Porterville Municipal Code § 307.04 Continuation and Maintenance of Nonconforming Structures

The specific purpose of this chapter is to permit continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the standards and requirements of this Ordinance in a manner that does not impair public health, safety, and general welfare. (Ord. 1866, 11-19-2019)

These provisions apply to structures, land and uses that have become nonconforming by operation of this Ordinance and that remain in a nonconforming status by application of this chapter, as well as structures, land, and uses that hereafter become nonconforming due to annexation to the City or amendments to the zoning map or development Ordinance text. (Ord. 1866, 11-19-2019)

A. Nonconformity. A non-conformity may result from any inconsistency with the requirements of this Ordinance, including but not limited to location, density, height, yard, usable open space, buffering, or performance standards or the lack of a Conditional Use Permit, variance, or other required authorization. A use or structure shall not be deemed nonconforming solely because it does not conform with the parking dimension standards, loading, planting area, or screening regulations of the district in which it is located or does not conform to the standards for the following building features: garage door location; garage door width; chimney height; cornices, eaves, and other ornamental features that exceed maximum projections into required yards; or bay windows and balconies above the first floor that exceed maximum projections into required yards.

B. Nonconforming Uses and Structures-Right to Continue. Any use or structure that was legally established prior to the effective date of this Ordinance or of any subsequent rezoning or amendment shall be deemed to be in compliance with this Ordinance and may be continued and maintained indefinitely if it has remained in continuous existence. The right to continue a nonconforming use or structure shall run with the land. However, no substitution, expansion, or other change in use and no alteration or other change in structures is permitted, except as otherwise provided in this chapter. (Ord. 1866, 11-19-2019)

Legal nonconforming structures may be continued and maintained in compliance with the requirements of this chapter unless deemed to be a public nuisance because of health or safety conditions.

A. Maintenance and Nonstructural Repairs. Maintenance, non-structural repairs and non-structural interior alterations are permitted to a nonconforming structure or to a structure occupied by a nonconforming use, so long as the changes and improvements do not enlarge or extend the structure.

B. Structural Repairs. Structural repairs that do not enlarge or extend the structure, including modification or repair of bearing walls, columns, beams or girders, may be undertaken only when the Building Official determines that such modification or repair is immediately necessary to protect public health and safety, occupants of the nonconforming structure, or occupants of adjacent property and when the cost of such work does not exceed fifty (50) percent of the higher of the assessed value of the nonconforming structure as determined by the Tulare County Assessor or an appraisal performed by a certified appraiser for the applicant. If an applicant chooses not to submit an appraisal, the Tulare County Assessor’s determination shall be used. (Ord. 1866, 11-19-2019)

Nonconforming structures may be enlarged, extended, structurally altered or repaired as long as the use of the property is conforming, and subject to the following provisions:

A. Nonconforming Single-Family Dwellings. A Single-Family Dwelling that is nonconforming with respect to one (1) or more required setbacks may be enlarged or altered, subject to the following standards:

1. Interior Side and Rear Setbacks. Additions or enlargements that maintain a nonconforming interior side or rear yard setback are permitted as long as the addition does not:

a. Further reduce any nonconforming side or rear setback;

b. Create any new encroachment into any other required setback;

c. Increase the existing height of the portion of the structure that is within the required setback;

d. Result in a violation of applicable standards for building coverage, parking, or useable open space; or

e. Result in a violation of any standard of the Building Code.

2. Front Setbacks. Additions or enlargements that vertically or horizontally extend a nonconforming front yard setback may be approved based on a finding that the proposed addition will maintain the average setback of development on the same block front within two hundred (200) feet of the lot.

3. Height. Additions or enlargements that horizontally extend a nonconforming side or rear setback of any portion of a structure that is nonconforming with respect to height may be approved based on findings that the proposed alteration will not:

a. Substantially interfere with solar access available to surrounding properties;

b. Reduce the privacy of surrounding properties; or

c. Create a structure that is incompatible with the character of surrounding development due to its bulk or form.

