Chapter 17.92
NONCONFORMING PARCELS, USES, AND STRUCTURES Revised 6/18

Sections:

17.92.010    Purpose. Revised 6/18

17.92.020    Applicability. Revised 6/18

17.92.030    General. Revised 6/18

17.92.040    Nonconforming parcels. Revised 6/18

17.92.050    Nonconforming use of land. Revised 6/18

17.92.060    Nonconforming use of structures. Revised 6/18

17.92.070    Nonconforming multifamily uses in the R-1 zoning district. Revised 6/18

17.92.080    Nonconforming structures. Revised 6/18

17.92.090    Findings. Revised 6/18

17.92.010 Purpose. Revised 6/18

This chapter establishes regulations for nonconforming parcels, uses and structures. These regulations are intended to:

A. Allow for the development and use of legal nonconforming parcels.

B. Ensure that nonconforming uses and structures do not adversely impact neighboring properties.

C. Allow for the limited enlargement or intensification of nonconforming uses and structures.

D. Allow for limited repairs and maintenance to nonconforming structures.

E. Allow for the replication of detached single-family homes to support improvements to the city’s housing stock while maintaining Capitola’s unique coastal village character.

F. Provide for the elimination of nonconforming uses as appropriate due to abandonment, obsolescence, and destruction. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.020 Applicability. Revised 6/18

This chapter applies to existing parcels, uses, and structures that do not conform to the regulations of the zoning district in which they are located. Any policies that are inconsistent shall be interpreted in the manner that is more protective of coastal resources. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.030 General. Revised 6/18

A. Continuation. A nonconforming parcel, use, or structure may be continued if it was legally established in compliance with all applicable regulations in effect at the time it was established.

B. Legally Established Defined. To be considered legally established, a legal nonconforming parcel, use, or structure shall have been physically constructed or in existence, not merely approved by the city. Conditional use permits, variances, coastal permits, building permits, or other approvals not exercised within the required time do not establish the right to a legal nonconformity.

C. Burden of Proof. Any person asserting a right to a nonconforming parcel, use or structure has the burden of proof to demonstrate that the nonconformity was legally established. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.040 Nonconforming parcels. Revised 6/18

A. Development Permitted. A legally established parcel with nonconforming dimensions (e.g., parcel width, depth, and size) is permitted all development rights of the applicable zoning district.

B. Conformance with Standards. New development on legal nonconforming parcels shall comply with all setback, building coverage, parking, and other standards of the applicable zoning district, as well as all applicable geologic and environmentally sensitive habitat setbacks. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.050 Nonconforming use of land. Revised 6/18

A. Continuation Permitted. A nonconforming use of land conducted outside of a structure may continue so long as:

1. The nonconforming use is not enlarged, increased, or extended to occupy a greater area of land; and

2. The nonconforming use is not moved in whole or in part to any other portion of the parcel.

B. Cessation of Use. If any such nonconforming use of land ceases for a period of more than one hundred eighty consecutive days, any subsequent use of such land shall conform to the regulations of the applicable zoning district. For the purpose of this section, a use is considered ceased if any of the following apply:

1. The use is not present on the site;

2. For uses that serve customers (e.g., restaurants), the use no longer serves customers; and/or

3. For uses with employees, no employees (including the owner) are present on the site. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.060 Nonconforming use of structures. Revised 6/18

A. Change in Ownership, Tenancy, or Management. A change in ownership, tenancy, or management of a nonconforming use shall not affect its legal nonconforming status.

B. Resuming a Nonconforming Use. A nonconforming use changed to a conforming use shall not return to a nonconforming use.

C. Replacement of a Nonconforming Use. A nonconforming use may not be replaced by another nonconforming use.

D. Intensification of Use.

1. The enlargement of a structure or parcel occupied by a nonconforming use, or the intensification in any way of the operation of a nonconforming use, requires the approval of a conditional use permit.

2. To approve a proposed intensification to a nonconforming use, the planning commission shall make all conditional use permit findings (Chapter 17.124) in addition to the findings in Section 17.92.090 (Findings).

E. Discontinuation of Use. A nonconforming use discontinued for ninety consecutive days shall not be reestablished and may be replaced only by a conforming use.

F. Nonconforming Multifamily Uses. Nonconforming multifamily uses in the residential single-family (R-1) zoning district shall comply with Section 17.92.070 (Nonconforming multifamily uses in the R-1 zoning district). (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.070 Nonconforming multifamily uses in the R-1 zoning district. Revised 6/18

This section applies to multifamily uses that are nonconforming due to their location in the residential single-family (R-1) zoning district.

A. Amortization. A nonconforming multifamily use in the R-1 zoning district must be discontinued on June 26, 2019, or fifty years from the date the use first became nonconforming, whichever is later, except as provided in subsections B and C of this section.

B. Amortization Extensions.

1. An owner of a nonconforming multifamily use may apply to the city council for an extension to the amortization requirement in subsection A of this section.

