Article 10 — Nonconforming Uses And Structures

This article establishes regulations for nonconforming uses and structures. The purpose of these provisions is to regulate uses of land and structures that were legal before the adoption or amendment of these planning regulations, but which no longer comply. The intent of this article is to permit nonconforming uses to continue until they are removed or required to be terminated, but not to encourage their survival. More specifically, it is the intent of this article to distinguish between incompatible nonconforming uses that are detrimental to public health, safety, and general welfare, and nonconforming uses that are economically productive and compatible with surrounding development despite being inconsistent with the use regulations of these planning regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The provisions of this article apply to uses that have become nonconforming by adoption of these planning regulations, uses that were previously nonconforming and remain nonconforming under these planning regulations, and uses that become nonconforming due to subsequent amendments to these planning regulations, except as provided in Section 9-5.1003. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The provisions of this article do not apply in the following situations:

• (a) Signs. Nonconforming signs shall be subject to the provisions of Section 9-5.1614.

• (b) Residential Uses. Any residential use, lot, or structure that was legally established prior to the adoption of these planning regulations and that has been continuously maintained in residential use in compliance with the requirements of all applicable codes is deemed to be a conforming use, lot, or structure. However, any enlargement or replacement of such use shall conform to these planning regulations.

• (c) General Manufacturing Uses. Any General Manufacturing use, lot, or structure in the INL Light Industrial zone that was legally established prior to the adoption of these planning regulations and that has been continuously maintained in compliance with the requirements of all applicable codes is deemed to be a conforming use, lot, or structure. However, any enlargement or total replacement of such use shall conform to these planning regulations.

• (d) Public Uses. Provided that there is no change of use, nothing in this article shall require the termination, discontinuance, or removal of a public use or a public utility or to prevent the expansion, modernization, replacement, repair, maintenance, alteration, reconstruction, or rebuilding and continuation of public use or utility buildings, structures, equipment, and facilities.

• (e) Planned Unit Developments. Planned unit developments approved prior to the adoption of these planning regulations, as listed in Section 9-3.310, are subject to the use and development regulations stipulated in the various ordinances establishing the PUDs. If the ordinance for a PUD does not address a particular issue, these planning regulations shall

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apply to that issue. Any modifications to such PUDs shall be subject to the provisions of these planning regulations.

• (f) Other Planning Entitlements. Any use allowed under a planning entitlement, including but not limited to a conditional use permit, design review permit, or variance, that was approved prior to the adoption of these planning regulations and that has not expired, is deemed to be a conforming use and is subject to any conditions included in its approval, except that off-street parking may be reduced or eliminated upon the granting of a minor conditional use permit pursuant to Section 9-4.403(a)(1)(a). If such a use is not permitted by these planning regulations, it may be expanded pursuant to Section 9-5.1011, except those uses that are deemed incompatible pursuant to Section 9-5.1007. Other modifications to such a use beyond what was originally approved shall be subject to the provisions of these planning regulations.

• (g) Structures under Construction. Nothing contained in this article shall be deemed to require any change in the plans, construction, or designated use of any building or structure for which a building permit has properly been issued prior to the adoption of these planning regulations.

(Sec. 3 (Exh. A) (part), Ord. 20-005, eff. May 21, 2020; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Nonconforming Use. A nonconforming use is any use of land, use of structure, lot, or structure that was legally established prior to the adoption of these planning regulations, but which does not conform to the provisions of these planning regulations. Nonconforming uses may be continued, maintained, repaired, altered, substituted for another nonconforming use, expanded, restored or reestablished only in conformance with the requirements of this article.

  • (1) Nonconforming uses include:

    • a. Uses made nonconforming by the addition of a standard or requirement in these planning regulations that was not previously required for such use; and

    • b. Uses that were previously permitted by right and are subject to a discretionary permit under the requirements of these planning regulations.

  • (2) A nonconformity may result from any inconsistency with the requirements of these planning regulations, including but not limited to location, density, floor area ratio (FAR), height, setback, usable open space, parking, or performance standards or the lack of a conditional use permit, variance, or other required planning entitlement.

  • (3) A use or structure shall not be deemed nonconforming solely because it does not conform with the applicable design standards for parking lots and structures pursuant to Section 9-4.406, allowed projections above the top of buildings pursuant to Section 9-4.202(c), or restrictions on features allowed in required yards pursuant to Section 9-4.301(e), or because of other minor deviations from the requirements of these planning regulations.

