Chapter 9.90
Nonconforming Uses, Structures, and Parcels

Sections:

9.90.010    Purpose and Intent of Chapter

9.90.020    Nonconforming Uses

9.90.030    Nonconforming Structures

9.90.040    Nonconforming Parcels

9.90.050    Exemptions

9.90.060    Unlawful Uses and Structures

9.90.070    Nuisance Abatement

9.90.010 Purpose and Intent of Chapter

A.    Purpose. This Chapter provides regulations for nonconforming uses, structures, and parcels that were lawful before the adoption, or amendment of this Land Use Code, but which would be prohibited, regulated, or restricted differently under the current terms of this Land Use Code, or future amendments.

B.    Intent. It is the intent of this Chapter to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to exist under the limited conditions identified in this Chapter as long as they do not create a public nuisance.

C.    Detrimental to orderly development. The continuance of a nonconforming use or structure is generally detrimental to the orderly development of the City and the general welfare of its residents and is particularly detrimental to the welfare of persons and property in the vicinity of any nonconformity.

D.    Illegal use or structure. A use or structure that was established or constructed in violation of the applicable zoning regulations in effect at the time of establishment or construction, and that is not in compliance with the applicable regulations of this Land Use Code, is not a nonconforming use or structure, and is in violation of this Code.

9.90.020 Nonconforming Uses

A nonconforming use may be continued, transferred, or sold, only in compliance with the provisions of this Section.

A.    Replacing a nonconforming use with a similar uses.

1.    A nonconforming use may be changed to another nonconforming use, provided that the new nonconforming use does not increase the degree or intensity of the nonconformity as approved through a Use Permit.

2.    Where a nonconforming use is changed to another nonconforming use of a more restrictive classification, it shall not thereafter be changed to a use of a less restrictive classification.

B.    Enlargement or expansion of a nonconforming use of land or structure. A nonconforming use of land or structure shall not be enlarged or expanded in size or capacity, or extended to occupy a greater area, or increased in intensity or nonconformity.

C.    Loss of nonconforming status.

1.    If a nonconforming use of land, or a nonconforming use of a conforming structure, is discontinued for a continuous period of at least 12 months, the rights to legal nonconforming status shall terminate.

2.    The nonconforming use shall not be resumed once the use has ceased for at least 12 months.

3.    A nonconforming use shall be deemed to have ceased when it has been discontinued, either temporarily or permanently, whether or not the discontinuance was with the intent to abandon the use.

4.    The Director shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, or no business receipts/records to document continued operation.

5.    Without further action by the City, any further use of the site shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this Land Use Code.

9.90.030 Nonconforming Structures

A nonconforming structure may be continued, transferred, or sold, only in compliance with the provisions of this Section.

A.    Nonconforming status. Except as provided by Section 9.90.050.C (Nonconforming single- and multi-family dwelling units), nonconforming status shall terminate if a nonconforming structure is involuntarily damaged or destroyed by accident or natural occurrence, provided that the structure may be repaired and reoccupied only as follows:

1.    Relocation. Nonconforming structures cannot be relocated unless they are brought into compliance with this Land Use Code.

2.    Structure damaged up to 50 percent. A nonconforming structure involuntarily damaged up to 50 percent of its replacement cost (as defined in Subsection A.6.b., below) may be reconstructed, repaired, restored, and used as before, provided that the restoration is initiated (as defined in Subsection A.6.a., below) within 180 days, it does not increase the nonconformity of the structure, and is substantially completed within 12 months from the date of application for the required Building Permit.

3.    Structure damaged more than 50 percent. A nonconforming structure involuntarily damaged to more than 50 percent of its replacement cost (as defined in Subsection A.6.b, below) shall not be reconstructed, repaired, or restored, except in conformity with the applicable requirements of the subject zoning district and building codes, through the Planned Development Permit Process. A nonconforming sign involuntarily damaged to more than 50 percent of its replacement cost (as defined in Subsection A.6.b, below) shall not be reconstructed, repaired, or restored, except in conformity with the applicable requirements of the subject zoning district and building codes, through the Master Sign program process (see Section 9.38.030).

