Sec. 1205. Nonconforming Uses:

A. Nonconforming Uses

1. A nonconforming use is a use of a structure or land which was lawfully established and maintained prior to the adoption of this Development Code but which, under this Development Code, does not conform to the use regulations for the district in which it is located.

2. This Section is intended to limit the number, extent, and duration of nonconforming uses and to encourage their gradual elimination by prohibiting their enlargement and their re-establishment after abandonment and by prohibiting the alteration of the structure they occupy and their restoration after destruction.

B. Continuation and Maintenance:

1. A use lawfully occupying a structure or a site on the effective date of this Development Code or of amendments thereto which does not conform with the use regulations for the district in which the use is located shall be deemed to be a nonconforming use and may be continued, as provided in this Section.

2. Alterations and Additions to Nonconforming Uses: No nonconforming use, except that of a nonconforming residential use, shall be enlarged or extended.

• C. Abandonment of a Nonconforming Use: Whenever a nonconforming use has been abandoned, discontinued or changed to conforming use for a continuous period of 180 days or more, the nonconforming use shall not be re-established and the use of the structure or site thereafter shall be in conformity with the regulations for the district in which it is located.

Pre-Existing Uses and Nonconforming Sites, Structures and Uses

Art. 12 Page 12 - 4

DEVELOPMENT CODE

Sec. 1206. Procedure for a Change of Nonconforming Use: Except as otherwise prescribed in this Section, the nonconforming use of a structure or site may be changed to another nonconforming use provided that the change of use is approved by the Planning Commission in accord with the following procedure:

• A. Application: Application for a change of nonconforming use shall be made to the Planning Commission (“Commission”) on the “Uniform Application Form” and shall include all applicable information, including a site plan drawing, as well as a statement of the precise nature of the existing or preexisting nonconforming use and the proposed nonconforming use. Any other data pertinent to the finding prerequisite to the granting of an application prescribed in Paragraph 3 of this Section shall also be included.

  1. The application shall be filed with the Zoning Administrator, who shall give notice to the applicant and the property owner of the time when the application will be considered by the Planning Commission and may give notice of the time to any other interested party.

  2. The Zoning Administrator shall make an investigation of the application and shall prepare a report which shall be submitted to the Commission. The report shall include the results of the investigation pertaining to the conformance of the structure for the proposed use.

B . Public Hearing Notice:

1. The Planning Commission shall hold a public hearing on each application for a change of nonconforming use. Such hearing shall be held within 45 days of the date when the application is complete.

   2. Notice of the public hearing shall be given as set forth in Section 1903.

• C. Public Hearing Procedure: At the public hearing, the Commission shall review the application, the statement, and drawing submitted therewith, and the report of the Zoning Administrator and shall receive pertinent evidence concerning the proposed use and the proposed conditions under which it would be operated or maintained. After considering all of the evidence presented, the Commission shall grant the permit upon making all of the relevant findings prescribed in Section 1708 of this Development Code for issuing a Conditional Use Permit.

• D. Action of the Planning Commission :

  1. The Commission may grant an application for a change of use if, on the basis of the application and the evidence submitted, the Commission makes the following findings:

     • a. That the proposed use is classified in a more restricted category than the existing or preexisting use by the district regulations of this Development Code. The classification of a nonconforming use shall be determined on the basis of the district in which it is first permitted, provided that a conditional use shall be deemed to be in a less restricted category than a permitted use in the same district.

     • b. That the proposed use will not more adversely affect the character of the district in which it is proposed to be located than the existing or preexisting use.

     • c. That the proposed use will not create more vehicular or rail traffic than the volumes created by the existing or preexisting use.

     • d. That the proposed use will not create more odor, dust, dirt, smoke, noise, vibration, illumination, glare, unsightliness or any other objectionable influence than the amounts created by the existing or pre-existing use.

     • e. That the proposed use will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity.

  2. The Commission may grant an application for a change of use for a limited time period or subject to such conditions as the Commission may prescribe. An approved change in nonconforming use shall be indicated on the Zoning map by a number located on the site of the conditional use.

Pre-Existing Uses and Nonconforming Sites, Structures and Uses

Art. 12 Page 12 - 5

DEVELOPMENT CODE

3. The Commission may deny an application for a change of use.

4. Following the date of denial of an application for a change of use or revocation of an action of the Planning Commission granting an application, no application for the same or substantially the same use on the same or substantially the same structure or site shall be filed within six months of denial on the application or revocation of the action of the Commission.

• E . Notice of Commission Action: Within five days of the Commission decision, a record of the action taken shall be submitted to the Clerk of the Board of Supervisors and to the applicant.

F . Review by Board of Supervisors (“Board”):

1. Within eight days following the date of a decision by the Planning Commission on a change of nonconforming use or on an application for extension of a change of nonconforming use, or on the revocation of a change of nonconforming use, the Board of Supervisors (“Board”), on its own motion, may initiate proceedings to review the decision of the Commission. The Board shall specify its reasons for reviewing the Planning Commission’s decision.