2. The city council may grant an extension of up to twenty-five years upon finding that:

a. The appearance, condition and management of the property is such that the property is not greatly detrimental to the single-family residential character of the neighborhood in which it is located;

b. The extension is necessary in order to prevent a major economic loss to the property owner and to lessen deterioration;

c. All reasonable conditions have been imposed for the purpose of repairing dilapidation and bringing, or keeping, the property up to neighborhood standards; and

3. The multifamily use must be discontinued upon completion of the extended amortization period granted by the city council. In such cases, the property may continue as a residential use only if converted to a single-family dwelling. A property may not apply for another extension upon the completion of the granted amortization extension period.

C. Incentives for Property Improvement.

1. Incentive Program. To encourage upgrades and improvements to nonconforming multifamily uses in the R-1 zoning district, the city council may grant permanent legal status to properties that satisfy the requirements of the city’s nonconforming multifamily improvement incentive program. Properties that satisfy the requirements of the incentive program are exempt from the amortization requirement established in subsections A and B of this section.

2. Submittal Requirements. To participate in the incentive program, a property owner shall prepare and submit to the city a property improvement plan that contains the following:

a. A general description of the property, including property ownership, current and prior uses on the property, history of property improvements and maintenance, and aspects of the property that do not comply with current zoning regulations.

b. Proposed improvements to bring the property into greater compliance with development standards required by the zoning code, including parking and landscaping requirements. These improvements may include reduction of the number of units on the property.

c. A description of any neighborhood compatibility concerns associated with the property, including parking, noise, property maintenance, and refuse and recycling storage issues.

d. Proposed property improvement and maintenance measures to address any neighborhood compatibility concerns.

e. Documentation of outreach to neighbors to gather information about neighborhood compatibility concerns and possible methods to address these concerns.

f. A description of any necessary measures to mitigate for any impacts to coastal resources.

3. Measures to Compensate for Impacts. A property owner may also propose additional measures that would provide a neighborhood benefit to compensate for impacts from the nonconforming use that cannot be fully mitigated. For example, a property owner may propose reducing the number of residential units in a building, providing shared parking, screening trash facilities, improving building and site design, adding or upgrading landscaping, providing units as deed-restricted affordable housing, or installing green building upgrades that exceed the city’s green building award status.

4. City Review. The community development director, in consultation with the public works director, shall review the property improvement plan and determine if the plan correctly identifies issues associated with the property and adequately proposes improvements to address these issues. The community development director shall forward to the planning commission and city council a recommendation on the adequacy of the plan.

5. Property Improvement Agreement and Schedule. The property improvement plan shall identify a realistic schedule to complete all proposed improvements within two years of city council approval. The property owner shall enter into a property improvement agreement with the city agreeing to complete all proposed improvements within this established schedule.

6. Findings. At a noticed public hearing, the city council may grant legal nonconforming status to a property upon finding that:

a. The property improvement plan, when implemented, will adequately address any neighborhood compatibility concerns previously associated with the property.

b. The property improvement plan incorporates adequate monitoring and maintenance provisions to ensure that neighborhood compatibility issues will not reoccur in the future.

c. The location and size of the site is suitable and appropriate for a multifamily use.

d. The property as improved will feature high quality design elements that complement the aesthetic qualities of the neighborhood.

e. The property will not produce unreasonable privacy, noise, light, and air impacts on neighboring properties.

f. Sufficient off-street parking is provided to accommodate parking needs of residents and minimize parking impacts on neighboring properties. Vehicles will not be parked in a manner that projects into adjacent sidewalks, streets, or otherwise interferes with vehicle and pedestrian circulation adjacent to the site.

g. Refuse and recycling storage facilities are provided on site and screened from view from neighboring properties and the street.

h. The granting of legal status will not result in an excessive concentration of multifamily uses in the immediate vicinity of the property.

i. Community benefits, if proposed, sufficiently compensate for impacts from the nonconforming use that cannot be fully mitigated.

7. Revocation. The city may at any time revoke the legal status of the property if the property violates the improvement and maintenance agreement. Revocation shall occur in a manner consistent with Section 17.156.110 (Permit revocation). (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.080 Nonconforming structures. Revised 6/18

This section identifies allowed modifications to nonconforming structures, summarized in Table 17.92-1.

Table 17.92-1: Allowed Modifications to Nonconforming Structures

Project Affecting a Nonconforming Structure

Example

Permit Required [1]

Interior repairs, maintenance, and alterations

Interior renovations to a room within a portion of a building located within a required setback area

None

Exterior repairs, modifications, and additions that do not alter or affect the nonconforming aspect of the structure

Adding floor area to a home with an existing roof that exceeds the maximum building height where the addition complies with the maximum building height and all other applicable standards

None

Exterior reconstruction (demolish and rebuild) and modifications that alter or affect the nonconforming aspect of the structure [2]

Demolishing and rebuilding an existing building wall within a required setback area with no increase in floor area

Design Permit

Exterior repairs, modifications, and additions that increase or exacerbate the nonconforming aspect of the structure

Adding floor area to a portion of an existing room within a required setback area

Design Permit and Variance

Reconstruction of a single-family dwelling per Section 17.92.080(C)

See Section 17.92.080(C)

Design Permit

Recreation of an involuntarily damaged or destroyed structure per Section 17.92.080(D)

Rebuilding a home destroyed by a fire to match the destroyed home

None

Notes:

[1] The proposed project may require permits and approvals for other reasons not related to its nonconforming status. For example, additions or enlargements to a single-family dwelling often requires a design permit.