• (b) Illegal Use. An illegal use is a use of land, use of structure, lot, or structure that was not legally established under the regulations that were applicable at the time it was established,

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whether before or after the adoption of these planning regulations. Any such illegal use is hereby declared to be a public nuisance and shall be discontinued or legalized immediately. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Use Remains Nonconforming. Any nonconforming use that is substituted, expanded, restored or reestablished pursuant to a conditional use permit as provided in this article shall still be considered a nonconforming use in its entirety and shall be subject to all applicable provisions of this article.

• (b) Conditions of Approval. In approving a conditional use permit to substitute, expand, restore, or reestablish a nonconforming use, conditions of approval may be imposed as deemed necessary to fulfill the purposes of this article, and reasonable guarantees and evidence may be required that such conditions are being, or will be, complied with. Such conditions may include, but are not limited to, requiring additional landscaping, screening, and other site improvements; and establishing a time limit and termination date for the nonconforming use.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The Director shall determine whether a use is nonconforming and whether it was legally established. The Director's determination may be appealed to the Planning Commission in accordance with the appeal procedures in Article 14 of Chapter 7. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Uses of special concern, as listed in Section 9-2.701, that are prohibited in the zoning district in which they are located, as indicated in Article 2 of Chapter 3, are hereby declared to be incompatible uses and may be continued but shall not be expanded, substituted for another nonconforming use, or reestablished if abandoned for more than ninety (90) days. An incompatible use may be substituted with a nonconforming use that is not an incompatible use pursuant to the requirements of Section 9-5.1010(d).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Any lot that is smaller than the minimum size or width required by Article 7 of Chapter 4 may be developed subject to all other requirements of these planning regulations if it is described in the official records on file in the office of the Alameda County Recorder as a lot of record. (Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Right to Continue. Any nonconforming use or structure may be continued and maintained indefinitely if it has remained in continuous existence since the adoption of these planning regulations. The right to continue a nonconforming use or structure shall run with the land. Any substitution, expansion, restoration or reestablishment of such nonconforming use or

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structure shall be subject to the requirements of this article.

• (b) Maintenance and Repairs. Maintenance, repairs, and structural interior alterations to a nonconforming structure are permitted if the changes and improvements do not expand the structure, except as provided in Section 9-5.1011.

• (c) Additions and Alterations to Nonconforming Public Uses. Additions, extensions, and alterations may be made to any nonconforming public use, including but not limited to schools, parks, recreation facilities, police stations, 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) Complies with the applicable performance standards in Article 11 of this chapter. (Sec. 3 (Exh. A) (part), Ord. 20-005, eff. May 21, 2020; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

A nonconforming use may be changed to a conforming use or substituted with another nonconforming use subject to the requirements of this section. These requirements shall not apply to a change of ownership, tenancy, or management where there is no change in use type and the use is not expanded.

• (a) Change from Nonconforming to Permitted Use. Any nonconforming use may be changed to a use that is permitted by right in the zoning district in which it is located and that complies with all applicable standards for such use. Any such change in use terminates the right of the previous nonconforming use to continue to exist, and it may not be reestablished.

• (b) Change from Nonconforming to Conditionally Permitted Use. Any nonconforming use may be changed to a use that is conditionally permitted in the zoning district in which it is located, subject to the approval of a conditional use permit pursuant to Article 5 of Chapter 7 and any other applicable findings and standards for the new use. Any such change in use terminates the right of the previous nonconforming use to continue to exist, and it may not be reestablished.

• (c) Absence of Permit. Any use that is nonconforming solely by reason of the absence of a conditional use permit may be changed to a conforming use by obtaining a minor conditional use permit, subject to all applicable findings and requirements for the use.

• (d) Substitution. A nonconforming use may be substituted with another nonconforming use that is not an incompatible use as defined in Section 9-5.1007 upon the approval of a minor conditional use permit. To grant such a conditional use permit the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

  • (1) The proposed new use will not be detrimental to the public health, safety, or welfare.

  • (2) The proposed new use will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

  • (3) The proposed new use will be no less compatible with the purposes of the zoning

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district where it is located than the nonconforming use it replaces.

• (4) The proposed new use will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

• (5) The proposed new use will comply with the applicable performance standards in Article 11 of this chapter.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

A nonconforming structure and/or use that is not an incompatible use as defined in Section 9-5.1007 may be expanded upon the approval of a minor conditional use permit. Any increase in bonus density, floor area ratio, or height shall require a conditional use permit pursuant to Section 9-4.204. To grant a conditional use permit for the expansion of a nonconforming structure and/or use, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

• (1) The proposed expansion will not be detrimental to the public health, safety, or welfare.

• (2) The proposed expansion will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

• (3) The proposed expansion will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

• (4) Any proposed expansion of the structure's floor area shall comply with the parking and loading requirements of Article 4 of Chapter 4 for the new floor area.

