Chapter 21.38
NONCONFORMING USES AND STRUCTURES
Sections:
21.38.030 Determination of Nonconformity.
21.38.040 Nonconforming Structures.
21.38.060 Nonconforming Parking.
21.38.070 Landmark Structures.
21.38.080 Repair of Damaged or Partially Destroyed Nonconformities.
21.38.010 Purpose.
This chapter establishes procedures for the continuation and maintenance of existing uses and structures, except signs, that do not conform to the provisions of this Implementation Plan, and for the abatement of those uses that may adversely affect the general welfare of persons and property. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.020 Applicability.
A. Legally Established Uses and Structures. The provisions of this chapter shall apply to all legally established uses and structures that do not conform to the use regulations or development standards of this Implementation Plan.
B. Exemptions. A structure that was legally constructed prior to October 26, 2010, shall be exempt from the limitations identified in Section 21.38.040(G)(1) unless the structure is nonconforming because it does not comply with the required setbacks. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.030 Determination of Nonconformity.
A. Director’s Determination. The Director shall determine the nonconforming conditions of land uses and structures.
B. Nonconforming Use. Any use determined to have been lawfully established and maintained before the effective date of the certification of this Implementation Plan or any subsequent amendments thereto, but that does not conform to current use regulations or required conditions for the coastal zoning district in which it is located, shall be deemed to be a nonconforming use.
1. A nonconforming use includes a use that was lawfully established and maintained, but is now conditionally allowed, and has not obtained the required discretionary permit.
2. A use shall not be considered to have been “lawfully established and maintained” and is an illegal use if it was established or operated without required permits and licenses, including permits and licenses required by any Federal, State, or local government agency.
C. Nonconforming Structure. Any structure that was lawfully erected before the effective date of the certification of this Implementation Plan or any subsequent amendments thereto, but that does not conform with the current development standards for the coastal zoning district in which it is located or by reason of landform and habitat changes, including bluff or shoreline erosion, wetland or dune migration shall be deemed to be a legal nonconforming structure. A structure, or any portion of a structure, shall not be considered to have been “lawfully erected” and is illegal if it was constructed without required permits, or was constructed inconsistent with approved plans for a required permit, including permits required by any Federal, State, or local government agency.
D. Responsibility of Owner. When a use or structure does not conform with the applicable use regulations or property development standards for the coastal zoning district in which it is located, it shall be the responsibility of the owner to provide evidence that the use or structure was lawfully established, erected, and maintained and is nonconforming by reason of adoption or amendment of this Implementation Plan or by reason of annexation of territory to the City.
E. Illegal Use or Structure. A use or structure that was not lawfully established, erected, or maintained is contrary to the provisions of this Implementation Plan and the City may commence proceedings for the abatement and removal of the use or structure. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.040 Nonconforming Structures.
Nonconforming structures may be maintained, altered, or added on to only in compliance with the provisions of this section.
A. Maintenance and Repairs. Routine maintenance and repairs may be made to nonconforming principal and accessory structures. The replacement of fifty (50) percent or more of a structure is not repair and maintenance but instead constitutes a replacement structure.
B. Nonstructural Alterations. Changes to interior partitions or other nonstructural improvements may be made to nonconforming principal structures, but shall not be made to accessory structures.
C. Structural Alterations. Structural elements, with the exception of foundations of nonconforming principal structures (see subsection (D) of this section), may be modified, repaired, or replaced when the proposed improvements do not increase the degree of nonconformity. Structural alteration of nonconforming accessory structures is not allowed.
D. Foundation Alterations. Routine maintenance and repairs may only be made to foundations of nonconforming principal structures if the foundation is not within a geologic setback or bulkhead setback area. A foundation of a nonconforming principal structure may be repaired or maintained when necessary and in conjunction with additions allowed in compliance with subsection (G) of this section and Section 21.38.060(A). For any alterations beyond routine repair or maintenance, the nonconforming structure shall be required to be brought into compliance with all applicable standards and regulations of this Implementation Plan, except as provided in subsection (F) of this section. Alterations to nonconforming accessory structures shall not be allowed.
