Chapter 6.07 — NON-CONFORMING PROVISIONS

[9-21-2022 by Ord. 1782]

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 Title in a manner that does not conflict with the General Plan. To that end, this Chapter establishes the circumstances under which a non-conforming use or structure may be continued or changed and provides for the removal of non-conforming uses and structures when their continuation conflicts with the General Plan and public health, safety, and general welfare.

[9-21-2022 by Ord. 1782]

This Chapter applies to structures, land, and uses that have become non-conforming by initial adoption of or amendments to this Code. It also applies to nonconformities that were legal nonconformities under previously applicable ordinances, even if the type or extent of nonconformity is different. Regulations on non-conforming signs and sign enforcement can be found in Chapter 3.05 (Signs).

[9-21-2022 by Ord. 1782]

• A. Burden of Proof. The burden of establishing that any nonconformity is a legal nonconformity shall, in all cases, be solely upon the owner of such nonconformity.

• B. Appeal of Determination. Any person, firm, or corporation aggrieved by a decision of the Director's determination of nonconformity in interpreting, applying, or enforcing this Chapter, may file an appeal in compliance with Section 6.03.13 (Appeals).

[9-21-2022 by Ord. 1782]

Any lawfully established use or structure that is in existence on the Effective Date of this ordinance or any subsequent amendment thereto but does not comply with the standards and requirements of this Code shall be considered non-conforming.

• A. A nonconformity may result from any inconsistency with the requirements of this Code including, but not limited to, use, location, density, floor area, height, or setback.

• B. A lawfully existing use that was authorized by a previously approved permit or approval (e.g., Conditional or Administrative Use Permit, Variance, etc.), but is not allowed by this Code in its current location, may continue to exist in compliance with the original permit approval and shall be deemed non-conforming.

• C. A use lawfully existing without a permit that would require a permit under the current Code (e.g., a Conditional Use Permit was not required when the use was established, and the current Code now requires a Conditional Use Permit for that use) shall be allowed to operate to the extent that it previously operated (e.g., maintains the same site area boundaries, hours of operation, etc.) and shall be deemed non-conforming. Any use that is non-conforming solely by reason of the absence of a Use Permit may be changed to a conforming use by obtaining the appropriate Use Permit pursuant to the requirements in Section 6.04.04 (Use Permits).

• D. Non-conforming uses, structures, and/or physical improvements which lawfully exist on the date the property is annexed to the city, and which do not conform to this Code and any other relevant City document, may continue to exist and, upon annexation, shall be deemed nonconforming and subject to the provisions of this Chapter.

• E. Exceptions. No existing use of land or existing structure shall be deemed non-conforming solely because it was previously used and/or developed without site improvements required by this Code, including but not limited to parking, paving, screening, landscaping, lighting, drainage, etc. Said use or structure shall retain conforming status for as long as the use or structure remains unmodified. If the use or structure is also non-conforming because a Use Permit is required, then the provisions of Subsection D above shall apply.

[9-21-2022 by Ord. 1782]

A non-conforming structure that began construction under an active building permit prior to a change in regulations in this Code, which would make the structure non-conforming once completed, may be completed per approved building permit and plans and shall be deemed a previously conforming structure.

[9-21-2022 by Ord. 1782]

Any use or structure that was lawfully established prior to the effective date of this Code or of any subsequent amendments to its text or to the Zoning Map may only be continued and maintained

provided there is no alteration, enlargement, addition, or other change to any building or structure or use therein; or no substitution, expansion, or other change including an increase in occupant load or any enlargement of the area, space, or volume occupied by or devoted to such use, except as otherwise provided in this Chapter.

• A. Non-conforming uses must comply with applicable City, County, State, and Federal laws regarding their operations, including compliance with all performance standards set for this code (see Chapter 3.04 (Performance Standards)).

• B. The right to continue a non-conforming use or structure shall attach to the land and shall not be affected by a change in ownership, tenancy, or management.

• C. The right to continue a non-conforming use or structure shall not apply to uses or structures determined by the Planning Commission or City Council as described in this Chapter to be a public nuisance arising from conditions that constitute a threat to public health, safety, or general welfare.

