Chapter 17.16
NONCONFORMING USES AND STRUCTURES
Sections:
17.16.030 Establishment of nonconformity.
17.16.050 Alterations and additions on lots with nonconforming uses.
17.16.060 Additions to nonconforming structures.
17.16.070 Change of use – Abandonment of nonconforming use.
17.16.080 Restoration of damaged nonconforming structures and uses.
17.16.090 Termination of nonconforming uses.
17.16.100 Time when use becomes nonconforming.
17.16.110 Additional requirements for specific nonconformities.
17.16.120 Expansion, restoration, and extension of nonconforming uses by conditional use permit.
17.16.010 Purpose and intent.
A. This chapter is enacted to accomplish the regulation and eventual elimination of all nonconforming uses, except nonconforming residential uses, and the regulation of nonconforming structures. It is not intended to allow the expansion or any increase in intensity of use for legal nonconforming structures on residential lots beyond what is allowed by applicable zoning regulations. Nothing in this chapter shall supersede State Coastal Act legislation.
B. This chapter is not intended to restrict the city’s ability to eliminate a public nuisance.
C. This chapter is not intended to limit the city’s ability to condemn a use or structure and pay to the owner thereof reasonable compensation.
D. Nothing in this chapter shall preclude the city from declaring that a building, structure, improvement or use constitutes a danger to the safety, health or welfare of the public and from taking lawful action to remedy that danger.
E. This chapter does not preclude the city from requiring an owner of a structure which has been constructed, expanded or altered either without a required building permit or contrary to the provision of an issued building permit, either to modify or remove such structure or to obtain all required building inspections and associated approvals. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.020 Definitions.
This section provides definitions of words, terms, or phrases which apply specifically to this chapter. It is also intended that the definitions in Chapter 17.08 SBMC shall be used except where there may be a conflict with the definitions set forth in this section. Where such a conflict exists the definitions set forth in this section shall take precedence.
A. A “nonconforming use” is a use that:
1. Is not within the scope, either expressly or implicitly, of the zoning restrictions set forth in this title which describe the purpose, intent, permissible uses, density, accessory uses and prohibited uses for the zone in which the particular use is located;
2. Did comply with the zoning restrictions contained in this title in effect at the time the use was created and was lawfully created;
3. Has not been terminated in accordance with the provisions of this chapter;
4. For purposes of this section, uses for which the zoning matrix (SBMC 17.12.020) requires a use permit or allows with limitation, shall not be considered a nonconforming use. Expansions and/or intensification of said uses shall, however, require a use permit;
5. Note that nonconforming uses for which a permit was required and no permit has been issued are classed as “illegal” and all such uses, including accessory apartments, are subject to the provisions of SBMC 17.72.120.
B. A “nonconforming structure” is a building, structure or improvement that:
1. Does not conform to the development standards described in this title, together with all building standards including, without limitation, height, setbacks, density, parking, type of building, or coverage of lot by structure; and
2. Did comply with the development standards contained in this title in effect at the time the building, structure or improvement was constructed or structurally altered and was lawfully constructed.
C. A “nonconformity” is a nonconforming use or a nonconforming structure.
D. A “principal building or structure” is a building in which a principal use is located. It does not include detached accessory buildings or structures such as garages and sheds, or additions to the principal structure which, if removed, would not affect the structural integrity of the principal building.
E. “Refurbishment” means to replace or improve existing building finishes, nonstructural surfaces or fenestration for the purpose of maintenance or aesthetic improvement of the building. Refurbishment does not include the replacement of structural components.
F. Structure. Where the term “structure” is used for residential lots, it shall be used to include buildings, retaining walls and all built structures on the residential lot with the exception of fences. (Ord. 372, 2008; Ord. 209 § 2, 1995; Ord. 185 § 2, 1993)
17.16.030 Establishment of nonconformity.
In order to legally continue a use, structural aspect of a building, structure or improvement that is not consistent with the regulations of this title, the person claiming a legal nonconforming use or structural nonconformity has the burden of proof to establish that the use or structural feature qualifies in accordance with the provisions of this chapter.
Nothing in this chapter shall be construed to allow an increase in the intensity of use, where the intensity of the use on the lot is nonconforming. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.040 Maintenance.
Routine internal and external maintenance and repairs may be performed on a nonconforming structure. Additionally, any maintenance or repairs required by governmental agencies for health, safety, and welfare purposes shall be allowed. Refurbishment may be performed on a nonconforming principal residential building and accessory structures related to a principal residential structure located anywhere on a residential lot. Refurbishment may not expand the existing building envelope or expand the usable floor area if the expansion increases the nonconformity of the principal residential structure or accessory structure. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.050 Alterations and additions on lots with nonconforming uses.
