City of Escondido, CA Nonconforming Uses and Structures

A nonconforming use may be continued even though such use does not conform to the revised provisions of applicable regulatory ordinances, but only if such use constitutes a legal nonconforming use as determined by the provisions of this division.

This division does not authorize or approve the continuance of the use of any land, building or structure which was in violation of law at the commencement of such use.

(c)

Alterations or enlargements may be made to single-family residential structures in residential zones notwithstanding the fact that such structure or lots may not conform to the minimum setback, lot size or lot width requirements of the current applicable zoning regulations, if the residential structure was built in conformity with the development standards in force at the time of construction.

Alterations or enlargements made to such nonconforming structures shall observe current front and rear yard setbacks, but may observe prior established nonconforming side yard setbacks subject to current applicable building code requirements and subject to the limitations of section 33-1243.

(d)

Notwithstanding the provisions of this chapter, the director of community development ("director") or designee, may determine that nonconforming status exists for residential, commercial or industrial zoned properties, even though permit documentation is not available, subject to the following findings:

The structure was constructed prior to 1976 and subsequently annexed to the city.

The structure or building does not create a public nuisance as a result of conditions that threaten the public health, safety and welfare.

Except as noted in this subsection, all other provisions of this article shall apply.

(e)

Investigation. Any request brought pursuant to this subsection, shall be made in writing to the planning division, and shall be accompanied by a filing fee, which shall be established by resolution of the city council. The director, or designee, shall review the request, together with any other information deemed relevant or necessary. Any necessary information shall be the responsibility of the applicant to provide. Upon making the required findings of this subsection, the director, or designee, shall grant, deny, or conditionally grant the request subject to the provisions of this article.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1242 Inapplicability of this division.

The following properties shall not be entitled to legal nonconforming use status under section 33-1241:

Abandoned Use of Property. Any discontinuance of a nonconforming use for a continuous period of six months shall be deemed to constitute abandonment of any preexisting nonconforming rights and such property shall not thereafter be returned to such nonconforming use;

Altered Property Use. Nonconforming uses may not be repaired, altered, improved or reconstructed in such a way that the nonconforming use becomes more permanent or is expanded. Alterations, improvements and reconstruction are deemed to make the nonconforming use more permanent or expanded if cumulative expenditures on the nonconforming use exceed the percentages of replacement value set forth in section 33-1243. All percentages used in section 33-1243 shall be calculated on a cumulative basis commencing with the initial expenditure. Replacement values shall be calculated by the director, or designee, using the most recent table of valuation multipliers of the International Code Council;

(c)

Changed Use. A nonconforming building, structure or use shall not be changed to another nonconforming use;

(d)

Extended Nonconforming Use. A nonconforming use shall not be physically extended or enlarged, except as permitted in section 33-1243. Minor expansions of nonconforming buildings are permitted provided the degree of nonconformity is not increased and all applicable development standards are met. The extension or enlargement of a lawful use to any portion of a nonconforming use, or the issuance of a home occupation permit pursuant to Article 44, shall not be deemed the extension of such nonconforming use.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1243 Exceptions to nonconforming use provisions.

Routine Maintenance. Nothing in this division shall prevent a property owner from performing routine maintenance on a nonconforming use. For the purposes of this section, the term, "routine maintenance," is minor work on a nonconforming use which does not require a permit of any kind and is primarily related to the aesthetics of a use or to alleviate normal wear and tear. Common examples of routine maintenance include, but are not limited to, painting, scraping, cleaning, pruning and so forth.

Voluntary Work. Nothing in this division shall prohibit the repair, alteration, improvement or reconstruction of a nonconforming use provided that the total cumulative costs of such work do not exceed 25% of the replacement value of the nonconforming use. The 25% limitation shall include the replacement costs of work conducted pursuant to subsection (c) of this section and shall not include work that brings the property more into conformance with the current code:

Improvements, additions and/or alterations for a nonconforming single-family residential structure(s) in a residential zone, including restoration pursuant to government order, may exceed the 25% limitation up to 50% of the replacement value of the nonconforming structure;

Improvements, additions and/or alterations above 50% for a nonconforming single-family residential structure(s) in a single-family zone, including restoration pursuant to governmental order, may be approved or conditionally approved by the director, or designee, pursuant to an administrative adjustment, as provided for in Division 2 of this article, upon demonstration that the proposed adjustment will be compatible with and will not be detrimental to adjacent property or improvements;

The application for the administrative adjustment of the replacement valuation shall include a fee to the city in an amount to be established by resolution of the city council. The director may agendize the application for consideration by the planning commission. Replacement values shall be calculated by using the most recent table of valuation multipliers of the International Code Council;

(4)

A nonconforming sign may be altered, improved or remodeled notwithstanding this section provided the cumulative costs of such improvements or remodeling of the sign does not exceed 50% of the cost of reconstruction of the building, as determined by the director;

(5)

City-Wide Zone Change. Nothing in this division shall prohibit the repair, alteration, improvement or reconstruction of a residential use considered nonconforming due to the city-wide zone change program; provided, that the total cumulative costs of such work does not exceed 50% of the replacement value of the nonconforming use, except as permitted within this subsection;

(6)

Industrial Zones. Repairs, alterations and expansions to nonconforming sites, structures and uses in industrial zones may exceed the 25% limitation up to 75% of the replacement costs of all existing improvements provided the expansion or alteration does not expand the degree of nonconformity, pursuant to section 33-574 of this chapter.

