Hesperia Municipal Code § 16.12.330 Change of nonconforming use

Footnotes:

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Editor's note— Ord. No. 2010-09, § 3(Exh. A), adopted Sept. 7, 2010, amended Art. IX in its entirety to read as herein set out. Former Art. IX, §§ 16.12.315—16.12.340, pertained to nonconforming uses and structures and derived from Ord. 2002-14, Exh. A(part), adopted 2002.

It is the intent of this development code to regulate the long-term continuance of nonconforming uses, buildings, and structures in order to promote the public health, safety, and general welfare and to bring them into conformity with the goals and policies of the general plan and any applicable specific plan. These provisions are not intended to legalize any use, building, or structure that were illegally established.

(Ord. No. 2010-09, § 3(Exh. A), 9-7-10)

A. The definitions for a nonconforming use, building, and structure are located in Sections 16.08.555 thru 16.080.557.

B. Continuation, Maintenance, and Alterations.

1. Continuance of Nonconforming Buildings and Structures:

a. A nonconforming building or structure may continue to be utilized, except as otherwise provided for in this article.

b. A nonconforming building or structure may be altered, structurally altered, or repaired provided that no alterations or repairs increase the degree of the nonconforming building or structure. Any exterior alteration changing the architecture or the look of the nonconforming building or structure shall be reviewed and approved by the reviewing authority.

c. Routine maintenance may be performed on a nonconforming building or structure.

d. No nonconforming building or structure shall be altered or restored so as to displace any conforming use, building or structure.

2. Continuance of Nonconforming Uses.

a. Nonconforming uses may be allowed to continue, provided that the use does not substantially increase the levels of vehicular traffic and parking demand, except as otherwise provided in this section.

b. Change of ownership, tenancy or management of a nonconforming use shall not affect its legal nonconforming status, provided that the use and intensity of the use does not change.

c. If a nonconforming use is discontinued for a continuous period of twelve (12) months or longer, it shall lose its legal nonconforming status, and the continued use of the property shall require compliance with the provisions of the Development Code,

d. A nonconforming use may not be intensified, enlarged, or expanded in anyway, and may not occupy any part of the structure or site, which it did not occupy at the time it became a nonconforming use except as otherwise provided in Section 16.12.315 (C) below.

C. Expansions and Additions.

1. Expansions and Additions to Nonconforming Buildings and Structures:

a. Expansions and additions to a nonconforming building or structure are not permitted, except as otherwise provided for in this article.

b. Any expansion or addition shall be subject to the process and requirements outlined in Article 1 (General Procedures) Article II (Site Plans and Revised Site Plans) and Article III (Conditional Use Permits) of Chapter 16.12 of this municipal code; and

i. The reviewing authority shall determine the extent the nonconforming buildings or structures must conform. The reviewing authority may permit an expansion and addition to the nonconforming building or structure, if all the findings in Section 16.12.320 can be made; and

ii. If, an expansion to a non-conforming use is greater than 25% in total floor area, or greater than 1,500 square feet, the expansion and addition shall be forwarded to the planning commission; and

iii. Expansions and additions not requiring a site plan review or conditional use permit shall comply with parking, landscaping, and trash enclosure requirements. Architectural improvements shall be required on existing buildings or structures. The extent of architectural improvements shall be proportional to what is being proposed; and

iv. The proposed expansion and addition shall conform to the provisions of this development code.

c. Additional development of any property on which a nonconforming building or structure exist shall require that all new buildings or structures conform to the provisions of this development code.

d. No nonconforming building or structure shall be expanded or added so as to displace any conforming use, building or structure.

2. Expansions and Additions to Nonconforming Uses:

a. No expansions or additions shall be permitted for buildings or structures containing nonconforming uses otherwise not permitted in the zone, except as otherwise provided for in this article, and for uses with insufficient parking.

b. Additional development of any property on which a nonconforming use exist shall require that all new uses conform to the provisions of this development code.

c. In a multiple unit building containing conforming and nonconforming uses, the limitations in this article shall solely apply to the nonconforming uses and their unit when they are within an otherwise conforming building.