B. Nonconforming Parking:

1. Nonresidential Structures. A nonresidential structure that is nonconforming because it does not satisfy the parking requirements of this Ordinance may not be expanded unless the parking spaces that are required for the expansion are provided in accordance with applicable provisions of Chapter 304, On-Site Parking and Loading.

2. Residential Structures. A residential structure that is nonconforming because two (2) spaces have not been previously required by this Ordinance may be altered or expanded with only one (1) covered space, provided that such alterations or expansions of habitable space in an individual dwelling shall not cumulatively exceed twenty-five (25) percent of the habitable floor area at the time of the first expansion or alteration.

3. Exception. No residence may be constructed or expanded by more than one thousand (1,000) square feet of additional habitable area without providing parking in accordance with the applicable provisions of Chapter 304, On-Site Parking and Loading.

C. Nonconforming Lot Coverage. A structure that is nonconforming because it exceeds the maximum allowable lot coverage may be expanded in floor area only if the expansion does not increase the lot coverage. (Ord. 1866, 11-19-2019)

No legal nonconforming use shall be substantially expanded or changed in operation without the approval of a Conditional Use Permit as provided for in this chapter. This requirement shall not apply to a change of ownership, tenancy, or management where the new use is in the same classification as the previous use, as defined in Chapter 701: Use Classifications, and the use is not expanded.

A. Change from Nonconforming to Permitted Use. Any nonconforming use may be changed to a use that is allowed by right in the zoning district in which it is located and complies with all applicable standards for such use.

B. Conditional Use Permit to Legalize Use. 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 required permit.

C. Change from Nonconforming Use to Other Nonconforming Use. The City Council may allow the expansion of a Class I use, substitution of a Class II nonconforming use with a Class I nonconforming use, or substitution of a Class I nonconforming use with another Class I nonconforming use, subject to approval of a Conditional Use Permit and the requirements of this chapter.

1. Within a Structure That Conforms to the Development Ordinance. A Class I nonconforming use in a structure that conforms to this Ordinance and to the requirements of the Building Code may expand the floor area that it occupies, subject to Conditional Use Permit approval provided that no structural alteration is proposed or made for the purpose of the expansion.

a. A nonconforming use may not be expanded to occupy all or a part of another structure or another lot that it did not occupy on the effective date of this Ordinance.

b. The expansion of the nonconforming use shall not exceed fifty (50) percent of the area that the nonconforming use legally occupies at the time of application.

2. Within a Structure That Does Not Conform to the Development Ordinance. A Class I nonconforming use in a structure that does not conform to the requirements of this Ordinance may expand its occupancy and building floor area subject to the requirements of paragraph one (1) above.

3. Within a Structure That Does Not Conform to the Building Code. Any nonconforming use in a structure that does not conform to the Building Code may not expand the area it occupies. A Class I nonconforming use may expand the area it occupies subject to Conditional Use Permit approval after the structure is brought into conformance with all applicable Building Code requirements.

4. City Council Review. The City Council shall hold a public hearing, pursuant to the procedures established in Chapter 601, Common Procedures, on each application for a change or substitution of use. In addition to any other findings that may be required, the City Council shall find that:

a. The proposed new use will be more compatible with the purposes of the district and surrounding uses than the nonconforming use it replaces;

b. The proposed new use will not be detrimental to the health, safety, peace, comfort or general welfare of persons residing or working in the surrounding area or be detrimental or injurious to property and improvements of adjacent properties, the surrounding area, or the neighborhood because of noise, traffic generation, odors, dust, glare, vibrations, or other effects; and

c. The proposed new use will comply with all applicable standards or there are special circumstances peculiar to the property and its relation to surrounding uses or to the district itself that would justify modification to applicable standards.

5. Standards for Council Determination. In making its findings and conclusions pursuant to paragraph four (4) above, the City Council shall consider the following factors:

a. Noise;

b. Traffic generation;

c. Hours of operation;

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

e. Proximity of the use to conforming uses;

f. Extent and severity of nonconformity;

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

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

i. Access to the nonconforming use;

j. Maintenance of the nonconforming use; and

k. Any other factors the City Council deems relevant given the purposes of this chapter.

