Modesto Municipal Code Art. 5 Nonconforming Uses, Structures and Sites, And Lots

The following provisions shall apply only to those uses, structures and sites, and lots lawfully existing in the City on July 7, 1955, or those made nonconforming by rezoning, annexation or amendment of this chapter.

(a) Continuance of Nonconforming Use. A nonconforming use may be continued in accordance with the provisions of this section but, except as provided in subsection (b) and (c) of this section, no nonconforming use may be enlarged within the building it occupies, nor shall it be enlarged or increased to occupy a greater area of land than that occupied by such use, nor shall any nonconforming use be moved in whole or in part to any other portion of the lot or parcel of land occupied by such nonconforming use.

(b) Minor Expansion. Minor Expansion of a nonconforming use resulting in an increase in area occupied of less than twenty (20) percent may be permitted only if approved by the Director. In order to approve a minor expansion, the Director must find the expansion will not significantly impede the transition of a non-conforming use to a conforming use at a later date and will have no greater impact on surrounding properties in terms of noise, traffic, parking, hours of operation and visual compatibility.

(c) Major Expansion. Major Expansion of a nonconforming use resulting in an increase in area occupied by more than twenty (20) percent may be permitted only if a conditional use permit is approved by the Board. In order to approve a major expansion, the Board must find the expansion will not significantly impede the transition of a non-conforming use to a conforming use at a later date and will have no greater impact on surrounding properties in terms of noise, traffic, parking, hours of operation and visual compatibility.

(d) Replacement. Replacement of one (1) nonconforming use for another shall require approval by the Director. In order to approve the replacement, the Director must find the new use will have no greater impact on surrounding properties in terms of noise, traffic, parking, hours of operation and visual compatibility.

(e) Discontinuance. If a nonconforming use is discontinued for a continuous period of one (1) year, all future uses shall conform to the provisions of this chapter except that the Director may grant an approval for another nonconforming use as provided for in Section (d) above. Discontinuance of use shall be deemed to have occurred whenever any of the following apply:

(1) The non-conforming use of a structure is discontinued for a period of twelve (12) or more consecutive calendar months.

(2) No business receipts or records are available for the twelve-month period.

(3) A non-conforming use is replaced by a conforming use.

The following provisions apply to structures and sites that are not conforming to development standards:

(a) Conformity to laws and regulations. All work performed on a non-conforming structure or site shall be pursuant to a building permit, meet all the requirements of this chapter and all City Codes, and conform to any other health or safety regulations or laws imposed by local, County, State, regional, or Federal agencies in effect at the time of the work and shall not expand any non-conformity except as allowed in Subsection (c) of this section.

(b) Maintenance. A nonconforming structure or site, or a structure or site devoted to a nonconforming use, may be maintained. Maintenance may include interior remodels and such repair work as necessary to keep the structure or site in sound condition, but maintenance shall not include the replacement of a structure, except as allowed in Subsection (d) of this section.

(c) Additions, enlargements and relocations. A nonconforming structure or site may not be added to, enlarged, or relocated, unless the addition, enlargement or relocation conforms to all the regulations of the zone in which it is located.

(d) Damage or destruction. Any structure(s) or site(s), damaged or destroyed by accidental or natural causes may be reconstructed up to the legal non-conforming size, placement, or number of dwelling units. The Director may require changes to the plans if necessary to meet the California Building and Fire Codes. Reconstruction shall commence within one (1) year after the date the damage or destruction occurred and shall be diligently pursued to completion.

(a) Definition. All lots recorded or part of an approved tentative subdivision on July 7, 1955, shall be deemed to comply with applicable area and width requirements.

(b) Non conforming residential lots. All residentially zoned nonconforming lots are entitled to at least one (1) single-family dwelling and additional units may be permitted per the minimum density requirements of the zone in which the lot is located.

(a) Violation of Title. Any of the following violations of this Title shall immediately terminate the right to operate a nonconforming use, except as otherwise provided in this Title:

(1) Increasing or enlarging the area, space, or volume occupied by or devoted to such nonconforming use except as provided in Section 10-3.502(b) and (c).

(2) Changing a nonconforming use to a use not permitted in the zone except as provided in Section 10-3.502(d);

(3) Addition to a nonconforming use of another use not permitted in the zone.

(b) Discontinuance. Discontinuance of a nonconforming use pursuant to Section 10.3.502(e) shall result in the termination of any rights to continue the nonconforming use.

(c) Amortization of Nonconforming Uses.