[2] Repairs and replacement of exterior finishes such as roofs and exterior siding are allowed without a design permit.

A. Alterations Permitted by Right.

1. Interior repairs, maintenance and alterations to any portion of a nonconforming structure are permitted if the changes and improvements do not enlarge or expand the structure.

2. Exterior modifications to a nonconforming structure that do not alter or affect the nonconforming aspect of the structure are permitted. For example, an addition to a structure with a nonconforming setback is permitted if no changes are made to the portion of the structure projecting into the required setback, and if the addition complies with all setback, height, floor area ratio, and other applicable development standards.

B. Alterations and Additions Requiring a Design Permit.

1. Exterior repairs and improvements that affect the nonconforming aspect of a nonconforming structure are allowed with a design permit if the improvement does not increase or exacerbate the nonconformity. For example, rebuilding a building wall within a required setback is permitted with a design permit if the wall is not moved closer to the property line and the length of the wall within the required setback is not increased.

2. The planning commission may approve an alteration or addition to a nonconforming structure that renovates, reconstructs, or replicates the nonconforming aspect of the structure with a design permit. The addition may not increase or exacerbate the nonconformity and may not exceed fifty percent of the floor area of the existing structure.

3. To approve such alterations and additions, the planning commission shall make all design permit findings (Chapter 17.120) in addition to the findings in Section 17.92.090 (Findings).

C. Reconstruction of Single-Family Dwellings.

1. A nonconforming single-family dwelling may be reconstructed with the approval of a design permit. This provision is intended to allow for improvements to housing in Capitola in a manner that maintains the historic coastal village character of residential neighborhoods.

2. “Reconstruction” as used in this subsection means the replacement of a demolished structure which recreates the original building footprint, mass, floor area, height, and roof lines. Deviation from existing design details such as the arrangement of doors and windows, materials, and color may be permitted. Exact reconstruction may not be possible due to the unavailability of matching materials and/or the necessity to meet current building code requirements.

3. A nonconforming single-family dwelling is not eligible for reconstruction if the mass and floor area of the existing home can be reconfigured on the parcel in a manner consistent with the development standards of the applicable zoning district. Reconstruction provisions are intended to apply only to homes on constrained parcels where compliance with applicable development standards is not feasible.

4. Deviations from the original building design that would reduce a nonconformity are allowed, and encouraged in cases where the deviation does not adversely impact the architectural integrity of the home.

5. To approve such a reconstruction, the planning commission shall make all design permit findings (Chapter 17.120) in addition to the findings in Section 17.92.090 (Findings), and must find that the reconstruction contributes to the preservation of Capitola’s coastal village character.

6. No additions or modifications that would increase the mass, floor area or height of a replicated nonconforming single-family dwelling are permitted for up to ten years following approval of the reconstructed home.

D. Involuntary Damage or Destruction.

1. Nonconforming structures damaged or destroyed by earthquake, fire, flood, or other calamity may be repaired or reconstructed provided that the nonconforming aspects of the structure are not increased or exacerbated.

2. “Reconstruction” as used in this subsection means the replacement of a demolished structure which recreates the original building footprint, mass, floor area, height, and roof lines. Deviation from existing design details such as the arrangement of doors and windows, materials, and color may be permitted. Exact reconstruction may not be possible due to the unavailability of matching materials and/or the necessity to meet current building code requirements.

3. The repair or reconstruction of a nonconforming structure shall begin within one year and shall be completed within three years. The community development director may approve an extension of two additional years to complete reconstruction of the demolished structure if the delay was caused by circumstances over which the applicant has no fault or control.

E. Moved Structures. A nonconforming structure that is moved to a new location shall conform to all applicable standards of the applicable zoning district. (Ord. 1017 § 2 (Exh. A) (part), 2018)

17.92.090 Findings. Revised 6/18

The planning commission may approve a design permit for projects that alter or affect the nonconforming aspect of a structure and for the replication of a single-family dwelling if all of the following findings can be made in addition to the findings in Chapter 17.120 (Design Permits):

A. Available evidence indicates that the nonconforming use or structure was legally established.

B. The nonconforming use or structure has not resulted in a notable negative impact or nuisance on neighboring properties or to the surrounding area.

C. The nonconforming use or structure is compatible with the general character of the surrounding area.

D. The proposed action is consistent with the purpose and intent of the applicable zoning district. (Ord. 1017 § 2 (Exh. A) (part), 2018)