• D. The right to continue a non-conforming use or re-occupy a non-conforming structure shall terminate if the non-conforming use has been abandoned or the non-conforming structure has been vacated for the relevant period described in Section 6.07.13 (Abandonment and Loss of Legal Non-conforming Status).

[9-21-2022 by Ord. 1782]

Partial conversions of properties or structures to bring them into better compliance with this Code are permitted and encouraged. This applies to non-conforming outdoor activities such as product storage or parking. When a portion of a property, structure, or use is converted to bring it into conformance in phases, the owner does not waive the right to maintain previously allowed uses of other parts of the building or property under the conditions established in this Chapter.

[9-21-2022 by Ord. 1782]

For the purposes of this Chapter, multiple contiguous parcels under the same or substantially the same ownership or control, shall be treated as if they were a single parcel or property, for enforcement of non-conforming use or building, including outdoor activities such as storage of product or parking. Ownership for the purposes of this Chapter is defined as the same or similar business ownership structure.

[9-21-2022 by Ord. 1782]

Incidental repairs, normal maintenance, and interior alterations of non-conforming structures shall be permitted if the changes and improvements do not increase the extent of the nonconformity, enlarge the structure, change the building footprint, or increase building height or roof pitch, and are not otherwise expressly prohibited by this Code. This excludes any improvements required to meet accessibility requirements. Nothing in this Chapter shall be construed to prevent structures from being structurally strengthened or restored to a safe condition, in accordance with an official order of a public official.

[9-21-2022 by Ord. 1782]

A non-conforming use may only be changed to a use allowed in the zone in which it is located. A non-conforming use shall not be changed to another non-conforming use. Once a non-conforming use is converted to a conforming use, it shall not be changed back to a non-conforming use.

[9-21-2022 by Ord. 1782]

Additions or expansions of a non-conforming structure or use are permitted subject to the approval of the Director through Zoning Clearance/building permit process, as provided below. The addition or enlargement shall not increase the extent of the nonconformity and shall comply with all applicable laws and requirements of this Code.

Alterations or expansions of any non-conforming use that bring the land use or structure into partial or full compliance shall be permitted if the proposed improvements comply with the design and development standards of this Code, and the requirements of this Chapter. Such improvements will not be subject to the one-time expansion limitation.

A non-conforming structure shall not be moved in whole or in part to any other location unless the move results in the entire structure being brought into compliance with all applicable zone regulations and development standards of this Code.

• A. One-Time Expansion of Non-Conforming Structures. A one-time expansion of up to 10 percent of the existing square footage is permitted, provided the following:

  1. The expansion does not add residential units;

  2. The expansion does not increase the number of stories; and

  3. The expansion does not reduce the number of existing on-site parking spaces or access to the building.

• B. Non-Conforming Setbacks, Residential Zones. In Residential zones, a non-conforming setback may be maintained and extended, and shall not be considered an increase in the discrepancy, provided that:

  1. A new encroachment into any other required setback is not created;

  2. The height of the portion of the structure that is within the required setback is not increased; and

  3. Any residential additions above the first floor shall conform to the setbacks in effect at the time the application for the addition is submitted.

[9-21-2022 by Ord. 1782]

A non-conforming structure that is damaged or partially destroyed by fire, explosion, earthquake, or natural disaster that was not caused by an act or deliberate omission of a property owner, their

agent, or person acting on their behalf or in concert with them, may be restored or rebuilt subject to the following provisions.

• A. Restoration When Damage Is 50 Percent or Less of Value. If the cost of repair or reconstruction is less than or equal to 50 percent of the appraised value of the structure, replacement of the damaged portions of the structure is allowed by right provided that the replaced portions are the same size, extent, and configuration as previously existed. The determination of the appraised value shall be made by a professional appraiser selected by the City, whose fee shall be paid by the building or property owner.

• B. Restoration When Damage Exceeds 50 Percent of Value. If the cost of repair or reconstruction exceeds 50 percent of the appraised value of the structure, as determined pursuant to Subsection A above, the land and building shall be subject to the requirements of this Code, except as provided below.