Where a nonconforming use exists on a lot, additional uses, structures or structural internal and external additions may be established on the lot; provided such additional uses, structures, or structural additions do not increase the size, degree, or intensity of the existing nonconformity. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.060 Additions to nonconforming structures.
Where a nonconforming structure exists on a lot (including an accessory structure on a residential lot), additional uses, structures, or structural internal and external additions may be established on the lot; provided such additional uses, structures, or structural additions do not increase the size or degree of the existing nonconformity. This section shall not be interpreted to allow the reconstruction of a nonconforming structure. (Ord. 372, 2008; Ord. 209 § 1, 1995; Ord. 185 § 2, 1993)
17.16.070 Change of use – Abandonment of nonconforming use.
A. A nonconforming use of a structure or site shall not be changed to another nonconforming use.
B. Whenever a nonconforming use has been abandoned, discontinued or changed to a conforming use for a continuous period of 180 days, the nonconforming use shall not be re-established, and the use of the structure or site thereafter shall be in conformity with the regulations for the zone in which it is located. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.080 Restoration of damaged nonconforming structures and uses.
A. Residential Structures (Principal Structures). Any nonconforming principal residential structure which is partially damaged or totally destroyed by fire or other calamity may be restored (rebuilt) to the pre-existing building envelope and any pre-existing nonconforming use may be resumed; provided, that restoration is started within three years and diligently pursued to completion, with completion to be accomplished within 18 months from the issuance of the required permit. Restoration includes, but is not limited to: re-establishment of the principal building footprint, density (number of units), floor area, front, side, and rear yards, setbacks, building height, distance between structures, and numbers of parking spaces actually in existence on the site at the time the damage or destruction occurred.
1. Geology Report Required for Properties on Coastal Bluffs. Where such property is located on a coastal bluff and the extent of damage to the principal residential structure exceeds 75 percent of the floor area and/or 75 percent of its full replacement value, the city council shall find that any intrusion into the coastal bluff setback otherwise required by SBMC 17.20.030(B) is supported by a geologic report showing that the reconstruction will not adversely affect bluff stability for 70 years.
B. Nonresidential Structures (Principal Structures).
1. Destruction to the Extent of 50 Percent or Less. Any nonconforming principal nonresidential structure which is partially destroyed by fire or other calamity to the extent of 50 percent or less of the floor area and/or 50 percent or less of the full replacement value of the structure may be restored (rebuilt) to the pre-existing building envelope and any pre-existing nonconforming use may be resumed; provided, that restoration is started within one year and diligently pursued to completion, with completion to be accomplished within 18 months from the issuance of the required permit. Restoration includes, but is not limited to: re-establishment of the principal building footprint, floor area, front, side, and rear yards, setbacks, building height, distance between structures, and numbers of parking spaces actually in existence on the site at the time the damage or destruction occurred.
2. Destruction to an Extent Greater Than 50 Percent. Any nonconforming principal nonresidential structure which is destroyed by fire or other calamity to an extent greater than 50 percent of the floor area and/or greater than 50 percent of the full replacement value of the structure shall not be restored (rebuilt) unless it is in full conformance with the regulations of this title. However, any pre-existing nonconforming uses may be resumed in the rebuilt conforming structure.
C. Restoration of Accessory Structures. Whenever a nonconforming accessory structure (see definition SBMC 17.16.020(D)) is destroyed by fire or other calamity to the extent of 50 percent or more of the full replacement value of such accessory structure, then that structure may not be restored unless it is in full conformance with the regulations of this title, except accessory structures on residential lots may be restored to their pre-existing building envelope.
D. Time Extensions for Restoring Nonconforming Structures and Uses. Time extensions may be granted by the director with the applicant having appeal rights to the city council if the applicant demonstrates they have practiced due diligence and that delays are due to such factors as other permitting agencies including but not limited to: the city, the Coastal Commission, the county, and the state of California. Requests for time extensions must be in writing and received prior to the expiration of the time period for reconstruction. The community development director or the city council may approve an extension request even when the application for an extension is filed after the expiration of the time period for reconstruction when a finding of a good cause can be made.
Note that illegal structures are subject to the provisions of SBMC 17.72.120. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.090 Termination of nonconforming uses.
