The purpose of this chapter is to provide for the regulation of nonconforming structures, site development, and uses, and to specify those circumstances under which they shall be permitted to continue and be improved. The provisions of this chapter are intended to encourage the preservation and reuse of existing development, allow flexibility for improvements in form and design, control such uses and structures so as to reduce adverse effects on adjoining properties, and to preserve the integrity of the area in which it is located.
The provisions of this chapter apply to structures, site development, and uses that have become nonconforming by adoption of this Title, or become nonconforming due to subsequent amendments to its text or to the Zoning Map, except as follows:
A.
Nothing in this chapter shall be construed to prohibit any additions or alterations to a nonconforming structure as may be reasonably necessary to comply with any lawful order of any public authority, such as seismic safety requirements, the Americans with Disabilities Act, or a Notice and Order of the Building Official, made in the interest of the public health, welfare, or safety, provided that approvals pursuant to Chapter 30.250, Modifications, may be required for such additions or alterations.
B.
Nothing in this chapter shall be construed or applied to prevent additions, alterations, or replacement of Public Works and Utilities buildings, structures, equipment or facilities where there is no change in use or increase in the project site area.
A.
Nonconforming structures, site development, or uses may be continued, repaired and maintained. 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. The right to continue a nonconformity shall terminate once it has been abandoned.
1.
Abandonment. A nonconformity is considered to be abandoned after any of the following have occurred:
a.
Change to a Conforming Use or Configuration. The nonconformity has been changed to a conforming use or configuration.
b.
Discontinuation of Use. The use has been discontinued pursuant to Section 30.140.080, Discontinuation of Use.
c.
Substantial Redevelopment. The structure containing the nonconformity is demolished or substantially redeveloped and not reconstructed pursuant to Section 30.165.080, Substantial Redevelopment and Replacement of Nonconforming Structures.
B.
The right to continue does not apply to nonconforming structures, site development, or uses deemed to be a public nuisance because of health or safety conditions, as determined by the Chief Building Official.
Alterations to existing nonconforming structures, site development, or structures containing a nonconforming use or nonconforming residential density, are allowed provided that the alteration does not increase the floor area, except as allowed pursuant to Section 30.165.050, Additions to Nonconforming Development, or Section 30.165.060, Nonconforming Garages and Carports, and meets all of the following standards:
A.
Nonconforming Height. The alteration shall not increase or relocate the height or volume of the portion of the structure that exceeds the maximum height in the zone.
B.
Nonconforming Setbacks.
1.
Height and Volume in Setbacks. Alterations that increase or relocate the height or volume of the portion of the structure within the front or interior setbacks, may be approved by the appropriate Design Review body, subject to Chapter 30.245, Minor Zoning Exceptions, and as follows:
2.
Openings in Setbacks – First Floor. Alterations to create new, relocate, or enlarge windows, doors or other openings on that portion of the first floor of a structure that is located within a setback are allowed if located not closer than five feet to an interior lot line when adjacent to a residential use or zone.
3.
Openings in Setbacks – Upper Floors. Alterations to create new, relocate, or enlarge windows, doors or other openings on that portion of the upper floor of a structure that is located within a setback are allowed when not within an interior setback adjacent to a residential use or zone.
4.
Change of Use in Setbacks. Alterations that change the land use of a development are allowed provided that the alteration does not change the land use of any structure located in the setback from residential to nonresidential, or from nonresidential to residential within the portion of the structure that is located closer than five feet to an interior lot line when adjacent to a residential use or zone.
5.
Residential Units in Setbacks. Alterations that result in an increase in the number of residential units are allowed provided that the alteration does not result in an increase in the number of residential units within the portion of the structure that is located closer than five feet to an interior lot line when adjacent to a residential use or zone
a.
Exception. A conversion to or from a residential unit to an Accessory Dwelling Unit is allowed.
C.
Nonconforming Open Yard. See Section 30.165.100, Nonconforming Open Yard.
D.
Nonconforming Floor Area. If the development is nonconforming to any floor area limitations, alterations are allowed that do not decrease the floor area of a structure or use below the minimum area required; or increase the floor area of a structure or use above the maximum area allowed.
E.
Nonconforming Residential Unit Standards. If the development is nonconforming to any residential unit standards, alterations are allowed that do not increase the number or types of residential building elements; or enlarge or relocate nonconforming residential building elements, except as allowed pursuant to Section 30.140.150, Residential Unit.
F.
Nonconforming Density. Alterations are allowed that do not increase the unit size, the residential floor area, or the number of bedrooms, such that it would cause the residential density for the development to exceed the approved residential density.
G.
Nonconforming Use. See Section 30.165.070, Nonconforming Uses.
H.
