Article 15.04.606 — NONCONFORMING USES, STRUCTURES AND LOTS

A.

Purpose. This Article establishes regulations for nonconforming uses, structures, and lots. The purpose of these regulations is to regulate uses of land, lots, and structures that were legal when they were established, but are no longer in compliance with the standards and requirements of Article XV or any applicable specific plan adopted by the City Council. It is the intent of this Article to distinguish between incompatible

nonconformities that are detrimental to public health, safety, and general welfare and nonconformities that are economically productive and compatible with surrounding development despite being inconsistent with the long-term future of an area, as expressed in the General Plan, the use regulations or development standards of Article XV or any applicable specific plan.

B.

Applicability. The provisions of this Article apply to structures, land, and uses that have become nonconforming by adoption of Article XV, as well as structures, land, and uses that become nonconforming due to subsequent amendments to Article XV's text or to the Zoning Map or adoption of a specific plan.

A.

Nonconformities, Generally. Subject to the exemptions provided herein, a nonconforming use, lot, or structure ("nonconformity") is any use of land, use of a structure, lot, or structure that was legally established prior to the adoption of the current provisions in Article XV or of any subsequent rezoning or other amendments thereto, but that does not conform to the provisions of Article XV, the Zoning Map, or any applicable specific plan. Nonconformities may be continued, maintained, repaired, altered, expanded, restored, or reestablished, only in conformance with the requirements of this Article.

1.

A nonconformity may result from any inconsistency with the requirements of Article XV, the Zoning Map, or any applicable specific plan, including but not limited to location, density, floor area ratio (FAR), height, setback, usable open space, parking, or performance standards.

2.

Nonconforming uses include:

a.

Uses made nonconforming by the addition of a standard or requirement in Article XV or any applicable specific plan that was not previously required for such use.

b.

Uses that were previously permitted by right and are subject to a discretionary permit under the requirements of Article XV and any applicable specific plan; and

c.

Uses made nonconforming by revisions to the Zoning Map.

Nonconforming lots include any lot that is smaller than the minimum lot size required by Article XV or does not meet any of the applicable dimensional requirements.

B.

Right to Continue. A nonconformity may be continued and maintained indefinitely, and the right to the nonconformity shall run with the land, except as otherwise specified in the nonconforming use regulations. Nonconformities may be continued, maintained, repaired, altered, expanded, restored, or reestablished only in conformance with the requirements of this Article.

C.

Illegal Use. An illegal use is a use of land, use of structure, lot, or structure that was not legally established under Article XV that was applicable at the time that such use of land, use of structure, lot, or structure was established. Any and all illegal uses are a public nuisance and must be discontinued or legalized within 90 days of receiving written notice from the Zoning Administrator.

A.

For Limited Parking. Residential structures with at least one parking space per dwelling unit are not considered nonconforming due to inadequate parking.

B.

For Certain Residential Uses. Any residential use, lot, or structure that was legally established prior to the adoption of Article XV and that has been continuously maintained in residential use in compliance with the requirements of all applicable codes is considered is classified as a conforming use, lot, or structure. However, any enlargement or replacement of such use must conform to Article XV and any applicable specific plan.

C.

For Certain Nonconforming Features. A use, lot, or structure shall not be deemed nonconforming solely because it does not conform with standards for parking and loading, setbacks, landscaping and planting requirements, fencing and screening, standards for projections above the top of buildings, or restrictions on features allowed in required yards, or because of other deviations from the requirements of Article XV or any applicable specific plan that are determined to be minor by the Zoning Administrator.

D.

