ARTICLE 18. NONCONFORMING LAND, USES AND STRUCTURES
DIVISION 1. GENERAL PROVISIONS
10-1-1801: PURPOSE:
Within the zones established by this chapter or amendments that may later be adopted there exist or will exist lots, structures, and uses of land and structures, which were lawful before the adoption or amendment of this chapter but which no longer comply. The intent of this article is to permit these nonconformities to continue until they are removed or required to be terminated, but not to encourage their survival. Such uses and structures are declared to be incompatible with permitted uses, structures and standards in the zones involved; and it is intended that they shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone, except as may be expressly permitted in this article. [Formerly numbered Section 31-195; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1802: REPLACEMENT COST:
In this absence of proof to the contrary, replacement cost as used in this article shall mean four (4) times the assessed value of the structure. [Formerly numbered Section 31-196; Renumbered by Ord. No. 3058, eff. 2/21/87.]
DIVISION 2. NONCONFORMING LAND
10-1-1803: LOT AREA REDUCED BY PUBLIC USE:
If a portion of a lot is taken or otherwise acquired for public use, the remainder of the lot may be developed although substandard as to size provided it contains no less than 80 percent of the required lot area for the zone in which it is located. [Formerly numbered Section 31-197; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1804: LOTS ACQUIRED FOR PUBLIC USE AND RESOLD:
If any portion of a lot taken or otherwise acquired for a public use is resold by the public agency after acquisition, it may be developed although substandard as to size, provided it contains no less than 80 percent of the required lot area for the zone in which it is located or is merged with contiguous land so that the combined properties contain no less than 80 percent of the required lot area for the zone in which located. [Formerly numbered Section 31-198; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1805: LOTS OF RECORD IN RESIDENTIAL ZONE:
In any residential zone a dwelling and accessory buildings of the type permitted in such zone may be erected on any single lot lawfully created and of record on the effective date of the adoption or amendment of the Zoning Ordinance, notwithstanding limitations on lot area and width imposed by other provisions of the ordinance. Yard and outdoor living and open space requirements shall be complied with unless waived by Variance. [Formerly numbered Section 31-199; Renumbered by Ord. No. 3058, eff. 2/21/87; 2370.]
10-1-1806: LOTS OF RECORD GENERALLY:
If two (2) or more lots or combination of lots with continuous frontage in single ownership are of record at the time of the adoption or amendment of the Zoning Ordinance, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of such ordinance, and no portion of said parcel shall be used or sold which does not fully comply with lot width and area requirements, nor shall any division of any parcel be made which creates a lot width or lot area not in compliance with such requirements. [Formerly numbered Section 31-200; Renumbered by Ord. No. 3058, eff. 2/21/87.]
DIVISION 3. NEW USES AND STRUCTURES
10-1-1807: COMPLETION OF BUILDING:
Any structure for which a valid building permit has been granted and the actual construction of which has been started, which was conforming when the permit was granted but which became nonconforming when this chapter or any amendment thereto was adopted, may be completed in accordance with the plans and specifications on file in the Building Department, although not conforming with the provisions of this chapter, or amendment thereto, provided:
1. The construction or proposed use of the structure is not in violation of any other ordinance or law; and
2. Work on construction of the structure is diligently carried on and completed within a reasonable time.
Actual construction shall be deemed to have started when construction materials have been placed in permanent position and have been permanently fastened, except that when excavation, demolition, or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation, demolition, and removal shall be deemed to be actual construction if carried on diligently to and including rebuilding. [Formerly numbered Section 31-202; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1808: CHANGE TO ANOTHER NONCONFORMING USE:
The nonconforming use of a structure or land shall not be changed to another nonconforming use except as expressly permitted in this article. [Formerly numbered Section 31-203; Renumbered by Ord. No. 3058, eff. 2/21/87.]
DIVISION 4. EXISTING USES AND STRUCTURES
10-1-1809: CONTINUATION OF USE OF LAND:
A lawful use of land made no longer permissible under the terms of this chapter as adopted or amended may be continued so long as it remains otherwise lawful, subject to the following provisions:
1. Such use shall not be enlarged or increased, nor extended to occupy a greater area of land than was occupied when the use became nonconforming.
2. Such use shall not be moved in whole or in part to any other portion of the lot or parcel of land occupied by such use when the use became nonconforming.
3. If such use ceases for any reason for a period of more than three (3) consecutive calendar months, any subsequent use of such land shall conform to the requirements of this chapter for the zone in which it is located.
