This Chapter provides for the regulation of nonconforming uses and structures. This Chapter recognizes the legal status nonconforming uses and structures have. It is the intent of this Chapter to promote and encourage the ultimate conversion of nonconforming uses and structures to uses and structures that are conforming to this Code. The Chapter recognizes that until such conversion, the improvement of nonconforming uses and structures which promote compatibility and enhancement to surrounding land uses and which do not increase in nonconformity are permitted.
(Added by Ord. 93-16, 11/23/93)
Nonconformities may be continued subject to the following conditions.
(a) 
Expansion of Nonconforming Structures Conforming as to Use. Except as provided for in the Floodplain Overlay District, nonconforming structures which are conforming as to use may be expanded provided that the proposed expansion meets the current requirements of this code and positively contributes to the neighborhood. An expansion of 10% or less of the existing gross floor area is allowed by right. An expansion of more than 10% of the existing gross floor area may be approved by the Director as a minor Site Development Permit or forwarded by the Director for review by the Planning Commission.
(b) 
Improvements to and Maintenance of Nonconforming Structures Conforming as to Use. Nonconforming structures which are conforming as to use may be, and are encouraged to be, maintained and aesthetically improved in compliance with the Dana Point Municipal Code. Maintenance and aesthetic improvement includes repainting and resurfacing, reroofing, recarpeting and reflooring, relandscaping, and other minor cosmetic improvements. Maintenance and aesthetic improvements shall not serve to expand the nonconforming structure in any way.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 96-10, 8/13/96; Ord. 03-07, 4/9/03; Ord. 08-06, 6/3/08)
Nonconforming uses shall not be enlarged or expanded except as provided herein.
(a) 
Expansion of Nonconforming Residential Uses. A one-time expansion of 10% or less of the gross floor area of the structure containing the nonconforming residential use may be permitted and conditioned by the Director of Community Development subject to a consent approval of a Minor Conditional Use Permit by the Planning Commission. Any expansion greater than 10% requires approval of a Conditional Use Permit by the Planning Commission. The expansions may be subject to conditions to promote neighborhood compatibility and enhancement.
(b) 
Expansion of Nonconforming Non-Residential Uses. A one-time expansion of a nonconforming non-residential use is allowed subject to the approval of a Conditional Use Permit by the Planning Commission. Expansions which substantially bring the use into better conformance with this Code are encouraged. The expansion shall result in compliance with the signage and landscaping regulations of this Code. The area of expansion is required to comply with current parking standards.
(c) 
Maintenance of Structures Containing Nonconforming Uses. The repair, maintenance, replacement, and aesthetic improvement of structures containing nonconforming uses which promote neighborhood enhancement, and which does not enlarge or expand the nonconforming use, as determined by the Director of Community Development shall be permitted and encouraged. Repair, maintenance, replacement and aesthetic improvements typically include painting, landscaping, paving, the replacement and addition of skylights, windows, doors, open spaces, and other features which promote the livability and usability of the structure and its compatibility with and enhancement to the neighborhood.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 96-10, 8/13/96; Ord. 03-07, 4/9/03; Ord. 08-06, 6/3/08)
(a) 
Damage to Nonconforming Structures due to Accidents. Excluding properties in the Floodplain Districts, any nonconforming structure that is lawfully existing at the time of adoption of this Code which is accidentally destroyed by fire, flood, explosion, earthquake, landslide, act of God, or act of the public enemy, may be restored and reconstructed to the limits of the pre-existing nonconformity provided that all such construction and repair work commence within a period of five years from the date of the accidental damage. Any reconstruction of a nonconforming structure must comply with current building and related codes.
(b) 
Voluntary Demolition of Nonconforming Structures.
(1) 
If any nonconforming portion of a structure is removed, that portion shall be reconstructed in conformance with current requirements of this Code.
(2) 
Any nonconforming structure lawfully existing at the time of adoption of this Code which is demolished beyond 50% of the total linear length of all walls, shall be reconstructed to conform to the current requirements of this Code.
(c) 
Damage to Structures Containing Nonconforming Uses due to Accidents. When a structure containing a nonconforming use is destroyed due to fire, flood, explosion, earthquake, landslide, act of God, or act of the public enemy, the nonconforming use may be re-established and the structure rebuilt to the limits of the pre-existing nonconformity. Any reconstruction of the structure must comply with current building and related codes.
(d) 
Voluntary Demolition of Structures containing Nonconforming Uses. When a structure containing a nonconforming use is voluntarily demolished beyond 50% of the total linear length of all walls, that structure shall be reconstructed to conform to the requirements of this Code and the nonconforming use shall be converted to a use which conforms to the current zoning designation of the site.
(e) 
Abandonment of Nonconforming Uses. When a nonconforming use is abandoned or discontinued for more than 365 consecutive calendar days, the use shall be converted to conform to the current requirement of this code.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 03-07, 4/9/03; Ord. 08-06, 6/3/08)
(a) 
Upon determination that the provisions of this Chapter apply to a given nonconforming use, the Director of Community Development shall send a notice thereof by certified mail, return receipt requested, to the property owner thereof as shown on the last equalized assessment roll, shall cause such property to be posted with a similar notice, and shall publish such notice at least once in a newspaper of general circulation.
(b) 
The notice provided for in this Section shall state that the property in question contains a nonconforming use, shall state the date of abatement established in Section 9.63.040 and shall state that the date of abatement may be appealed to the Planning Commission within 30 days of the date appearing on the notice.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 08-06, 6/3/08)
(a) 
Any interested person may appeal the decision of the Planning Commission to the City Council within 15 days of service or the order upon the owner. The appeal hearing shall be noticed in the same manner as the original hearing before the Planning Commission.
(b) 
Each appeal shall be accompanied by such other documents and information the Director of Community Development deems to be necessary to adequately explain and to provide proper notification for the appeal. Each appeal shall set forth specifically and in detail the grounds for the appeal. The City Council may refuse to consider issues not raised in the written appeal.
(c) 
When an appeal has been accepted, the Director of Community Development shall forward to the City Council all documents and information on file pertinent to the appeal, together with the minutes or official action of the approving authority, and a report on the basis of the decision and the appropriateness of the appeal.
(d) 
The City 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 City Council finds to be pertinent.
(e) 
The action of the City Council shall be to sustain, deny, conditionally sustain, or refer the appeal back to the Planning Commission with the directions, all in compliance with the same requirements and procedures that were applicable to the Commission.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 08-06, 6/3/08)
Any nonconformity continuing beyond the date for abatement as established by this Chapter or as extended by the Planning Commission or City Council is a public nuisance.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 08-06, 6/3/08)
Subject to Planning Commission approval, a nonconforming use may be replaced by another nonconforming use, provided that such substitute use is less detrimental to the public welfare and to the property of persons located in the vicinity thereof than is the original conforming use. Any such change of use shall not extend the termination date established for the original nonconforming use.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 08-06, 6/3/08)
Any of the following violations of the Municipal Code shall immediately terminate the right to operate a nonconformity, except as otherwise provided in this Chapter:
(a) 
Changing a nonconforming use to a use not permitted in the zoning district;
(b) 
Increasing or enlarging the area, space or volume occupied by or devoted to a nonconformity;
(c) 
The addition to a nonconforming use of another use not permitted in the zoning district.
(Added by Ord. 93-16, 11/23/93; amended by Ord. 08-06, 6/3/08)