• (5) The proposed expansion will comply with the applicable performance standards in Article 11 of this chapter.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

A nonconforming structure and/or use that is damaged or partially destroyed by fire, explosion, earthquake or other unintentional act may be restored or rebuilt, subject to the following provisions:

• (a) Damage Not More Than Seventy-Five Percent (75%). If the damage does not exceed seventy-five percent (75%) of its replacement cost, not including the foundation, immediately prior to the date that the damage occurred, the structure may be restored and the nonconforming use may be resumed; provided, that an application for a building permit for the restoration work is submitted within six (6) months of the date that the damage occurred and that the restoration work is diligently pursued so that the building permit does not expire. If an application for a building permit is not submitted within six (6) months, or if the building permit expires, the right of the previous nonconforming structure and/or use to continue to exist shall terminate, and they may not be reestablished.

• (b) Damage More Than Seventy-Five Percent (75%). If the damage exceeds seventy-five percent (75%) of its replacement cost, not including the foundation, immediately prior to the date that the damage occurred, the structure may be restored and the nonconforming use may be resumed, except an incompatible use as defined in Section 9-5.1007, upon the

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approval of a minor conditional use permit. If an application for a conditional use permit is not submitted within six (6) months of the date that the damage occurred, or if an application for a building permit is not submitted within six (6) months of approval of the conditional use permit, or if the building permit expires, the right of the previous nonconforming structure and/or use to continue to exist shall terminate, and they may not be reestablished. To grant a conditional use permit for the restoration of a nonconforming structure and/or use, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

• (1) The proposed restoration will not be detrimental to the public health, safety, or welfare.

• (2) The proposed restoration will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

• (3) The proposed restoration will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

• (4) The proposed restoration will comply with the applicable performance standards in Article 11 of this chapter.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

An abandoned nonconforming use may be reestablished subject to the requirements of this section. A nonconforming use shall be deemed to be abandoned when the site is vacated, the business license lapses, utilities are terminated, or the lease is terminated.

• (a) Replacement by a Conforming Use. If an abandoned nonconforming use is replaced by a conforming use, the right of the previous nonconforming use to continue to exist shall terminate and it may not be reestablished.

• (b) Nonconforming Use Abandoned for Ninety (90) Days or Less. A nonconforming use that is abandoned for ninety (90) days or less, including an incompatible use as defined in Section 9-5.1007, may be reestablished, or may be substituted with another nonconforming use pursuant to the requirements of Section 9-5.1010(d).

• (c) Nonconforming Use Abandoned for More Than Ninety (90) Days but Less Than One (1) Year. A nonconforming use that is abandoned for more than ninety (90) days but less than one (1) year, and that is not an incompatible use as defined in Section 9-5.1007, may be reestablished upon the approval of a minor conditional use permit, or it may be substituted with another nonconforming use pursuant to the requirements of Section 9-5.1010(d). To grant a conditional use permit for the reestablishment of an abandoned nonconforming use the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

  • (1) The reestablished use will not be detrimental to the public health, safety, or welfare.

  • (2) The reestablished use will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

  • (3) The reestablished use will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

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• (4) The reestablished use will comply with the applicable performance standards in Article 11 of this chapter.

• (d) Nonconforming Use Abandoned for One (1) Year or More. If a nonconforming use is abandoned for one (1) year or more, its right to continue to exist shall terminate and it may not be reestablished or substituted with another nonconforming use.

(Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The provisions of this article shall not apply to a nonconforming use or structure which is, or which becomes, a public nuisance. If a nonconforming structure or use is found to constitute a public nuisance, appropriate abatement action may be taken by the City in compliance with Article 15 of Chapter 7.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

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City of Emeryville, CA

Article 11 Performance Standards

The purpose of these performance standards is to control and limit dangerous or objectionable environmental effects generated by, or inherent to, the use of land or buildings. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) New Uses. These performance standards shall apply to the operation of all new uses established after the effective date of the ordinance codified in these regulations.

• (b) Existing Uses. These performance standards shall generally not apply to the ongoing operations of uses in existence on the effective date of the ordinance codified in these regulations or of a subsequent rezoning or other amendment applying more restrictive performance standards to such uses, with the following stipulations:

  • (1) Existing uses shall be subject to any applicable performance standards that were in effect prior to the effective date of the ordinance codified in these regulations.

  • (2) The operations of existing uses shall not be so changed as to result in a greater degree of nonconformity with respect to these performance standards.

  • (3) Any expansion of an existing use shall be required to conform to these performance standards.