E. Seismic Retrofits. Alterations to nonconforming structures due to seismic retrofitting requirements are allowed in compliance with the California Existing Building Code.
F. Reasonable Accommodation. Improvements to a nonconforming structure that are necessary to comply with an approved reasonable accommodation in compliance with Federal and State fair housing laws shall be allowed.
G. Additions. Nonconforming structures may be expanded and the existing nonconforming elements of the structure shall not be required to be brought into compliance with the development standards of this Implementation Plan subject to the following limitations and the limitations provided in Section 21.38.060 (Nonconforming Parking):
1. The addition shall only be permitted if the nonconforming structure:
a. Does not block or impede public access to and along the sea or shoreline and to coastal parks, trails, or coastal bluffs;
b. Does not block or impair public views to and along the sea or shoreline or to coastal bluffs and other scenic coastal areas;
c. Conforms to coastal resource protection development regulations of Section 21.28.040 (Bluff (B) Overlay District), Section 21.28.050 (Canyon (C) Overlay District), Section 21.30.030 (Natural Landform and Shoreline Protection), Chapter 21.30A (Public Access and Recreation), or Chapter 21.30B (Habitat Protection);
d. Is not located within an area identified as hazardous due to erosional factors or coastal hazards;
2. Expansion shall be limited to a maximum of fifty (50) percent of the gross floor area of the existing structure; expansion of residential structures may be permitted up to a maximum of seventy-five (75) percent with the approval of a coastal development permit. When reviewing an application for an expansion of a nonconforming residential structure, the review authority shall consider:
a. Whether the nonconforming structure can be modified to, or replaced with, a conforming structure that would restore or enhance visual quality in a visually degraded area;
b. Whether the nonconforming structure, with or without the proposed addition, is visually compatible with the character of the surrounding area; and
c. Whether the nonconforming structure is architecturally or historically significant;
3. The floor area of any addition, together with the floor area of the existing structure, shall not exceed the allowed maximum floor area for the coastal zoning district;
4. The addition shall comply with all applicable development standards and use regulations of this Implementation Plan;
5. Additional parking shall be provided in compliance with Section 21.38.060 (Nonconforming Parking); and
6. The square footage of the required residential parking area additions identified below shall be excluded from the allowed expansion under subsection (G)(2) of this section, but shall be included as gross floor area.
|
Required Parking |
Maximum Excluded Area |
|---|---|
|
One-Car Garage |
200 square feet, maximum |
|
Two-Car Garage |
400 square feet, maximum |
|
Three-Car Garage |
600 square feet, maximum |
H. Nonconformity with Coastal Resource Protection Regulations. If a structure is nonconforming due to a coastal resource protection development regulation of Section 21.28.040 (Bluff (B) Overlay District), Section 21.28.050 (Canyon (C) Overlay District), Section 21.30.030 (Natural Landform and Shoreline Protection), Chapter 21.30A (Public Access and Recreation), or Chapter 21.30B (Habitat Protection) and when proposed development such as alterations or additions would involve demolition or replacement of more than fifty (50) percent of the exterior walls, or foundation of an existing structure, the entire structure shall be brought into conformity with all current development regulations and all applicable policies of the certified Local Coastal Program.
I. Exceptions.
1. Corona del Mar and Balboa Village. Existing nonresidential structures within Corona del Mar and Balboa Village that are nonconforming because they exceed the allowed floor area shall be exempt from the limits of this section and may be demolished and reconstructed to their preexisting height and floor area; provided, that not less than the preexisting number of parking spaces is provided along with provisions for alternative modes of transportation.
2. Landmark Structures. Landmark structures shall be exempt from the requirements of this chapter in compliance with Section 21.38.070 (Landmark Structures). (Ord. 2019-5 § 4, 2019; Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.050 Nonconforming Uses.
Nonconforming uses may be changed, expanded, increased, or intensified only as provided in this section.
