Milpitas Municipal Code Ch. C.18 Nonconforming Buildings, Structures, Uses, and Parcels

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

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

C. The City recognizes that until nonconforming buildings, structures, uses, and parcels are converted, improvements to them which promote their compatibility with their neighborhoods, enhance the quality of development, and do not increase nonconformity should be encouraged and allowed.

(Ord. No. 38.858, § 4, 9/2/25)

A. Any nonconforming use or building or structure may be continued, used, and maintained in compliance with this Chapter.

B. Any nonconforming parcel may be used, developed, and maintained in compliance with this Chapter.

C. A nonconforming use, building, structure, and/or parcel may be transferred or sold, provided that no such use or structure shall be enlarged or altered except as otherwise provided in this Chapter.

(Ord. No. 38.858, § 4, 9/2/25)

A. A nonconforming use may be continued, expanded, or replaced subject to the following standards:

1. Continuation of Nonconforming Use. A nonconforming use shall be allowed to continue indefinitely, absent discontinuation of the use for a year or more and failure to comply with the re-establishment provisions of Subsection C.18.030.B (Re-establishment of Discontinued Nonconforming Uses Within the Midtown and Metro Specific Plan Areas) if applicable.

2. Discontinuation of Nonconforming Use.

a. A nonconforming use which is discontinued for a continuous period of one year or more may only be replaced with a conforming use. However, a nonconforming use within the Midtown or Metro Specific Plan areas may be re-established consistent with Subsection C.18.030.B (Re-establishment of Discontinued Nonconforming Uses Within the Midtown and Metro Specific Plan Areas).

b. A nonconforming use which has been discontinued for a period of less than one year may be replaced with a conforming use or a nonconforming use of the same use classification as a matter of right. For example, a nonconforming service station may be changed to an vehicle washing use, since both uses fall within the same use classification of vehicle-related use. However, a nonconforming use within the Midtown or Metro Specific Plan areas that has been discontinued for a period of less than one year, may be replaced with a nonconforming use of a different use classification consistent with Subsection C.18.030.B (Re-establishment of Discontinued Nonconforming Uses Within the Midtown and Metro Specific Plan Areas).

3. Change of Use Within the Same Use Classification. A nonconforming use may be changed to a different use within the same use classification as a matter of right.

4. Change of Use to a Different Nonconforming Use Classification. A nonconforming use may be changed to a nonconforming use of a different use classification only if it can be found that the proposed use is equivalent to or more appropriate than the existing nonconforming use at the project location. The proposed use may be allowed with Conditional Use Permit approval only after the following findings are made:

a. The proposed nonconforming use would not cause a nuisance to the surrounding properties and zone (e.g., excessive parking demand, traffic, noise, etc.);

b. The proposed nonconforming use would be compatible with the general character of the surrounding neighborhood or zone; and

c. The proposed nonconforming use is necessary to allow gainful economic use of structures or improvements until such structures or improvements can be permanently converted to conforming uses.

5. Expansions of Nonconforming Use.

a. A nonconforming use shall not be enlarged or expanded in size or capacity, or extended to occupy a greater area of land or building floor area than it legally occupied before it became nonconforming; however, the Director may approve an expansion of up to 25 percent of the gross floor area if the expansion brings the nonconforming use into more conformity with this Title or the findings in Subsection C.18.030.A.4 (Change of Use to a Different Nonconforming Classification) are made.

b. Expansions of nonconforming community assembly uses in the M2 Zone requires Conditional Use Permit approval by the Planning Commission and must comply with the requirements in this Subsection.

B. Re-establishment of Discontinued Nonconforming Uses Within the Midtown and Metro Specific Plan Areas.

1. Discontinued nonconforming uses within the Midtown and Metro Specific Plan areas may be re-established with Director approval if the findings in Subsection C.18.030.A.4 (Change of Use to a Different Nonconforming Classification) are made.

2. Approval of a Conditional Use Permit by the Commission shall be required in the following instances:

a. The proposed use lies within 1,000 feet of any residential use; or

b. The proposed use would require Conditional Use Permit approval at the time the use became nonconforming.

3. This Subsection shall become inoperative July 1, 2027, and shall be considered repealed on that date, unless a later enacted ordinance that becomes effective on or before July 1, 2027, deletes or extends that date. All other provisions of this Chapter shall be unaffected by this sunset clause.

(Ord. No. 38.858, § 4, 9/2/25)

A. Legal Building Site. A nonconforming parcel that does not comply with the applicable lot requirements for the zone (e.g., lot area, lot width, etc.) in which it is located shall be considered a legal building site if it meets at least one of the following:

1. The parcel was created by a recorded subdivision;

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

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

B. Development of Legal Building Sites. A legal building site may be developed provided that any structure or development compiles with the standards for the applicable zone unless standards are specifically waived or altered through a Variance or as otherwise allowed by this Title.

C. Subdivision or Adjustment of a Nonconforming Parcel. No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel.

(Ord. No. 38.858, § 4, 9/2/25)

A. Repair, Maintenance, Aesthetic Improvements. Repairs and alterations may be made to a nonconforming building or structure, provided that no structural alterations shall be made except those required by law.