6. Conditions. When making its decision on an application for a change or substitution of use, the Council may establish conditions that are necessary to accomplish the purposes of this chapter, including, but not limited to:

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

b. Limitations on hours of operations;

c. Limitations on the nature of operations; and

d. A specified term of years for which the continued nonconforming use shall be allowed.

7. Revocation of Approved Changes of Nonconforming Use. The City Council may initiate a review of a changed or substituted nonconforming uses upon its own motion, or following a recommendation from the Zoning Administrator, in accordance with Section 601.10, Revocation of Approvals, and the following standards and procedures.

a. Initiation of Revocation Procedure. Initiation of City Council review of a nonconforming use approved pursuant to this section shall first require a report from the Zoning Administrator based upon the Zoning Administrator’s independent investigation and determination, recommending action by the Council.

b. City Council Review and Decision. The City Council shall hold a public hearing, pursuant to the procedures established in Chapter 601, Common Procedures. Upon the conclusion of the public hearing, the Council shall determine whether the nonconforming status shall be revoked and the use discontinued or allowed to continue subject to conditions. In making its determination the Council shall base its decision on the same considerations it used when approving the Conditional Use Permit to allow a change or substitution of a nonconforming use and the standards in paragraph five (5) above. (Ord. 1866, 11-19-2019)

A. Restoration When Damage is Less than Seventy-Five (75) Percent of Value. If a nonconforming structure or a structure containing a nonconforming use is destroyed by fire or other calamity, to the extent of seventy-five (75) percent or less of the replacement cost, as determined by the Building Official, the structure may be restored and the nonconforming use may be resumed, provided that a building permit for restoration is issued within six (6) months and restoration work is diligently pursued to completion.

B. Restoration When Damage Exceeds Seventy-Five (75) Percent of Value. If any nonconforming structure or a structure containing a nonconforming use is destroyed by fire, explosion or other casualty or act of God to an extent of seventy-five (75) percent or greater of the replacement cost, as determined by the Building Official, then the structure may be restored and used only in compliance with the applicable regulations for the district where it is located, except as provided below.

1. Exceptions for Residential Structures.

a. Any nonconforming residential use 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 unless the City finds that:

(1) 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.

(2) The existing nonconforming use of the building or structure can be more appropriately moved to a zoning district in which the use is permitted, or that there no longer exists a district in which the existing nonconforming use is permitted.

2. Any reconstruction, restoration, or rebuilding undertaken pursuant to this section shall conform to all applicable Building Code requirements.

3. A building permit shall be obtained within two (2) years after the date of the damage or destruction. (Ord. 1866, 11-19-2019)

Prior to occupancy of a site or structure that is nonconforming due to lack of one (1) of the following: screening of mechanical equipment; required walls or fences to screen parking; required paving for driveways; or required landscaping; a schedule for elimination or substantial reduction of these nonconformities over a period not exceeding five (5) years shall be submitted. Priority may be given to elimination of nonconformities that have a significant adverse impact on surrounding properties, and shall not require a commitment to remove nonconformities that have a minor impact and would be costly to eliminate due to the configuration of the site and the location of existing structures. (Ord. 1866, 11-19-2019)

No nonconforming use may be resumed, reestablished, reopened or replaced by any other nonconforming use after it has been abandoned or vacated for a period of six (6) months, except as provided for in this section. The nonconforming use of a legally established structure may be reestablished if the City Council approves a Conditional Use Permit after making all the following findings in addition to any other required findings. As a condition of approving the resumption of such nonconforming use, the Council may impose a time limit on its duration if necessary in order to make the required findings.

A. The structure cannot be used for any conforming use because of its original design or because of legal structural changes made for a previous nonconforming use;

B. The structure can be reasonably expected to remain in active use for a period of twenty (20) years without requiring repairs or maintenance in excess of fifty (50) percent of the replacement cost of the structure, as defined in this chapter, within any five (5) year period; and

C. The continuation of the use or structure will not be incompatible with or detrimental to surrounding conforming uses. (Ord. 1866, 11-19-2019)