This chapter is intended to permit continuation of uses and
continued occupancy and maintenance of structures that were legally
established but do not comply with all of the standards and requirements
of this title in a manner that does not conflict with the General
Plan. To that end, this chapter establishes the circumstances under
which a nonconforming use or structure may be continued or changed
and provides for the removal of nonconforming uses and structures
when their continuation conflicts with the General Plan and public
health, safety, and general welfare.
(Ord. 19-1 § 3)
The provisions of this chapter apply to structures, land, and
uses that have become nonconforming by adoption of this title as well
as structures, land, and uses that become nonconforming due to subsequent
amendments to its text or to the Zoning Map.
(Ord. 19-1 § 3)
Any lawfully established use or structure that is in existence
on the effective date of the ordinance codified in this title or any
subsequent amendment thereto but does not comply with the standards
and requirements of this title shall be considered nonconforming.
A.
A nonconformity
may result from any inconsistency with the requirements of this title
including, but not limited to, use, location, density, floor area,
height, setback, performance standards, or the lack of an approved
Use Permit or other required authorization.
B.
A parcel
of land may be considering nonconforming if it was previously used
and/or developed without required site improvements, including, but
not limited to, paving, screening, landscaping, lighting, drainage,
etc.
(Ord. 19-1 § 3)
Any use or structure that was lawfully established prior to
the effective date of the ordinance codified in this title or of any
subsequent amendments to its text or to the Zoning Map may only be
continued and maintained provided there is no alteration, enlargement,
addition, or other change to any building or structure or use therein;
or no substitution, expansion, or other change including an increase
in occupant load or any enlargement of the area, space, or volume
occupied by or devoted to such use, except as otherwise provided in
this chapter.
A.
The
right to continue a nonconforming use or structure shall attach to
the land and shall not be affected by a change in ownership, tenancy,
or management.
B.
The
right to continue a nonconforming use or structure shall not apply
to uses or structures determined by the Planning Commission or City
Council as described in this chapter to be a public nuisance arising
from conditions that constitute a threat to public health, safety
or general welfare.
(Ord. 19-1 § 3)
In conjunction with the expansion of existing buildings or the
construction of new buildings on a partially developed site, nonconforming
property improvements shall be brought into compliance on the following
basis:
A.
10%
or greater increase in floor area:
1.
Screening of outdoor storage areas consistent with Section 17.22.130, Screening. New fencing must observe required setbacks from the street,
2.
Installation
or existing presence of landscaping equal to five percent of the parcel
area. This landscaping shall be installed along street and building
frontages wherever possible;
C.
30%
or greater increase in floor area:
1.
Paving
of existing required auto parking lot areas and installation of full
parking lot canopy landscaping as described in the landscape development
guidelines,
D.
50%
or greater increase in floor area:
1.
Full
compliance with all site improvement standards is required.
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All additions done in a five-year period beginning after the
date of adoption of the ordinance codified in this title shall be
combined for the purposes of determining the need for compliance with
this section;
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E.
The
Director may, upon request by the property owner, consider substitution
of the required landscaping on one portion of a site to another on
a square foot per square foot basis where the overall change does
not result in any loss of: (1) street landscaping; or (2) net square
footage;
F.
Building additions of 500 square feet or less are exempted from the
provisions of this section. All additions done in a five-year
period beginning after the date of adoption of the ordinance codified
in this chapter shall be combined for the purposes of determining
the need for compliance with this section.
(Ord. 19-1 § 3)
Nonconforming uses shall not be expanded, modified, or substituted
for another nonconforming use except as provided below.
A.
Expansion. Nonconforming uses shall not expand in intensity
and/or physical footprint.
B.
Absence of Permit. Any use that is nonconforming solely by reason of the absence of a Use Permit may be changed to a conforming use by obtaining the appropriate Use Permit pursuant to the requirements in Chapter 17.38, Use Permits.
C.
Substitutions. The Zoning Administrator may allow substitution
of a nonconforming use with another nonconforming use pursuant to
the following.
1.
Limitation on Use. The allowance for a substitution
is limited to the use and its operations and activities as specifically
described in the approval of the substitution.
2.
Duration. The allowance for the new nonconforming
use shall expire five years from the date of approval.
3.
Public Notice Required. Public notice pursuant to Section 17.35.060, Public Notice, shall be provided.