Other Development Standards. For all other elements or uses of a structure or property, alterations are allowed that do not increase or expand the nonconformity.
Additions to existing nonconforming structures, site development, or structures containing a nonconforming use or nonconforming residential density, are only allowed as follows:
A.
Substantial Redevelopment Combined with Additions Prohibited. Additions allowed by this chapter shall not be permitted concurrently with a substantial redevelopment pursuant to Subsection 30.165.080.B, Replacement of Demolished Nonconforming Structures, paragraph 9, Additions Prohibited.
B.
Conforming Additions. Additions to nonconforming structures are allowed if the addition conforms with all development standards of this Title, the existing use and residential density of the property are conforming, and no addition is made that increases the nonconformity of the structure or site development.
C.
Nonconforming Additions in Setbacks.
1.
New Floor Area within Existing Structure. Additions of floor area, such as the creation of a mezzanine, or the conversion of attic or understory area to new floor area may be made to any portion of an existing structure that is located within setbacks, provided that the addition is constructed within the existing, fully-enclosed exterior walls and roof of a structure.
2.
First Floor Addition in Interior Setback. A first-floor addition that is located within an interior setback may be made to an existing residential main building that is located within the interior setback, provided that the addition meets the following standards (see also Figure 30.165.050.C.2, First Floor Addition in Interior Setback):
a.
The cumulative total of new floor area located within an interior setback is equal to or less than the first-floor area of the existing, nonconforming portion of the structure located within the same interior setback as of the effective date of this Title;
b.
All new construction shall continue the plane of the existing exterior building wall that is located in the setback, and maintain a minimum setback of five feet or the same distance from the closest point of the existing building to the interior lot line, whichever is greater;
c.
The maximum cumulative length of the addition located within the interior setback shall not exceed 20 linear feet;
d.
The height of the addition within the interior setback complies with the Height and Volume in Setbacks provisions of Section 30.165.040, Alterations to Nonconforming Development.
e.
The existing use and residential density of the property is conforming; and
f.
All other development standards are met.
FIGURE 30.165.050.C.2: FIRST FLOOR ADDITION IN INTERIOR SETBACK  |
D.
Nonconforming Additions that Exceed the Maximum Floor Area (Floor to Lot Area Ratio). An addition of new floor area on a lot that is nonconforming as to the maximum floor area or where the proposed expansion would otherwise be deemed precluded development as specified in Subsection 30.20.030.A, Maximum Floor Area (Floor to Lot Area Ratio), is allowed as follows:
1.
The addition is allowed pursuant to Section 30.165.060, Nonconforming Garages and Carports; or
2.
The addition shall not exceed 100 square feet of floor area, excluding covered parking, over the floor area legally existing on the lot as of June 7, 2007; and
3.
Only one addition, excluding covered parking, is allowed; and
4.
All other development standards are met.
E.
Nonconforming Additions on Lots with Nonconforming Residential Density. An addition of new floor area on a lot containing nonconforming residential density may be allowed, as follows:
1.
The residential floor area, excluding covered parking, on a lot existing as of the effective date of this Title, may be increased by a maximum of 250 square feet through one or multiple additions to the existing residential main or accessory buildings. The addition may be provided as:
2.
All other development standards are met.
A.
Existing Garages and Carports. In any zone, garages and carports that are nonconforming to setbacks, or on lots with nonconforming open yard, or on a lot that is nonconforming to the Maximum Floor Area (Floor to Lot Area Ratio), use or residential density may be altered, increased in size, demolished and reconstructed, substantially redeveloped, or any combination of the above, in order to provide covered parking that conforms to City Standards for Parking Design, subject to the following provisions:
1.
The number of parking spaces shall not be increased within any nonconforming setback or nonconforming open yard.
2.
The new nonconforming setback of the resulting garage or carport shall be no less than the existing nonconforming setback.
3.
The interior dimensions of the resulting garage or carport shall be equal to or greater than those described in the City Standards for Parking Design, and the floor area shall be no larger than 250 square feet per covered parking space.
4.
Garages may be converted to carports, carports may be converted to garages, and garage doors may be altered or relocated.
5.
There shall be no increase in the height of a structure or relocation of windows and doors within any setback, except as otherwise allowed under Section 30.165.040, Alterations to Nonconforming Development.
6.
The resulting garage or carport shall not exceed the maximum height in the zone.
7.
The portion of nonconforming garages or carports within an interior setback and located closer than five feet to an interior property line, and adjacent to a residential zone or use, shall not be converted from covered parking to another use, such as storage, workshops, livable space, other than the conversion to an Accessory Dwelling Unit, pursuant to Section 30.185.040; and
8.
All other development standards are met.
