Chapter 86.50 NONCONFORMING USES AND STRUCTURAL NONCONFORMITIES

This chapter is enacted to accomplish the regulation and possible elimination of nonconforming uses, structures, floor area ratios and dwelling densities. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.015 Establishment of nonconformity.

A “nonconformity” is a condition which was lawfully established prior to the enactment of current zoning restrictions, standards or procedures with which the condition does not comply. A use or design aspect inconsistent with current zoning restrictions may be legally continued within the provisions of this chapter; provided, that the person asserting a claim of nonconformity can establish that the use or design aspect was lawful and continuing at the time of the enactment of the applicable zoning restriction. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.020 Nonconforming use defined.

A “nonconforming use” is a use that:

A. Is not within the scope, either expressly or implicitly, of zoning restrictions set forth in current zoning ordinance provisions announcing the purpose, intent, permissible uses, and allowable accessory uses for the zone in which the particular use is located; and

B. Has not been issued a special use permit, if applicable, under the provisions of this chapter. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.030 Structural nonconformity.

A “structural nonconformity” is an aspect of a building, fence or wall, structure or improvement that does not conform to the current zoning restrictions or design standards to include, without limitation, height, setbacks, parking, type of building, or coverage of lot by structures. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.032 Floor area ratio nonconformity.

A “floor area ratio nonconformity” is a building that does not conform to the current zoning restrictions or design standards establishing a floor area ratio for the property. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.035 Dwelling density nonconformity.

A “density nonconformity” is a residential property containing one or more dwelling units that does not meet the minimum lot area requirements per dwelling within the zone. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.050 Nuisance.

Nothing in this chapter shall preclude the City from declaring a building, structure, improvement or use to constitute nuisance and a danger to the safety, health or welfare of the public and to take lawful action to remedy the danger. The following shall be defined as “nuisance”:

A. Whenever any building or structure is in such a condition as to constitute a public nuisance known to the common law or in equity jurisprudence.

B. Any attractive nuisance that may prove detrimental to children whether in a building or on an unoccupied lot. This includes any abandoned well, shaft, basement or excavation; abandoned refrigerators and motor vehicles; any structurally unsound fences or structures; or any lumber, trash, fences, debris or vegetation that may prove a hazard for inquisitive minors.

C. Whatever is dangerous to human life or is detrimental to health, as determined by the Health Officer.

D. Overcrowding a room with occupants.

E. Insufficient ventilation or illumination.

F. Inadequate or unsanitary sewage or plumbing facilities.

G. Uncleanliness, as determined by the Health Officer.

H. Whatever renders air, food or drink unwholesome or detrimental to the health of human beings, as determined by the Health Officer. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.070 Prohibition on increasing a nonconformity.

Except as otherwise provided in this chapter, neither a nonconforming use nor a structural nonconformity shall be enlarged, extended, expanded or in any other manner changed to increase its inconsistency with the current zoning restrictions. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.075 Lot area less than required.

One single-family dwelling building shall be permitted on a lot of less area then required by this chapter, provided such lot was a legal lot of record and is a lot under one ownership on July 1, 1973, and provided the owner of such lot has not owned or purchased any adjoining property since July 1, 1973. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.080 Building permit.

Nothing in this chapter shall preclude the City from requiring an owner of a structure constructed, expanded or altered, either without required building permits or contrary to the specification of the building permits issued, to modify or remove said structure or to obtain the required inspections and final approval for it. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.090 Alteration of structures with nonconforming setbacks or height.

A building or structure which does not conform to the yard or height regulations applicable to the land on which such building or structure is located may be structurally altered, added to, or enlarged, only when:

A. The alteration, addition or enlargement does not increase the nonconformity and the “proposed gross floor area” is less than 150 percent of the existing “gross floor area”; or

B. The alteration, addition or enlargement causes the building or structure to conform with the general regulations of this title; or

C. A nonconforming accessory building may be attached to a main building, if said attachment does not increase the nonconformity; or

D. Any structure that is nonconforming due to setback or height requirements may be altered and/or enlarged by approval of the Zoning Administrator on the basis that such alteration and/or enlargement shall conform to the provisions of CMC 86.54.070 through 86.54.200. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.095 Reconstruction of damaged nonresidential buildings with structural nonconformities.

A. Any nonresidential building with one or more structural nonconformities that is damaged by 50 percent or more of its gross floor area, as established by the Building Official at the time of damage by fire, flood, explosion, wind, earthquake, war, riot, or other calamity or act of God, shall be required to conform to all City regulations, as contained herein, upon completion of any restoration or reconstruction project.

B. Any nonresidential building with one or more structural nonconformities that is damaged by less than 50 percent of its gross floor area, as established by the Building Official at the time of calamity or act of God, may be restored or reconstructed as before such happening. However, if the reconstruction is less than 25 percent completed within 12 consecutive months of the issuance of required permits, it shall not be restored or reconstructed as before such calamity or regulations as contained herein. Total reconstruction shall be accomplished within five years from the issuance of required permits. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.100 Involuntarily destroyed or damaged single-family and multifamily dwellings with structural nonconformities.