(1) Notwithstanding Section 10-3.502, any and all uses of real property which become nonconforming uses by reason of an amendment to this Title and/or to the City of Modesto Zoning Map adopted by the City Council of the City of Modesto on or after January 1, 2022, shall be allowed to continue for a period of not more than six (6) months after the effective date of the ordinance rendering such use a nonconforming use. On or before such date, all such nonconforming uses shall be terminated unless an application for extension of time has been approved in accordance with the provisions of Section 10-3.506.

(2) Exemptions.

a. Historical Structures. Nonconforming structures that have been certified to be a historic resource by the City, County of Stanislaus, the State of California, or in the National Register of Historic Places are exempt from this section.

b. Nonconforming Due to Lack of a conditional use permit.

(i) Conformity of Uses Requiring Conditional Use Permits. A use that becomes nonconforming only because it is a use that would be required by amendment to this Title or to the Zoning Map to have conditional use permit approval shall be deemed conforming.

(ii) Previous Conditional Use Permits in Effect. A use that was authorized by a conditional use permit prior to adoption of an amendment to this Title, but is identified by the amendment as a use that is not allowed in its current location, may continue, but only in compliance with the original conditional use permit.

c. Religious Institutions. Religious Institutions of a permanent nature which became nonconforming at the time of adoption of an amendment to this Title or to the Zoning Map may be continued, reconstructed, structurally altered, extended, or enlarged subject to plans approved by the Community Development Director or his or her designee for any reconstruction, alteration, extension, or enlargement and provided such reconstruction, alteration, extension, or enlargement conforms with all other provisions of this title; and provided, further, that said extension, reconstruction, alteration or enlargement shall not be extended to additional property beyond the parcel(s) upon which the nonconforming use exists.

d. Residential Units. Residential Units which became nonconforming uses at the time of adoption of an amendment to this Title or to the Zoning Map may be continued, reconstructed, structurally altered, extended, or enlarged in conformance to the previous residential zone.

(3) Failure to terminate a nonconforming use constitutes a public nuisance. Failure to terminate a nonconforming use within the time periods provided in this section shall constitute a violation of this Code and is a public nuisance subject to abatement in accordance with the provisions of this Code.

(d) Unlawful Uses and Structures. Uses and structures that did not comply with the applicable provisions of this Code or prior planning and zoning regulations when established are violations of this Code and are subject to the provisions of this Code regarding the administration and enforcement of this Code. This section does not grant any right to continue unlawful use of property containing an illegal use or structure.

(Ord. No. 3750-C.S., § 1, effective 11-3-22)

Editor's note— Ord. No. 3750-C.S., § 1, effective November 3, 2022, amended the title of § 10-3.505 to read as herein set out. The former § 10-3.505 title pertained to amortization of nonconforming prohibited uses.

The owner or operator of a nonconforming use as described in Section 10-3.505 may apply under the provisions of this section to the Community and Economic Development Director for an extension of time within which to terminate the nonconforming use.

(a) Time and Manner of Application. An application for an extension of time within which to terminate a nonconforming use as described in Section 10-3.505, may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with the Community and Economic Development Director at least ninety (90) days but no more than one hundred eighty (180) days prior to the time established in Section 10-3.505 for termination of such use.

(b) Content of Application; Fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the City Council.

(c) Hearing Procedure. The City Manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within forty-five (45) days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.6.

(d) Factors to be Considered by the Hearing Officer. In determining whether an extension of time under the provisions of this section shall be approved, the hearing officer shall consider the following:

(1) The applicant's investment in the property or structure on or in which the nonconforming use is conducted;

(2) The applicant's lease obligations in the property or structure on or in which the nonconforming use is conducted;

(3) Whether such property or structure can be readily converted to another use;

(4) Whether the applicant's investment in the property or structure on or in which the nonconforming use is conducted was made prior to the effective date of the ordinance codified in this article;

(5) Whether the applicant will be able to recoup the applicant's investment in the property or structure on or in which the nonconforming use is conducted as of the date established for termination of the nonconforming use; and

(6) Whether the applicant has made good faith efforts to recoup the applicant's investment and to relocate the nonconforming use to a location outside the City of Modesto.

(e) Approval of Extension; Findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings:

(1) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to the effective date of the ordinance codified in this article;

(2) The applicant will be unable to recoup said investment as of the date established for termination of the use; and

(3) The applicant has made good faith efforts to recoup the investment and to relocate the use to a location outside the City of Modesto.

(Ord. No. 3750-C.S., § 2, effective 11-3-22)

Editor's note— Ord. No. 3750-C.S., § 2, effective 11-3-22, amended the title of § 10-3.506 to read as herein set out. The former § 10-3.506 title pertained to extension of time for termination of nonconforming prohibited use.