For Specific Repairs and Improvements. Nothing in this Article prevents repairs, improvements, or maintenance, including in replacement of building features, that are necessary to comply with the Municipal Code or to strengthen or restore to a safe condition any building, structure, or part thereof declared to be unsafe by the Building Official. More specifically, this Article does not prohibit the following solely because a use, lot or structure is nonconforming: internal improvements, safety improvements to address earthquake, flood, fire, criminal activity or other hazards; improvements to mitigate nuisance characteristics either from or to other properties or the environment, including but not limited to noise and vibration, light and glare, air emissions, stormwater flows, and aesthetic appearance and visual impacts; or improvements related to conservation of resources, including but not limited to reduction of water, gas and electricity use, improvement of indoor air quality, reduction of waste, or similar safety, environmental and conservation measures.

A.

Changes of Use. A nonconforming use can be changed to a different use based on the future use as follows:

1.

New Use Permitted by Right. Any nonconforming use may be changed to a use that is allowed by right in the zoning district in which it is located (or subarea of a specific plan) and complies with all applicable standards for such use.

2.

New Use Requires a Use Permit. No nonconforming use can be changed to a use not allowed by right without approval of a conditional use permit. This requirement does not apply to a change of ownership, tenancy, or management where the new use is in the same use type as the previous use, as defined in Article XV, and the facility(ies) housing the use is/are not expanded.

3.

New Use Not Permitted. No nonconforming use shall be changed to a different nonconforming use.

B.

Absence of a Use Permit. Any use that is nonconforming solely by reason of the absence of a Use Permit may become a conforming use by obtaining a Use Permit.

C.

Expansion of Nonconforming Uses. No lawful nonconforming use may expand the floor area of the use by more than 10 percent. For any expansions of a use that expands the floor area by 10 percent or less, the approval of an administrative use permit is required, subject to the following requirements:

1.

Expansions to Other Structures or Lots. A nonconforming use may not be expanded to occupy all or a part of another structure or another lot in different ownership that it did not occupy on the date of this revision to Article XV.

2.

Required Findings. The Zoning Administrator may only approve an administrative use permit for an expansion of a nonconforming use after making the following additional findings:

a.

The proposed expansion will not unreasonably preclude or interfere with implementation of the General Plan and any applicable specific plan;

b.

No significant planning purpose would be served by strict application of the provisions or requirements of Article XV and any applicable specific plan with which the use does not conform;

c.

The nonconforming use is not an Adult-Oriented Business.

• (Ord. No. 30-18 N.S., § I(Exh. A), 12-18-2018)

This Article establishes provisions to allow for reinvestment in nonconforming industrial uses in order to achieve public safety or environmental benefits or short-to mid-term economic and fiscal benefits notwithstanding the longer term goals of the City for a specific plan area. These exceptions may be granted if limited expansion of a nonconforming industrial use is not incompatible with existing uses in the surrounding area and such enlargement, extension or intensification would not unreasonably impede orderly development over the long term under an applicable specific plan.

A.

Limited Exception Determinations for Certain Nonconforming Industrial Uses. The City finds that the need may exist to continue to support industrial development and to improve the safety or reduce the environmental effects of certain nonconforming industrial uses by allowing changes that could result in minor enlargements, extensions, expansions or structural alterations to buildings or structures dedicated to such nonconforming uses, despite the fact that they do not conform to all current provisions of Article XV and any applicable specific plan. Therefore, an improvement comprising minor enlargements, extensions, expansions, or structural alterations of a building or structure dedicated to a nonconforming industrial use may be allowed with an administrative use permit, subject to the following process and findings:

1.

Process. No administrative use permit will be granted unless the Zoning Administrator makes the findings for a Limited Exception Determination established in this Section. Where a discretionary permit has been previously issued, changes to that permit may be made pursuant to this Section and the appropriate non-discretionary permits may be issued after a Limited Exception Determination has been granted.

2.

Information Required. Unless specifically waived by the Zoning Administrator, the following information must be submitted to support a Limited Exception Determination:

a.

Statement of project objectives;

b.

Project description, including construction requirements (schedule, equipment, labor, parking), physical changes to existing facilities, and any changes to facility operations or ancillary operations (truck trips, hazardous materials storage, etc.) as a result of the improvement;

c.

