Chapter 16.228: NONCONFORMING USES, STRUCTURES, AND PARCELS

§ 16.228.010 Purpose of chapter.

Provisions. This chapter is intended to establish uniform provisions for the regulation of legal nonconforming land uses, structures, and parcels. Within the zoning districts established by this Development Code, there exist land uses, structures, and parcels that were lawfully in existence before the adoption, or amendment of this Development Code, or were in existence at the time of annexation, but which would be prohibited, regulated, or restricted differently under the terms of this Development Code, as amended.

Intent. It is the intent of this Development Code to discourage the long-term continuance of these nonconformities in order to promote the public health, safety, and general welfare and to bring the uses and structures into conformity with the goals and policies of the General Plan and any applicable specific plan, master development plan, or precise road plan. This chapter would provide for their eventual elimination, but would allow them to exist under the limited conditions identified in this chapter.

Establish Circumstances. Generally, this chapter is intended to be administered in a manner that would prevent the expansion of nonconformities, establish the circumstances under which they may be continued, and provide for their change, correction, or removal resulting in their eventual abatement.

(Prior code § 16-750.010)

§ 16.228.020 Legal nonconformity.

Any use, structure, or parcel/zoning district area may not be designated as having a legal nonconforming status unless the use was legal at the time it was initiated, the structure was legally built, or the parcel/zoning district area was legally created. The owner/applicant is responsible for providing evidence that the use, structure, and parcel/zoning district area are legal, based on the following criteria:

Use. A nonconforming use shall be deemed to be a legal nonconforming use, if:

There is an existing valid use permit, if required;

There is evidence that the use was an allowed use at the time it was established;

There is evidence that the use was an allowed use, or had a use permit if required by the County, at the time it was annexed into the City; or

If the above information is not available, the Director shall review the evidence for status as to the legality of the nonconformity and issue a determination based upon information provided by the applicant and payment of a filing fee set by the Council's fee resolution.

Structure. A nonconforming structure shall be deemed to be a legal nonconforming structure, if:

A building permit was issued by the City or County for the structure;

The structure existed at the time it was annexed into the City or before code requirements;

The structure was built before 1950; or

Parcel or Zoning District Area. A nonconforming parcel or zoning area shall be deemed to be a legal nonconforming parcel or zoning district area, if:

The parcel was legally created through a subdivision approved by the City or the County before City annexation/incorporation;

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;

The parcel was approved through the variance procedure, in compliance with Chapter 16.172, or resulted from a lot line adjustment in compliance with Chapter 16.200;

The parcel was created in compliance with the provisions of this Development Code, but was made nonconforming when a portion of the parcel was acquired by a governmental entity so that the parcel size was decreased not more than 20 percent and the required front yard setback facing a public right-of-way was decreased by no more than 50 percent;

There is a certificate of compliance issued by the City or County; or

The zoning was obtained through the City's prezoning or rezoning process.

(Prior code § 16-750.020; Ord. 015-09 C.S., eff. 12-3-09)

§ 16.228.030 Creation of a nonconforming use, structure, or parcel.

Except as provided for in this chapter, the City shall not approve any permit or entitlement that would:

Cause the creation of a nonconforming use, structure, or parcel where there was no prior nonconformity; or

Increase the nonconformity of a nonconforming use, structure, or parcel, except as provided in this chapter.

(Prior code § 16-750.030)

§ 16.228.040 Provisions for nonconforming uses, structures, and parcels.

Nonconforming Uses. In addition to the nonconforming uses identified in nonconforming uses and/or structures in subsection C of this section, nonconforming uses may be continued in compliance with the following provisions:

Nonconforming Uses of Land. A nonconforming use of land may be continued, maintained, sold, or transferred, provided that the use shall not be enlarged or increased in any manner (e.g., area, space, volume, or occupant load) nor be extended to occupy a greater area than it lawfully occupied before becoming a nonconforming use, except as provided by this chapter.

Nonconforming Use of a Conforming Structure. The nonconforming use of a structure that otherwise conforms with applicable provisions of this Development Code may be continued, maintained, sold, or transferred, as follows, provided that the only structural alterations are those required by law:

Expansion of Use. The nonconforming use of a portion of a conforming structure may be extended to other portions of the existing structure subject to an administrative use permit in compliance with Chapter 16.168 (Use Permit), provided the expansion shall not:

Be granted more than one time; however, additional expansion will be reviewed on a case-by-case basis by the Director and will be processed with a commission use permit;

ii.