4.    Ordinary repair and maintenance allowed. Ordinary and normal repair and maintenance work that may be required to keep a nonconforming structure in sound condition may occur in compliance with this Subparagraph, provided that no structural alterations or repairs shall be made, except those required by law or authorized under Subsection A.2., above. A nonconforming structure may undergo ordinary and normal repair and maintenance only as follows.

a.    Minor repair. A nonconforming structure may undergo minor normal repair and maintenance:

(1)    Provided that no structural alterations are made, and the work does not exceed 50 percent of the replacement cost of the structure during any calendar year;

(2)    For the purposes of this Subsection, the cost of any required foundation work shall not be counted within the 50 percent limitation.

5.    Other allowed modifications. The addition, enlargement, extension, reconstruction, or structural alteration of a nonconforming structure may be allowed; provided, the modification is necessary to secure added safety or to reduce the fire hazard and/or to secure aesthetic advantages through the alignment, architecture, or closer conformity to surrounding allowed structures in the immediate neighborhood, and only in compliance with Subsection A.3, above.

6.    Definitions.

a.    Restoration is initiated. As used in this Subsection, "restoration is initiated" requires that, at a minimum, a complete Building Permit application has been filed.

b.    Replacement cost.

(1)    As used in this Subsection, "replacement cost" is the construction cost to replace the entire structure immediately before the occurrence of the damage.

(2)    For purposes of administering the provisions of this Subsection, the applicant shall submit three estimates from licensed contractors for the damaged structure with the estimates averaged by the City’s Building Official, which determination shall be final, unless appealed in compliance with Chapter 9.76 (Appeals).

9.90.040 Nonconforming Parcels

A.    Legal building site. A nonconforming parcel that does not comply with the applicable area or width requirements of this Land Use Code shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the Director by evidence furnished by the applicant.

1.    Approved subdivision. The parcel was created by a recorded subdivision;

2.    Individual parcel legally created by deed. The parcel is under one ownership and of record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel nonconforming;

3.    Variance or lot line adjustment. The parcel was approved through the Variance procedure or resulted from a lot line adjustment;

4.    Partial government acquisition. The parcel was created in compliance with the provisions of this Land Use Code, but was made nonconforming when a portion was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing a public right-of-way was decreased not more than 50 percent; or

5.    Certificate of Compliance. A Certificate of Compliance has been issued, in compliance with Article 8 (Subdivision Regulations and Procedures), verifying that the parcel complies with the applicable provisions of Article 8 and the Subdivision Map Act.

B.    Subdivision or lot line adjustment of a nonconforming parcel. No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel or any nonconforming use on the parcel.

9.90.050 Exemptions

A.    Historic structure. A nonconforming structure of historical significance may be altered or enlarged without increasing the degree of nonconformity with the approval of the Historic and Design Review Commission (HDRC). A nonconforming structure of historical significance may be altered or enlarged without conforming to current setback provisions with Planned Development Permit approval granted by the Planning Commission in compliance Section 9.72.070 with a recommendation from the HDRC; provided that the historic structure is:

1.    Included in a historic district;

2.    Designated as a historic landmark or noteworthy structure by the City Council;

3.    Listed on the California Register or National Register; or

4.    To be restored.

B.    Structural Alteration. Where a single-family residence, or its detached accessory structures, is nonconforming only by reason of substandard setbacks, the provisions of this Section shall not apply; provided, any structural alteration of a nonconforming structure shall not increase the size or degree of the nonconformity.

C.    Damaged or destroyed residential units.

1.    Nonconforming single- and multi-family dwelling units that have been involuntarily damaged or destroyed by accident or natural occurrence, may be reconstructed or replaced with a new structure using the same development standards that applied to the damaged or destroyed structure (e.g., building footprint, building height, density standards, number of dwelling units, setbacks, and square footage); provided that:

a.    The applicant provides documentation, satisfactory to the Director, supporting the claim that the damage or destruction occurred involuntarily;

b.    No expansion of the gross floor area or number of dwelling units occurs;

c.    The replacement structure:

(1)    Is in compliance with the California Building Code; and

(2)    Would not be detrimental to the public health, safety, or welfare or materially injurious to the properties or improvements in the immediate vicinity of the replacement structure.

d.    A Building Permit is issued no later than 12 months after the date of destruction, and construction is diligently pursued to completion.