A. Expansion and Intensification of Existing Nonconforming Uses. In nonresidential coastal zoning districts, and in areas where residential uses are not allowed in Planned Community Districts or specific plan districts, only a use that was previously allowed by right, but which becomes nonconforming because of new permit regulations, may be expanded or intensified (e.g., increase in floor area, lot area, or occupancy load) if such new development does not increase the degree of the use’s nonconformity, complies with the coastal protection policies of the Local Coastal Program, and is subject to the approval of a coastal development permit.
B. Change of Use.
1. A nonconforming nonresidential use may be changed to a conforming use, provided the change does not create or increase a deficiency in required off-street parking except as provided in Section 21.38.060 (Nonconforming Parking).
2. A residential use that is nonconforming because it exceeds the allowed number of units for the coastal zoning district may be altered to reduce the number of dwelling units, provided the reduction complies with any floor area limit and affordable housing provisions are satisfied.
C. Exception for Landmark Structures. The use of a landmark structure may be changed, expanded, increased, or intensified subject to compliance with the provisions of Section 21.38.070 (Landmark Structures).
D. Exception for Short-Term Lodging. A short-term lodging unit legally established on or before June 1, 2004, on a parcel in the R-1 (Single-Unit Residential) Coastal Zoning District, or a parcel designated for single-unit dwelling land use as part of a planned community development plan, may continue. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.060 Nonconforming Parking.
A. Residential. Where a residential structure or use is nonconforming only because it does not conform to the off-street parking requirements of this Implementation Plan, the following provisions shall apply:
1. Number of Spaces. A residential development having less than the required number of parking spaces per dwelling unit shall be allowed the following repairs, alterations, and additions:
a. Repair and maintenance, interior alterations, and structural alterations, as provided for in Section 21.38.040(A) through (F);
b. Additions up to a maximum of ten (10) percent of the existing floor area of the structure as provided in Section 21.38.040(G);
c. Any repair, maintenance, or additions shall not result in loss of existing parking spaces; and
d. Required parking shall be provided where feasible.
2. Dimensions or Type of Parking Spaces. Residential developments that are nonconforming because they do not have the required type of covered or enclosed parking spaces or because amendments to this Implementation Plan have changed the dimensions of required parking spaces subsequent to the original construction of the structure may be altered or expanded as follows:
a. All improvements and expansions allowed under subsection (A)(1) of this section;
b. Additions larger than those allowed under subsection (A)(1) of this section may be allowed subject to the approval of a coastal development permit.
3. Alley Access. Where applicable, residential development involving repairs, alterations, and additions to residential development having less than the required number of parking spaces per dwelling unit shall provide alley access to parking area if it would result in additional public street parking.
4. Exception for Cottage Preservation. For the purposes of eligibility as a “cottage” for this section, the existing development prior to the addition shall consist of either a residential single-unit dwelling, duplex, or triplex, with individual unit sizes of one thousand five hundred (1,500) square feet or less, and does not exceed one story and sixteen (16) feet in height on the front half of the lot, and does not exceed two stories and twenty-four (24) feet in height on the rear half of the lot. Notwithstanding the provisions of subsections (A)(1)(b) and (2)(b) of this section, additions of up to fifty (50) percent of the existing floor area of the structure, but no greater than seven hundred fifty (750) square feet, are permitted for a cottage that complies with the following criteria:
a. The floor area of any addition, together with the floor area of the existing structure, shall not exceed the allowed maximum floor area for the coastal zoning district where the property is located;
b. The addition shall comply with all applicable development standards and use regulations of this Implementation Plan, including the coastal resource protection development regulations of Sections 21.28.040 (Bluff (B) Overlay District), 21.28.050 (Canyon (C) Overlay District), 21.30.015(D) (Waterfront Development), 21.30.015(E)(2) (Development in Shoreline Hazardous Areas), 21.30.100 (Scenic and Visual Quality Protection), Chapters 21.30A (Public Access and Recreation), and 21.30B (Habitat Protection);
c. The square footage of residential parking area additions identified below shall be excluded from the allowed expansion under this subsection (A)(4), but shall be included as gross floor area;
|
Required Parking |
Maximum Excluded Area |
|---|---|
|
One-car garage |
200 square feet |
|
Two-car garage |
400 square feet |
|
Three-car garage |
600 square feet |
d. The height of the residential structure including the cottage addition shall not exceed the following, regardless of roof pitch:
i. Front half of lot: single story with a maximum height of sixteen (16) feet; and
ii. Rear half of lot: two story with a maximum height of twenty-four (24) feet;
e. The residential structure shall not include a third floor deck;
f. In addition to limitations of Section 21.48.115 (Short-Term Lodging), any cottage preservation project used for short-term lodging shall be restricted to a maximum of six occupants;
g. Deed Restriction and Recordation Required. Prior to the issuance of a building permit for a cottage preservation project, the property owner shall record a deed restriction with the Orange County Recorder’s Office, the form and content of which is satisfactory to the City Attorney, agreeing to maintain the property consistent with the limitations specified above for cottage preservation and the restrictions on short-term lodging. The deed restriction shall notify future owners of the restriction. The deed restriction shall remain in effect so long as the cottage preservation project exists on the property; and
h. The addition complies with the limitations of Section 21.38.040(G)(1).