Exceed a maximum of 25 percent of the total floor area of the structure before the expansion; and

iii.

Create a new nonconformity or expand the existing nonconformity in a way that impacts public health and safety (i.e., noise, light, dust, access).

Use. The nonconforming use of a conforming structure may add additional uses allowed in the same zoning district as the existing use is allowed and for which applicable permits are obtained.

Nonconforming Structures. In addition to the nonconforming structures identified in nonconforming uses and structures in subsection C of this section, the following nonconforming structures may continue subject to the following provisions:

Changes to a Structure. The addition, enlargement, extension, reconstruction, relocation, or structural alteration of a nonconforming structure, may only be allowed in compliance with the following provisions:

Changes to a Nonconforming Structure. The alteration, extension, expansion, or enlargement of the area within a nonconforming structure, or the addition of a structure(s) used in conjunction with a nonconforming structure, may only be allowed under the following circumstances:

Any alteration (e.g., a simple cosmetic or structural change which does not include an addition or expansion to the structure's building envelope) to a nonconforming structure shall be allowed without limitation or restriction except for compliance with all current applicable building, health, and safety standards;

ii.

To the extent required by a subsequently enacted or adopted law, ordinance, or regulation, as determined by the Director;

iii.

Additions may be made to an existing nonconforming structure, which is designed for and used exclusively as a single-family residence, duplex, or triplex, as defined in Chapter 16.240 (Definitions), provided the additions:

(A)

Provide parking in compliance with Table 3-9 (Parking Requirements by Land Use), unless existing physical constraints limit the amount of parking that can be provided and a waiver is granted by the Director.

(B)

Shall not:

(1)

Increase the number of dwelling units in the structure;

(2)

Occupy the only portion of a site, which can be used for required parking space or necessary access;

(3)

Encroach into, or increase the encroachment of, a setback area; or

(4)

Increase area coverage beyond that allowed by this Development Code, or to a percentage greater than already exists if the structure is presently nonconforming in terms of allowable area coverage.

iv.

Additions may be made to a nonresidential structure that is nonconforming only because the structure does not comply with one or more property development standards and is not in violation of any other provisions of this Development Code provided the addition complies with all applicable development standards (e.g., height, setbacks, fences, landscaping, etc.) of this Development Code. The existing structure and related portion of the parcel are not required to be brought into compliance with this Development Code.

Relocation. If a nonconforming structure is moved/relocated for any reason for any distance, the structure shall conform to the applicable provisions/standards of the zoning district in which it is located.

Modifications. The additions allowed by subsection (B)(1) of this section (Changes to a structure) shall not be interpreted to authorize the adjustment or modification of any provision of this Development Code. Any adjustment or modification would require the approval of a variance in compliance with Chapter 16.172.

Change in Use of Nonconforming Structures. The use of a legal nonconforming structure may be changed to any use allowed in the zoning district in which it is located, provided it meets the requirements, provisions, and standards identified for that use.

Maintenance and Repair. A nonconforming structure may undergo ordinary and necessary maintenance and repairs in compliance with the following provisions:

Where necessary to keep the structure(s) in condition to meet applicable building, health, and safety codes;

Where there are no structural alterations; and

Where the work is limited to replacement of existing materials with similar materials placed in a similar manner.

Seismic Retrofitting/Building Code Compliance. Repairs or alterations otherwise required by law shall be allowed in compliance with the following provisions:

Unreinforced Masonry Structures. Unreinforced masonry structures which require alteration or demolition to comply with local or State requirements to add seismic strengthening to existing structures, may be repaired or reconstructed, regardless of any nonconformity, provided the reconstruction is allowed by the Building Code; and

Building Code Requirements. Reconstruction required to comply with Building Code requirements shall be allowed, without cost limitations, provided the retrofitting/code compliance is limited exclusively to compliance with earthquake safety standards, as identified in subsection (B)(4)(a) of this section (Unreinforced masonry structures), health and safety regulations (e.g., repair or reconstruction to correct a serious health and/or safety violation, etc.), and other applicable Building Code requirements, including State law (e.g., Title 24, California Code of Regulations, etc.).