4.
Public Hearing. A public hearing shall be
held if requested by the applicant or other interested person(s) in
writing and received by the Zoning Administrator within 10 days of
the mailed notice.
5.
Required Findings. To allow substitution
of a nonconforming use with another nonconforming use, the following
findings must be made:
a.
The existing nonconforming use was legally established and has not
ceased to operate, whether with the intent to abandon the use or not,
for a continuous period of one year, or six months for any property
fronting West Capitol Avenue or within the Central Business District;
b.
The proposed new use will cease to operate and vacate the site no
later than five years from the date of approval;
c.
Alterations, enlargements, additions, improvements, or other changes
to any building or structure do not exceed 10% of the replacement
value of the building or structure;
d.
The operation of the proposed new use will comply with the standards included in Chapter 17.28, Performance Standards;
e.
The proposed new use will not result in an average daily trip increase
of more than five percent of the current use based on the Institute
of Traffic Engineers (ITE) trip generation rates;
f.
The proposed new use would not be detrimental to public health, safety,
or welfare;
g.
The proposed new use would not preclude or interfere with implementation
of the General Plan or any applicable adopted specific, area, or community
plan;
h.
The proposed new use will not depress the value of nearby properties
or create conditions that would impede their redevelopment or use
in compliance with the General Plan;
i.
The proposed new use will be no less compatible with the purposes
of the district and surrounding uses that comply with the requirements
of this title than the nonconforming use it replaces; and
j.
The proposed new use will not be detrimental to the health, safety,
peace, comfort, or general welfare of persons residing or working
in the surrounding area or be detrimental or injurious to property
and improvements of adjacent properties, the surrounding area, or
the neighborhood because of noise, odors, dust, glare, vibrations,
or other effects.
D.
Conditions. The Zoning Administrator may impose reasonable
conditions deemed necessary to ensure compliance with the required
findings. The Zoning Administrator may also require reasonable guarantees
and evidence that such conditions are being, or will be, complied
with.
(Ord. 19-1 § 3)
A.
Elimination of Nonconforming Uses and Structures.
1.
Nonconforming Uses Not Occupying a Structure or Occupying
a Structure with Valuation Less Than $2,500. The following
nonconforming uses shall be discontinued and removed from their sites
within three year(s) from the effective date of the ordinance codified
in this title:
B.
Time for Elimination When Use or Structure Becomes Nonconforming. Whenever a use or structure becomes nonconforming, the period of
time prescribed in this chapter for the elimination of the use or
the removal of the structure is computed from the effective date of
the change that results in the nonconforming status of the use or
structure.
C.
Burden of Proof. The burden of proof as to the nonconforming
status of any use or structure shall rest with the property owner,
tenant, and/or resident.
(Ord. 19-1 § 3)
Where a period during which a nonconforming use or structure
is to be discontinued and removed from their site is to be established,
such period shall be established as follows.
A.
The
Zoning Administrator shall submit the nonconforming use or structure
and a recommended amortization period, based on the criteria in subsection
C.1, to the Planning Commission for review;
B.
The Planning Commission shall hold a public hearing, noticed pursuant to Chapter 17.35, Common Procedures, to consider the recommended amortization period. Following the public hearing, the Planning Commission shall make a recommendation on the proposed amortization period to the City Council.
C.
After receiving the recommendation from the Planning Commission, the City Council shall hold a public hearing, noticed pursuant to Chapter 17.35, Common Procedures, to consider the recommended amortization period.
1.
The
City Council may establish a maximum time for which the nonconforming
use shall be permitted to continue after considering the following
in relation to the use or structure:
a.
The amount of investment or original cost of the use or structure;
b.
The present actual or depreciated value of the use or structure;
c.
The remaining useful life of the use or structure;
d.
The remaining term of the lease;
e.
The date or dates of construction;
f.
Amortization of the business or structure for tax purposes;
g.
The salvage value;
h.
The threat to the public health, safety, and welfare posed by the
continuance of the nonconforming use; and
i.
Other factors as appropriate.
2.
The
time period established by the City Council shall be no less than
three years in length.
(Ord. 19-1 § 3)
Nonconforming structures may be continued and maintained in
compliance with the following provisions.
A.