4. If provision is made for the termination of such use, any use of such land after termination shall conform to the requirements of this chapter for the zone in which it is located. [Formerly numbered Section 31-204; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1810: CONTINUATION OF STRUCTURE:
Any structure made nonconforming by this chapter as adopted or amended may be continued so long as it remains otherwise lawful, subject to the following provisions:
1. Such structure may not be enlarged or altered in a way which increases its nonconformity.
2. All enlargements, alterations and additions to such a structure shall conform to all standards and requirements of this Chapter for the zone in which the structure is located.
3. Should such structure be destroyed by any means to an extent of more than 50 percent of its replacement cost immediately prior to destruction, it shall not be reconstructed except in conformity with the provisions of this chapter. Provided however, that any single family or multiple family residential structure in a residential zone destroyed to such extent by means of fire, flood, wind, earthquake or other natural force or by action of the public enemy, may be rebuilt to the pre-destruction configuration and size, height, lot coverage, floor area ratio, amount of off-street parking, and number of dwelling units of the previous structure, upon granting of an Administrative Use Permit.
4. Should such structure be voluntarily demolished to an extent of 50 percent or less of its replacement cost, any non-conforming features or portions of the structure that are demolished shall not be replaced unless they conform to the standards of this Chapter. “Non-conforming features or portions of a structure”, as used above, include, but are not limited to, non-conforming walls and/or roofs. Such portion or feature shall be considered demolished if underlying structural elements such as foundations, framing or trusses are removed. Removal of surface or finish features such as siding, plaster, drywall, shingles, tiles, or suchlike for purposes of replacement or repair only shall not be considered demolition of the underlying element. For a single family residential structure, any new openings (windows and doors) along a non-conforming exterior wall, limited to 50% of the linear length of the wall, shall be exempt from requirements of this sub-section, subject to approval from the Building Official.
5. Should such structure be destroyed to an extent of 50 percent or less of its replacement cost by means of fire, flood, wind, earthquake or other natural force or by action of the public enemy, or from damages due to termites or dry rot:
a. The damaged structure may be repaired or rebuilt to the area, footprint and height of the previously existing structure.
b. Such repairs must be commenced within one (1) year of the event causing the damage, and must be diligently pursued until completed.
c. If during restoration or reconstruction, floor area or height is increased, the structure shall relinquish its non-conforming status, and shall become subject to Subsection (4) above.
Replacement of a nonconforming structure or portions thereof, from damages due to termites or dry rot is applicable to residential structures only, and as such these damages shall be confirmed by the Building Official.
6. Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the zone in which it is located.
7. Such structure may be repaired provided the repair work is done in compliance with the provisions of this section.
8. If provision is made for the termination of such structure or its nonconforming characteristics, any use of such land after termination shall conform to the requirements of this chapter for the zone in which it is located.
9. Stables and corrals for keeping horses shall conform, except that stables need not conform until a building, or addition to a building intended or used for human habitation exists or is hereafter constructed or moved upon abutting property and less than 20 feet separates the stable from any door, window, or other opening of the building or addition, in which case the stable shall be made to conform within one (1) year from the occurrence of such event.
10. Multiple family residential structures or properties that are made non-conforming with respect to the number of residential units due to a Zone Map or text amendment that decreases the permitted density shall not be considered non-conforming with respect to the number of units so long as all of the units were legal (as to their number) when originally constructed. The existing units on the property may be improved or expanded as if the number of units were conforming, subject to all other applicable development standards; provided, however, that any demolition or destruction of the existing structure(s) shall be subject to the requirements of this Section. This provision does not prevent a structure or property from being made non-conforming or from being considered an increase of non-conformity due to Zone Map or text amendments not pertaining to density, and does not otherwise exempt a structure from any provision of this Section or Chapter.
Nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any City or State official charged with protecting the public health or safety, upon order of such official. [Formerly numbered Section 31-205; renumbered by Ord. No. 3058, eff.2/21/87; amended by Ord. No. 22-3,970, eff. 4/15/22; 3647; 3643, 2597.]
10-1-1810.5: MINOR EXCEPTIONS FOR SIDE YARD SETBACKS OF SINGLE FAMILY DWELLINGS:
A. An applicant may request a minor exception to the standards of Section 10-1-1810 for the purpose of maintaining, reconstructing, or extending a non-conforming side yard setback of an existing single-family dwelling structure in any residential zone. The requirements of this section apply only to single family dwelling structures, garages, and accessory structures and do not apply to second dwelling units or other structures.