FIGURE 30.165.060.A: EXPANSION OF NONCONFORMING GARAGES  |
B.
New Garages and Carports. New covered parking spaces, up to the minimum number required by this Title, may be constructed on lots containing nonconforming residential density, or on a lot that is nonconforming to the Maximum Floor Area (Floor to Lot Area Ratio), provided:
1.
The interior dimensions of the resulting garage or carport shall be no larger than those described in the City Standards for Parking Design, and the floor area shall be no larger than 250 square feet per covered parking space;
2.
The new garage or carport is not on a lot developed with nonconforming uses; and
3.
All other development standards are met.
A.
Change of Use. Nonconforming uses may be changed subject to the following:
1.
Permitted Uses. Any nonconforming use may be changed to a use that is allowed in the zone in which it is located.
2.
Compatible Nonconforming Uses. Nonconforming uses may be changed to a compatible nonconforming use.
3.
Incompatible Nonconforming Uses. Nonconforming uses shall not be changed to an incompatible nonconforming use.
B.
Alterations to Structures Containing Nonconforming Uses. Alterations to structures containing nonconforming uses that do not enlarge or relocate the area devoted to the nonconforming use are allowed. Structural alterations are limited as follows:
1.
Compatible Nonconforming Uses. Structures containing compatible nonconforming uses may be structurally altered, provided that the alterations do not result in a substantial redevelopment and replacement pursuant to Section 30.165.080, Substantial Redevelopment and Replacement of Nonconforming Structures.
2.
Incompatible Nonconforming Uses. Structures containing incompatible nonconforming uses may not be structurally altered.
C.
Determination of Compatible or Incompatible Use. The Community Development Director shall determine whether an existing or proposed replacement nonconforming use is compatible or incompatible with the purpose of the zone and surrounding uses. Elements to be considered when making these determinations include, but are not limited to, the following:
A.
Verification of Substantial Redevelopment. When, in the determination of the Community Development Director, there exists the potential for a project to result in a substantial redevelopment, the applicant shall submit written verification from a registered structural engineer certifying that the roof, exterior walls and foundation shown to remain are structurally sound and will not be required to be removed or replaced for the project. Prior to issuance of a building permit, the property owner and contractor shall sign an affidavit to the City that they are aware of the City's definition of a substantial redevelopment and the penalties associated with an unlawful substantial redevelopment.
B.
Replacement of Demolished Nonconforming Structures. A nonconforming structure may be demolished or substantially redeveloped and replaced, provided that all of the following conditions are met:
1.
Use. The Use Classification remains the same and demolition or substantial redevelopment and replacement of the nonconforming structure does not continue or perpetuate a nonconforming use.
2.
Height. The new structure shall not exceed the height of the existing structure, and the new structure shall comply with all current applicable height limitations.
3.
Footprint. The replacement structure shall be located within the same footprint and in the same location on the lot as the existing structure. Exceptions to this limitation may be approved by the appropriate Design Review body pursuant to Chapter 30.245, Minor Zoning Exceptions, upon finding the proposed location of the structure is safer or more appropriate that the previous existing location, in addition to the findings required pursuant to Chapter 30.245, Minor Zoning Exceptions.
4.
Floor Area. The square footage of the replacement structure shall not exceed the square footage of the existing structure, unless otherwise allowed pursuant to Section 30.165.060, Nonconforming Garages and Carports.
5.
Residential Units. The number of residential units in the resulting structure shall not be greater than the existing number of residential units.
6.
Density. The new structure does not increase the unit size, the residential floor area, or the number of bedrooms, such that it would cause the residential density for the development to exceed the approved residential density.
7.
Open Yard. The open yard shall not be less than existing.
8.
Parking Spaces. The number of parking spaces shall be no less than the number of existing parking spaces.
9.
Additions Prohibited. Except for conforming first floor additions not exceeding a cumulative total of 100 square feet per lot, additions allowed by this chapter shall not be permitted concurrently with a demolition or substantial redevelopment, or within five years following the completion of the demolition or substantial redevelopment of a structure, pursuant to Section 30.140.200, Substantial Redevelopment; unless otherwise allowed pursuant to Section 30.165.060, Garages and Carports. The addition shall not be considered completed until it passes a final inspection or a Certificate of Occupancy has been issued.
10.
Alterations Allowed. Any alterations and remodels shall comply with Section 30.165.040, Alterations to Nonconforming Development.
11.
Encroachments Allowed. Encroachments into setbacks and open yards are allowed pursuant to Section 30.140.090, Encroachments into Setbacks and Open Yards.
12.
Design Review Required. The structure, site and landscaping plans shall be subject to the review and approval of the appropriate Design Review body.
13.
