Chapter 17.72
NONCONFORMING USES, STRUCTURES, AND PARCELS
Sections:
17.72.030 Restrictions on Nonconforming Uses, Structures, and Parking
17.72.040 Loss of Nonconforming Status
17.72.050 Nonconforming Parcels
17.72.060 Nonconforming Due to Lack of a Use Permit
17.72.010 Purpose
A. This chapter provides regulations for nonconforming land uses, structures, and parcels that were lawful before the adoption or amendment of this Zoning Ordinance, but which would be prohibited, regulated, or restricted differently under the current terms of this Zoning Ordinance or an amendment that changed its requirements.
B. It is the intent of this Zoning Ordinance to discourage the long-term continuance of nonconformities other than residential uses, providing for their eventual elimination, while allowing them to exist under the limited conditions identified in this chapter.
17.72.020 Definitions
The following terms are defined for the purposes of this chapter:
A. Nonconforming parcel. A parcel that was legally created before the adoption of this Zoning Ordinance or amendment, but does not comply with the current area, width, depth, or other applicable requirements of this Zoning Ordinance.
B. Nonconforming sign. A permanent or temporary sign that was legally established and maintained in compliance with the provisions of all applicable laws in effect at the time of original installation, but does not comply with the current sign regulations of this Zoning Ordinance. See Section 17.40.090 for requirements and allowed changes for nonconforming signs.
C. Nonconforming structure. A structure that was legally constructed before the adoption or amendment of this Zoning Ordinance, but does not comply with the current setback, height limit, off-street parking, and/or other applicable requirements of this Zoning Ordinance.
D. Nonconforming use. A use of land and/or a structure (either conforming or nonconforming) that was legally established and maintained before the adoption of this Zoning Ordinance or amendment, but does not conform to the current Zoning Ordinance requirements for allowable land uses within the applicable zoning district.
E. Nonconforming parking. A condition where a use of land does not provide for the minimum number of required off-street parking spaces as established by Chapter 17.34 (Parking and Loading). Also where existing parking spaces do not conform to design, development, access, or other standards of Chapter 17.34.
17.72.030 Restrictions on Nonconforming Uses, Structures, and Parking
A nonconforming land use and the use of a nonconforming structure may be continued, including transfers of ownership; provided, that their continuation complies with the requirements of this section.
A. Nonconforming use of land.
1. General rule. A nonconforming use of land may be continued; provided, that the use shall not be enlarged or increased, nor be extended to occupy a greater land area than it lawfully occupied before becoming nonconforming.
2. Residential exception. The substantial rehabilitation or renovation of, and additions to, an existing nonconforming multi-family and single-family residential use may be allowed with Minor Use Permit and Board of Architectural Review approval, in compliance with Section 17.62.030.
a. Substantial rehabilitation or renovation defined. Substantial rehabilitation or renovation occurs when 25 percent or more of the floor area of the existing nonconforming use is proposed to be added to the use and/or a Building Permit for construction valued at 50 percent or more of the assessed value of the structure before rehabilitation or renovation is requested for a nonconforming use.
b. Protection of community and neighborhood character. The review authority shall ensure that Minor Use Permit and architectural review approval for substantial rehabilitation or renovation shall maintain desired neighborhood character and encourage mixed-use development.
3. Change in nonconforming use. A nonconforming land use may be changed to another nonconforming use of the same or more restricted nature with Use Permit approval in accordance with Section 17.62.070, except that if a nonconforming use is changed to a conforming use, no nonconforming use may be resumed thereafter.
B. Nonconforming structure. A nonconforming structure may continue to be used as follows:
1. Changes to, or expansion of a nonconforming structure. A nonconforming structure may be changed or expanded as follows:
a. Nonresidential or multi-family structures. A nonconforming nonresidential or multi-family structure shall not be enlarged, extended, increased, reconstructed, or relocated.
b. Single-family dwelling. A single-family dwelling that is nonconforming with respect to setback requirements, height limits, and/or other development standards may undergo interior modifications in compliance with Building Code requirements without limitation by this chapter. Exterior modifications that go beyond the existing building footprint or height may be allowed as follows:
(1) The Zoning Administrator may approve a Zoning Clearance for a proposed exterior addition that complies with the setback requirements and height limits of the applicable zone, but that extends beyond the existing building footprint or height.
(2) Any area of an addition that encroaches into a required setback no further than an existing nonconforming portion of the structure may be allowed with Minor Use Permit approval in accordance with Section 17.62.070; provided, that the area of the addition within the required setback is less than or equal to 25 percent of the total floor area of the existing structure, complies with the Building Code, and the review authority first determines that the addition will not adversely affect any neighboring property or the character of the surrounding neighborhood.