2.    If the preceding requirements are not met, the replacement structure shall comply with all of the regulations of the applicable zoning district in effect on the date of application for the required Building Permit.

D.    Seismic retrofitting. Alterations, reconstruction, or repairs otherwise required by law (e.g., City adopted Building, Electrical, Plumbing Codes) shall be allowed. Reconstruction required to reinforce unreinforced masonry structures or to comply with California Building Code requirements shall be allowed without cost limitations; provided, the retrofitting and Code compliance are limited exclusively to compliance with earthquake safety standards and other applicable California Building Code requirements.

E.    Nonconforming due to a lack of a Use Permit.

1.    Previous Use Permits in effect. A use that was authorized by a Use Permit but is not allowed by this Land Use Code in its current location may continue, but only in compliance with the original Use Permit (e.g., if the original Use Permit specified a termination date, then the use shall terminate in compliance with the requirements of the Use Permit).

F.    Previous permits. A use or structure that does not conform to the current regulations of the subject zoning district, but for which a Building Permit, or a permit or entitlement approved in compliance with this Land Use Code, was issued and exercised before the applicability of this Land Use Code, may be completed; provided, the work is diligently pursued to completion. Upon completion these uses or structures, or parts thereof, shall be deemed to be nonconforming and shall thereafter be subject to the provisions of this Chapter. For the purposes of this Subsection, the provisions of Section 9.72.070 (Permit Time Limits. Extensions, and Expiration) shall govern the determination of whether the permit or entitlement has been exercised in a timely manner.

G.    Public utilities. The provisions of this Chapter, concerning the required removal of nonconforming uses and structures, and the reconstruction of nonconforming structures partially destroyed, shall not apply to public utility structures when the structures pertain directly to the rendering of the service of distribution of a utility (e.g., electric distribution and transmission substations, gas storage, metering, and valve control stations, steam electric generating stations, water wells and pumps, etc.); nor shall any provision of this Chapter be construed to prevent the expansion, modernization, or replacement of the public utility structures, equipment, and features, that are used directly for the delivery of or distribution of the service.

H.    Public acquisition.

1.    Nonconforming due to public acquisition. Whenever any structure or parcel is rendered nonconforming within the meaning of this Chapter by reason of a reduction in a required parcel area, reduction of off-street parking facilities, or setbacks occurring solely by reason of dedication to, or purchase by, the City for any public purpose, or eminent domain proceedings, which result in the acquisition by the City or any agency authorized for the eminent domain proceedings of a portion of the property, the same shall not be deemed nonconforming within the meaning of this Chapter.

9.90.060 Unlawful Uses and Structures

Uses and structures which did not comply with the applicable provisions of this Land Use Code or prior planning and zoning regulations when established are violations of this Land Use Code and are subject to the provisions of Chapter 9.96 (Enforcement and Penalties). This Chapter does not grant any right to continue occupancy of property containing an illegal use or structure. The activity shall not be lawfully allowed to continue unless/until permits or entitlements required by this Land Use Code and the Municipal Code are first obtained.

9.90.070 Nuisance Abatement

A.    Not applicable to public nuisances. The provisions of this Chapter shall not apply to a use or a structure which is, or which becomes, a public nuisance.

B.    Continuance of public nuisances prohibited. The provisions of this Chapter do not allow, and shall not be interpreted to allow, the continuation of a use or structure which is deemed a public nuisance or which is prohibited or otherwise made unlawful, in whole or in part, by the Municipal Code (including the Building Code, Fire Code, Land Use Code, etc.) or by laws enacted by the State or Federal government which are applicable to this City.

C.    Enforcement actions. In the event that a nonconforming use or structure is found to constitute a public nuisance, appropriate action shall be taken by the City, in compliance with the Municipal Code and Chapter 9.96 (Enforcement and Penalties).