Chapter 17.68 — NONCONFORMING USES, STRUCTURES, AND PARCELS

This chapter establishes uniform provisions for the regulation of nonconforming uses, structures, and parcels, as these terms are defined in Article 7 (Definitions).

A.

Within the zoning districts established by this development code, there exist land uses, structures, and parcels that were lawful before the adoption, or amendment of this development code, but which would be prohibited, regulated, or restricted differently under the terms of this development code or future amendments.

B.

It is the intent of this development code to discourage the long-term continuance of these nonconformities, but to permit them to exist under limited conditions.

C.

This chapter does not apply to land uses, structures, and parcels that were illegally established, constructed, or divided. These are instead subject to Chapter 17.76 (Enforcement).

(Ord. No. 1869, § 2, 2-20-2013)

Nonconformities may be continued subject to the following provisions:

A.

Nonconforming Uses of Land. A nonconforming use of land, or a nonconforming use within a structure, may be continued, transferred, or sold, only as follows:

Prohibited Activities for a Nonconforming Use. Owners or tenants of nonconforming uses shall not:

a.

Enlarge, expand, extend, or increase the nonconforming use either on the same or adjoining parcel(s), except in compliance with the provisions of this development code;

b.

Extend the nonconforming use to occupy a greater area of land than that occupied by the use at the time it became nonconforming. A nonconforming use of a portion of the structure which otherwise conforms to the regulations of the subject zoning district shall not be expanded or extended into any other portion of the structure nor changed except to a conforming use;

c.

Move the nonconforming use, in whole or in part, to any other location on the subject parcel; or

d.

Retain the benefits under this chapter if the nonconforming use ceases for 180 days or longer, in compliance with subsection 3 (Loss of Nonconforming Use Status), below.

Replacement of a Nonconforming Use.

a.

A nonconforming use may be changed to a use of the same or more restrictive classification.

b.

The replacement use shall serve as the "new bench mark" in terms of establishing the acceptable level of nonconformity.

c.

Where a nonconforming use is changed to a use of a more restrictive classification, it shall not thereafter be changed to a use of a less restrictive classification.

d.

An example of a change to a more restrictive classification would be changing from a restaurant with drive- in or drive through service to an auto parts sales store, or from an auto repair and maintenance facility (major) to a business support service facility in compliance with Table 2-6 (Commercial—Allowed Uses and Permit Requirements) in Article 2 (Land Use and Development Standards).

Loss of Nonconforming Use Status. Without any further action by the City, a nonconforming use shall not retain the benefits under this chapter if:

a.

The nonconforming use of land, or a nonconforming use within a structure, ceases for any reason for one hundred eighty days or more;

i.

A vacant nonconformity may be occupied by a use for which it was designed if so occupied within a period of one hundred eighty days after the effective date of this development code or after the date when the nonconformity first became vacant.

ii.

If the use is discontinued for a period of one hundred eighty days or more, the land or structure shall lose its nonconforming status, and shall be altered to conform to the provisions of this development code. The use shall be considered discontinued when any of the following apply:

(A)

The intent of the owner to discontinue use of the nonconformity is apparent; or

(B)

Where characteristic furnishings and equipment of the use have been removed and not replaced with equivalent infrastructure during this time.

b.

The structure in which the nonconforming use is conducted or maintained is moved any distance on the site for any reason, or is removed from the site.

c.

The one hundred eighty-day period shall begin to run as soon as the department becomes aware of the fact that the nonconforming use has been discontinued, moved, or removed in compliance with subsection a and b, above.

Additional Uses. Additional uses may be allowed on the site of a nonconforming use only in the case of a multi-tenant structure or site, or where the nonconforming use is first discontinued, and any replacement use complies with all applicable provisions of this development code.

Replacement Uses. The use of a site after the discontinuance or removal of a nonconforming use shall comply with all applicable requirements of this development code and the applicable zoning district.

Existing industrial uses and structures within the Mixed Use Corridor, as of March 1, 2013, shall be allowed to expand on property currently owned by the user.

B.

Nonconforming Structures.

Normal Maintenance. A nonconforming structure may undergo normal maintenance and repairs including painting, interior and exterior wall surface repair, window and roof repair, and fixture replacement, in compliance with this subsection.

Nonconforming as to Use. A structure which is nonconforming in terms of use regulations may:

a.

Not be added to or enlarged unless the structure, including every portion of the structure, is made to conform to all of the applicable provisions of this development code.

b.

Undergo normal maintenance and repairs (e.g., painting, interior and exterior wall surface repair, window and roof repair, and fixture replacement) provided that no structural alterations shall be made except for those required by law or ordinance.

Nonconforming as to Area, Height, or Setback Regulations. A structure which is nonconforming in terms of area, height, or setback regulations may undergo additions or alterations, provided that the additions or alterations comply with all applicable provisions of this development code.

Moving of a Nonconforming Structure. A nonconforming structure shall not be moved in whole or in part to any other location, either on the same parcel or on another parcel, unless every portion of the structure is made to conform to all of the applicable provisions of this development code after being moved.

Replacement After Destruction.

a.

Not over Fifty percent. A nonconforming structure that is involuntarily damaged or partially destroyed by fire or any other calamity or act of God may be restored, provided the total cost of restoration shall not exceed an aggregate total of fifty percent of the then assessed value of the structure.

b.

Over Fifty percent. If the damage or destruction exceeds fifty percent of the then assessed value of the structure, no repairs or reconstruction shall be made unless every portion of the structure is made to conform to all of the applicable provisions of this development code.

c.

Assessed Value. For the purpose of this subsection, "assessed value" shall mean the then assessed value of the structure as shown on the current county property assessment rolls in effect at the time of the occurrence of the casualty, or on the date of application for the required building permit.