Parking Requirements. The addition, enlargement, extension, reconstruction, relocation, structural alteration, or reestablishment or change in use of a structure that is nonconforming only because the structure does not comply with the parking and/or loading requirements of Chapter 16.64 (Off-Street Parking and Loading Standards), may be allowed in compliance with Section 16.64.050(H) (Nonconforming uses and structures).

Nonconforming Uses and/or Structures. The following requirements shall apply.

Continued Use or Structure. In addition to the nonconforming uses, subsection A of this section, and nonconforming structures, subsection B of this section, a nonconforming use or structure may continue subject to the following provisions:

Public Uses. A publicly-owned use or structure, including a fire station, library, park, police station, school, and other public site(s), which does not comply with the required standards and provisions of this Development Code, may be added to, altered, or extended if the addition, alteration, or extension does not extend beyond the boundaries of the original site. Nothing in this chapter shall be construed to require the discontinuance, removal, or termination of a publicly-owned use or structure.

Public Utilities. A public utility use or structure, may be added to, altered, or extended if the addition, alteration, or extension does not change the use or extend beyond the boundaries of the original site. The public utility use or structure includes equipment or other facilities for operating purposes, which were legally established or constructed, but which do not comply with the provisions of this Development Code; it does not include offices, service centers, or yards. Nothing in this chapter shall be construed to require the discontinuance, removal, or termination of a public utility use or structure.

Signs. Legally established nonconforming signs shall be allowed to continue, subject to compliance with Section 16.76.070 (Nonconforming signs).

Nuisances. In the event that a legal nonconforming use or structure is found to constitute a public nuisance, the Director shall take the following appropriate action(s):

Abatement. Abatement in compliance with Section 1.36.040 of the Municipal Code.

Revocation or Modification. Revocation or modification in compliance with Chapter 16.108 (Revocations and Modifications).

Use Permit. Refer any written complaint to the Commission that:

Is filled by an aggrieved person; or

ii.

Alleges that the nonconforming use has become a public nuisance either through a decline in appearance; through the emission of noise, smoke, or vibrations; or by becoming a persistent police problem through the conduct of its operations. The Commission may require the removal of the nonconforming use after a public hearing.

Unlawful Uses and Structures.

Uses and structures which do not comply with the applicable provisions of this Development Code or prior planning and zoning regulations when established are violations of this Development Code and are subject to the provisions of Chapter 16.224 (Enforcement).

The right to continue occupancy of property containing an illegal use or structure is not granted by this chapter.

The activity shall not be lawfully allowed to continue unless or until permits and entitlements required by this Development Code and the Municipal Code are first obtained.

Nonconforming Parcels or Zoning District Areas. Except as otherwise provided in this Development Code, nonconforming parcels or zoning districts shall comply with the following:

Reduction in Parcel Size—Prohibited. Where structures have been erected on a nonconforming parcel, the parcel shall not be later divided so as to reduce the building site area and/or frontage below the requirements of the applicable zoning district or other applicable provisions of this Development Code, or that makes the use of the parcel more nonconforming.

Two or More Adjoining Parcels Under One Ownership.

Single Ownership. If two or more adjoining parcels, or a combination of parcels or portions of parcels, with continuous frontage in single-ownership do not meet the minimum requirements established for parcel area or width, the land involved shall be considered to be a single building site for purposes of this paragraph.

No Reduction in Compliance. Any portion of the building site shall not be used or sold in a manner which reduces the degree of compliance with parcel area or width requirements for the zoning district in which the parcel(s) is located.

Further Division—Prohibited. Any division of a parcel shall not be made which creates a parcel area or width below the minimum requirements for the zoning district in which the parcel(s) is located.

Substandard Parcels or Zoning District Areas. Existing substandard parcels or land areas not meeting the zoning district area requirements for the CL or CA zoning district may be developed and existing structures on the parcel or zoning district area may be added to, enlarged, extended, reconstructed, relocated, or structurally altered, provided any use or structure(s) is in compliance with all provisions, other than parcel or zoning district area size, of this Development Code.

(Prior code § 16-750.040; Ord. 023-07 C.S. §§ 130, 131; Ord. 2022-07-12-1601-02 C.S. § 32)

§ 16.228.050 Use permit requirement.

Conformity of Uses Requiring Use Permits. Any use existing without a use permit at the time of adoption of this Development Code, in a zoning district that under this Development Code only allows the use provided a use permit is first obtained, shall be deemed a legal nonconforming use that does not require a use permit, but only to the extent that it previously existed (e.g., maintain the same parcel area boundaries, hours of operation, etc.).

