Chapter 4-72 — NONCONFORMING USES, STRUCTURES, AND PARCELS

Sections:

Sec. 4-72-010. Purpose. Sec. 4-72-020. Definitions.

Sec. 4-72-030. Restrictions on Nonconforming Uses and Structures.

Sec. 4-72-040. Residential Exemptions.

Sec. 4-72-050. Loss of Nonconforming Status.

Sec. 4-72-060. Nonconforming Parcels. Sec. 4-72-070. Nonconforming Due to Lack of Planning permit.

• A. This Chapter provides regulations for nonconforming land uses, structures, and parcels that were lawful before the adoption, or amendment of this Zoning and Subdivision Code, but which would be prohibited, regulated, or restricted differently under the current terms of this Zoning and Subdivision Code or an amendment that changed the applicable requirements.

• B. It is the intent of this Chapter to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to exist under the limited conditions identified in this Chapter.

• A. Nonconforming parcel. A parcel that was legally created before the adoption of this Zoning and Subdivision Code or amendment, but does not comply with the current area, depth, width, or other applicable requirements of this Zoning and Subdivision Code.

• B. Nonconforming sign. A sign that lawfully existed before the effective date of this Zoning and Subdivision Code or amendment, but does not comply with the current sign regulations of this Zoning and Subdivision Code.

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ARTICLE 7 ZONING AND SUBDIVISION CODE ADMINISTRATION CHAPTER 4-72. NONCONFORMING USES, STRUCTURES, AND PARCELS Sec. 4-72-030. Restrictions on Nonconforming Uses and Structures.

• C. Nonconforming structure. A structure that was legally constructed before the adoption or amendment of this Zoning and Subdivision Code, but does not comply with the current height limit, off-street parking, setbacks, and/or other applicable requirements of this Zoning and Subdivision Code.

• D. Nonconforming use. A use of land and/or a structure (either conforming or nonconforming) that was legally established and maintained before the adoption of this Zoning and Subdivision Code or amendment, but does not conform to the current Zoning and Subdivision Code requirements for allowable land uses within the applicable zoning district.

A nonconforming land use and the use of a nonconforming structure may be continued, including transfers of ownership; provided, their continuation shall comply with the requirements of this Section. See Section 4-72-040 for exceptions regarding certain residential uses and structures.

A. Nonconforming use of land.

1. General rule. A nonconforming use of land may be continued; provided, the use shall not be enlarged or increased, nor be extended to occupy a greater area of land than it lawfully occupied before becoming nonconforming. See Section 4-72-040 for exceptions regarding certain residential uses and structures.

2. Nonconforming use in a conforming structure. A nonconforming land use within a conforming structure may be expanded or replaced with Use Permit approval, as follows:

• a. Expansion of use. The nonconforming use of a portion of a structure may be extended throughout the structure; and

• b. Substitution of use. The nonconforming use of a structure may be changed to a conforming use or another nonconforming use of the same or more restricted nature.

  • (1) If the use is changed to a conforming use, the use shall not be changed to a nonconforming use thereafter.

  • (2) If the use is changed to another nonconforming use of the same or more restricted nature, a nonconforming use of a less restricted nature shall not be resumed thereafter.

3. Nonconforming use of a vacant parcel.

• (1) If any parcel without any structures of any kind is used for any purpose which is not in compliance with the applicable provisions of the subject zoning district, the use may continue for a maximum period of three years after June 21, 1965.

• (2) After the expiration of the three-year period, the parcel shall be used only in compliance with the applicable provisions of the subject zoning district.

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ARTICLE 7 ZONING AND SUBDIVISION CODE ADMINISTRATION CHAPTER 4-72. NONCONFORMING USES, STRUCTURES, AND PARCELS Sec. 4-72-030. Restrictions on Nonconforming Uses and Structures.

• B. Nonconforming structure. A nonconforming structure may continue to be used as follows:

1. General rule.

• a. Accept as otherwise provided in this Chapter, the use of a structure existing on June 21, 1965, may be continued even though the structure does not conform to the applicable provisions of the subject zoning district.

• b. The nonconforming structure shall not be enlarged, extended, reconstructed, or structurally altered unless the enlargement, extension, reconstruction, or structural alteration is in compliance with the applicable provisions of the subject zoning district.

• c. See Section 4-72-040 for exceptions regarding certain residential uses and structures.

2. Normal maintenance and repair.

• a. A nonconforming single-family dwelling may be maintained and repaired at the discretion of the owner.

