Newark Municipal Code Ch. 17.22 Nonconforming Provisions

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 the standards and requirements of this title and are operated in a manner that does not conflict with the general plan. To that end, the chapter establishes the circumstances under which a nonconforming use or structure may be continued or changed and provides for the removal of nonconforming uses and structures when their continuation conflicts with the general plan and public health, safety, and general welfare.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The provisions of this chapter apply to structures and uses that have become nonconforming by adoption of this title as well as structures and uses that become nonconforming due to subsequent amendments to its text or to the zoning map.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Any lawfully established use or structure that is in existence on the effective date of this title or any subsequent amendment thereto but does not comply with the standards and requirements of this title shall be considered nonconforming.

A. A nonconformity may result from any inconsistency with the requirements of this title including, but not limited to, use, location, density, floor area, height, yard, usable open space, buffering, performance standards, or the lack of an approved use permit or other required authorization.

B. A use or structure shall not be deemed non-conforming solely because it does not conform with loading space requirements and landscape planting area regulations of the district in which it is located.

(Ord. No. 503, § 1(Exh. A), 1-25-2018; Ord. No. 505, § 3(Exh. A), 7-12-2018)

Nonconforming uses are classified as follows for the purpose of determining whether to permit substitution or expansion subject to the requirements of the following sections, or to require the elimination of the nonconforming use.

A. Class I Nonconforming Use. Class I nonconforming uses are those that do not meet the current standards and requirements of this title but are compatible with the uses of the surrounding properties, including those described in subsections A.1 and A.2, below, or as determined by the planning commission pursuant to Subsection A.3, below. Class I nonconforming uses are generally treated like conforming uses and may expand and remain indefinitely, subject to the limitations of this chapter.

1. Residential Uses. Any nonconforming residential use shall be classified as a Class I nonconforming use.

2. Warehousing and Storage and Wholesaling and Distribution. Warehousing and storage and wholesaling and distribution that were lawful when established and in existence on the effective date of this title (February 25, 2018) shall be classified as a Class I nonconforming use.

3. Other Non-residential Uses. Non-residential uses other than warehousing and storage and wholesaling and distribution may be classified as a Class I nonconforming use with the approval of a minor use permit by the planning commission. Class I non-residential nonconforming classification status shall only occur upon approval of a minor use permit by the planning commission. The classification of a nonconforming non-residential use by planning commission as a Class I nonconforming use shall be optional and shall be based on written application by the property owner or his/her designee, which shall include evidence that the use was legally established and information related to the findings required herein.

a. Designation. Class I nonconforming uses are designated by the planning commission following a public hearing, with notice as required by Chapter 17.31, Common Procedures, and based on the following findings. The planning commission's decision on the designation of a Class I nonconforming use may be made concurrent with the planning commission's decision on an application for an expansion or substitution of the use. The required findings for Class I nonconforming use designation/expansion/substitution are:

i. The nonconforming use was legally established;

ii. The continuation, proposed expansion, or substitution of the nonconforming use would not be detrimental to public health, safety, or general welfare; and

iii. With the exception of the nonconforming use, the continuation, proposed expansion, or substitution would not be inconsistent with the general plan and would not preclude or interfere with implementation of any applicable city specific plan.

b. Considerations. In making the required findings, the planning commission shall consider the following factors as they relate to the nonconforming use:

i. Noise;

ii. Traffic generation;

iii. Hours of operation;

iv. Noxious or annoying emissions of odor, smoke, waste water or other matters;

v. Proximity of the use to conforming uses;

vi. Extent and severity of nonconformity;

vii. Effect of the nonconforming use on surrounding conforming uses;

viii. Character of the surrounding neighborhood, including the number and proportion of nonconforming uses;

ix. Access to the nonconforming use;

x. Maintenance of the nonconforming use; and

xi. Any other factors the planning commission deems relevant given the purposes of this chapter.

c. Conditions. When making its decision on an application for an expansion or substitution of a Class I nonconforming use, the planning commission may establish conditions that are necessary to accomplish the purposes of this chapter, including, but not limited to:

i. Required improvement of, or modifications to existing improvements on, the property;

ii. Limitations on hours of operations;

iii. Limitations on the nature of operations; and

iv. A specified term of years for which the expanded or substituted nonconforming use shall be allowed.

B. Class II Nonconforming Use. Class II nonconforming uses are those that should be replaced at some time in the future in order to implement the general plan's and any applicable specific plan's long term objectives, but are not detrimental to surrounding properties due to health, safety, or substantial aesthetic impacts. Class II nonconforming uses include any nonconforming non-residential use that has not been designated as a Class I or Class III nonconforming use.

