El Cerrito Municipal Code Ch. 19.27 Nonconforming Uses, Structures, and Lots

This Chapter is intended to permit continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the standards and requirements of this Zoning Ordinance in a manner that does not impair public health, safety, and welfare. The provisions of this Chapter apply to structures, land and uses that have become nonconforming by operation of this Zoning Ordinance and that remain in a nonconforming status by application of this Zoning Ordinance, as well as structures, land and uses that hereafter become nonconforming due to annexation to the City, zoning map changes, or text amendments.

(Ord. 2008-2 Div. II (part), 2008.)

A. Valuation of Improvements. The determination of the appraised value of improvements shall be made by the Building Official. The valuation to be used shall be the total of all construction work for which a permit is required and includes: finish work, painting, roofing, electrical, plumbing heating, air conditioning, and any permanent work or permanent equipment.

(Ord. 2008-2 Div. II (part), 2008.)

Any building, use or structure that is nonconforming solely by reason of the absence of a use permit may be changed to a conforming building, use or structure when a use permit is obtained in accordance with Chapter 19.34, Use Permits.

(Ord. 2008-2 Div. II (part), 2008.)

A. Continuation of Nonconforming Buildings and Structures. Legal nonconforming buildings and structures may be continued and maintained in compliance with the requirements of this Zoning Ordinance in their current size and configuration, unless deemed to be a public nuisance because of health or safety conditions.

B. Nonstructural Repairs. Maintenance, non-structural repairs and non-structural interior alterations to a nonconforming structure or to a structure occupied by a nonconforming use are permitted, so long as the changes and improvements do not enlarge or extend the structure.

C. Structural Repairs. Structural repairs that do not enlarge or extend the structure, including modification or repair of bearing walls, columns, beams or girders, may be undertaken in the following instances:

1. Less Than 40% of Valuation. Permitted as-of-right for all structure types when the cost of such work does not, within a twelve-month period, exceed 40 percent of the appraised value of all improvements exclusive of the land.

2. All Other Structural Repairs. All other structural repairs shall require a use permit pursuant to the provisions of Chapter 19.34, Use Permits.

3. Single-Family Residential Structures. Permitted as-of-right for single-family residential structures, regardless of valuation, if the structural change meets the following criteria:

a. The dwelling is located in the appropriate zoning district;

b. The dwelling has an existing garage that meets minimum dimensional requirements under this Title; and

c. The improvement will not add new habitable space to the dwellings.

(Ord. 2008-2 Div. II (part), 2008.)

A use permit shall be required, pursuant to the provisions of Chapter 19.34, Use Permits, for all additions and structural alterations that enlarge and extend a nonconforming structure, except in the following instances:

A. Non-Residential and Multi-family Structures. Non-conforming, non-residential and multi-family structures may be enlarged, extended, or structurally altered or repaired so long as:

1. Such enlargement, extension, alteration or repair complies with all applicable requirements and does not, within any twelve-month period exceed 40 percent of the appraised value of all improvements exclusive of the land;

2. The use of the property is conforming;

3. The structure is conforming as to parking; and

4. Modifications are made to bring the property and/or existing structure closer into compliance with development standards of the zoning district, as determined by the Zoning Administrator or other designated decision-making body, pursuant to Part V. Administration.

B. Single-family Structures. Non-conforming, single-family structures may be enlarged, extended, or structurally altered or repaired so long as:

1. Such enlargement, extension, alteration or repair complies with all applicable requirements;

2. The dwelling is located in the appropriate zoning district; and

3. The dwelling has an existing garage that meets minimum dimensional requirements under this Title and the structure is conforming as to parking.

C. Nonconforming Setbacks and Parking.

1. Nonconforming Setbacks. Additions or enlargements that extend along an existing non-conforming building setback line and which do not come closer to the property line than the existing non-conformity may be permitted, subject to the provisions of Chapter 19.37, Waivers and Exceptions.

2. Nonconforming Parking.

a. Single-family Structure.

1. If a single-family residential property is legally nonconforming because it contained one covered parking space prior to two covered parking spaces being required, the residence on the property may be altered or expanded without increasing the number of covered parking spaces, subject to all of the following limitations:

A. After alteration or expansion, the residence may not contain more than three bedrooms or more than 2,000 square feet of habitable floor area.

B. The alteration or expansion must comply with all other applicable requirements of this Code.

2. This section does not apply to any of the following:

A. A single-family residential property with no parking spaces (covered or uncovered).

B. A single-family residential property that contained two covered parking spaces but the number of covered parking spaces has been reduced to one.

C. Any other circumstance in which a single-family residential property is nonconforming as to parking.

b. Multi-family Structure. A multi-family residential structure that is legally nonconforming due to parking may be altered or expanded up to 10 percent of the habitable floor area with the approval of an administrative use permit provided that no additional units are added. No more than one such permit may be granted within a five-year period.