A. The reconstruction, restoration, or rebuilding of any single-family and multifamily dwelling with one or more structural nonconformities that, as the result of a catastrophic event(s) or public enemy, is involuntarily destroyed or suffers involuntary damage of 50 percent or more of its gross floor area shall conform with all City zoning ordinances and regulations.

B. Notwithstanding the requirements in subsection A of this section, any structurally nonconforming single-family and multifamily dwelling that, as the result of a catastrophic event(s) or public enemy, is involuntarily destroyed or suffers involuntary damage of 50 percent or more of its gross floor area may be reconstructed, restored, or rebuilt up to its predamaged size and number of dwelling units; provided, that the building permit is applied for within two years from the date of the damage or destruction. The reconstruction, restoration, or rebuilding of such a dwelling shall otherwise conform with all other City zoning ordinances and regulations.

C. Any single-family and multifamily dwelling that suffers involuntary damage of less than 50 percent of its gross floor area as a result of a catastrophic event(s) may be reconstructed, restored, or rebuilt with any structural nonconformities that existed prior to the damage, unless the building permit is obtained more than two years after the date of the damage, or the reconstruction, restoration, or rebuilding is completed more than three years after the date of the damage. The reconstruction, restoration, or rebuilding of such a dwelling shall otherwise conform with all other City zoning ordinances and regulations.

D. For purposes of this section, “catastrophic event” includes fire, flood, explosion, wind, earthquake, war, riot, or other calamity or act of God.

E. For purposes of this section, “multifamily dwelling” is defined as any structure designed for human habitation that is divided into two or more independent living quarters. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.105 Voluntarily destroyed, damaged or altered buildings with structural or floor area ratio nonconformities.

A. Any building with a “structural nonconformity” or “floor area ratio nonconformity” that is proposed to be structurally altered or demolished where more than 50 percent of the exterior walls are removed shall be required to conform to all City regulations as contained herein, upon completion of any restoration or reconstruction project.

B. Any building with one or more “structural nonconformity” or “floor area ratio nonconformity” that is proposed to be enlarged where the proposed “gross floor area” is 150 percent or greater than the existing building “gross floor area” shall be required to conform to all City regulations in effect at the time of building permit issuance.

The following are exceptions to this requirement:

1. Approval from the Design Review Commission or Historic Resource Commission (if a designated historic resource); provided, that:

a. The existing architectural style shall be preserved and applied to the enlarged building; and

b. The existing front facade shall be preserved in place. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.120 Nonconforming rental dwelling or habitable unit use.

A. A nonconforming rental dwelling or habitable unit use is inactive if the dwelling or habitable unit is not occupied and is not subject to being occupied in accordance with an existing lease or rental agreement:

1. Entered into for a fair market rent; and

2. Entered into with the intention of the tenant to occupy the unit.

B. A nonconforming rental dwelling or habitable unit use is terminated if it is inactive for 120 consecutive days.

C. Exception. Dwelling or habitable units in motels, hotels, hospitals, in facilities governed by special use permits or in the Residential-Special Care Development Zone are exempted from regulation by this section. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.130 Nonconforming guest dwelling use.

A. A nonconforming guest dwelling use is inactive if the dwelling is not occupied by a guest.

B. A nonconforming guest dwelling use is terminated if it is inactive for more than 350 days during the preceding 365 days.

C. A nonconforming guest dwelling use is terminated if it is the subject of a rental or lease agreement. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.140 Nonconforming commercial, office or manufacturing use.

A. A nonconforming commercial, professional office, manufacturing or industrial use is inactive if business is not being conducted or City licenses and permits required for such business have not been obtained.

B. A nonconforming commercial, professional office, manufacturing or industrial use is terminated if it is inactive for 120 consecutive days or if it is inactive for more than 180 days during the preceding 365 days.

C. Any nonconforming commercial, professional office, manufacturing or industrial use of a residential building or residential accessory building in any Residential Zone shall be terminated two years from the date the property owner receives notification from the City to terminate such use. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.150 Other nonconforming uses.

Unless otherwise specified, a nonconforming use terminates if inactive for 180 consecutive days. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.160 Termination upon enlargement of nonconforming use.

If a nonconforming use is enlarged, extended, expanded or in any other manner changed to increase its inconsistency with the current zoning restrictions, the nonconforming use shall be terminated in its entirety in the event that:

A. The City notifies the property owner of the enlargement of the nonconforming use; and

B. The property owner fails to restore the nonconforming use to its previous level within 60 days of such notice. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.165 Alteration of structures nonconforming due to density.

Properties nonconforming due to density may have a building, structure or improvement structurally altered, added to, or enlarged, only when:

A. The alteration, addition or enlargement does not increase the number of dwellings or other nonconforming aspects of the property; or

B. The alteration, addition or enlargement causes the building or structure to conform with the general regulations of this title. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.170 Relief from strict application to nonconforming use.

