Chapter 17.120 — NONCONFORMING USES AND STRUCTURES

This chapter is intended to limit the number and extent of nonconforming uses by regulating their enlargement, their reestablishment after abandonment, and the alteration or restoration after destruction of the structures they occupy. In addition, this chapter is intended to limit the number and extent of nonconforming structures by prohibiting their being moved, altered, or enlarged in a manner that would increase the discrepancy between existing conditions and the standards prescribed in this title.

(Ord. 4968 § 20, 2011)

Routine maintenance and repairs may be performed on a nonconforming structure or a conforming structure occupied by a nonconforming use. (Ord. 4968 § 20, 2011)

• A. Nonconforming use. Except as otherwise provided in this title, a nonconforming use may be continued subject to the provisions of this chapter, but shall not be expanded or increased in intensity or substantially changed. Furthermore, no sign advertising a nonconforming use may be expanded.

• B. Nonconforming structure used for nonconforming purposes. A nonconforming structure used for nonconforming purposes may continue subject to the provisions of this chapter, but shall not be expanded or restored except as provided in this chapter.

• C. Nonconforming structure used for conforming purposes. A nonconforming structure used for a conforming purpose may continue, but any modification or restoration to such structure shall be subject to the present standards, except as otherwise provided in this title.

• (Ord. 4968 § 20, 2011)

• A. A nonconforming structure, or a conforming structure occupied by a nonconforming use which is damaged by fire, explosion or other casualty, to the extent of 60% or less of the structure's replacement construction cost, may be restored and the nonconforming use may be resumed, provided that the restoration is started within one year, meets then current building codes, and is diligently pursued to completion.

• B. A nonconforming structure, or a conforming structure occupied by a nonconforming use which is damaged by fire, explosion or other casualty, to the extent of more than 60% of the structure's replacement construction cost, may be restored and the nonconforming use may be resumed, subject to approval of a conditional use permit, provided that the restoration is started within one year, meets then current building codes, and is diligently pursued to completion.

• C. The extent of damage or partial destruction shall be based upon the ratio of the estimated cost of restoring the structure to its condition prior to such damage or partial destruction to the estimated cost of duplicating the entire structure as it existed as of the day prior to its damage or partial destruction. Estimates for this purpose shall be made by or shall be reviewed and approved by the building official and shall be based on the minimum cost of construction in compliance with the building code. Any decision made by the building official concerning the cost of reconstruction may be appealed in accordance with Chapter 17.30 of this title.

• D. Notwithstanding paragraph A through C above, any nonconforming multi-family housing development that is involuntarily damaged or destroyed by fire, other catastrophic event, or the public enemy, may be reconstructed to its previously approved configuration in accordance with California Government Code section 65852.25 .

• E. Any unreinforced building, that is also nonconforming, may be demolished for the purpose of complying with State unreinforced building regulations, and subsequently replaced with a similar building, subject to approval of a conditional use permit, and provided that the restoration is started by 2020, started within one year of demolition, meets then current building codes, and is diligently pursued to completion.

• (Ord. 4968 § 20, 2011)

• A. Nonconforming structures occupied by conforming uses may be expanded in conformance with the development standards established within this title.

• B. Nonconforming single-family residences located in non-residential, or multi-family residential zones may be expanded in conformance with the development standards of the RS-6 zone.

• C. Nonconforming uses and nonconforming structures occupied by nonconforming uses may be expanded on the same parcel, subject to the approval of a conditional use permit by the planning commission. The planning commission may grant the request, grant the request with modification, or deny the request. The planning commission may require as a condition of approval that a specific termination date be set for the use and/or structure being expanded.

• (Ord. 4968 § 20, 2011)

Before approving a conditional use permit for the expansion, reconstruction or replacement of a nonconforming use or structure as provided for in this chapter, the planning commission shall make the following findings, which are in place of the findings typically required for approval of a conditional use permit:

• A. The strict or literal interpretation and enforcement of the specified regulations within this section would result in practical difficulty or unnecessary hardship.

• B. The approval of the conditional use permit will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity.

• (Ord. 4984 § 36, 2013)

The nonconforming use of any property shall be terminated within three years of the date such use, or structure became nonconforming, or within one year from the date of formal notice of termination, whichever period is greater, if the planning commission holds a public hearing pursuant to Chapter 17.25 and finds the nonconforming use to be a nuisance which cannot be made to conform to all regulations which made the use nonconforming. The decision of the planning commission shall be referred to the city council for final action. The city council may extend the term within which the use must be terminated, upon a finding that the use cannot be terminated or made to conform within the statutory period. The city council action shall be in the form of a resolution. The resolution shall be mailed by the city clerk to the property owner at the last known address. (Ord. 4968 § 20, 2011)

Nonconforming structures shall be completely removed or altered to structurally conform to the development standards of the zone in which they are located within 20 years, which time is measured from the date they became nonconforming or such longer time as may be granted. In no case shall this period of time be less than five years from the date of formal notice by the city council. Such notification shall be in the form of a resolution and shall recite such facts as bear upon the nonconforming structure under the provisions of this chapter. The resolution shall be mailed by the city clerk to the property owner at the last known address. The period within which such structure must be removed or altered to structurally conform as required above may be extended by the city council upon a finding that the structure cannot be removed or made to conform within the statutory period.

(Ord. 4968 § 20, 2011)

If a nonconforming use is vacated and is succeeded by a conforming use, it is evidence that the nonconforming use was terminated and thereupon immediately lost any vested right as such. (Ord. 4968 § 20, 2011)

In the event that any nonconforming use is discontinued on a property for a period of one year or more, such discontinuance shall be presumed to be abandonment of the use by the property owner. At any time after any nonconforming use is discontinued for a period of one year or more, the director may notify the property owner in writing of the director's determination of presumed abandonment of the nonconforming use. Pursuant to Chapter 17.30 of this title, the property owner

may appeal the director's determination to the planning commission, which may overturn the director's determination only upon making a finding that the evidence supports the property owner's position that the nonconforming use was not discontinued for a period of one year or more. When any legal nonconforming use is abandoned, any future use of such property or structure shall conform to the provisions of this title.

(Ord. 4968 § 20, 2011)

The city clerk shall record with the office of the San Diego County Assessor/Recorder any notice to terminate a nonconforming use and notice to remove a nonconforming structure that is approved by the city council pursuant to this chapter. Said notice shall be recorded within 10 business days of city council action.

(Ord. 4968 § 20, 2011)

Any nonconforming use or structure may be ordered terminated or removed, respectively, by the city council within a period of time less than provided above upon a finding that termination / removal can reasonably be accomplished. In no case, however, shall the period herein provided for notification be abrogated. It is the duty of the city council to provide a reasonable amortization period in the event of such a finding.

(Ord. 4968 § 20, 2011)