Division 3.01 — Nonconforming Lots, Land Uses, and Structures

Sections:

3.01.000: Purpose 3.01.005: Applicability 3.01.010: Nonconforming Lots 3.01.015: Nonconforming Land Uses 3.01.020: Nonconforming Structures and Improvements 3.01.025: Abatement of Nonconforming Adult Businesses

A. The City Council finds that nonconforming lots, land uses, structures, and improvements within the City, including those that are legally established and those that are illegal, are detrimental to the orderly development of the City, and the health, safety, peace, comfort and welfare of persons and property within the City.

B. The purpose of this Division is to provide for the orderly termination of nonconforming rights for lots, land uses, structures, and improvements that were previously legally established; however, due to revisions to the Development Code, the previously legally established provisions no longer comply with the Development Code. The orderly termination of legally established nonconforming lots, land uses, structures, and improvements is necessary to promote the public health, safety and welfare, and to bring nonconforming lots, land uses, and structures into conformity with current Development Code provisions, and the goals and policies of the Policy Plan (General Plan) component of The Ontario Plan.

C. This Division in intended to limit the expansion of nonconforming lots, land uses, structures and improvements, establish the circumstances under which they may be continued, and provide for their correction, maintenance, and removal.

D. This Division is intended to provide for the elimination of nonconforming lots, land uses, structures, and improvements as rapidly as possible, without infringing upon the constitutional rights of their owners.

A. Nonconforming lots, land uses, structures, and improvements may be maintained, expanded, altered, and/or abated only in accordance with the provisions of this Division. It shall be the property owner’s responsibility to provide evidence or information to justify the establishment of the nonconforming rights provided under this Division.

B. Any designated historic landmark, contributing structure within a designated historic district, or any property listed on the California Register of Historical Resources or National Register of Historic Places, shall be exempt from the provisions of this Division with respect to the restoration and maintenance of structures, provided that all construction plans are approved through a Certificate of Appropriateness by the Historic Preservation Commission.

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Division 3.01—Nonconforming Lots, Land Uses and Structures

C. A lot, land use, structure, or improvement that becomes nonconforming due to a change in zoning district boundary or Development Code regulation, the period prescribed for abatement of the use or improvement of the lot or structure shall begin on the effective date of the change in zoning district boundary or Development Code regulation.

A. A lot that is not in compliance with the development standards prescribed by this Development Code, as they pertain to minimum area, dimension, or configuration, shall be deemed a "legal nonconforming lot," provided the lot was lawfully created and existing at the time the ordinance codified in this Development Code that created the nonconformity became effective.

B. A legal nonconforming lot shall be granted all development rights and land uses of the zoning district in which it is located.

A use that lawfully occupied a building or land at the time an ordinance codified in this Development Code became effective and does not conform to the use regulations of the zoning district in which it is located, shall be deemed a “legal nonconforming use.” A legal nonconforming use may continue, subject to the following:

A. Discontinuance and Abandonment of Use, and Loss of Legal Nonconforming Status.

1. Without further action by the City, a legal nonconforming use shall lose its legal nonconforming status and shall not be reestablished if the legal nonconforming use is abandoned for any reason.

a. Residential Land Uses. A legal nonconforming residential land use shall be deemed abandoned if the use is discontinued for a period of 180 or more consecutive days.

b. Nonresidential Land Uses. A legal nonconforming nonresidential land use shall be deemed abandoned if the use is discontinued for a single period of 180 or more consecutive days. Wherein special circumstances exist, the legal nonconforming status of a nonresidential land use may be extended pursuant to Section 4.02.030 (Extensions of Legal Nonconforming Status) of this Development Code.

2. Wherein the determination of abandonment of a land use is in question, the determination of abandonment shall be made by the Zoning Administrator, based upon satisfactory evidence. If there are no business receipts, records, or necessary licenses available to provide evidence that the land use in question has been in continual operation, the Zoning Administrator may make a determination of “abandonment of use” based upon consideration of [i] the removal, without replacement, of equipment, furniture, machinery, fixtures, structures, or other components necessary to business operation, and/or [ii] the shut-off or disconnect of utilities (water, electricity, and/or natural gas).