  1. Non-Residential Structures. Any non-conforming use must permanently cease. The Director or Planning Commission may approve the structure, per the Planning Review process, to be rebuilt to the same size, extent, and configuration as previously existed provided that the use of the structure is permitted or conditionally permitted in the zone. In such cases, any expansion or change to the previous use must conform to the requirements of this Chapter.

  2. Residential Structures. Any non-conforming residential structure may be reconstructed, restored, or rebuilt up to the size and number of dwelling units prior to the damage and provided there is no increase in any other nonconformity. The non-conforming use, if any, may be resumed subject to a Zoning Clearance in the case of single-unit dwellings or Director/Planning Commission approval, per the Planning Review process, in the case of other residential uses, unless the review authority finds that the reconstruction, restoration, or rebuilding will be detrimental or injurious to the health, safety, or general welfare of persons residing or working in the neighborhood.

• C. Timing. Building permits must be obtained within two years of the date of the damage or destruction, and construction shall be completed within one year of issuance unless another time period is specified by the Director. Building permits must be maintained valid through the completion of the project.

[9-21-2022 by Ord. 1782]

Except for residential uses, if a non-conforming use ceases to operate for any reason for a period of more than one year, the use shall be considered abandoned. Once abandoned, the legal nonconforming status shall be lost, and the use shall not be resumed, reestablished, reopened, or replaced by any other non-conforming use, except as provided in this Chapter. It is the responsibility of the applicant to provide evidence demonstrating to the satisfaction of the Director that the use was legally established and has not been abandoned.

• A. Abandonment. The time period set forth above shall commence when the use ceases to operate, whether with the intent to abandon the use or not, and any one of the following occurs:

  1. The site is vacated;

  2. The business license expires or is revoked;

  3. Utilities are terminated; or

  4. The applicable lease is terminated.

• B. Notifcation and Abatement. The Director determines when land, structures, uses or outdoor activities have been abandoned and have lost their non-conforming status. The Director's determination is subject to appeal to the Planning Commission pursuant to Section 6.03.13 (Appeals) of this Code. The property owner(s) and lessee shall be notified in writing of the determination and abatement requirements within 10 days.

Any abandoned non-conforming use or structure shall be abated, including clearing of the land and any associated equipment or materials, within six months of notification by the Director and/or Planning Commission. All future use of such land shall conform to the applicable zone and use provisions of this Code.

• C. Extension of Abandonment Period. The Director may approve an additional one-year time period during which the use will not be considered abandoned, provided that the Director finds that economic conditions warrant the additional time. If such additional time period is approved, the total period during which the use will not be considered abandoned shall not exceed two years from the date the use ceased to operate.

[9-21-2022 by Ord. 1782]

• A. Non-Conforming Parking. No existing use of land or existing structure, where parking for said use or structure was conforming at the time of establishment or modification, shall be deemed to be non-conforming solely because of the lack of parking or loading facilities prescribed in Chapter 3.03 (Parking and Loading). Uses that have off-street parking or loading that do not meet the requirements of this Code may continue in operation and retain conforming status for as long as the use or structure remains unmodified. Implications for modifications are addressed in Subsections 1 and 2, below.

  1. Expansion of Multi-Family Residential and Non-Residential Structures. For additions or expansions of existing structures or buildings that would increase the number of parking spaces required, the additional parking shall be required only for the addition or expansion or new dwelling units, and not for the preexisting structure or building or preexisting dwelling units. However, the Review Authority may grant a waiver of the parking requirement for the addition, enlargement, or new dwelling units if it is determined that sufficient parking is available on or near the site, and the project is consistent with the General Plan, otherwise consistent with the Code, and the waiver would not create a negative impact for neighboring properties.

  2. Expansion of Single-Family Residential Structures. Existing non-conforming single-family dwellings whose off-street parking facilities do not conform to the provisions of this Code may be expanded or added to a maximum of 20 percent of the existing structure without meeting current requirements for off-street parking. If the expansion or addition exceeds 20 percent of the existing structure, additional parking shall be required only for the addition or expansion.