B. A request for minor exception shall be considered for approval by the City Planner and Building Official, or their designees, and shall be approved if the following findings can be made:
1. The non-conforming minor addition, alteration or other minor non-conforming work is necessary for one (1) or more of the following reasons:
a. the work is necessary to reduce a hazard or safety problem identified by a government official charged with identifying such hazards or problems;
b. the work is necessary to maintain or improve the aesthetic appearance or architectural viability of the structure; or
c. requiring the alteration or addition to conform strictly to the requirements of Sec. 10-1-1810 would unreasonably add to the cost of construction.
2. The alteration or addition will not increase the height or number of stories of the existing non-conforming structure, and any non-conforming additions are of equal or lesser height than the existing structure.
3. The alteration or addition will not result in any decrease of the existing setback or otherwise increase the degree of non-conformity of the existing structure or create a new non-conformity.
4. Windows, doors, wall covering and roof materials, and other architectural features of the alteration or addition will be consistent with the remainder of the structure.
5. The alteration or addition will not degrade the appearance or architectural quality of the structure.
6. The alteration or addition as proposed will not have unnecessary or unreasonable detrimental impacts to neighboring properties or structures including but not limited to impacts to light and sunlight, air circulation, privacy, scenic views or aesthetics.
C. If the City Planner and Building Official, or their designees, determine that any of the above findings cannot be made for the addition, alteration, or other work as proposed by the applicant, but that findings can be made for an alternative design, such alternative design may be approved subject to any requirements necessary to ensure that the findings can be made, including, but not limited to reduced length, depth, height or square-footage of the proposed addition, alteration, or work.
D. The setback of the portion or side of the structure that is being maintained, reconstructed, or added to shall be utilized for determining the minimum required setback of the addition even if other sections or sides of the structure have a lesser setback. In no event shall a reconstructed wall or addition have a setback of less than three (3) feet, regardless of the existing setback. The minor exception process discussed in this section shall not allow for setbacks of less than three (3) feet.
E. Applicants seeking to maintain or extend a non-conforming wall, roof, foundation or other structure must submit a certification from a qualified architect or engineer (but not the applicant’s contractor) that the existing wall is structurally sound, free of termites or dry rot, and capable of being maintained or extended in the manner proposed.
The applicant may appeal the decision of the City Planner or Building Official to deny a request for a minor exception or to require modifications to the proposed minor exception to the Planning Commission in accordance with the procedures for Appeals of Development Reviews in Sec. 10-1-1910 and Sec. 10-1-1911 of this Chapter. [Added by Ord. No. 3643, eff. 7/31/04; Amended by Ord. No. 22-3,983, eff. 12/16/22; 3669.]
10-1-1811: CONTINUATION OF USE OF STRUCTURE:
A lawful use of a structure, or of a structure and land in combination, which is made nonconforming under this chapter as adopted or amended, may be continued so long as it remains otherwise lawful, subject to the following provisions:
1. No existing structure devoted to a use not permitted by this chapter in the zone in which it is located shall be altered, extended, constructed, reconstructed, or moved, except in changing the use of the structure to a use permitted in the zone in which it is located.
2. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such building.
3. If no structural alterations are made, any nonconforming use of a structure, or structure and land, may be changed to another nonconforming use provided that the Planning Commission, by making findings in the specific case, shall find that the proposed use is more appropriate to the zone than the existing nonconforming use. In permitting such change, the Planning Commission may require appropriate conditions and safeguards in accord with the provisions of this chapter.
4. Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the zone in which such structure is located, and the nonconforming use may not thereafter be resumed.
5. When a nonconforming use of a structure with a replacement cost of One Thousand Dollars ($1,000.00) or less, or of such structure and land in combination is discontinued or abandoned for 30 consecutive days, the structure, or structure and land in combination, shall not thereafter be used except in conformance with the regulations of the zone in which it is located.
6. When a nonconforming use of a structure with a replacement cost of more than One Thousand Dollars ($1,000.00), or structure and land in combination, is discontinued or abandoned for six (6) consecutive calendar months or for 12 calendar months during any three (3) year period, the structure, or structure and land in combination, shall not thereafter be used except in conformance with the regulations of the zone in which it is located.
7. Where nonconforming use status applies to a structure and land in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the purposes of this paragraph means damage to an extent of more than 50 percent of the replacement cost of the structure immediately prior to destruction.
8. When a nonconforming use of a structure is replaced by a more restrictive nonconforming use, the occupancy may not thereafter revert to a less restrictive use.
9. If provision is made for the termination of such use, any use of such land after termination shall conform to the requirements of this chapter for the zone in which it is located.