B. Energy Efficiency and Sustainability Upgrades. Improvements may be made to a nonconforming building or structure related to improving the energy efficiency, reducing the energy usage, and reducing the greenhouse gas emissions impact of the building or structure.

C. Restoration of Damaged Buildings and Structures. A nonconforming building or structure which is involuntarily damaged by fire, flood, wind, earthquake, or other calamity or act of God or the public enemy, may be reconstructed, restored, or rebuilt consistent with the following.

1. Not More Than 75 Percent. If the involuntarily damage or partial destruction is not more than 75 percent of the nonconforming building or structure's true value immediately prior to the damage, the building or structure may be restored and the use of the building or structure immediately prior to the damage may be continued or resumed, provided the following:

a. The total cost of such reconstruction, restoration, and rebuilding does not exceed 75 percent of the true value of the building or structure immediately prior to the damage;

b. The Building Permit for reconstruction, restoration, and rebuilding is issued within one year of the damage;

c. Reconstruction, restoration, and rebuilding is diligently pursued to completion; and

d. Reconstruction, restoration, and rebuilding is found to not be detrimental to public health or safety by the Director.

2. More Than 75 Percent. If the involuntary damage exceeds 75 percent of the nonconforming building or structure's true value immediately prior to the damage, the building or structure shall not be reconstructed, restored, or rebuilt except in conformity with the requirements of this Title.

3. Multi-story Single-family Dwellings in the "H" Hillside Combining District. If a multi-story single-family dwelling within the "H" Hillside Combining District is involuntarily damaged, it may be rebuilt to its approved height and setbacks and is subject to the zoning regulations in effect at the time the multi-story single-family dwelling was built.

4. Duplex and Multi-Family Dwellings. If a duplex of multi-family dwelling is involuntarily damaged, the City may only prohibit the reconstruction of the duplex or multi-family dwelling if the findings required by Government Code section 65852.25 are made.

D. Additions to, Enlargements, and Moving of Nonconforming Buildings and Structures.

1. Compliance with Current Standards. A nonconforming building or structure shall not be added to or enlarged in any manner unless the addition or enlargement conforms to all development standards and regulations of the applicable zone (e.g., building height, setbacks, maximum lot coverage, impervious surface coverage, etc.) and does not increase the degree of nonconformity.

2. R1, R2, and R1-H Zones. A nonconforming building or structure in the R1, R2, or R1-H zones shall not be added to or enlarged unless consistent with this Subsection and existing the front yard paving complies with the standards of Subsection B.4.040.A (R1 Zone Front Yard Coverage).

3. All Other Zones. A nonconforming building or structure in a zone other than R1, R2, or R1-H may be added to or enlarged consistent with this Subsection and the following:

a. The addition or enlargement shall not exceed 30 percent of the existing floor area (i.e., 30 percent of gross floor area if associated with a non-residential use, or 30 percent of all habitable space if associated with a residential use); and

b. A Conditional Use Permit for the addition or enlargement is approved by the Planning Commission.

4. Location Change Prohibited. A nonconforming building or structure shall not be moved in whole or in part to any other location unless every portion of such building or structure is made to conform to all regulations of the applicable zone.

(Ord. No. 38.858, § 4, 9/2/25)

A. Nonconforming 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 nonconforming solely because of the lack of parking facilities prescribed in Chapter C.6 (Parking and Loading), but rather shall retain conforming status for as long as the use or structure remains unmodified.

1. Residential Expansions. For additions or enlargements of existing residential structures or buildings that would increase the number of parking spaces required, the additional parking shall be required only for the addition or enlargement 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 not available on or near the site, and the project is consistent with the General Plan, otherwise consistent with this Title, and the waiver would not create a negative impact for neighboring properties.

2. Change in Use. For any change of use or manner of operation that would increase the number of parking spaces required, no additional parking shall be required unless the Review Authority determines that the change in use would require 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 C.6 (Parking and Loading) and 115 percent of the number of spaces that currently exist.

B. Nonconforming Landscaping. 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 nonconforming solely because of the lack of landscaping and screening prescribed in Chapter C.4 (Landscaping Standards), but rather shall retain conforming status for as long as the use or structure remains unmodified.

1. Expansion of Structure. For additions or enlargements of existing structures or buildings 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 or building.

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.

C. Nonconforming Lighting.

1. All lighting must be brought into compliance with the requirements of this Title for a change of use or an addition or modification that requires or includes an increase of 25 percent of the number of required on-site parking spaces, additional dwelling units, gross floor area, seating capacity, or other units of measurement.

2. For a change of use or addition or modification that requires or includes an increase in the number of on-site parking spaces, additional dwelling units, gross floor area, seating capacity, or other units of measurement that is less than 25 percent, the applicant must comply with the requirements of this Title only for any new outdoor lighting provided.

3. In the event that an outdoor lighting fixture is abandoned or is damaged and requires repairs for safe operation, the repaired or replacement fixture must comply with the provisions of this Title.

D. Nonconforming Signs. This Chapter does not regulate nonconforming signs, which are instead subject to the requirements of Section C.8.080 (Nonconforming Signs).

(Ord. No. 38.858, § 4, 9/2/25)