  3. Change in Use. For any change of use or manner of operation that would increase the number of parking spaces required per Chapter 3.03 (Parking and Loading), no additional parking shall be required unless the change in use requires 15 percent or more parking spaces than currently exist. The number of parking spaces required for the change of use shall be the difference between the number required by Chapter 3.03 (Parking and Loading) and 115 percent of the number of spaces that currently exist.

  4. Changes to Parking Area. Any changes to a parking area layout, loading area, circulation aisles, access, lighting, or landscaping may only occur when the change reduces or corrects an existing substandard condition; changes shall be subject to applicable permitting of this Code.

  5. Major Renovations. If an application is filed for a building permit(s) for the renovation or remodeling of a structure(s) that has one or more non-conforming site features, and the value of the proposed improvements totals 75 percent or more of the current total appraised value of the existing property, the applicant shall be required to address the nonconforming site features, including parking and loading in compliance with Chapter 3.03 (Parking and Loading).

t(s) for the renovation or remodeling of a structure(s) that has one or more non-conforming site features, and the value of the proposed improvements totals 75 percent or more of the current total appraised value of the existing property, the applicant shall be required to address the nonconforming site features, including parking and loading in compliance with Chapter 3.03 (Parking and Loading).

• B. Non-Conforming Driveways. Non-conforming residential and non-residential driveways may continue to be maintained and repaired until such a time that the driveway is reconstructed, fully or partially realigned, modified dimensionally, connected to a new structure, or a change is made to any structure on the parcel that would require that the structure be brought into compliance with current Code standards.

• C. Non-Conforming Landscaping and Screening. No existing use of land or existing structure, where landscaping or screening for said use or structure was conforming at the time of establishment or modification, shall be deemed to be non-conforming solely because of the lack of landscaping and screening required by this Code. Uses that have non-conforming landscaping and screening shall retain conforming status for as long as the use or structure remains unmodified. Implications for modifications are addressed through Subsections 1 and 2 below.

  1. Expansion of Structure. For additions or expansions of existing structures that would increase the amount or type of landscaping or screening required, the additional landscaping or screening shall be required only for such addition or enlargement and not for the preexisting structure.

  2. Change in Use. For any change of use or manner of operation that would increase the amount or type of landscaping or screening required, such additional landscaping and/or screening shall be provided.

  3. Major Renovations. If an application is filed for a building permit(s) for the renovation or remodeling of a structure(s) that has one or more non-conforming site features, and the value of the proposed improvements totals 75 percent or more of the current total appraised value of the existing property, the applicant shall be required to address the nonconforming site features, including landscaping and screening in compliance with Chapter 3.03 (Parking and Loading).

• D. Addition of Outdoor Storage Area Only. When only outdoor operations/storage/display areas are being added or increased on a site, the percentage increase in outdoor operations area shall require 100 percent compliance with the screening and outdoor storage standards of this Code.

• E. Exceptions. Sites that are physically constrained (due to limited size, topography, or other environmental considerations) from complying with these provisions or where full compliance would negatively impact adjacent properties shall comply, to the maximum practical extent, as determined by the Director.

[9-21-2022 by Ord. 1782]

• A. Elimination of Non-Conforming Uses and Structures.

  1. Non-Conforming Uses Not Occupying a Structure or Occupying a Structure with Valuation Less Than $2,500. The following non-conforming uses shall be discontinued and removed from their sites within three years from the effective date of this Code:

     • a. A non-conforming use which does not occupy a structure; or

     • b. A non-conforming use occupying a structure having an appraised valuation of less than $2,500.

  2. Other Non-Conforming Uses. The City Council may require other non-conforming uses to be discontinued and removed from their sites within a period determined pursuant to the process set forth in Subsection C.2 (Procedures) of this Section.

  3. Elimination of Non-Conforming Structures. Non-conforming structures may continue except that the City Council may establish amortization periods for specific structures pursuant to Subsection C.2 (Procedures) of this Section.