B. Nonresidential. Where nonresidential structures and uses are nonconforming because they do not provide the required number of parking spaces the following provisions shall apply:
1. Change of Use. A nonconforming use in a nonresidential coastal zoning district, and in areas where residential uses are not allowed in Planned Community Districts or specific plan districts, may be changed to a new use allowed in that coastal zoning district without providing additional parking, provided no intensification or enlargement (e.g., increase in floor area, or lot area) occurs and the new use requires a parking rate of no more than one space per two hundred fifty (250) square feet of gross building area.
2. Repair, Maintenance, and Alterations. Repair, maintenance, and alterations to nonconforming structures and uses shall be allowed as provided in Section 21.38.040(A) through (G).
3. Addition to Structure or Intensification of Use. A nonconforming structure or use may be enlarged by up to ten (10) percent of its existing gross floor area, or a nonconforming use may be changed to a new use that requires additional parking, under the following conditions:
a. Required parking for the additional square footage is provided; or
b. If the new use requires more parking than the nonconforming use, the new use shall only be required to provide additional parking equal to the difference between the two; or
c. A reduction in the number of required parking spaces is approved in compliance with the provisions of this Implementation Plan.
4. Demolition of Structure. All rights with regard to nonconforming parking shall be lost for a structure that is voluntarily demolished, except as provided in Section 21.38.040(I) (Exceptions). (Ord. 2022-3 § 2, 2022; Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.070 Landmark Structures.
A. Purpose. The purpose of this section is to help preserve historic structures, encourage their adaptive reuse, and revitalize the older commercial areas in which they are located by granting relief from restrictions on nonconforming structures and uses and by maintaining the principal use and minimizing impacts on the surrounding area.
B. Applicability. The following types of structures are recognized as having importance to the history and architecture of the City and are collectively designated as landmark structures:
1. Landmark Theaters. The term “landmark theaters” shall mean a structure constructed for use as a cinema or theater that was constructed on or before December 12, 1950; has a single screen or stage; and was designed to seat more than three hundred (300) people.
2. Landmark Structure. The term “landmark structure” shall mean a structure listed on the National Register of Historic Places, constructed on or before December 12, 1950.
C. Exemptions. Changes in use and structural alterations to a landmark structure shall be exempt from the requirements of this chapter in compliance with the following:
1. Change of Use.
a. The principal use of a landmark structure may be changed, modified, increased, or intensified subject to compliance with the conditions of subsection (D) of this section, and regardless of whether the use has been discontinued for a period of time.
b. An accessory use may be initiated, increased, or intensified subject to compliance with the conditions of subsection (D) of this section.
c. For purposes of this section, the term “principal use of a landmark theater” shall mean the display of motion pictures and similar entertainment uses that occurred on a regular basis within the structure from its inception to January 1, 2003.
d. For the purposes of this section, the term “principal use of a landmark structure” shall be the use that occupied the greatest amount of floor area as of January 1, 2003.
e. For purposes of this section, the term “accessory use” shall mean a use that is allowed in the coastal zoning district in which the landmark structure is located.