A map showing contiguous properties, including Assessor Parcel Numbers and property owners' names;

d.

Site plan to scale showing all existing and proposed facilities on the site and any modifications to existing equipment;

e.

Design specifications for any new components;

f.

Estimated expenditures for the improvement, including materials, labor, and equipment;

g.

Written justification and such data, report(s), and documentation that demonstrates and verifies the improvement's economic or fiscal benefits or public health and safety or environmental benefits; and

h.

Any other supplemental data or information requested by the Zoning Administrator.

B.

Benefit Assessment. Upon acceptance of a complete application, the Zoning Administrator will conduct an assessment of the economic and fiscal benefits, public health and safety, and/or environmental benefits of the application and prepare a report on its consideration of an application for a Limited Exception Determination.

C.

Limited Exception Determination Findings. After a duly-noticed public hearing, the Zoning Administrator may approve or conditionally approve a Limited Exception Determination and the associated administrative use permit only if all of the following findings are made in addition to the findings required for the administrative use permit:

1.

The improvement has one or more of the following: demonstrable economic, fiscal, public health, safety, and/or environmental benefit.

2.

The improvement does not result in any new unmitigated significant environmental impacts.

3.

The improvement does not result in a significant (i.e., 20 percent) increase in the overall intensity of use beyond the existing permitted use.

4.

The improvement does not significantly extend or expand the existing developed square footage of the industrial operation or site.

5.

The improvement does not result in a substantial expansion or extension of life of the nonconforming use. Any extension in the life of the nonconforming use affected by the improvement results solely from improved operational efficiency and is incidental to the primary purpose of improving public health and safety or providing an economic, fiscal or environmental benefit.

The improvement will not unreasonably impede implementation of the General Plan and the applicable specific plan over the longer term because one or more of the following apply:

a.

There are significant vacant or underutilized properties in the plan area available or likely to become available in the near term for the development called for in the plan;

b.

The infrastructure, including the street network and shoreline protection necessary to support the long-term development of the plan area, is incomplete;

c.

The applicable plan calls for a land reserve necessary to accommodate the high-intensity uses called for in the plan's long-term development vision, and the project site could contribute to that land reserve;

d.

The applicable plan calls for market forces to drive the transition to new uses and to provide development opportunities consistent with the long-term vision for the plan area, and the proposed changes will not significantly impair the ability of market forces to do so;

e.

The location of the site is still relatively distant from the location of the new long-term development envisioned in the plan;

f.

The type of development for which there exists market demand for the site would not contribute to a Complete Neighborhood or a jobs/housing balance in the plan area; and

g.

The development vision of the specific plan applicable to this site has not proven to be achievable or viable over time.

7.

If prior Limited Exception Determinations have been made for the same nonconforming use under this Section, the successive Limited Exception Determinations cumulatively provide a public health and safety or economic, fiscal or environmental benefit.

D.

Appeals. The Zoning Administrator's decision may be appealed to the Planning Commission, and its decision may be appealed to the City Council pursuant to Article 15.04.803 (Common Procedures).

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 one year, except as provided for in this Section.

A.

Abandonment. The one-year period commences when the use ceases and any one of the following occurs:

1.

The site is vacated;

2.

The business license lapses;

3.

Utilities are terminated and facilities have been permanently removed or disabled;

The lease is terminated; or

5.

The use ceases.

A nonconforming use is not abandoned following damage from an act of God or casualty event provided that the business owner is actively engaged in restoring the use. Moreover, the one year period does not include the period between the date the City notifies the owner that the application for reconstruction of the use has been found to be complete and the date the City's action on the application becomes final or the date the building permit issued by the City for the reconstruction expires, whichever is later.

B.

Reestablishment. The nonconforming use of a legally established structure may be reestablished after abandonment if the Planning Commission approves a conditional use permit after making all the following findings in addition to the findings required in Article 15.04.806 (Use Permits). As a condition of approving the resumption of such nonconforming use, the Commission may impose a time limit on its duration if necessary in order to make the required findings.