Previous Use Permits in Effect.

Continuation Allowed. Any use that has obtained a use permit issued in compliance with the regulations requiring a use permit for the specific type of land use activity in effect at the time of application, but which is no longer allowed, with or without a use permit under this Development Code, may continue as a legal nonconforming use.

Limits on Continuation. The use may only continue in compliance with the provisions and terms of the original use permit. If the use permit identified a termination date, then the use shall terminate in compliance with the original permit.

(Prior code § 16-750.050)

§ 16.228.060 Loss of nonconforming status.

The nonconforming status shall no longer apply to a use or structure in the following circumstances:

Exemptions. The following uses and structures shall maintain their nonconforming status if they are involuntarily damaged, demolished, or destroyed:

Residential Dwelling Units. Residential dwelling units (e.g., single-family, multifamily, duplexes, triplexes, and townhouses) and their ancillary parking structure and other accessory structures are exempt from the requirements of this section and may be rebuilt provided:

The original structure(s) is legally nonconforming;

The extent of the nonconformity is not increased in compliance with the following:

The structure(s) may be rebuilt using the same development standards applied to the damaged, demolished, or destroyed structure(s) (e.g., building envelope, density, height, and number of dwelling units); and

ii.

The structure(s) shall be rebuilt in the same footprint (location and size) as the damaged, demolished, or destroyed structure(s), except if relocating the structure(s) would allow the same sized structure(s) to meet current setback requirements;

Reconstruction begins within 12 months of the structure(s) being damaged, demolished, or destroyed and is diligently pursued to completion; and

The new structure(s) meets all current applicable building, health, and safety standards.

Nonresidential Structures Deemed Nonconforming as a Result of a Street Widening. Nonresidential structures deemed nonconforming as a result of a street widening may be rebuilt provided all of the following criteria are met:

The only reason for the nonconformity is that:

The setback requirements are not met due to the widening of the street; and/or

ii.

The requirements for parking or landscaping are not met due to the widening of the street;

The structure is reconstructed within its original nonconforming setback;

Reconstruction begins within 12 months of the structure being damaged or destroyed and is diligently pursued to completion; and

The new structure meets all current building, health, and safety standards.

Termination by Change of Use. Changing a nonconforming use to a conforming use.

Termination by Discontinuance. Except when extended in compliance with this chapter or the provisions of Chapter 16.168 (Use Permits), discontinuance of a nonconforming use or structure, nonconforming due to use, shall result in the use or structure losing its nonconforming status if the use is ceased or discontinued for a continuous period of at least one year from:

Voluntary. The date the use is voluntarily ceased or discontinued; or

Involuntary. The date the owner is notified of the requirement to reestablish the involuntarily discontinued use.

Extension. The owner may request a one year extension if evidence shall be submitted to the Community Development Department indicating the owner has made a "good faith" effort to continue the nonconforming use. Evidence can include leasing agreements, occupancy or building records, and marketing brochures. Only one extension can be granted and will be based on the Voluntary or Involuntary date as shown above.

Termination by Destruction. A nonconforming structure(s), or a conforming structure(s) used for a nonconforming use, involuntarily damaged, demolished, or destroyed may be repaired or rebuilt and re-occupied only as follows:

Cost of Repair—Not Exceeding 50 Percent. If the cost of repairing or replacing the damaged portion of the structure(s) does not exceed 50 percent of its market value as determined on the last equalized assessment roll at the time of destruction or by an appraisal which was prepared within the last 12 months by a licensed appraiser, whichever is greater, the structure may be restored and the use continued, provided the following conditions are met:

Building Code. The reconstruction meets current Building Code requirements; and

Commencement Within 12 Months. Reconstruction begins within 12 months of the date of damage, unless otherwise allowed by the Director, and is diligently pursued to completion.

Cost of Repair—Exceeding 50 Percent. If the cost of repairing or replacing the damaged portion of the structure(s) does exceed 50 percent of its market value as determined on the last equalized assessment roll at the time of destruction or by an appraisal which was prepared within the last 12 months by a licensed appraiser, whichever is greater, the structure may not be restored and the use continued, except as otherwise provided in this chapter.

(Prior code § 16-750.060; Ord. 023-07 C.S. § 132; Ord. 2022-07-12-1601-02 C.S. § 33)