  • (4) The establishment of a new use in proximity to an existing use shall not require the existing use to change its operations to comply with these performance standards.

  • (5) Any existing use that is a legal conforming use with respect to these regulations, and that ceases operations for a period of one (1) year or more, shall comply with these performance standards upon resuming operations. Any existing use that is nonconforming with respect to these regulations shall be subject to the applicable provisions for nonconforming uses in Article 10 of this chapter and, if allowed to resume operations, shall comply with these performance standards.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The Director may require the applicant for a building permit or business license to submit such information with respect to proposed equipment, machinery, processes, products, or environmental effects as may be necessary to demonstrate the ability of the proposed use to comply with these performance standards. Such required information may include reports by expert consultants. Any such requirement, and any determination by the Director as to sufficiency of proof, may be appealed to the Planning Commission in accordance with the appeal procedures in Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

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When measurements are necessary in the enforcement of these performance standards, they shall be made by competent professionals in the applicable field, in accordance with accepted professional practice.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

All existing or proposed uses producing dust, dirt, ash, charred paper, soot, grime, carbon or other noxious material which can or may cause damage to the health of any individual, animal or vegetation, damage to property, or the physical soiling or discoloring of the surfaces of any structure or materials located outside the property lines of the parcel of land from which such emission emanates shall have the source of the contaminant muffled or controlled in a manner that will prevent the issuance, continuance or recurrence of any emission that is, or may be, detectable beyond the property line of the premises. All uses shall comply with the requirements of the Bay Area Quality Management District.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

All existing or proposed uses shall have all intakes and exhausts on all air-handling equipment designed, installed, and operated in such a manner so as to prevent any perceptible acceleration of air movement across property lines. Cooling towers and condensers shall be designed, installed, and operated in a manner which will prevent water spray from being carried across property lines.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

All lighting, reflective surfaces, or any other sources of illumination shall be utilized in a manner which produces no glare on public streets or on any other parcel. Lights shall be shielded so as not to be directly visible from an adjoining residential property, except for low level lighting such as interior lights and porch lights.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The use, handling, storage and transportation of waste materials, including hazardous wastes, shall comply with Chapter 8 of Title 7, Wastewater Collection System; California Health and Safety Code Section 25100 et seq., Hazardous Waste Control; and any other applicable laws. See also Article 7 of Chapter 5, Hazardous Waste Facilities.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Noise Ordinance. All uses and activities shall be subject to the applicable provisions of the noise regulations in Chapter 13 of Title 5.

• (b) Siting of New Uses. The community noise compatibility standards in Figure 6-11 of the General Plan shall be used as review criteria for new uses. These standards indicate the

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level of existing ambient noise to which such new uses may be exposed. Noise generated by such uses shall be regulated by subsection (c) of this section.

==> picture [400 x 209] intentionally omitted <==

----- Start of picture text -----
Table 9-5.1109
Maximum Permitted Noise Level (dBA)
Daytime Nighttime
Weekdays 7 a.m. to 9 p.m. Weekdays 9 p.m. to 7 a.m.
Zone Weekends 8 a.m. to 9 p.m. Weekends 9 p.m. to 8 a.m.
RM Medium Density Residential 65 55
Zone
All Other Abutting a Lot in the 65 55
Zones RM Medium Density
Residential Zone
Not Abutting a Lot in 70 60
the RM Medium
Density Residential
Zone
----- End of picture text -----

• (c) Noise Generation. Noise generated by uses shall not exceed the maximum permitted noise level as set forth in Table 9-5.1109 at the property lines of the receiving land use, except that:

  • (1) The noise levels set forth in Table 9-5.1109 may be exceeded by no more than five (5) dBA for a cumulate period of no more than fifteen (15) minutes per hour.

  • (2) The noise levels set forth in Table 9-5.1109 may be exceeded by no more than ten (10) dBA for a cumulate period of no more than five (5) minutes per hour.

  • (3) The noise levels set forth in Table 9-5.1109 may be exceeded by no more than fifteen (15) dBA for a cumulate period of no more than one (1) minute per hour.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

All uses shall be so operated as not to permit matter causing offensive odors which are perceptible to the average person at or beyond any lot line of the lot containing such uses. Adequate buffer distances shall be provided between offensive odor sources and sensitive receptors including schools, hospitals, and community centers. Cooking odors and smoke shall be controlled and prevented from becoming a nuisance to neighboring properties. An odor detected no more than fifteen (15) minutes in any one (1) day is acceptable.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

There shall be no activity on any site that causes ground vibration that is perceptible without instruments at the property line of the site. This shall not apply to operations involved in the demolition of structures or caused by motor vehicles or trains. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

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City of Emeryville, CA