Maintenance and Repairs. Structural and non-structural maintenance,
repair, and interior alterations to a nonconforming structure are
permitted if the changes and improvements do not enlarge the structure,
change the building footprint, or increase building height or roof
pitch. This excludes any improvements required to meet accessibility
requirements.
B.
Additions. Additions to and/or enlargements of nonconforming
structures are allowed if the addition or enlargement complies with
all applicable laws and requirements of this title, the use of the
addition/enlarged area of the property is authorized by this title,
and there is no increase in the discrepancy between existing conditions
and the requirements of this title, except as provided below:
1.
Nonconforming Setbacks, Residential Zones. In Residential Zones, a nonconforming setback may be maintained
and extended, and shall not be considered an increase in the discrepancy,
provided that:
a.
A new encroachment into any other required setback is not created;
b.
The height of the portion of the structure that is within the required
setback is not increased; and
c.
Any residential additions above the first floor shall conform to
the setbacks in effect at the time the application for the addition
is submitted.
(Ord. 19-1 § 3)
A nonconforming structure that is damaged or partially destroyed
by fire, explosion, earthquake, or natural disaster that was not caused
by an act or deliberate omission of a property owner, their agent,
or person acting on their behalf or in concert with them, may be restored
or rebuilt subject to the following provisions.
A.
Restoration When Damage is 50% or Less of Value. If the cost
of repair or reconstruction is less than or equal to 50% of the appraised
value of the structure, replacement of the damaged portions of the
structure is allowed by right provided that the replaced portions
are the same size, extent, and configuration as previously existed.
The determination of the appraised value shall be made by a professional
appraiser selected by the City, whose fee shall be paid by the building
or property owner.
B.
Restoration When Damage Exceeds 50% of Value. If the cost of repair or reconstruction exceeds 50% of the appraised value of the structure, as determined pursuant to subsection A above, the land and building shall be subject to the requirements of this title, except as provided below:
1.
Non-Residential Structures. Any nonconforming
use must permanently cease. The Zoning Administrator may approve a
Minor Use Permit for the structure to be rebuilt to the same size,
extent, and configuration as previously existed provided that the
use of the structure is permitted or conditionally permitted in the
zone. In such cases any expansion or change to the previous use must
conform to the requirements of this chapter.
2.
Residential Structures. Any nonconforming
residential structure may be reconstructed, restored, or rebuilt up
to the size and number of dwelling units prior to the damage and the
nonconforming use, if any, may be resumed subject to a Zoning Clearance
in the case of single-unit dwellings or Zoning Administrator approval
in the case of other residential uses, unless the review authority
finds that the reconstruction, restoration, or rebuilding will be
detrimental or injurious to the health, safety, or general welfare
of persons residing or working in the neighborhood.
C.
Timing. Building permits must be obtained within two years
of the date of the damage or destruction and construction shall be
completed within one year of issuance unless another time period is
specified through Zoning Administrator consideration. Building permits
must be maintained valid through the completion of the project.
(Ord. 19-1 § 3)
If the nonconforming use ceases to operate, whether with the
intent to abandon the use or not, for a continuous period of one year,
or six months for any property having any frontage on West Capitol
Avenue or within the Central Business District, it shall be considered
abandoned and shall not be resumed, reestablished, reopened, or replaced
by any other nonconforming use, except as provided in this section.
It is the responsibility of the applicant to provide evidence demonstrating
to the satisfaction of the Zoning Administrator that the use was legally
established and has not been abandoned.
A.
Abandonment. The time period set forth above shall commence
when the use ceases to operate, whether with the intent to abandon
the use or not, and any one of the following occurs:
B.
Extension of Abandonment Period. The Zoning Administrator
may approve an additional one-year time period during which the use
will not be considered abandoned; provided, that the Zoning Administrator
finds that economic conditions warrant the additional time. If such
additional time period is approved, the total period during which
the use will not be considered abandoned shall not exceed two years
from the date the use ceased to operate.
(Ord. 19-1 § 3)
The provisions of this chapter are in addition to existing State law authority to declare and abate a public nuisance pursuant to California law and other applicable provisions of the municipal code. If a legal nonconforming structure or use is found to constitute a public nuisance, appropriate action may be taken by the City pursuant to the municipal code and Chapter 17.46, Enforcement.
(Ord. 19-1 § 3)
