A "nonconforming use" is a use that:
A. Is
not within the scope, either expressly or implicitly, of the zoning
restrictions set forth in this title that announce the purpose, intent,
permissible uses, accessory uses and prohibited uses for the zone
in which the particular use is located;
B. Did
comply with the zoning restrictions contained in the Zoning Ordinance
in effect at the time the use was created and was lawfully created;
and
C. Has
not been terminated in accordance with the provisions of this chapter.
"Structural nonconformity" is a physical aspect of a building,
structure or improvement that:
A. Does
not conform to the development standards announced in this title to
include, without limitations, height, setbacks, lot area, parking,
type of building, or coverage of lot by structure;
B. Did
comply with the development standards contained in the Zoning Ordinance
in effect at the time the building, structure or improvement was constructed
or structurally altered and was lawfully constructed; and
C. Has
not been terminated in accordance with the provisions of this chapter.
In order to legally continue a use or structural aspect of a
building, structure or improvement that is not consistent with the
zoning regulations of this title, the person asserting a claim of
nonconforming use or structural nonconformity has the burden of proof
to establish that the use or structural feature qualifies in accordance
with the provisions of this chapter.
A single building may be constructed on a lot of less area than
required by this title so long as the lot is a legal lot of record,
was created prior to the imposition of the present zoning regulation
which makes it nonconforming, has sufficient area to provide a building
site, has not merged, and is not mergeable.
A nonconforming rental dwelling use is inactive if the rental
dwelling area is not occupied and is not subject to being occupied
in accordance with an existing lease or rental agreement:
A. Entered
into for a fair market rent; and
B. Entered
into by the tenant with the intention of occupying the unit.
A. Any
residential project of four or fewer dwelling units with one or more
structural or use nonconformities that is damaged up to 100% (by accident
or voluntary) of its valuation can be reconstructed with the continuation
of the nonconformities provided such nonconformities are not increased
in density or intensity. Nonconforming residential buildings of four
units or less may be reconstructed, added to, or structurally altered
so long as neither the density nor the intensity of the nonconformity
is increased, and the number and size of existing required parking
spaces is not reduced.
1. An
increase to the "intensity" of a nonconforming structure/use would
refer to:
a. Expanding the structural nonconformity, e.g., not meeting development
standards.
b. Any additions to a nonconforming use (e.g., an existing duplex in
a single-family zone) that would expand or intensify the nonconforming
use. Expansions/additions to such nonconforming uses shall not be
considered an intensification when the combined development of all
units on the subject property does not exceed the cumulative limitations
of the underlying zone. Where more than one dwelling unit exists on
a legal lot, the development allowances of the underlying zone shall
be applied on a pro-rata basis (for example, if two dwelling units
exist on one lot, each would be allowed one half of the lot coverage
and/or floor area ratio applicable to the zone). Where all of the
units on the lot are under common ownership, or, in the case of multiple
ownership, where all owners of units on the property are in agreement,
a different combination of percentages may be established and recorded
on the subject property by covenant.
c. An addition for the enclosing of parking shall not be considered
an increase in intensity of the nonconforming use.
d. Conversion of a nonconforming detached accessory structure from an unhabitable use type (for example, storage building or garage) to a habitable structure type (for example, a portion of the primary dwelling) shall be considered an intensification or creation of a nonconformity. However, conversion of such uninhabitable structures to accessory dwelling units permitted under Subsection
30.48.040T shall not be considered an intensification, unless the structure does not conform with the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.
2. An
increase to the "density" of a legal nonconforming structure/use is
new construction or conversion of existing structures with the result
of creating any dwelling units above the number allowed for the subject
property in the applicable zone.
3. New construction, a conforming addition to an existing dwelling, or the conversion of existing structures in order to create an accessory dwelling unit or junior accessory dwelling unit in accordance with Subsections
30.48.040T and
30.48.040U shall not be considered an increase in density or intensity for purposes of this section, unless the reconstructed structure does not conform with the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.
B. For
multifamily dwellings of five or more units, the building profile
may be modified if the resulting profile does not result in a structure
contrary to this section and the following findings are made by the
authorized agency:
1. There
are no additional negative impacts to the character of the neighborhood
beyond the assumed negative impacts of the nonconformity; and
2. The
resulting design will enhance the neighborhood and will not significantly
increase the economic life of the nonconformity thereby expanding
the nonconformity beyond that which would occur through normal maintenance
practices; and either:
a. The building profile modification is necessary for protection of
health and safety; or
b. A significant public benefit will accrue from the increase in building
profile.
c. Public benefit shall include, but not be limited to:
i. Additional significant public improvements will be made to the adjacent
infrastructure;
ii. Drainage in the area will be significantly enhanced as a result of
the change.
(Ord. 88-02; Ord. 2006-06; Ord. 2020-10; Ord. 2022-03)