Chapter 17.19 — NONCONFORMING USES AND STRUCTURES

A.

This chapter is intended to create greater conformity with this title by limiting the number and extent of nonconforming uses and structures in Orinda. This purpose is to be achieved by regulating the enlargement and extension of nonconforming uses and structures, their reestablishment after discontinuation or abandonment, and the alteration or restoration of a nonconforming structure after destruction. B. The particular purposes of these regulations in the downtown commercial zoning district are: (1) to comply with the Orinda general plan by discouraging office uses in prime retail space, i.e., Class C uses in Type I spaces as described in Chapter 17.6 of this title without termination by amortization; and (2) to ensure that other legal nonconforming uses may be maintained as currently operated and that proposed changes to these other legal nonconforming uses will not have an adverse effect on business development and the general welfare of Orinda residents. (Ord. 02-03 § 21: Ord. 99-5 § 2 Exh. A (part))

A. A legal nonconforming structure is permitted by this title and may be used and maintained, subject to the provisions of this chapter. B. A legal nonconforming use is permitted by this title and may be continued, subject to the provisions of this chapter. C. Routine maintenance and repairs of a nonconforming structure which do not visually alter the structure do not affect legal nonconforming status. (Ord. 99-5 § 2 Exh. A (part))

The size, height or exterior configuration of a nonconforming structure may not be altered unless the resulting structure conforms to the requirements of this title, except as follows: A. Change in Roof Pitch. A change in roof pitch less than 6:12 is permitted without requiring the remainder of the structure to conform to the requirements of this title. B. Minor Structural Nonconformities. Minor structural nonconformities (such as porch posts and eaves within a required setback) may, upon approval of the Zoning Administrator, be replaced, if such reconstruction is

part of a maintenance project or is part of an addition or remodeling project, so long as the degree of nonconformity is not increased. C. Renovation. The renovation of an existing structure without exterior changes or with changes only to windows and doors shall be permitted without the requirement of an exception or variance, even though the existing structure is nonconforming, so long as proof is made according to Planning Department requirements that the project meets the definition of a renovation, except that a change in a window or door to be located in a part of the structure that does not comply with current setback standards of this code shall require an exception if Zoning Administrator review is requested under Section 17.42.1(B) of this title by an affected neighbor. D. Small-Structure Addition. An exception or variance for an existing nonconformity shall not be required when an addition is proposed, so long as the following criteria are met: 1. The floor area of the addition is under one thousand five hundred (1,500) square feet; or 2. The floor area of the resulting structure is either: a. Less than one hundred twenty-five (125) percent of the average floor area in the neighborhood or, if the lot is less than the average lot size in the neighborhood, the lot area/floor area ratio of the resulting structure is less than one hundred twenty-five (125) percent of lot area/floor area ratio in the neighborhood, and b. The maximum floor area of the resulting home does not exceed three thousand (3,000) square feet; 3. No new nonconformity will be created and no existing nonconformity will be increased. E. Attic and Basement Conversion. An addition of newly created habitable space in an attic or basement which is fully contained within the building envelope of any conforming or legally nonconforming single- family residential structure shall not require an exception or variance. (Ord. 05-07 § 5: Ord. 99-5 § 2 Exh. A (part)) (Ord. No. 19-03, § 2(Exh. A), 6-18-19)

The following regulations apply to all nonconforming uses. A. Office Uses in Retail Spaces. An existing nonconforming Class C use in a Type I space in the downtown commercial zoning district shall terminate if it is abandoned, changed or determined to constitute a nuisance. B. Other Nonconforming Uses. An existing nonconforming use other than a Class C use in a Type I space in the downtown commercial zoning district shall terminate if it is abandoned, determined to constitute a nuisance or changed without a permit required by subsection C of this section. C. A Change in Use. An existing nonconforming use may be changed if a permit is obtained from the Zoning Administrator after a duly noticed public hearing has been held under Chapter 17.36 if the use is located in a downtown zoning district or under Chapter 17.31 if the use is located in any other zoning district, except that a Class C use in a Type I space in the downtown commercial zoning district may not be changed. D. Relocation. To promote the implementation of planning goals stated in Section 17.8.1, a Class C use in a Type I space existing as of February 1, 2000, may apply for a relocation permit, to lessen the degree of nonconformity, subject to the provisions of this subsection. 1. Relocation Permit. To relocate the subject nonconforming use, a relocation permit must be obtained from the Zoning Administrator at a duly noticed public hearing. 2. Standards. The relocation of a legal nonconforming use existing as of February 1, 2000, may be permitted if the Zoning Administrator makes findings of fact to support each of the following standards: a. Considering all of the facts and circumstances of the proposed relocation, the nonconformity will be lessened; and b. One or more of the following criteria apply: i. The frontage at the proposed new location has substantially less linear and square footage than that of the existing location,

ii. The frontage at the proposed new location is less visible than at the current location, i.e., it will be located on a less retail-oriented/prominent/highly-traveled street or it will be in a space farther from the street frontage, iii. The floor area will be substantially smaller than that of the existing location, iv. The vacated space is to be used in compliance with Chapter 17.8. 3. Termination of Prior Nonconforming Use. On the approval of a relocation permit and subsequent relocation of the nonconforming use, the nonconforming use at the original location shall terminate. E. Registration. All existing legal nonconforming Class C uses in Type I space in the downtown commercial zoning district and legal nonconforming nonresidential uses in and near residential areas, whether zoned residential or not, shall be registered with the city within thirty (30) days of notification to register. Registration shall be in a form and include such information as the Planning Director shall require, including but not limited to building plans, hours of operation, number of employees, and scope of operation. (Ord. 99-5 § 2 Exh. A (part))

Except as otherwise provided in this chapter, a nonconforming use which is abandoned or changed or which becomes a nuisance may not be reestablished. The use of the structure and site thereafter must conform with the regulations for the district in which it is located. (Ord. 99-5 § 2 Exh. A (part))

The owner of a legal nonconforming use which the city has determined to have terminated under the provisions of this chapter may request a hearing before the Zoning Administrator under Chapter 17.42 to present evidence that a termination has not occurred. The owner has the burden of proof to show that the nonconforming use has not been abandoned, changed (without a permit where one is possible), does not constitute a nuisance, or is otherwise not terminated. (Ord. 99-5 § 2 Exh. A (part))

For purposes of this chapter, the following definitions shall apply:

"Abandoned" means: 1. The site of operation has been vacated; 2. A change in use has occurred; or 3. There is a break in continuous operation, except for: (a) a closure of not more than thirty (30) days for purposes of repairs which do not change the nonconforming use; and for (b) the suspension of operations due to physical circumstances beyond the control of the use owner and use operator. "Change in use" means an alteration in the conduct of a use as defined in this section. "Nonconforming structure" means a structure lawfully occupying a site on February 1, 2000, that does not conform with the standards for the zoning district in which the structure is located. "Nonconforming use" means a use lawfully occupying a structure or a site on February 1, 2000, that does not conform with the use regulations applicable for the zoning district in which the use is located. "Use" means the conduct of a particular activity, business or enterprise, commercial or noncommercial, which shall be defined in terms of specific factors including but not limited to: 1. The scope, intensity and nature of the service, product or activity; and 2. Parking demand. (Ord. 99-5 § 2 Exh. A (part))