• b. A multi-family or nonresidential structure may be maintained and repaired; provided, that:

  - **(1)** No structural alterations occur other than those allowed by Subparagraph B.3., below. 
  
  - **(2)** The cost of the work done during any 12-month period does not exceed 25 percent of the value of the structure as determined by the Building Official in compliance with the Building Code. 
  
  - **(3)** Additional or more extensive changes to a nonconforming multi-family or nonresidential structure may be authorized through Use Permit approval; provided, the review authority first finds that the additional work will not prolong the duration of the nonconforming structure.
  

3. Seismic retrofitting and compliance with Building Code. Alterations, repairs, or reconstruction to reinforce unreinforced masonry structures or to comply with Building Code requirements shall be allowed; provided, the work is exclusively to comply with applicable earthquake safety standards and the Building Code.

An involuntarily damaged or destroyed single-family dwelling, or multi-family structure containing two or more dwelling units, may be reconstructed, repaired, or replaced, within a 6-month period, with a new structure with the same footprint, height, and number of dwelling units, regardless of the requirements of the applicable zoning district; provided that the new or repaired structure shall comply with the current Building and Fire Code requirements. (Ord. No. 520, § 2, 12-20-22)

A. Termination by discontinuance.

1. If a nonconforming use of land or a nonconforming use of a conforming structure is discontinued for a continuous period of six (6) months or more, except in compliance

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ARTICLE 7 ZONING AND SUBDIVISION CODE ADMINISTRATION CHAPTER 4-72. NONCONFORMING USES, STRUCTURES, AND PARCELS Sec. 4-72-060. Nonconforming Parcels.

with a valid order of a court of law, all rights to legal nonconforming status shall terminate and all future uses shall be in compliance with the applicable regulations for the subject zoning district.

2. The Planning Director shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, or no business records to document continued operation.

3. Any further use of the site or structure shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this Zoning and Subdivision Code.

• B. Termination by destruction. Nonconforming status shall terminate if a nonconforming structure, or a conforming structure occupied by a nonconforming use, is involuntarily damaged or destroyed (e.g., by explosion, fire, or other casualty or act of God); except as provided by Section 4-72-040 for residential dwellings, and as follows.

  1. If the cost of repairing or replacing the damaged portion of the structure is 50 percent or less of the reasonable/appraised value of the structure immediately before the damage, the structure may be restored to no more than the same size and use, and the use continued, if the restoration is started within six (6) months of the date of damage and is diligently pursued to completion.

  2. Use Permit approval shall be required if the cost of repairing or replacing the damaged portion of the structure is more than 50 percent of the reasonable/appraised value of the structure immediately before the damage. Use Permit approval shall require a finding, in addition to those contained in 4-52-050.F (Findings and decision), that the benefit to the public health, safety, or welfare exceeds the detriment inherent in the restoration and continuance of a nonconformity.

• A. Legal building site. A nonconforming parcel that does not comply with the applicable area, depth, or width requirements of this Zoning and Subdivision Code shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the Planning Director by evidence furnished by the applicant.

  1. Approved subdivision. The parcel was created by a recorded subdivision;

  2. Individual parcel legally created by deed. The parcel is under one ownership and of record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel nonconforming;

  3. Variance or lot line adjustment. The parcel was approved through the Variance procedure or resulted from a lot line adjustment; or

  4. Partial government acquisition. The parcel was created in compliance with the provisions of this Zoning and Subdivision Code, but was made nonconforming when a portion was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing a public right-of-way was decreased not more than 50 percent.

• B. Subdivision of a nonconforming parcel. No subdivision shall be approved that will increase the nonconformity of an existing parcel or any nonconforming use on the parcel.

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ARTICLE 7 ZONING AND SUBDIVISION CODE ADMINISTRATION CHAPTER 4-72. NONCONFORMING USES, STRUCTURES, AND PARCELS Sec. 4-72-070. Nonconforming Due to Lack of Planning permit.

• A. Conformity of uses requiring planning permits. A use lawfully existing without the approval of a Use Permit or Use Permit that would otherwise be required by this Zoning and Subdivision Code, shall be deemed conforming only to the extent that it previously existed (e.g., maintain the same site area boundaries, hours of operation, etc.).

• B. Previous planning permits in effect. A use that was authorized by a planning permit but is not allowed by this Zoning and Subdivision Code in its current location may continue, but only in compliance with the original planning permit.