3. Following the discontinuance of a nonconforming land use, the use of a property shall comply with all current requirements of this Development Code and the applicable zoning district.

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B. Change in Ownership, Tenancy or Management. A change in ownership, tenancy or management of a nonconforming use shall not affect its legal nonconforming status, provided the use is not discontinued pursuant to Subsection A (Discontinuation of Use and Loss of Legal Nonconforming Status), above, or the type of use and/or intensity of use does not change.

C. New Development. New development on any lot upon which a legal nonconforming use exists shall require that all uses on the property conform to the provisions of this Development Code.

D. Alterations and Expansion of Use. A nonconforming use shall not be enlarged or extended in such a way as to occupy any part of any structure or property that the use did not occupy prior to the creation of the nonconformity.

E. Intensification of Use. A nonconforming use shall not be intensified in such a way as to increase the discrepancy between existing conditions and the standards set forth in this Development Code

F. Replacement of a Nonconforming Use by Another Nonconforming Use. A legal nonconforming use may be replaced by another nonconforming use if the Zoning Administrator can clearly establish the following:

1. The nonconforming use is similar to the use(s) originally permitted in the structure/on the site;

2. The nonconforming use will not adversely affect, or be materially detrimental to, adjoining properties; and

3. The previous nonconforming use has not ceased for a period of 90 or more consecutive days.

G. Abatement of Nonconforming Uses. Nonconforming uses shall be abated as follows:

1. A use shall be discontinued upon the issuance of a cease and desist order by the City if [i] the use is nonconforming due to an operation or process that poses a threat to the public health, safety or welfare, as determined by the Planning Director or Building Official; and [ii] the owner fails to discontinue the operation or process, or to fully mitigate the hazard(s) involved.

2. A use that does not occupy a structure, or that occupies a structure having an assessed valuation of less than $2,500 and causes a public or private nuisance, shall be discontinued within 5 years following the effective date of the ordinance codified in this Development Code.

3. The abatement of nonconforming adult businesses shall be governed by Section 3.01.025 (Abatement of Nonconforming Adult Businesses) of this Division.

4. A nonconforming use that has been discontinued or abandoned shall comply with Subsection A (Discontinuance and Abandonment of Use, and Loss of Legal Nonconforming Status) of this Section.

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Division 3.01—Nonconforming Lots, Land Uses and Structures

A structure or improvement that was lawfully constructed or installed at a time an ordinance codified in this Development Code became effective, and does not conform to the development standards of the zoning district in which it is located, shall be deemed a “legal nonconforming structure” or “legal nonconforming improvement,” as applicable. A legal nonconforming structure or improvement may continue, subject to the following:

A. Damage or Destruction of a Legal Nonconforming Structure.

1. A legal nonconforming structure that is damaged or partially destroyed by fire or other calamity, or the public enemy, or other cause which is beyond the control of the property owner, and which could not otherwise have been prevented by reasonable care and maintenance of the structure, may be reconstructed, restored, or rebuilt up to the original size, placement and density, provided that total cost of the reconstruction, restoration, or rebuilding does not exceed more than 50 percent of the structure’s fair market value prior to said damage or destruction. Structure reconstruction, restoration, or rebuilding shall commence within 180 days following the occurrence of damage, unless extended by the Zoning Administrator, and shall be diligently pursued to completion.

2. In the event that the cost of reconstructing, restoring, or rebuilding a structure exceeds 50 percent of the fair market value of the structure prior to such damage occurring, the structure may be reconstructed, restored, or rebuilt up to its original size, placement, and density prior to such damage occurring, and the use of the structure resumed, subject to the following:

a. The Zoning Administrator, at a duly noticed public hearing, shall first find that the reconstruction, restoration, or rebuilding of the nonconforming structure: [i] will not be detrimental or injurious to the health, safety or general welfare of persons residing or working in the neighborhood, [ii] will not be detrimental or injurious to property and improvements in the neighborhood, and [iii] continuation of the nonconforming structure will not result in an annoyance to and/or reduction of any surrounding property.