All nonconforming uses, except uses which do not conform to density, shall be terminated and removed from their sites in accordance with the following schedule. The termination period shall be based on the effective date of the ordinance codified in this title.
|
Type of Nonconforming Use |
Termination Period |
|
|---|---|---|
|
1. |
Use which does not occupy a structure |
Three years (from effective date of ordinance codified in this chapter)* |
|
2. |
Use which occupies a structure |
Seven years (from effective date of ordinance codified in this chapter)* |
|
*Termination period may be extended by conditional use permit, see SBMC 17.16.120, Expansion, restoration, and extension of nonconforming uses and structures by conditional use permit. |
||
(Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.100 Time when use becomes nonconforming.
Whenever a use becomes nonconforming because of a change of zoning boundaries or a change of regulations for the zone in which the site is located, the period of time prescribed in this chapter for the termination of the use shall be computed from the effective date of the change of zone or regulations. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.110 Additional requirements for specific nonconformities.
In addition to the general requirements for all nonconforming uses and structures, the following requirements shall apply to the specific nonconformities detailed below:
A. Nonconforming Walls and Fences. Any nonconforming wall or fence shall be allowed to remain in perpetuity; provided, the size or degree of the nonconformity is not increased.
B. Nonconforming Outdoor Storage. Outdoor storage areas which do not meet the minimum requirements as provided in SBMC 17.60.080, Outdoor storage, sales, and service yards, shall be brought into conformity within three years from the effective date of the ordinance codified in this title.
C. Nonconforming Parking. For all nonresidential uses on premises which do not meet the minimum parking requirements as provided in Chapter 17.52 SBMC, the following requirements shall apply:
1. Any change of use which requires more parking than the previous use shall be allowed only if the full amount of the required parking for the new use is provided. Parking deficiencies associated with other existing uses may be maintained. A change of use which does not require more parking than the previous use shall be allowed and the existing deficiency may be maintained.
2. New structures or structural additions which result in an expansion of less than 50 percent of the existing floor area of the lot shall be allowed only if the required parking for the expansion area is provided. Parking deficiencies for the existing floor area may be maintained.
3. New structures or structural additions which result in an expansion of 50 percent or more of the existing floor area of the lot shall be allowed only if the required parking for the expansion area is provided and all parking deficiencies for the existing floor area are eliminated.
Note that properties with illegal development are regulated by SBMC 17.72.120.
D. Existing Residential Uses and Structures in Commercial Zones. Legally existing residential uses and structures in the commercial zone shall not be subject to the termination schedule in SBMC 17.16.090, Termination of nonconforming uses, and are allowed to continue consistent with the requirements in this chapter.
Furthermore, new commercial structures and uses or mixed commercial/residential structures and uses may be established on parcels zoned commercial which contain existing residential uses, consistent with all applicable zoning standards for development on a commercial zoned property. However, SBMC 17.24.020(B) requiring that mixed-use development be integrated into a single structure shall not be applicable for the existing residential uses or structures.
E. Replacement, repair or reinforcement of existing structural components within the existing building envelope of principal residential structures and related accessory structures is allowed as necessary to repair damage from fire, earthquake, flood, weather, sunlight, mold, mildew, termites, accidental or natural causes. Further, reinforcement, augmentation or strengthening of existing structural components within the existing building envelope of these structures when necessary to support fire safety or building safety code improvements shall be allowed. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.120 Expansion, restoration, and extension of nonconforming uses by conditional use permit.
Notwithstanding any other provision of this chapter, a request for the expansion, restoration, or time extension of a nonconforming use may be granted subject to a conditional use permit. The city council may grant the request, grant the request with modification, or deny the request. The city council may require as a condition of a use permit that a specific termination date be set for the use which is being expanded, restored, or extended. Before granting a conditional use permit for the expansion, restoration, or time extension of a nonconforming use, the city council shall make the following findings:
A. That the strict or literal interpretation and enforcement of the specified regulations within this chapter would:
1. Result in unreasonable practical difficulty or unnecessary hardship; or
2. Result in the demolition or significant alteration of a designated historic/cultural landmark, or any other structure, which is important to the character of the street.
B. That the granting of the permit will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity. (Ord. 372, 2008; Ord. 185 § 2, 1993)
17.16.130 Severability.
The provisions of this chapter are declared to be severable and if any provision, sentence, clause, section or part of this chapter is held illegal, invalid, unconstitutional or inapplicable to any person or circumstances, such illegality, invalidity or unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sentences, clauses, sections, or parts of this chapter or their application to persons and circumstances. (Ord. 372, 2008)