1. Class II nonconforming uses may remain in operation but are subject to restrictions on expansion as set forth in Subsection 17.22.060.A, Expansion, and on substitution of uses as set forth in Subsection 17.22.060.E, Substitutions.

2. The city council may establish amortization periods for specific Class II nonconforming uses on a case-by-case basis pursuant to Section 17.22.100, Establishment of Amortization Periods.

3. Class II nonconforming uses may not be reestablished or resume business if the Class II nonconforming use has been destroyed or damaged at a level equal to or greater than fifty percent of the value of the nonconforming use business. The determination of the appraised value shall be made by a professional appraiser selected by the city, whose fee shall be paid by the business owner.

C. Class III Nonconforming Use. Class III nonconforming uses are those designated as a public nuisance by the city council following a public hearing, with notice as required by Chapter 17.31, Common Procedures. Prior to city council consideration of the matter, the planning commission shall conduct a noticed public hearing and provide a recommendation on the designation to the city council. The Class III nonconforming use designation shall be based on a finding that the use is detrimental to public health, safety, or general welfare, or materially injurious to properties or improvements in the vicinity.

1. The city council shall establish an amortization period for each Class III nonconforming use pursuant to Section 17.22.100, Establishment of Amortization Periods.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Any use or structure that was lawfully established prior to the effective date of this title 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. The right to continue a nonconforming use or structure shall attach to the land and shall not be affected by a change in ownership, tenancy, or management.

B. The right to continue a nonconforming 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.

C. The right to continue a nonconforming use or re-occupy a nonconforming structure shall terminate if the nonconforming use has been abandoned or the nonconforming structure has been vacated for the relevant period of time described in Section 17.22.110, Abandonment of Nonconforming Uses.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Nonconforming uses shall not be expanded, modified, or substituted for another classification of a nonconforming use except as provided below:

A. Expansion. A Class I or Class II nonconforming use may expand the area it occupies, including floor area of the occupied structure, all or part of another structure, and area of the subject lot, subject to planning commission approval of a conditional use permit in accord with Chapter 17.35, Use Permits.

B. Absence of Permit. Any use that is nonconforming solely by reason of the absence of a conditional use permit may be changed to a conforming use by obtaining the appropriate conditional use permit pursuant to the requirements in Chapter 17.35, Use Permits.

C. Substitutions. A nonconforming use may be substituted with a Class I or a Class II nonconforming use as follows:

1. Substitution of a Class I or Class II nonconforming use with a Class I nonconforming use. The director may allow substitution of a Class I or Class II nonconforming use with a Class I nonconforming use, subject to the approval of a minor use permit.

2. Substitution of a Class II nonconforming use with a Class II nonconforming use. The planning commission may allow substitution of a Class II nonconforming use with a Class II nonconforming use, subject to approval of a conditional use permit.

3. Required Findings. In addition to any other findings required by this title, the review authority must find that the proposed new use will be no less compatible with the purposes of the district and surrounding uses that comply with the requirements of this title than the nonconforming use it replaces.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Nonconforming structures may be continued and maintained in compliance with the following provisions.

A. Maintenance and Repairs. Structural and non-structural maintenance, repair, and interior alterations to a nonconforming structure are permitted if the changes and improvements do not enlarge the structure, change the building footprint, or increase building height or roof pitch.

B. Additions. Additions to and/or enlargements of nonconforming structures are allowed if the addition or enlargement complies with all applicable laws and requirements of this title, the use of the addition/enlarged area of the property is authorized by this title, and there is no increase in the discrepancy between existing conditions and the requirements of this title, except as provided below:

1. Nonconforming Setbacks, Residential Districts. In residential districts, a nonconforming interior side or rear yard may be maintained and extended, and shall not be considered an increase in the discrepancy, provided that:

a. A new encroachment into any other required yard is not created;

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

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

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A nonconforming structure that is damaged or partially destroyed by fire, explosion, earthquake, or natural disaster which is 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 Fifty Percent or Less of Value. If the cost of repair or reconstruction is less than or equal to fifty 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 owner.

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

1. Warehousing and Storage and Wholesaling and Distribution Structures in Employment Districts. Warehousing and storage and wholesaling and distribution structures in employment districts may be replaced provided that the replaced portions are the same size, extent, and configuration as previously existed.

2. Other Non-Residential Structures. Any nonconforming use must permanently cease. The planning commission may approve a conditional use permit for the structure 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.