A. Upon timely application by a person with an interest in a nonconforming use, the Planning Commission may determine whether the operation of the provisions of this chapter conflict with such person’s rights under the Constitution and applicable statutes of the United States or of the State of California or in some manner produce an inequitable result.

B. In the event of an affirmative determination reached under the provisions of subsection A of this section, the Planning Commission may, by resolution, adjust the impact of this chapter on such person to alleviate the conflict or inequity.

C. The determination of the Planning Commission shall be final and shall thereafter control the operation of this chapter on such nonconformity unless within 15 days of such determination an appeal is filed with the City Council. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.180 Timing of required removal or alteration of structures containing nonconforming uses.

Every building in any R Zone, except residential buildings, churches and schools; and hotels, motels and professional offices (existing prior to the adoption of the ordinance codified in this title) on Block 16 within the R-3 Zone, and in Blocks 68, 69, 108, 109, 121, 122, 142, 143, 152, and 153 within the R-4 Zone and commercial uses located in Block 139 within the R-1B Zone, which were designed or intended for a use not permitted in the R Zone in which it is located, shall be completely removed or altered to structurally conform to the uses permitted in the zone, and the use of such building shall be changed to conform with the uses permitted in the zone within the time period as fixed by the appropriate sections of this chapter. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.200 Two or more nonconforming main buildings on one lot having different abatement schedules – Abatement.

Where two or more nonconforming main buildings located on one lot have different abatement schedules, the abatement schedule for the nonconforming main building existing on the lot which provides the longest abatement period shall apply to all main buildings to be abated on the lot. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.210 Value of $10,000 or less – Abatement.

Nonconforming structures having a valuation made by the Building Official of $10,000 or less shall be abated within one year from the date of notification of the property owner. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.220 Uses subject to special use permit.

A. Property owners voluntarily applying for a special use permit for an existing use shall not be required to submit a fee for the SUP application.

B. Any existing use that is subject to a special use permit shall not be expanded or increased in the intensity of use requiring additional off-street parking nor change the type of use to a category requiring a special use permit without first obtaining a special use permit under the provisions of this title. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.230 Nonconforming hotels and motels.

Any provisions of this title to the contrary notwithstanding:

A. Existing structures and uses of nonconforming motels and hotels shall be allowed to be reconstructed and retain existing nonconformities so long as the replacement project does not expand the prior structural nonconformities.

B. Existing structures and uses of nonconforming motels and hotels shall not be enlarged, extended, reconstructed, structurally altered or increased in the intensity of use such as to require additional off-street parking under the provisions of this title without a minor special use permit allowing such enlargement, extension, reconstruction, alteration or increase in intensity of use. Subsequent enlargements or other structural changes shall comply with the requirements of Chapter 86.32 CMC, except that such construction shall comply with the underlying zoning requirements concerning height, setback, structural coverage, landscaping, floor area ratio, facade treatment, off-street parking and design review regulations. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.240 Nonconforming professional offices and commercial uses.

A. Professional offices located on Block 16 within the R-3 Zone and on Blocks 68, 69, 108, 109, 122, 142, 152 and 153 within the R-4 Zone and commercial uses located in Block 139 within the R-1B Zone existing prior to the adoption of the ordinance codified in this title shall be allowed to be reconstructed and retain existing nonconformities so long as the replacement project does not expand the prior structural or use nonconformities. In the case of professional offices described herein, the reconstruction shall be accomplished within the applicable provisions of R-3 Zone (CMC 86.14.030, 86.14.040, 86.14.050, 86.14.070, 86.14.080, 86.14.100, and 86.14.110) and R-4 Zone (sections found in the Specific Plan). In the case of the commercial uses described herein, the reconstruction shall be accomplished within the provisions of the Commercial Zone sections found in CMC Title 88, Orange Avenue Corridor Specific Plan.

B. Nonconforming professional offices and commercial uses described herein shall not be enlarged, extended, reconstructed, structurally altered or increased in intensity of use such as to require additional off-street parking, under the provisions of this title, without a major special use permit allowing such enlargement, extension, reconstruction, alteration, or increase in intensity of use. Subsequent enlargements or other structural changes shall comply with the underlying zoning requirements described in subsection A of this section. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.250 Nonconforming residential condominiums.

Nonconforming residential condominiums may be reconstructed or structurally altered so long as neither the number of dwelling units for each complex nor the number of bedrooms for each unit is increased, the height of a structure is not increased, existing building profiles are maintained, and the number and size of existing parking spaces are not reduced. (Ord. 2062 § 2 (Exh. A), 2016)

86.50.260 Nonconforming historic resource.

A structure designated as a National, State, or City historic resource or pending such designation shall not be subject to the abatement and regulatory provisions of this chapter. (Ord. 2062 § 2 (Exh. A), 2016)