b. The public hearing and findings prescribed in Subparagraph A.2.a, above, shall not be required for the reconstruction, restoration, or rebuilding of a legal nonconforming single-family dwelling located on a lot that is designated for single-family dwellings by the Land Use Plan (Exhibit LU-01) contained in the Policy Plan component of The Ontario Plan.

c. The reconstruction, restoration, or rebuilding shall be commenced within 180 days following the date that the damage or destruction occurred, unless extended pursuant to Section 4.02.030 (Extensions of Legal Nonconforming Status) of this Development Code, and diligently pursued to completion.

d. Nothing in this section shall be construed to permit the continuation of conditions that will endanger the health, safety, or welfare of building occupants, the residents of the area, or which constitute a public or private nuisance.

B. Reconstruction, Restoration or Rebuilding of Legal Nonconforming Multiple-Family Housing.

1. Pursuant to GC Section 65852.25, legal nonconforming multiple-family housing that has been involuntarily damaged or destroyed by fire or other catastrophic event, or the public enemy, and such involuntarily damage or destruction could not otherwise have been prevented by reasonable care and maintenance of the structure, may be reconstructed up to the original

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size, placement and density, excepting multiple-family housing that conforms with one or more of the following:

a. 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, or will be detrimental or injurious to property and improvements in the neighborhood;

b. The existing nonconforming use of the building or structure would be more appropriately moved to a zone in which the use is permitted, or that there no longer exists a zone in which the existing nonconforming use is permitted; or

c. The existing nonconforming use of the building or structure has ceased for a period of 180 or more consecutive days.

2. The reconstruction, restoration, or rebuilding of any legal nonconforming multiplefamily housing pursuant shall conform to all of the following:

a. The California Building Standards Code, as that code was in effect at the time of reconstruction, restoration, or rebuilding;

b. Any more restrictive local building standards authorized pursuant to HSC Sections 13869.7, 17958.7, and 18941.5, as those standards were in effect at the time of reconstruction, restoration, or rebuilding;

c. The State Historical Building Code (Part 2.7 (commencing with Section 18950) of HSC Division 13) for work on qualified historical buildings or structures;

d. The provisions of this Development Code, so long as the predamage size and number of dwelling units are maintained;

e. Architectural regulations and standards, so long as the predamage size and number of dwelling units are maintained; and

f. A building permit shall be obtained within 2 years following the date that the damage or destruction occurred, and diligently pursued to completion.

3. The reconstruction, restoration, or rebuilding of multiple-family housing that is involuntarily damaged or destroyed by fire or other catastrophic event, or by the public enemy, shall be prohibited within any industrial zoning district.

C. Alterations and Expansions to Legal Nonconforming Structures.

A nonconforming structure shall not be moved, altered or enlarged so as to increase the discrepancy between existing conditions and the most current standard as prescribed by the zoning district in which the structure is located. Furthermore, reasonable repairs and alterations may be made to legal nonconforming nonresidential structures, provided that no structural alterations shall be made that would prolong the life of supporting members, such as bearing walls, columns, beams, or girders, of a structure. Structural elements may be modified only if the modification or repair is immediately necessary to protect the public health and safety, occupants of the legal nonconforming structure, or adjacent property, as determined by the Building Official, excepting alteration and/or enlargement of the following:

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Division 3.01—Nonconforming Lots, Land Uses and Structures

1. A nonconforming structure shall not be moved, altered or enlarged so as to increase the discrepancy between existing conditions and the most current standard as prescribed by the zoning district in which the structure is located, excepting alteration and/or enlargement of:

a. A single-family dwelling conducted pursuant to Subsection H (Nonconforming Single-Family Residential Structures) of this Section.

b. A multiple-family development conducted pursuant to Subsection I (Nonconforming Multiple-Family Residential Development) of this Section.

c. A nonresidential lot and/or structure conducted pursuant to Subsection J (Alteration and/or Expansion of a Nonconforming Nonresidential Structure) of this Section.