10. Except for reasonable repairs and alterations, no nonconforming sign shall be moved, altered, removed and reinstalled or replaced, unless it is brought into compliance with the requirements of the Burbank Municipal Code, except a Historic Sign, Eligible Historic Sign, or a Tier II Historic Sign as identified in the Historic Sign Survey (2014), may be moved, repaired, altered, removed and reinstalled or replaced, subject to the Historic Sign Development Standards. [Formerly numbered Section 31-206; renumbered by Ord. No. 3058; amended by Ord. No. 22-3,983, eff. 12/16/22; 16-3,879.]
10-1-1811.5: RESTORATION OF DAMAGED OR DESTROYED BUILDINGS:
A. BUILDINGS NONCONFORMING AS TO USE, YARDS, HEIGHT, LOT AREA, FLOOR AREA, LOADING SPACE, PARKING, OR OTHER DEVELOPMENT STANDARDS OF TITLE 10 OF THE BURBANK MUNICIPAL CODE.
A building nonconforming as to use, yards, height, number of stories, lot area, floor area, loading space, parking, or other nonconforming development standards of this chapter as determined by the Zoning Administrator, which is damaged, destroyed, or demolished as a result of a local emergency may be reconstructed with the same nonconforming height, number of stories, lot area, floor area, loading space or parking, or other nonconforming development standard as the original building if the building has been identified as a “Qualifying Building” by the City Council in a resolution and if an Administrative Use Permit has been obtained pursuant to this section.
B. QUALIFYING BUILDING.
A building shall be deemed a “Qualifying Building” pursuant to this section only if it has been posted unsafe to occupy by the Building Official because of damage from a disaster which resulted in the declaration of a local emergency, and if the City Council has thereafter identified the specific building, structure, or specific portion of a structure or building in a separate resolution as a “Qualifying Building” falling under this section.
C. ADMINISTRATIVE USE PERMIT.
Prior to obtaining a building permit, a property owner shall apply for and obtain an Administrative Use Permit from the Director in accordance with Section 10-1-1954 et seq. and as modified in this section, who shall grant the permit if they find that all of the following standards will be met if the replicating occurs:
1. A building permit for the reconstruction and replication shall be issued within two (2) years of the adoption date of any City Council Resolution which identifies the “Qualifying Building” eligible to be rebuilt pursuant to this section;
2. Neither the footing nor any portion of the replacement building may encroach into any area planned for widening or extension of existing or future streets as determined by the Zoning Administrator upon the recommendation of the City Engineer;
3. Compliance with all other provisions of the Code, other than those requirements set forth in Title 10 of this Code;
4. The replicated building shall not impose detrimental circulation, parking or other adverse environmental effects on adjacent properties;
5. The replicated building will be compatible with other uses and buildings in the general area in which the replication is located;
6. The design and architectural features of the replicated building, if not identical to the original building, will be compatible to and in harmony with other buildings in the general area in which the replication is located; and
7. The conditions imposed are necessary to protect the public health, safety, convenience and welfare.
D. SPECIAL NOTICE AND HEARING REQUIREMENT.
Notice of the Director’s proposed decision shall be mailed to all property owners within 300 feet of the subject property at least 15 days prior to that decision. Said notice shall advise these property owners that they have 15 days to request a special administrative hearing before the Planning Commission. Any person entitled to notice may appeal the Planning Commission decision to the Council in accordance with Section10-1-1959 E or F. [Added by Ord. No. 3366; Amended by Ord. 22-3,983, eff. 12/16/22; 3406.]
10-1-1812: ADDITIONS AND ALTERATIONS TO NONCONFORMING PUBLIC USE:
Additions, extensions and alterations may be made to any nonconforming public use, including but not limited to schools, parks, libraries, and fire stations, if the addition, extension or alteration:
1. Does not extend beyond the boundaries of the site in existence when the use became nonconforming; and
2. Does not infringe upon any off-street parking required by this chapter. [Formerly numbered Section 31-207; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1813: EXISTING GUEST HOUSES AND OTHER ACCESSORY STRUCTURES USED FOR SLEEPING OR LIVING PURPOSES IN ZONES R-1, AND R-1-H:
No existing guest house or other accessory structure in any R-1 or R-1-H Zone shall be used for sleeping or living purposes unless:
1. Such use was lawful at the time the structure was erected or converted to such use;
2. A building permit was obtained for the erection or conversion of such structure;
3. All restrictions or conditions imposed by ordinances in effect at the time of erection or conversion, or by a Variance, exception or covenant relating thereto, are complied with; and
4. The use thereof is confined to temporary non-paying guests and members of the family of the occupants of the main building.