(c)

Restoration Pursuant to Governmental Order. Nothing in this division shall prevent the repair, alteration, improvement or reconstruction of any portion of a nonconforming use if such work is ordered by a governmental authority having jurisdiction or if such work is necessary to bring the nonconforming use into compliance with any applicable building, plumbing, electrical or similar codes, provided the total cost of such work includes only restoration pursuant to government order to ensure health, safety and welfare.

(d)

Restoration Following Disaster. Nothing in this division shall prevent the repair, alteration, improvement or reconstruction of any nonconforming use damaged by fire, collapse, explosion or acts of God, provided the total cumulative costs of such work does not exceed 50% of the replacement value. Nonconforming residential structures are exempt from the 50% limitation set forth in this subsection and may be constructed, repaired and rebuilt to nonconforming densities and the use thereof may be continued following damage by fire, collapse, explosion or acts of God without limitation as to cost. The percent limitations set forth in this subsection do not include work pursuant to subsection (b) or (c) of this section.

(e)

Low-and Very Low-Income Housing. Low-and very low-income housing units may be repaired, altered, improved or reconstructed to a condition complying with all applicable building, electrical, plumbing and similar codes without regard to the percent limitations set forth in subsection (c) or (d) of this section, if the following conditions are satisfied:

The housing units at issue have been inhabited continuously by individuals with low-or very low-income for at least one year prior to the date of the proposed alteration, improvement or reconstruction;

The property owner restricts the property for occupation solely by individuals of families of low-and very low-income for a period of at least 10 years. Such restrictions shall be in a form satisfactory to the city attorney;

The property owner does not charge rent for the property which is in excess of 30% of the gross household income of the residents of the property.

(f)

Income Definition. For the purposes of subsection (e) of this section, the term "low-and very low-income" means 80% and 50% respectively of median income of the San Diego County metropolitan statistical area adjusted for household size or any more recent definition adopted by the Department of Housing and Urban Development.

(g)

Any property owner electing to not be subject to restrictions imposed pursuant to subsection (e)(2) of this section shall immediately notify the city and shall terminate, demolish or bring the nonconforming use into compliance with all relevant zoning, building, plumbing, electrical and similar codes within 30 days of terminating the low-income use.

(h)

Miscellaneous Exceptions. The following nonconforming situations are not subject to this division:

Lots created in the Old Escondido Neighborhood Historic District pursuant to Article 65, section 33-1376;

Single-family residential lots that were created legally but now do not meet minimum lot width, lot frontage or lot area;

Nonconforming structures listed on the city's local register of historic places pursuant to the provisions of Article 40 of this chapter.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1244 Appeals.

Any owner of a nonconforming use or structure who is notified by the city of the nonconformance and/or ordered to remove or abate said structure or use may appeal such order to the director pursuant to the terms and procedures set forth in the following sections of this division.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1245 Time for appeal.

Any notice of nonconformance or order for removal or abatement shall become final upon the expiration of 30 days from the date of posting and mailing of the notice and order, unless an appeal to the director is filed prior to the expiration of said period of time. In the event that an appeal is timely filed, all action to be commenced against a nonconforming structure or use shall be stayed until said appeal is finally decided, unless there is an immediate and imminent threat to the public health, safety or welfare, as determined by the director.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1246 Procedure for appeals.

Form. Any appeal brought pursuant to section 33-1244 shall be submitted on an application form to be provided by the planning division and shall be filed with the planning division. An appellant shall provide the following information as to each nonconforming structure or use that is the subject of an appeal:

A detailed description of the use or structure, including legal description, assessor's parcel number, the method of its construction and dimensions;

The name and address of each owner, occupant or tenant of the property upon which the use or structure is located;

The date and value of original construction of the nonconforming structure or the date of commencement of the nonconforming use and investment in such use;

(4)

The date and cost of appellant's purchase of the use or structure;

(5)

The date or dates, and all expenditures for repairs, alterations, improvements or reconstruction on the nonconforming use;

(6)

The current value of the use or structure.

Investigation. The director shall initiate an investigation of each of the above points, together with any other information deemed relevant or necessary by the director.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1247 Hearing on appeal.

Within 30 days of the filing of the appeal, the director shall commence a hearing during which the appellant may present evidence and argument. The building advisory and appeals board may grant or deny the appeal upon determining that the application of this division to the appellant is neither arbitrary nor unreasonable.

(Ord. No. 2017-03R, § 4, 3-22-17)

§ 33-1248 Findings.

The building advisory and appeals board shall not grant an appeal until the following findings are made:

The use or structures to which the legal nonconforming use applies was lawfully in existence prior to the imposition of the law to which the current use or structures do not conform;