1.

The structure cannot practically or economically be used for any conforming use because of its original design or because of lawful structural changes made for a previous nonconforming use;

2.

The structure can be reasonably expected to remain in active use for a period of 20 years without requiring repairs or maintenance in excess of 50 percent of the replacement cost of the structure, as determined by the Building Official, within any five-year period; and

3.

The continuation of the use or structure will not be incompatible with or detrimental to surrounding conforming uses.

C.

Vehicle Service Stations. Where the nonconforming use is a vehicle service station, this use must be reestablished within a six-month period of the use being abandoned, rather than within the one-year period allowed by subparagraph (A) above, in order to continue to be considered a nonconforming use.

D.

Exceptions. The nonconforming status of a single-unit dwelling will not lapse, regardless of the length of time of non-use.

(Ord. No. 30-18 N.S., § I(Exh. A), 12-18-2018)

A.

Right to Continue. Any nonconforming building or structure may only be continued and maintained provided there is no alteration, enlargement, or addition; and no substantial increase in occupant load except as provided in this Article. The right to continue to use a nonconforming building or structure attaches to the land and is not affected by a change in ownership or short-term vacancy.

B.

Right to Repair or Restore. Nonconforming structures may be repaired, maintained, or restored in compliance with the requirements of this Article, unless deemed to be an irreparable public nuisance under Chapter 9.22 of the Municipal Code.

C.

Enlargements or Alterations. Nonconforming structures may be enlarged, extended, structurally altered, or repaired in compliance with all applicable laws only under the following provisions:

1.

Alterations and enlargements that are consistent with the current requirements of the zoning district in which the structure is located or with the standards of an applicable specific plan only require Zoning Administrator approval.

Alterations and enlargements that extend into a nonconforming yard may be allowed with Zoning Administrator approval of an administrative use permit provided that the alteration or enlargement would not:

a.

Further reduce any existing nonconforming yard, meaning the alteration or extension occurs on top of an existing structural element or feature that already extends into an existing nonconforming yard;

b.

Exceed applicable building height limits;

c.

Further increase any existing nonconforming lot coverage; or

d.

Increase the required number of off-street parking spaces unless parking is provided under current standards set forth in Article XV for the additional floor area.

D.

Maintenance and Nonstructural Repairs and Alterations. Maintenance and nonstructural repairs and alterations are permitted to a nonconforming structure or to a structure occupied by a nonconforming use, so long as the repairs and alterations do not materially enlarge the structure.

E.

Structural Repairs.

1.

Generally. Structural repairs may be undertaken when the cost of such work does not, within a 12-month period, exceed 50 percent of the replacement cost of the nonconforming structure as determined by the Building Official. All other structural repairs require an administrative use permit.

2.

Single-Unit Residential Structures. Structural repairs are permitted as-of-right for single-unit residential structures, regardless of valuation, if the structural change meets the following criteria:

a.

The dwelling is located in a residential zoning district;

b.

The dwelling has an existing garage that meets minimum dimensional requirements of Article XV; and

c.

The improvement will not add new habitable space to the dwelling exceeding 10 percent of the existing gross floor area.

A nonconforming use or structure that is damaged or destroyed by fire, flood, explosion, earthquake, or natural disaster when the damage or destruction is not caused by a malicious act or omission of the property owner, his or her agent, or person acting on his or her behalf or in concert may be restored or rebuilt subject to the following provisions:

A.

Restoration or Reconstruction When Damage is 75 Percent or Less of Replacement Cost. If the cost of repair or reconstruction does not exceed 75 percent of the replacement cost of the building(s) or structure(s), replacement of the damaged portion of the building(s) is allowed by right, provided that the replaced portions are the same size, extent, and configuration as previously existed and a building permit is obtained.

B.