No such structure shall be rented or otherwise used as a separate dwelling unit and no kitchen or cooking facilities shall be installed or maintained in any such structure. [Added by Ord. No. 2183; Formerly numbered Section 31-207.1; Renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3669, eff. 7/5/05.]
DIVISION 5. TERMINATION AND REVOCATION
10-1-1814: TERMINATION BY CONDUCT:
The right to continue a nonconforming use shall terminate as follows:
1. Changing such use to another use not permitted in the zone, except as expressly permitted in this article;
2. Increasing or enlarging the area, space or volume occupied or devoted to such use, except as expressly permitted in this article;
3. Adding a conforming or nonconforming use, except as permitted in this article.
[Formerly numbered Section 31-208; Renumbered by Ord. No. 3058, eff. 2/21/87.]
10-1-1815: TERMINATION BY OPERATION OF LAW:
Nonconforming uses and structures shall be discontinued and removed from their sites as follows:
1. Where the property is unimproved, one (1) year from the effective date of this chapter or amendment thereto creating the nonconforming status.
2. Where the property is unimproved except for structures of a type for which the Building Code does not require a building permit, three (3) years from the date the use became nonconforming.
3. Where the property is unimproved except for structures which contain less than 100 square feet of gross floor area, three (3) years from the date the use became nonconforming.
4. Outdoor advertising signs and structures, three (3) years from the date the use became nonconforming.
5. Signs on windows, signs painted on buildings, signs that flash on or off or vary regularly in luminescent intensity and displays, one (1) year from the date the use became nonconforming; other business signs, ten (10) years from the date the use became nonconforming.
6. Keeping horses in residential zones where not permitted, five (5) years from the date the use became nonconforming.
7. A nonconforming use housed in a structure designed to serve a use permitted in the zone, five (5) years from the date the use became nonconforming except that domestic animals exceeding the number permitted by this chapter and kept on the premises of the owner on November 26, 1967, may be kept on the premises for the remainder of their natural lives if the owner can prove to the satisfaction of the Animal Shelter Superintendent that they were acquired before the use became nonconforming.
8. In other cases five (5) years from the date this paragraph becomes effective or ten (10) years from the date the use became nonconforming, whichever period is greater and for such longer time so that the total life of the structure from the date of construction, based on the type of construction as defined by the Building Code, will be as follows:
a. Type IV and Type V buildings (as defined in the Uniform Building Code) used as:
1. One (1)-family dwellings, two (2)-family dwellings, three (3)-family dwellings, apartment houses and other buildings used for residential occupancy, 35 years;
2. Stores and factories, 25 years;
3. Any other building not herein enumerated, 25 years.
b. Type III buildings (as defined in the Uniform Building Code) used as:
1. One (1)-family dwellings, two (2)-family dwellings, three (3)-family dwellings, apartment houses, offices and hotels, 40 years;
2. Structures with stores below and residences, offices or a hotel above, 40 years;
3. Warehouses, stores and garages, 40 years;
4. Factories and industrial buildings, 40 years;
5. Any other building not herein enumerated, 40 years.
c. Type I and Type II buildings (as defined in the Uniform Building Code) used as:
1. One (1)-family dwellings, two (2)-family dwellings, three (3)-family dwellings, apartment houses, offices and hotels, 50 years;
2. Theaters, warehouses, stores and garages, 50 years;
3. Factories and industrial buildings, 50 years;
4. Any other building not herein enumerated, 50 years.
d. Structures which do not comply with parking, height, density, setbacks, or other development standards, as long as the use is consistent with current zoning, shall be exempt from the provisions of Subsections (8)(a), (b) and (c).
The foregoing provisions shall not apply to a nonconforming residential use in any commercial or industrial zone. [Formerly numbered Section 31-209; Renumbered by Ord. No. 3058, eff. 2/21/87; Amended by Ord. No. 3594, eff. 3/30/02; 2520, 2419, 2245.]
10-1-1816: REVOCATION:
The Council may, after notice and public hearing, revoke the right to continue a nonconforming use or structure, as follows:
A. NOTICE.
Notice shall be mailed to the recorded owner of the property not less than 20 days before the date of the public hearing. The notice shall state the facts concerning the impending action and shall request appearance by said owner at the time and place specified for the hearing to show cause why the right to a nonconforming use should not be revoked.
B. COUNCIL ACTION.
Within 15 days after the public hearing, the Council may by resolution revoke or modify the nonconforming status of the use or structure. [Formerly numbered Section 31-210; Renumbered by Ord. No. 3058, eff. 2/21/87.]