3. Residential Structures. Any nonconforming residential structure may be reconstructed, restored, or rebuilt up to the size and number of dwelling units prior to the damage and the nonconforming use, if any, may be resumed subject to a zoning clearance in the case of single-unit dwellings or a conditional use permit approval 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 diligently pursued to completion unless another time period is specified through conditional use permit approval. Building permits must be maintained valid through the completion of the project.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Elimination of Nonconforming Uses.

1. Nonconforming Uses Not Occupying a Structure or Occupying a Structure with Valuation Less Than Two Thousand Five Hundred Dollars. The following nonconforming uses shall be discontinued and removed from their sites within three year(s) from the effective date of this title:

a. A nonconforming use which does not occupy a structure; or

b. A nonconforming use occupying a structure having an appraised valuation of less than two thousand five hundred dollars.

2. Class II Nonconforming Uses. The city council may require Class II nonconforming uses to be discontinued and removed from their sites within a period determined pursuant to the process set forth in Section 17.22.100, Establishment of Amortization Periods.

3. Class III Nonconforming Uses.

a. Class III nonconforming uses shall be discontinued and removed from their sites within a period to be determined by the city council, pursuant to the process set forth in Section 17.22.100, Establishment of Amortization Periods.

b. Class III nonconforming uses may also, upon order from the city or a court order, be subject to immediate cessation of the nonconforming use.

B. Elimination of Nonconforming Signs or Structures.

1. Nonconforming Sign with Valuation Less Than Five Thousand Dollars. A nonconforming sign or outdoor advertising structure valued at less than five thousand dollars shall be removed within two years from the time the sign or outdoor advertising structure becomes nonconforming unless it was nonconforming for at least three years at the time this title was adopted, in which case it shall be removed within five years from adoption of this title.

2. Nonconforming Structure with Valuation Less Than Five Thousand Dollars. A structure having an appraised valuation of less than five thousand dollars, which does not comply with the title standards for lot coverage, setbacks, height, distances between structures or usable open space shall be removed from its site within three years from the effective date of this title, except that if the structure is altered to comply with such standards, this provision shall not apply.

3. Other Nonconforming Structures. Nonconforming structures, excluding those structures referenced in paragraphs 1 and 2 above, may continue except that the city council may establish amortization periods for specific structures pursuant to Section 17.22.100, Establishment of Amortization Periods.

C. Time for Elimination When Use, Structure, or Sign Becomes Nonconforming. Whenever a use, structure, or sign becomes nonconforming, the period of time prescribed in this chapter for the elimination of the use or the removal of the structure or sign is computed from the effective date of the change that results in the nonconforming status of the use, structure or sign.

D. Burden of Proof. The burden of proof as to the nonconforming status of any use, structure, or sign shall rest with the property owner and/or resident.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Where a period during which a nonconforming use or structure is to be discontinued and removed from their site is to be established, such period shall be established as follows:

A. The community development director shall submit the nonconforming use or structure and a recommended amortization period, based on the criteria in Section (C)(1) herein, to the planning commission for review;

B. The planning commission shall hold a public hearing, noticed pursuant to Chapter 17.31, Common Procedures, to consider the 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 17.31, Common Procedures, to consider the recommended amortization period.

1. The city council may establish a maximum time for which the nonconforming use shall be permitted to continue after considering the following in relation to the use, structure or sign:

a. The amount of investment or original cost of the use, structure, or sign;

b. The present actual or depreciated value of the use, structure, or sign;

c. The remaining useful life of the use, structure or sign;

d. The remaining term of the lease;

e. The date or dates of construction;

f. Amortization of the business or structure for tax purposes;

g. The salvage value;

h. The threat to the public health, safety, and welfare posed by the continuance of the nonconforming use; and

i. Other factors as appropriate.

2. The time period established by the city council shall be no less than three years in length.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

No nonconforming use may be resumed, reestablished, reopened, or replaced by any other nonconforming use after the nonconforming use has been abandoned or vacated for a period of six months or, in the case of Class I nonconforming uses, ten years. A Class I nonconforming use may be resumed, reestablished, or reopened without a conditional use permit after the Class I nonconforming use has been abandoned or vacated for a period less than ten years.

A. Abandonment. The six-month, or, in the case of Class I nonconforming uses, ten-year, period shall commence when the use ceases to operate and any one of the following occurs:

1. The site is vacated;

2. Utilities are terminated; or

3. The applicable lease is terminated.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

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 Municipal Code. In the event that a legal nonconforming structure or use is found to constitute a public nuisance, appropriate action may be taken by the city pursuant to the Municipal Code and Chapter 17.41, Enforcement and Abatement Procedures.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)