2. Within nonresidential zoning and land use districts, reasonable repairs and alterations may be made to legal nonconforming nonresidential structures, provided that no structural alterations shall be made that would prolong the life of supporting members, such as bearing walls, columns, beams, or girders, of a structure. Structural elements may be modified only if the modification or repair is immediately necessary to protect the public health and safety of occupants of the legal nonconforming structure or adjacent property, as determined by the Building Official, except as otherwise allowed by Subsection J (Alteration and/or Expansion of a Nonconforming Nonresidential Structure) of this Section. The total cost of the repairs or alterations may not exceed 50 percent of the replacement cost of the nonconforming structure; however, improvements required to reinforce an unreinforced masonry structure shall be permitted without replacement cost limitations, provided the retrofitting is strictly limited to compliance with current earthquake safety standards.

dential Structure) of this Section. The total cost of the repairs or alterations may not exceed 50 percent of the replacement cost of the nonconforming structure; however, improvements required to reinforce an unreinforced masonry structure shall be permitted without replacement cost limitations, provided the retrofitting is strictly limited to compliance with current earthquake safety standards.

D. Interior Modifications to Legal Nonconforming Structures. Changes to interior partitions or other nonstructural improvements and repairs may be made to legal nonconforming structures provided that, over any consecutive 5-year period, the total cost of the desired improvements or repairs does not exceed 50 percent of the replacement cost of the structure. For the purpose of this provision, the replacement cost shall be determined by the Planning Director.

E. New Structures. Any new structure constructed on a lot with an existing legal nonconforming structure shall be constructed in conformance with all applicable provisions of this Development Code; however, in no case may a new nonresidential structure be constructed on the same lot as an existing legal nonconforming residential structure.

F. Abatement of Nonconforming Structures Posing a Threat to the Public Health, Safety and General Welfare. A structure that is nonconforming because of a violation or deficiency that poses a threat to the public health, safety, or general welfare, as determined by the Building Official, and that fails to provide necessary improvements to resolve the nonconformity or to fully mitigate the hazard involved, shall be abated, condemned or demolished upon the issuance of a nuisance abatement, condemnation, or demolition order by the City.

G. Conversion of Nonconforming Residential Structures Located Within Industrial Zoning Districts. A nonconforming residential structure located within an industrial zoning district shall not be converted to accommodate a commercial or industrial land use, excepting those single-family homes determined to meet the designation criteria for local historic landmarks set forth in Section 4.02.040 (Historic Preservation—Local Historic Landmark and Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of this Development Code.

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1. A nonconforming residential structure located within an industrial zoning district shall not be moved, altered or enlarged so as to increase the discrepancy between existing conditions and the most current standard as prescribed by the zoning district in which the structure is located, unless:

a. The use of the residential structure is subject to Planning Director review and

approval; and

b. Any conditions of approval and covenants recorded on the property shall prohibit the conversion of the structure back to a residential land use.

H. Alteration and/or Expansion of a Nonconforming Single-Family Residential Structures. In addition to the requirements of Subsections A through G of this Section, a nonconforming singlefamily residential lot and/or structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this Development Code, but which under the provisions of this Development Code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for single-family residential purposes, shall be subject to the following:

1. Alterations and Expansions to Single-Family Structures in Nonresidential Zones.

a. Necessary repairs and desirable alterations, as deemed appropriate by the Planning Director, may be made to a legal nonconforming single-family residential structure that is nonconforming as to use.

b. A single-family dwelling that is nonconforming as to use may be enlarged by an additional 25 percent of the original enclosed floor area, provided the addition meets all other provisions of this Development Code.

c. A single-family dwelling that is nonconforming as to its location within a zoning district that does not permit single-family dwellings, and in which the residential use was lawfully established and continuously maintained, shall be subject to the development regulations of the LDR-5 (Low Density Residential – 5 Dwelling Units/Acre) zoning district.

d. The addition or enlargement of a garage for the purpose of providing offstreet parking facilities in compliance with Division 6.03 (Off-Street Parking & Loading) of this Development Code shall be permitted and shall not be counted toward the additional floor area permitted by Subparagraph H.1.b, above.