Restoration When Damage Exceeds 75 Percent of Replacement Cost. If the cost of repair or reconstruction exceeds 75 percent of the replacement cost of the building or structure, the land and building will be subject to all of the requirements of Article XV and any applicable specific plan, except as provided below.

1.

Non-Residential Structures. The Planning Commission may approve a conditional use permit for the structure to be rebuilt to substantially the same size, extent, and configuration as previously existed. In such cases, any expansion or exterior change to the previous use must conform to the requirements of this Article to the maximum extent reasonably feasible, but need not conform to the requirements of an applicable specific plan.

2.

Residential Structures. 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 subject to a Zoning Compliance Review under Article 15.04.804 in the case of single-unit dwellings or a conditional use permit under Article 15.04.806 in the case of other residential uses, unless the Zoning Administrator finds that:

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; or

b.

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.

3.

Any reconstruction, restoration, or rebuilding undertaken pursuant to this Section must conform to all applicable Building Code requirements, and a Building Permit must be obtained within two years after the date of the damage or destruction or the issuance of any required discretionary permit, whichever is later.

4.

Any application for a conditional use permit must be submitted within one year of the date of the damage to the use or structure.

C.

Replacement Cost. The property owner or his or her agent shall have the right to present information on the replacement cost of the damaged use or structure by providing a report from a construction professional licensed by the State of California. The Chief Building Official will determine the replacement cost of the damaged use or structure based on that information, if presented, and other published construction industry data.

Any legally created lot that fails to meet the current standards for area or dimensions of the district in which it is located may be developed, subject to the following.

A.

General. Any lot that is smaller than the minimum lot size or width required by Article XV may be developed subject to all other requirements of Article XV and any applicable specific plan if it is described in the official records on file in the Contra Costa County Clerk-Recorder's Office, County Recorder Division as a lot of record.

B.

Exception. Where a lot is less than 50 feet in width or where a lot of less than 5,000 square feet exists and the lot has been recorded under separate ownership from all adjacent lots continuously since January 31, 1949, and the lot is level (having an average longitudinal and cross slope of less than 5 percent), such lot may be developed into any use permitted in the base zoning district or any applicable specific plan.

1.

Any such lot that is 3,300 square feet or less in area, and/or is 33 feet or less in average width can only be developed for one single-unit dwelling.

Any such lot that exceeds the dimensions and area enumerated in (1) immediately above, but which is 3,700 square feet or less in area, and/or is 37.5 feet or less in average width can be a building site for one or two dwelling units.

A.

Uses or structures defined as nonconforming due to inadequate parking, screening, and/or landscaping may be enlarged, altered, moved, extended or reconstructed within the following limits:

1.

Where no major building other than an accessory building is involved, the cost of such change may not exceed the total current assessed value of the land.

2.

Where a principal building is involved, the cost of such change may not exceed the current replacement cost of the original building(s).

B.

Restrictions on the nonconforming use of the land where no building other than an accessory building is involved: the nonconforming use may be continued up to five years after it became a nonconforming use subject to the following conditions:

1.

The nonconforming use of land shall not be expanded or extended.

2.

If the nonconforming use is discontinued or changed, any further use of land shall be in conformity with the provisions of Article XV and any applicable specific plan.

C.

In any district where residences are prohibited, additions and alterations to an existing single or two-unit dwelling are permitted, providing all of the following conditions are met:

1.

Such structural changes can be made only if in conformity with all the regulations of use, height, area, yard, interior yard space, off-street parking, etc., as required for a multi-family residential district.

2.

No additional dwelling units shall be created nor a conversion of the building allowed that would create a lodging house, care home, or similar residential use.

3.

Floor area added shall not exceed 50 percent of the total floor area existing in the dwelling at the time the regulations prohibiting residences became effective for the site in question.

4.

No addition shall be permitted if any portion of the existing dwelling is converted to commercial or industrial use subsequent to when the regulations prohibiting residences became effective for the site in question.