2. Alterations. Structural alterations may be made to a landmark structure subject to compliance with the conditions of subsection (D) of this section.
D. Conditions. The exemptions specified in subsection (C) of this section are applicable on the following conditions only where a finding can be made that the development will not perpetuate or establish a physical impediment to public access to coastal resources, nor adversely impact coastal views or biological resources:
1. A new use that is initiated and a use that is intensified by way of a change in operational characteristics shall be an accessory use and remain subordinate to the principal use of the landmark structure;
2. The principal use of the landmark structure shall occupy at least seventy (70) percent of the gross floor area of the structure;
3. Any permit required by other titles of the Municipal Code (other than this title) shall be obtained before the initiation or intensification of an accessory use of a landmark structure;
4. Accessory uses in any landmark theater shall be conducted only between the hours of 8:00 a.m. and 12:00 a.m.;
5. The required off-street parking of all uses after any additions, intensification, modification, or expansion (including credit for reductions in off-street parking resulting from the elimination of accessory uses existing on January 1, 2003) is less than the required off-street parking for the principal and accessory uses prior to any additions, intensification, modification or expansion; and
6. The facade and exterior architectural features of the landmark structure are restored to substantially their original condition as determined by the Director and the exterior walls remain in substantially the same location as they existed on January 1, 2003. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)
21.38.080 Repair of Damaged or Partially Destroyed Nonconformities.
A. Purpose. To establish procedures for and limits on the rebuilding of nonconforming structures that are involuntarily damaged or destroyed.
B. Nonconforming Use. A nonconforming use occupying land, a conforming structure, or a portion of a conforming structure that is involuntarily damaged or destroyed may be reestablished; provided, that:
1. Restoration work is commenced within twelve (12) months of the date of damage, unless otherwise allowed by the Director, and is diligently pursued to completion; and
2. An abatement period for the nonconforming use has not been established.
C. Nonconforming Structure.
1. Determination of Replacement Cost. The replacement cost of the structure shall be determined by the Building Official. However, the Building Official shall accept the appraised replacement cost of the structure as determined by an independent, licensed appraiser retained by the property owner.
2. Up to Seventy-Five (75) Percent Damage or Destruction. A nonconforming structure that is involuntarily damaged or destroyed may be repaired, restored, or rebuilt if the cost of the repair or restoration is less than seventy-five (75) percent of the replacement cost of the entire structure. The rights conferred by this section are contingent upon diligent application for a building permit after the damage occurs and diligent pursuit of repairs or rebuilding to completion.
3. Greater Than Seventy-Five (75) Percent Damage or Destruction. If a nonconforming structure is involuntarily damaged or destroyed to an extent of more than seventy-five (75) percent of its replacement cost, the nonconformity may be restored to its original condition subject to the approval of a coastal development permit unless exempt per Section 21.52.035 (Projects Exempt from Coastal Development Permit Requirements). An application for the coastal development permit shall be made within twelve (12) months after the damage or destruction occurs.
D. Aging and Deterioration. The provisions of this section shall not allow replacement of nonconforming conditions in structures damaged by ongoing natural processes (e.g., dry rot or termites) or that have deteriorated due to age and lack of maintenance.
E. Condominium Units. When a coastal development permit is required for replacement or repair of condominium units that are involuntarily damaged or destroyed no reduction in the number of units shall be required. The replacement units shall be permitted to be equivalent in size and location to the units that were damaged or destroyed.
F. Exceptions for Corona del Mar and Balboa Village. Existing nonresidential structures within Corona del Mar and Balboa Village that are nonconforming because they exceed the allowed floor area shall be exempt from the limits of this section and may be demolished and reconstructed to their preexisting height and floor area; provided, that not less than the preexisting number of parking spaces is provided along with provisions for alternative modes of transportation. (Ord. 2016-19 § 9 (Exh. A)(part), 2016)