Building Permit Required. The demolition or substantial redevelopment occurred pursuant to a valid building permit. All permits for new construction that are required under the Building Code shall be obtained either concurrently with the permit for the demolition or substantial redevelopment or while any discretionary approval is still valid.
C.
Repair and Replacement of Damaged or Destroyed Nonconforming Structures. A nonconforming structure that is damaged, destroyed, or partially destroyed due to damage caused by fire, explosion, earthquake, or natural disaster which is not caused by an act or deliberate omission of the property owner, their agent, or person acting on their behalf or in concert with, may be restored or rebuilt and the occupancy and use may be continued or resumed subject to the restrictions in Section 30.165.080, Substantial Redevelopment and Replacement of Nonconforming Structures, with the following allowances:
1.
Use. The demolition or substantial redevelopment and replacement of the nonconforming structure may continue or perpetuate a nonconforming use.
2.
Height. The new structure shall not exceed the height of the existing structure, but is not required to comply with all current applicable height limitations.
3.
Building Permit Required. The building permit for the reconstruction, restoration or rebuilding of the structure must be issued within three years of the occurrence of the damage or destruction. Any such reconstruction, restoration or rebuilding shall conform to all applicable adopted Building Codes in effect at the time of reconstruction.
4.
Archive Plans. Plans existing in the City's archives and other available information shall be used to determine the size, location, use, and configuration of nonconforming structures. No additional discretionary review is required to rebuild the structure in accordance with the most current approved archive plans.
5.
Unavailable Records. If the City is not able to verify the size, location, use and configuration of the nonconforming structures with the available information, the City shall send a notice to all owners of property within 100 feet of the subject property, advising them of the details of the applicant's request to rebuild, and requesting confirmation of the size, location, use, and configuration of the nonconforming structure that is proposed to be rebuilt. The public comment period shall be not less than 10 calendar days as calculated from the date that the notice was mailed.
A.
Determination of Nonconformity. A fence or hedge shall be determined to be nonconforming by the Community Development Director upon receipt of sufficient evidence indicating that the fence or hedge existed in its present location on January 10, 1957 (the effective date of the first ordinance adopting the provisions of this section).
B.
Continuation, Repair and Maintenance. Any nonconforming fence or hedge may be continued, repaired and maintained, provided there is no physical change other than necessary maintenance and repair in such fence or hedge. A maximum of 25% of the length of a nonconforming fence or hedge may be replaced within any 12-month period except as provided in Substantial Redevelopment and Replacement, below.
C.
Substantial Redevelopment and Replacement. A fence or hedge may not be removed, demolished, or substantially redeveloped and replaced if it exceeds the height limitations allowed by this Title, except for fences as provided below.
1.
The fence is a significant structure or feature associated with a designated City Landmark or Structure of Merit and the extent of repair, maintenance, or replacement occurs pursuant to Santa Barbara Municipal Code Section 22.22.070; or
2.
The retaining wall is necessary to retain or support soil in a vertical or near vertical slope of earth.
A.
Designated Nonconforming Open Yard. On all lots with nonconforming open yard, the Community Development Director shall designate the Nonconforming Open Yard on an approved plan, using the following procedure:
1.
The largest, most usable area, or areas, that most closely meet the minimum dimensions, location, and standards pursuant to Section 30.140.140, Open Yards shall be used until the minimum area has been reached, if possible. If there are multiple areas that meet these requirements, the Director shall determine which areas shall be included, based on the purpose of the Open Yard, as described in Section 30.140.140, Open Yards.
2.
The Nonconforming Open Yard shall not include the following:
a.
The front setback in the primary front yard;
b.
The first 10 feet of the secondary front setback measured from the front lot line; or
c.
On lots developed with Single-Unit or Two-Unit Residential, areas less than 10 feet long by 10 feet wide. On lots developed with Multi-Unit Residential or Mixed-Use, areas less than six feet long by six feet wide.
B.
Alterations to Nonconforming Open Yard. On a site that is nonconforming to any required open yard area pursuant to Section 30.140.140, Open Yards, new or reconstructed structures, or any additions and alterations to existing structures, are allowed subject to the following:
1.
The Designated Nonconforming Open Yard provides at least 50% of the minimum area required pursuant to Section 30.140.140, Open Yards;
2.
There is no increase in the number of residential units on the lot, except for an Accessory Dwelling Unit located entirely within the existing primary residence or an existing accessory structure (excluding covered parking);
3.
There is no increase in the number of bedrooms for any residential unit, if the additional bedrooms will result in an increase to the open yard required on-site, unless the additional area is provided;
4.
There is no reduction of required private open yards or the Designated Nonconforming Open Yard; and
5.
All other development standards are met.