D. Abandonment of Use or Building.

a. If documented activity and continuous operations of a nonconforming use, building, or structure are not carried on, for a continuous period of twelve (12) months, the use, building, or structure, shall be used or occupied for a conforming use, building or structure, except as otherwise provided for in this article. Intent to resume active use or occupancy shall not affect the foregoing.

E. Repair of Damaged or Partially Destroyed Structures.

1. A nonconforming use, building or structure which has been damaged or partially destroyed by fire, natural disaster or some other calamity may be restored to its original condition and nonconforming use, building, or structure resumed provided that following criteria are met:

i. Such restoration shall be started within one year of such calamity and completed within two years from the time restoration commences; and

ii. Provided that the construction cost of restoration does not exceed seventy-five (75) percent of the assessed value of the entire building or structure; and

iii. The reviewing authority may grant a written extension of time on restoration not to exceed one additional year, upon application by the affected party.

2. Unsafe Uses of Buildings. Any nonconforming building or structure, or portion thereof, declared unsafe by the city may be strengthened or restored to a safe condition, provided that the cost of the improvement does not exceed seventy-five (75) percent of the replacement cost of the structure.

F. Completion. Any building or structure for which a building permit has been issued prior to the effective date of the ordinance codified herein may be completed and used in accordance with the plans, specifications and permits on which said building permit was granted, if construction is commenced within one hundred eighty (180) days, or prior to the expiration date of the project's land use permit, whichever comes later, after the issuance of said permit and diligently prosecuted to completion.

G. Enforcement. Failure to comply with this section is subject to the penalty provisions as outlined in Chapter 1.12 of the municipal code.

H. Exceptions.

a. The reviewing authority may permit an abandoned use to reestablish, or allow an expansion and addition to a building or structure containing a nonconforming use if all the findings in Section 16.12.320 can be made. If an expansion to a non-conforming use is greater than 25% in total floor area, or greater than 1,500 square feet, the expansion and addition shall be forwarded to the planning commission; and

b. All expansions and additions shall be subject to Section 16.12.315(C)(1)(b).

c. All lawfully existing residential structures located in commercially designated or zoned property as of the effective date of this article shall be exempt from the restriction on reconstruction following the destruction of the structure. However, the reconstruction shall conform to Section 16.12.320(A) and (B).

d. A use, building or structure shall not be considered nonconforming solely on the basis of the lot not meeting the minimum lot size, width, and depth. Development on the lot may occur provided it meets all development code standards as well as sewage and water requirements.

(Ord. No. 2010-09, § 3(Exh. A), 9-7-10; Ord. No. 2021-01, 3(Exh. A), 6-1-21)

A. Before any modification to a nonconforming use, building, or structure may be granted, the reviewing authority shall find that all of the following conditions shall exist in reference to the alteration, expansion, addition, and reestablishment of uses being considered:

1. The alteration, expansion, addition, and reestablishment of the nonconforming use, building, or structure shall not be detrimental to or prevent the attainment of objectives, policies, and programs specified in the general plan;

2. The granting of permission to alter, expand, add to, and reestablishment, the nonconforming use, building, or structure shall not be substantially detrimental to the public health, safety, or welfare, or injurious to the property or improvements in the vicinity and district in which the use is located;

The alteration, expansion, addition, and reestablishment of the nonconforming use, building, or structure shall not pose a substantially negative impact on traffic, circulation, and parking demand.

3. The existing nonconforming use, building, or structure shall comply with all other applicable city regulations, ordinances and codes.

B. Any alterations required by governmental or court action shall be exempt from these conditions.

(Ord. No. 2010-09, § 3(Exh. A), 9-7-10)

The planning commission may consider and approve, or conditionally approve, a request to change a nonconforming use to a different nonconforming use, provided that the following conditions are met:

A. There is no new structure;

B. The use is not of greater intensity with regard to traffic, noise, density, parking demand, odor, light, or other similar development or performance standard; and

C. A conditional use permit has been reviewed and approved by the city, in accordance with Article III (Conditional Use Permits) of the Development Code.

D. The decision may be appealed pursuant to Section 16.12.055.

(Ord. No. 2010-09, § 3(Exh. A), 9-7-10)