2. The Clerk of the Board shall give notice of the time and place when the decision of the Planning Commission will be reviewed by the Board of Supervisors. Notice will be given in the same manner as provided in Section 1903 of this Development Code for notice of hearing on appeal, except that where the review is of a decision of the Commission concerning the revocation of a change of nonconforming use, and in that case, notice shall be required to be given only to the permit holder of the use permit.

• G . Appeals: The applicant or any other directly affected person or party may appeal the decision of the Planning Commission in writing, setting forth his or her reason for such appeal:

  1. Appeal to the Board of Supervisors. Within eight days following the date of a decision of the Planning Commission on a change of nonconforming use application or an application for extension of change of nonconforming use, the Board.

     • a. The appeal shall be filed with the Community Development Agency which will date stamp the appeal form and then forward the original appeal form to the Clerk of the Board of Supervisors.

     • b. The appeal shall be accompanied by a fee set by the Board of Supervisors sufficient to cover the cost of processing the appeal and providing notice as prescribed in this article.

     • c. The appeal shall be placed on the agenda of the Board's first regular meeting after the Commission’s decision which allows noticing requirements to be met.

     • d. The appeal of a decision of the Planning Commission is limited to the issues and evidence submitted to the Commission during the original public comment period and public hearing. Only those issues reviewed by the Commission in their decision may be appealed to the Board. New issues raised, and evidence submitted, after the close of the Commission’s public hearing shall not be considered by the Board for an appeal.

     • e. Within five days after the filing of an appeal from a decision of the Commission on a change of nonconforming use application, the Zoning Administrator shall transmit to the Clerk of the Board the change of nonconforming use application, the site plan drawing and all other data filed therewith, the minutes of the public hearing, if any, the report of the Zoning Administrator, the findings of the Commission and their decision on the application.

om a decision of the Commission on a change of nonconforming use application, the Zoning Administrator shall transmit to the Clerk of the Board the change of nonconforming use application, the site plan drawing and all other data filed therewith, the minutes of the public hearing, if any, the report of the Zoning Administrator, the findings of the Commission and their decision on the application.

  - f. Where an appeal is from a decision of the Commission on an application for a extension of a change of nonconforming use application, the Zoning Administrator shall transmit to the Clerk of the Board within five days after the filing of an appeal, in addition to the above, the application for extension, the report of the Zoning Administrator on the extension application, the minutes of the public hearing, if any, and the findings and the decision of the Commission on the extension application. 

2. Notice of the appeal hearing shall be given as set forth in Section 1903.

Pre-Existing Uses and Nonconforming Sites, Structures and Uses

Art. 12 Page 12 - 6

DEVELOPMENT CODE

3. An appeal may be withdrawn before the time that the review authority issues a decision. The applicant or the applicant’s representative shall notify the Community Development Agency in writing that they wish to withdraw the appeal.

4. No person shall seek judicial review of a County decision on a planning permit or other matter in compliance with this Development Code until all appeals to the Commission and Board have been first exhausted in compliance with this this Development Code.

• H. Action by the Board of Supervisors: When a decision of the Planning Commission on a change of nonconforming use application or an application for extension of a change of nonconforming use, or on the revocation of a change of nonconforming use is brought before the Board of Supervisors, either on appeal or on its own motion:

  1. The Board may affirm, reverse or modify the decision of the Commission.

  2. The Board may not reverse or modify a decision of the Commission granting or denying an application for a change of nonconforming use or an application for a extension of a change of nonconforming use unless the Board, on the basis of the record transmitted by the Zoning Administrator, is able to make the findings prerequisite to the granting of a change of nonconforming use, as prescribed and set forth in Section 1206., above.

  3. A change of nonconforming use application, or an application for extension of a change of nonconforming use, or revocation of a change of nonconforming use which has been the subject of an appeal to the Board, shall become effective within three days of the Board’s decision.

  4. The Clerk of the Board of Supervisors shall within three days after the date of the decision of the Board, give written notice of the decision, by mail, to the applicant and/or appellant (if the applicant is not the appellant) and to the Planning Division of the Community Development Agency.

Sec. 1207. Zoning Clearance and Building Permit: Before a building permit shall be issued for any building or structure proposed as part of the approved conditional use application, the Zoning Administrator shall certify, through the zoning clearance process in Section 1607 of this Development Code, that the building location is in conformity with the site plan and conditions approved by the Zoning Administrator, the Commission or the Board.

Sec. 1208. Lapse of a Change of Nonconforming Use: A change of nonconforming use shall lapse and shall become void 180 days following the date on which the permit became effective unless by conditions of the permit a greater or lesser time is allowed as prescribed in Section 1205., above, or unless prior to the expiration of 180 days, a building permit is issued by the Building Official and construction is commenced and diligently pursued toward completion on the site which was the subject of the change of nonconforming use application.