 25, 3-4-14.)

18.180.150 Abandonment of adult uses.

Notwithstanding Sections 18.180.140 and 18.180.160, any discontinuance or abandonment of the use of any lot or structure as an adult-oriented business use shall result in the loss of legal nonconforming status of such use. (Ord. 9-2014 § 25, 3-4-14.)

18.180.160 Extension of time.

The owner or operator of a nonconforming use as described in Section 18.180.140 may apply to the city manager for an extension of time within which to terminate the nonconforming use.

(a) Time and Manner of Application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of Chapter 18.45 may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with the city manager at least 90 days but no more than 180 days prior to the time established in Section 18.180.140 for termination of such use.

(b) Content of Application – Fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be established by resolution from time to time by the city council.

(c) Hearing Procedure. The city manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within 45 days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The hearing officer shall cause to be made an audiotape of the full hearing and shall create and maintain a full record of the hearing. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Cal. Civ. Proc. Code § 1094.5. The decision of the hearing officer shall state that any petition for review must be filed not later than 90 days following the date the decision becomes final as provided in Cal. Civ. Proc. Code § 1095.6.

(d) Approval of Extension – Findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved and the public interest in termination of the adult use. The hearing officer shall consider all of the following factors: the owner’s total investment in the business; the present, actual and depreciated value of the business improvements; the remaining lease term; the cost of relocating the business; the ability of the business or landowner to change the use to a conforming use; the date on which the property owner and/or business received notice of the nonconforming status of the use; and the effects on the health, safety, and welfare of the surrounding businesses and other uses if the adult use is allowed to operate beyond the January 1, 1998, amortization date. The extension shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law. (Ord. 9-2014 § 25, 3-4-14.)

[Notes Applicable to Chapter 18.180]

1 This term is defined in Chapter 18.25.