D. Nonconforming Lot Coverage, Floor Area Ratio (FAR), and Residential Density. A structure that is legally nonconforming because it exceeds the maximum allowable lot coverage, may be expanded only if the expansion does not involve any further lot coverage. The expansion of a structure that is legally nonconforming because it exceeds the FAR or residential density permitted by this Zoning Ordinance shall be permitted only if the Planning Commission approves a variance in accordance with Chapter 19.36, Variances to allow such addition or enlargement.

(Ord. 2008-2 Div. II (part), 2008.)

(Ord. No. 2009-03, § XVI, 4-20-2009)

A. Replacement with a More Conforming Use. A legal nonconforming use may be replaced with another nonconforming use only if the Planning Commission finds that the new use is more conforming to the underlying zone than the previous use, and subject to Planning Commission approval of a Use Permit in accordance with Chapter 19.34, Use Permits.

B. Expansion within a Structure that Conforms to this Title. A legal nonconforming use occupying a portion of a structure that conforms to this Title and to the requirements of the California Building Code may expand the portion that it occupies subject to Planning Commission approval of a Use Permit in accordance with Chapter 19.34, Use Permits.

C. Expansion within a Structure that Does Not Conform to this Title. A legal nonconforming use in a structure that does not conform to the requirements of this Title but does conform to the requirements of the California Building Code may expand its occupancy and building floor area subject to Planning Commission approval of a Use Permit in accordance with Chapter 19.34, Use Permits, provided, however, that any structural expansion meets the requirements this Zoning Ordinance.

D. Expansion within a Structure That Does Not Conform to the Building Code. Any legal nonconforming use in a structure that does not conform to the California Building Code (CBC) may not expand the area it occupies until and unless the structure is brought into conformance with all applicable UBC requirements, and subject to the above requirements of this Section.

(Ord. 2008-2 Div. II (part), 2008.)

Except as otherwise provided in this Section, no legal nonconforming use may be resumed, reestablished, reopened or replaced by any other nonconforming use after it has been abandoned or vacated for a period of six months except as provided in this Section. Notwithstanding the foregoing, the nonconforming use of a legally established structure may be reestablished after six months of being abandoned if the Planning Commission, in addition to making any other findings required pursuant to this Code, approves a use permit after making all the following findings. As a condition of approving the resumption of such nonconforming use, the Commission may impose a time limit on its duration if necessary in order to make all of the required findings:

Required Findings:

A. At least one of the following is true:

1. The use has been abandoned or vacant between six months and one year, and the applicant has made demonstrable, constant, diligent efforts to replace the abandoned nonconforming use with a conforming use or a more conforming use; or

2. The legally nonconforming structure cannot be used for any conforming use because of its original design or because of lawful structural changes made for a previous nonconforming use; or

3. The legally nonconforming structure is harmonious and compatible with well designed structures in the surrounding area, and can be reasonably expected to remain in active use for a period of 20 years without requiring repairs or maintenance in excess of 50 percent of the assessed value of the structure, as defined in this article, within any five-year period.

B. And, the continuation of the use or structure will not be detrimental to surrounding conforming uses.

C. And, the structure is significantly modified to come closer into compliance with current development standards.

(Ord. 2008-2 Div. II (part), 2008.)

A. Restoration. If any legal nonconforming use or structure is destroyed by fire, explosion, earthquake, flood, other casualty, act of God, or through a deliberate act, to an extent of 50 percent or greater of the assessed value, as defined in this Title, then said use or structure may be restored and used only in compliance with the regulations existing in the district where it is located, except as provided below. Subject to obtaining a Conditional Use Permit in accordance with the provisions of Chapter 19.34, such building may be restored provided the previous total floor area is not exceeded.

B. Exceptions. Legal nonconforming residential structures of three units or less may be replaced if destroyed by fire, explosion, earthquake, flood, other casualty, or act of God, provided however that the floor area or lot coverage of the use is not increased and the new structures conform to all current California Building Code requirements.

(Ord. 2008-2 Div. II (part), 2008.)

Any legally created lot that fails to meet the current standards for area or dimensions of the district in which it is located may be developed, subject to the following.

A. Lots Less Than 5,000 Square Feet in RS Residential Districts. Only a single-family dwelling may be constructed on a lot in a residential district that is less than 5,000 square feet in area.

B. RD and RM Districts. Up to two units may be constructed on any building site in the RD and RM districts containing less than 5,000 square feet of area, or less than 45 feet average width, with the approval of a Conditional Use Permit.

C. Parcel Mergers. These provisions notwithstanding, the City may exercise procedures for merging substandard lots as provided for in Title 18, Divisions of Land and pursuant to the Subdivision Map Act.

(Ord. 2008-2 Div. II (part), 2008.)

(Ord. No. 2009-03, § XVII, 4-20-2009)