2. Continuation of a Nonconforming Setback. A single-family dwelling having a nonconforming side yard setback, which is added to, extended or enlarged, may continue the nonconforming setback, provided the addition, extension or enlargement maintains a side yard setback equal to or greater than the existing side yard setback, and is no greater than 14 FT in height.

3. On-site Parking. A single-family residential dwelling that is nonconforming as to site development or design, which is expanded or enlarged to include more than 3 bedrooms, or wherein a second unit or guesthouse is constructed subject to the requirements of this chapter, off-street parking required pursuant to Division 6.03 (Off-Street Parking & Loading) of this Development Code shall be provided, unless physical constraints exist that would make it impractical to provide the required parking facility(ies), as determined by the Planning Director, given the existing site design and configuration. For the purpose of this provision, a bedroom shall

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be considered any room within the structure that is not a clearly established garage, kitchen, bathroom, hallway or open living area (e.g., dining, family, and living rooms).

4. Fences and Walls. A street side yard fence or wall that is nonconforming as to setback and was lawfully constructed prior to 1998, may be replaced with a block wall or other fence, keeping within the existing setback, provided visual evidence (such as a photograph) of the nonconforming setback is provide to the Planning Department prior to building permit issuance for the new fence or wall. If a fence or wall nonconforming as to setback is demolished or removed prior to obtaining a building permit for a new fence or wall, the new fence or wall must meet the setback requirements in effect at the time of building permit issuance.

5. Historic Structures. A nonconforming single-family structure shall comply with the applicable requirements of Division 8.01 (Historic Preservation) of this Development Code.

I. Alteration and/or Expansion of a Nonconforming Multiple-Family Residential Development. In addition to the applicable requirements of Subsections A through G of this Section, a nonconforming multiple-family residential structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this Development Code, but which under the provisions of this Development Code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for multiple-family residential purposes, shall be subject to the following:

1. An existing multiple-family residential development that is nonconforming as to base residential density, may be granted a one-time increase in residential density, not to exceed 25 percent of the residential density before the increase, subject to the granting of a Conditional Use Permit pursuant to the provisions of Section 4.02.015 (Conditional Use Permits) of this Development Code.

2. The increase in residential density shall be acted on based upon the information provided in the submitted application, evidence presented in the Planning Department’s written report, and any comments and/or testimony provided by the public, only after considering and clearly establishing all of the below-listed findings, which shall be in addition to the findings for Conditional Use Permit approval contained in Section 4.02.015 (Conditional Use Permits) of this Development Code, and giving reasons in support of each finding. The application shall be denied if one or more of the below-listed findings cannot be clearly established.

a. The density increase will protect a valuable property investment;

b. The density increase will not adversely affect or be materially detrimental to surrounding properties;

c. The expansion is architecturally compatible with the existing building;

d. The density increase and building expansion is compatible with the character of the surrounding area; and

e. The density increase will provide adequate parking pursuant to the City’s off-street parking provisions (Division 6.3 (Off-Street Parking and Loading) of this Development Code).

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3. Notwithstanding the density increase described in Paragraph 1, above, the City shall not preclude an existing multiple-family residential development that is nonconforming as to base residential, the addition of at least one dwelling unit.

J. Alteration and/or Expansion of a Nonconforming Nonresidential Structure. In addition to the requirements of Subsections A through G of this Section, a nonconforming nonresidential lot and/or structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this Development Code, but which under the provisions of this Development Code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for nonresidential purposes (excepting Nonconforming Adult Businesses, which shall comply with Section 3.01.025 (Abatement of Nonconforming Adult Businesses) of this Division), shall be subject to the following:

1. A nonconforming nonresidential land use or structure may be granted a one-time, 25 percent expansion in area, subject to the granting of a Conditional Use Permit pursuant to the provisions of Section 4.02.015 (Conditional Use Permits) of this Development Code.