Replacement of a Residential Structure After Destruction. Any residential structure legally existing as a nonconforming use in any non-residential zoning district may be rebuilt or restored if damaged or destroyed by fire or any other calamity or act of God, provided the rebuilding or restoration is commenced within one hundred eighty days of the damage or destruction and diligently pursued to completion. However, the rebuilt or restored structure shall not exceed the square footage of the original structure and shall otherwise

conform to all other applicable regulations for residential structures. (See also Section 17.68.040 (Single- and Multi-Family Dwelling Units Exempt, below.)

Seismic Retrofitting/Building Code Compliance. Repairs or alterations otherwise required by law shall be allowed in the following circumstances:

a.

Reconstruction required to reinforce unreinforced masonry structures shall be allowed without cost limitations, provided the retrofitting is limited exclusively to compliance with earthquake safety standards; and

b.

Reconstruction required to comply with California Building Code requirements shall be allowed without cost limitations, provided the retrofitting/code compliance is limited exclusively to compliance with earthquake safety standards and/or other applicable building code requirements, including state law (e.g., Title 24, California Code of Regulations, etc.).

Initiation of Construction. Nothing contained in this chapter shall require any change in the plans, construction, or designated use of any structure upon which actual construction was lawfully initiated before the effective date of this development code. For the purposes of this development code, actual construction shall mean the placing of construction materials in a permanent manner, excavation of a basement, or demolition of existing structures preparatory to rebuilding; provided, that in all cases construction work shall be diligently pursued until completion of the subject structure(s).

(Ord. No. 1869, § 2, 2-20-2013; Ord. No. 1893, § 1, 4-2-2014)

Requirements for nonconforming signs are provided by Section 17.34.100 (Nonconforming Signs).

(Ord. No. 1869, § 2, 2-20-2013)

A.

Dwellings. Nonconforming single- and multi-family dwellings located in any zoning district that have been involuntarily damaged or destroyed by a catastrophic event may be reconstructed or replaced with a new structure(s) using the same development standards applied to the damaged or destroyed structure(s) (e.g., setbacks, square footage, building height, and density standards), but only when the reconstructed or replacement structures comply with state law (Government Code Section 65852.25).

B.

Mobile Homes. A nonconforming mobile home may be replaced with a new or newer and larger mobile home placed in the same location as the former unit, subject to site plan and architectural approval (Section 17.40.020).

C.

Code Compliance. All new construction shall comply with current building, electrical, plumbing, and fire code requirements.

D.

Site Plan and Architectural Approval. The director may require site plan and architectural approval (Section 17.40.020) for the replacement of a destroyed dwelling or residential project.

(Ord. No. 1869, § 2, 2-20-2013)

Nothing in this chapter shall be construed to require the discontinuance, removal, or termination, or to prohibit the alteration, expansion, maintenance, modernization, rebuilding, reconstruction, repair, or replacement of a publicly owned structure or utility.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Determination of Nonconforming Status. A nonconforming parcel of record that does not comply with the access, area, or dimensional requirements of this development code for the zoning district in which it is located, shall be considered to be a legal building site if it meets one of the criteria specified by this section. It shall be the responsibility of the applicant to produce sufficient evidence to establish the applicability of one or more of the following:

Approved Subdivision. The parcel was created through a subdivision approved by the city or the county, before incorporation.

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.

Variance or Lot Line Adjustment. The parcel was approved through the variance procedure (Section 17.40.050) or its current configuration resulted from a lot line adjustment.

Partial Government Acquisition. The parcel was created in conformity with the provisions of this development code, but was made nonconforming when a portion of the parcel was acquired by a governmental entity.

B.

Limitations on Use of Nonconforming Parcels. Nonconforming parcels shall be developed and used only as follows:

Site Plan and Architectural Approval Required. The director may require site plan and architectural approval (Section 17.40.020) for development proposed on nonconforming parcels.

Further Subdivision Prohibited. Where structures have been erected on a nonconforming parcel, the area where the structures are located shall not be later subdivided, nor shall lot lines be altered through lot line adjustment, so as to reduce the building site area and/or frontage below the requirements of the applicable zoning district or other applicable provisions of this development code, or in any way that makes the use of the parcel more nonconforming.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Use Allowed with Use Permit Approval.

Any use of a structure for which a use permit is required, or for which a use permit may be granted, which use is existing at the time of adoption of this development code, in any zoning district in which the use is allowed subject to the granting of a use permit, shall without further city action, be considered a conforming use.

A land use that was legally established without a use permit, but would be required by current development code provisions to have use permit approval, shall not be altered in any way unless a use permit is first obtained.

B.

Use No Longer Allowed with Use Permit Approval. A land use that was established with use permit approval, but is not allowed with use permit approval by the current development code may continue only

in compliance with the original use permit. If the original use permit specified a termination date, then the use shall terminate in compliance with the use permit.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Violations. Uses and structures which did not comply with the applicable provisions of this development code or prior planning and zoning regulations when established are violations of this development code and are subject to the provisions of Chapter 17.76 (Enforcement).

B.

Illegal Uses and Structures Prohibited. This chapter does not grant any right to continue occupancy of property containing an illegal use or structure.

C.

Permits Required. The illegal use or structure shall not continue unless/until permits and entitlements required by this development code and the municipal code are first obtained.

(Ord. No. 1869, § 2, 2-20-2013)

In the event that a nonconforming use or structure is found to constitute a public nuisance, appropriate action shall be taken by the city, in compliance with Chapter 17.76 of this code.

(Ord. No. 1869, § 2, 2-20-2013)