• B. Time for Elimination When Use or Structure Becomes Non-Conforming. Whenever a use or structure becomes non-conforming, the period of time prescribed in this Section for the elimination of the use or the removal of the structure is computed from the effective date of the change that results in the non-conforming status of the use or structure.

• C. Revocation of Non-Conforming Use or Structure. The City Council may revoke or modify the non-conforming status of the use or structure upon finding that the non-conforming use or structure has been or will be materially detrimental or injurious to the neighborhood or public health and welfare, as shown by substantive evidence, as follows:

  1. Public Noticing. Notice shall be mailed to the recorded owner and lessee of the property not less than 20 days before the date of the public hearing. The notice shall state the facts concerning the impending action and shall request appearance by said owner at the time and place specified for the hearing, to show cause why the non-conforming status should not be revoked.

  2. Procedures. Where a non-conforming uses or structure is recommended to be discontinued and removed from the site, such period shall be established as follows.

     • a. The Director shall submit the non-conforming use or structure and a recommended amortization period, based on the criteria set forth in this Subsection to the Planning Commission for review.

     • b. The Planning Commission shall hold a public hearing, noticed pursuant to Chapter 6.03 (Common Procedures), to consider the revocation and recommended amortization period. Following the public hearing, the Planning Commission shall make a recommendation on the proposed amortization period to the City Council.

     • c. After receiving the recommendation from the Planning Commission, the City Council shall hold a public hearing, noticed pursuant to Chapter 6.03 (Common Procedures), to consider the revocation and recommended amortization period.

• d. The City Council may establish a maximum time for which the non-conforming use shall be permitted to continue after considering the following in relation to the use or structure. However, the time period established by the City Council shall be no less than two years in length.

     - i. The amount of investment or original cost of the use or structure; 
  
     - ii. The present actual or depreciated value of the use or structure; 
  
     - iii. The remaining useful life of the use or structure; 
  
     - iv. The remaining term of the lease; 
  
     - v. The date or dates of construction; 
  
     - vi. Amortization of the business or structure for tax purposes; 
  

  • vii. The salvage value;

  • viii. The threat to the public health, safety, and welfare posed by the continuance of the non-conforming use; and

  • ix. Other factors as appropriate.

3. Notice of Decision. Within 30 days after the public hearing, the Council may by resolution revoke or modify the non-conforming status of the use or structure. The property owner(s) and lessee shall be notified in writing of the decision within 10 days of the meeting. The notice shall include reasonable abatement and conformance requirement dates.

[9-21-2022 by Ord. 1782]

Any non-conforming use or structure that has been abandoned or revoked shall be abated, including clearing of the land and any associated equipment or materials, within the time period established by the Director or City Council. All future use of such land shall conform to the applicable zone and use provisions of this Code.

The provisions of this Chapter are in addition to existing State law authority to declare and abate a public nuisance pursuant to California law and other applicable provisions of the Indio Municipal Code. If a legal non-conforming structure or use is found to constitute a public nuisance, appropriate action may be taken by the City pursuant to the Chapter 95A: Public Nuisances of the Indio Municipal Code.

[9-21-2022 by Ord. 1782]

• A. Any lot or parcel of land that was legally created through a recorded deed may be used as a building site, even when consisting of less area, width, or depth than required by the regulations for the zone in which it is located, except as provided below.

  1. Two or More Adjoining Vacant Sites. Two or more adjoining vacant sites with continuous frontage, each having an area, width or depth less than the minimum prescribed for the zone in which the sites are located, in the same ownership as of the date of adoption of this Section or subsequent thereto, is subject to all regulations for the zone in which the sites are located, including minimum area, width and depth requirements, as if the sites constituted a single parcel of real property.

• B. No substandard lot shall be further reduced in area, width, or depth, unless such reduction is required as part of a public improvement.

• C. A substandard lot shall be subject to the same yard and density requirements as a standard lot, provided that in no instance shall these provisions prevent the erection of a single-family dwelling on any substandard lot.

• D. An existing legal lot comprising a minimum size of 5,000 square feet or greater and a minimum width of 50 feet or greater shall not be considered substandard for the purposes of this Section.