2. The alteration and/or expansion of a nonconforming nonresidential lot and/or structure shall be acted on based upon the information provided in the submitted application, evidence presented in the Planning Department’s written report, and any comments and/or testimony provided by the public, only after considering and clearly establishing all of the belowlisted findings, which shall be in addition to the findings for Conditional Use Permit approval contained in Section 4.02.015 (Conditional Use Permits) of this Development Code, and giving reasons in support of each finding. The application shall be denied if one or more of the belowlisted findings cannot be clearly established.

a. The alteration/expansion will protect a valuable property investment;

b. The alteration/expansion and the proposed use will not adversely affect or be materially detrimental to surrounding properties;

c. The alteration/expansion will allow for modernization in order to properly operate the use and protect valuable property rights;

d. The alteration/expansion is architecturally compatible with the existing

building;

e. The alteration/expansion is compatible with the character of the surrounding area; and

f. The alteration/expansion will provide adequate parking pursuant to the City’s off-street parking provisions and will not displace existing parking facilities.

K. Nonconforming Improvements. Nonconforming improvements such as landscaping, screen walls, security fences, and enclosures for trash receptacles, shall be altered to comply with the district regulations covering the following standards as a condition of any discretionary land use or development entitlement approval required by this Development Code:

1. The landscaping of setback areas, insofar as a setback exists;

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2. The landscaping of parking areas, provided fulfilling the requirement does not reduce off-street parking or loading spaces to fewer than prescribed by Division 6.03 (Off-Street Parking and Loading) of this Development Code;

3. The screening of outdoor storage and loading areas;

4. The design, height, and placement of security fences; and

5. The enclosure of trash receptacles.

Nonconforming adult business uses shall be abated as follows:

A. An adult business that lawfully occupied a building or land at the time an ordinance codified in this Development Code became effective, and does not conform to the land use regulations of the zoning district in which it is located, is deemed a “legal nonconforming adult business,” and may not be increased, enlarged, or altered, except to change the use to a conforming use.

B. The below-listed amortization schedule for the abatement of legal nonconforming adult businesses be complied with, unless an extension is granted pursuant to Section 4.02.030 (Extensions of Legal Nonconforming Status) of this Development Code:

1. A legal nonconforming adult business shall be terminated within one year following the adoption of this Section;

2. An adult business legally existing on real property that is subsequently annexed to the City shall be terminated within one year following the date of annexation;

3. Notwithstanding the amortization periods above, any discontinuance or abandonment of a nonconforming adult business for a period of 30 or more days shall result in the loss of nonconforming status.

C. Any adult business that becomes nonconforming by reason of the provisions established by this Development Code shall be notified by the Zoning Administrator by certified mail. Notice shall be given within 180 days of the date the use will become nonconforming and shall be provided to the property owner and business owner, if different from the property owner. In addition, the notice shall identify the applicable amortization period and the process for requesting an extension thereof.

D. The owner or operator of a legal nonconforming adult business may apply under the provisions of this Subsection, to the City Manager for an extension of time within which to terminate the nonconforming use, as follows:

1. An application for extension of time within which to terminate a use made nonconforming by the provisions of this Development Code may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. The application shall be filed with the City Manager, at least 90 days, but not more than 180 days, prior to the time established in Subsection B of this Section, for termination of the use.

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2. The application shall state the grounds for requesting an extension of time. The filing fee for the application shall be the same as that for Variance, as is set forth in the schedule of fees established by resolution of the City Council.

3. The City Manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within 45 days following 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. The decision of the hearing officer shall be final and subject to judicial review pursuant to CCP Section 1094.6. If the Applicant fails to seek judicial review within the allotted time period, the decision of the hearing officer shall have res judicata and collateral estoppel effect in any other proceeding involving the same applicant.

4. 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 the following findings or any other findings as required by law:

a. The applicant has made a substantial investment in the property or structure on or in which the nonconforming adult business is conducted, and the property or structure cannot be readily converted to another use and the investment was made prior to the date the adult business became nonconforming.

b. The applicant will be unable to recoup their investment as of the date established for termination of the use; and

c. The applicant has made a good faith effort to recoup the investment and to relocate the use in conformance with City requirements.

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