(3) Any area of an addition that encroaches into a required setback no further than an existing nonconforming portion of the structure that is greater than 25 percent of the total floor area of the existing structure may be allowed with Minor Use Permit and Board of Architectural Review approval in accordance with Sections 17.62.070 and 17.62.030, respectively, in compliance with the Building Code, and the review authorities determine that the addition will not adversely affect any neighboring property or the character of the surrounding neighborhood.
2. Reconstruction or replacement. An involuntarily damaged or destroyed single- or multi-family nonconforming structure may be reconstructed or replaced with a new structure with the same footprint, height, and number of dwelling units, in compliance with current Building and Fire Code requirements, Subsection 17.72.040.B, and California Government Code Section 65852.25.
3. Conversion of an existing nonconforming structure to a residential unit(s). Within a residential zoning district, a nonconforming accessory structure within a rear yard may be converted to a residential second unit, and a nonconforming residential structure within a rear yard may be rehabilitated and expanded; provided, that:
a. The height of the structure does not exceed 18 feet; and
b. The conversion and/or expansion complies with Subsection B.1.b of this section.
4. Ordinary maintenance and repair. A nonconforming structure may undergo ordinary maintenance and repair in compliance with all applicable Building Code requirements.
5. Seismic retrofitting and Building Code compliance. Any nonconforming structure may undergo alterations, reconstruction, or repair to reinforce unreinforced masonry or to comply with Building Code requirements; provided the work is exclusively to comply with applicable earthquake safety standards and the Building Code, and does not change the building footprint or height.
C. Nonconforming parking. An existing land use with nonconforming off-street parking may be physically changed or undergo a change in use in compliance with the following provisions:
1. Residential uses. No additional parking spaces shall be required; provided the change does not increase the number of dwelling units, increase the existing floor area, or eliminate the only portion of the site that can be used for the required or existing parking or access.
2. Nonresidential uses.
a. The number of existing parking spaces shall be maintained on the site and additional parking shall be provided in compliance with Chapter 17.34 (Parking and Loading) for any additional floor area.
b. If the use of the structure is changed to one that requires more parking than the previous use, the difference between the number of parking spaces required for the previous use and those required for the new use shall be added, based on Table 3-8 – Parking Requirements by Land Use in Section 17.34.040 (Number of Parking Spaces Required).
c. The change shall not eliminate the only portion of the site that can be used for the required or existing parking or access.
17.72.040 Loss of Nonconforming Status
A. Termination by discontinuance. If a nonconforming use of land or a nonconforming use of a conforming structure is discontinued for a continuous period of 180 days or longer, all rights to legal nonconforming status shall terminate.
1. The Director shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, failure to maintain a current business (operations) tax license on the site, and/or no business records to document continued operation.
2. The Zoning Administrator may grant a Minor Use Permit in compliance with Section 17.62.070 to allow an extension of the 180-day period for a period not to exceed an additional 180 days if the Zoning Administrator first finds that circumstances beyond the control of the applicant prevented the timely reestablishment of the use.
3. Once legal nonconforming status is terminated, any further use of the site or structure shall comply with the requirements of the applicable zoning district and all other applicable requirements of this Zoning Ordinance.
B. Termination by destruction. Nonconforming status shall terminate if a nonconforming structure, or a conforming structure occupied by a nonconforming use, is involuntarily damaged or destroyed; except as provided by Section 17.72.030 for residential dwellings, and except as follows:
1. If the cost of repairing or replacing the damaged portion of the structure is 60 percent or less of the assessed value of the structure immediately before damage, the structure may be restored to no more than the same size and use, and the use continued, if the restoration is started within 12 months of the date of damage and is diligently pursued to completion.
2. Minor Use Permit approval shall be required if the cost of repairing or replacing the damaged portion of the structure is more than 60 percent of the assessed value of the structure immediately before the damage. Minor Use Permit approval shall require a finding, in addition to those contained in Section 17.62.070, that the benefit to the public health, safety, or welfare exceeds the detriment inherent in the restoration and continuance of a nonconformity.
17.72.050 Nonconforming Parcels
A. Legal building site. A nonconforming parcel that does not comply with the applicable minimum parcel size requirements of this Zoning Ordinance shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the Director by 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 was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel nonconforming; or
3. Partial government acquisition. The parcel was created in compliance with the provisions of this Zoning Ordinance, 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 of a nonconforming parcel prohibited. No subdivision shall be approved that will increase the nonconformity of an existing parcel or any nonconforming use on the parcel.
17.72.060 Nonconforming Due to Lack of a Use Permit
A. Conformity of uses requiring a Use Permit. A use lawfully existing without the approval of a Use Permit or Minor Use Permit that would now be required by this Zoning Ordinance shall be deemed conforming only to the extent of its previous lawful use (e.g., maintaining the same site area boundaries, hours of operation).
B. Previous planning permits in effect. A use that was authorized by a Use Permit or Minor Use Permit but is not allowed by this Zoning Ordinance in its current location may continue, but only in compliance with the original Use Permit or Minor Use Permit.