SEC. 188. NONCOMPLYING STRUCTURES: ENLARGEMENTS, ALTERATIONS, AND RECONSTRUCTION.

New Ordinance Notice

Publisher's Note: This section has been AMENDED by new legislation (Ord. 146-25 , approved 8/5/2025, effective 9/1/2025). The text of the amendment will be incorporated under the new section number when the amending legislation is operative.

(See Interpretations related to this Section.)

(a) Within the limitations of this Article 1.7, and especially Sections 172 and 180 hereof, and notwithstanding Sections

188(a)(1) and 188.1, a noncomplying structure as defined in Section 180 may be enlarged, altered, or relocated, or

undergo a change or intensification of use in conformity with the use limitations of this Code, provided that with respect to such structure there is no increase in any discrepancy, or any new discrepancy, at any level of the structure, between existing conditions on the lot and the required standards for new construction set forth in this Code, and provided the remaining requirements of this Code are met.

(1) Existing Yard Structures. A noncomplying structure that is located within a required yard may be enlarged, altered, or replaced provided that any above-grade enlargement of such structure is only to the degree necessary to conform to current Building Code requirements, including, but not limited to, the addition or construction of fire-rated walls. A noncomplying structure that is located within a required yard may be relocated within the yard if the structure’s new location is equally or further set back from the nearest property line than the original location. Interior alterations, including the structure’s use for different purposes, shall not constitute an intensification for the purposes of this subsection (a)(1). Additionally, for any partially noncomplying structure that is located within a required yard, the rules set forth in this subsection (a)(1) shall apply only to the portions of the structure that are noncomplying; portions of the structure within the buildable area shall be subject to rules elsewhere in this Code governing building within the buildable area of the lot.

(2) Nothing in this Section 188 shall exempt noncomplying structures from the Planning Code controls other than those for required yards.

(b) A noncomplying structure that is damaged or destroyed by fire, or other calamity, or by Act of God, or by the public enemy, may be restored to its former condition; provided that such restoration is permitted by the Building Code, and is started within eighteen months and diligently prosecuted to completion. Except as provided in Subsection (c) below, no noncomplying structure that is voluntarily razed or required by law to be razed by the owner thereof may thereafter be restored except in full conformity with the requirements of this Code.

For purposes of this Subsection (b), "started within eighteen months" shall mean that within eighteen months of the fire or other calamity or Act of God, the structure's owner shall have filed a building permit application to restore the structure to its former condition and use.

(c) In order that major life safety hazards in noncomplying structures may be eliminated as expeditiously as possible, a noncomplying structure constructed of unreinforced masonry that is inconsistent with the requirements of the UMB Seismic Retrofit Ordinance, Ordinance No. 225-92, may be demolished and reconstructed to the same level of noncompliance; provided that:

(1) The current requirements of the Building, Housing and Fire Codes and, as applicable, Planning Code are met, provided that the Zoning Administrator may, and is hereby empowered to, permit minor modifications to Planning Code requirements (which may include permitting an increase in the building envelope or a reduction in the number of parking spaces) to the extent necessary and required to bring the replacement building up to such applicable Code requirements and to allow replacement of the demolished building with a building which contains a comparable amount of square footage or the same number of residential units as that of the demolished building. The Zoning Administrator shall provide a written determination regarding such permitted Planning Code modifications; and

(2) Such restoration or reconstruction is started within one year after razing or other demolition work on the structure and diligently prosecuted to completion.

(d) Notwithstanding Subsection (a) of this Section, a noncomplying structure as defined in Section 180, may add nonusable space. "Nonusable space" is space not used for living, sleeping, eating, cooking or working. Public corridors, mechanical space, fire stairs and similar areas, are nonusable space. The enlargement must:

(1) Facilitate the adaptive reuse or the rehabilitation of a landmark site or contributory structure within a Historic District designated under Article 10 of this Code or a significant structure or contributory structure within a Conservation District designated under Article 11 of this Code; and

(A) Be necessary to comply with Building Code, Fire Code or Planning Code requirements; or

(B) Enhance the life safety aspects of the building and/or mechanical, environmental control systems; or

(2) Be located within a C-3 District, and:

• (A) Be necessary to comply with Building Code, Fire Code or Planning Code requirements; or

• (B) Enhance aesthetic qualities and/or character; or

• (C) Enhance the life safety aspects of the building and/or mechanical, environmental control systems; or

• (D) Accommodate rooftop features exempted from height limits under Section 260(b) or as provided for under Sections 270, 271 or 272 of this Code.

(3) Application for enlargement of a non-complying structure under Subsection (d)(1) shall be considered as part of an application for a Certificate of Appropriateness under Article 10 or a Permit to Alter under Article 11 of this Code. Any application to enlarge a noncomplying structure under Article 11 shall be considered as a major alteration under Section 1111 of the Planning Code. Application to alter a noncomplying structure not designated an Article 11 significant or contributory building under Subsection (d)(2) shall be considered under the provisions of Section 309(b) of this Code. These applications shall be subject to the following additional criteria:

• (A) That the enlargement promote the health, safety and welfare of the public; and

• (B) That the enlargement not cause significant shadows or wind impacts on public sidewalks and parks; and

• (C) That the structure provides an appropriate transition to adjacent properties, as necessary; and

• (D) That the interior block open space formed by the rear yards of abutting properties will not be adversely affected; and

• (E) That the access of light and air to abutting properties will not be significantly affected; and

• (F) That public view corridors not be significantly affected; and

(4) The City Planning Commission, subject to the same application procedures of Section 188(d)(3) above, may grant an exception to the Planning Code requirements rather than expansion of the structure to accommodate the Planning Code requirements. The exception of the Planning Code requirement shall be subject to the criteria below:

• (A) That the exception promote the health, safety and welfare of the public; and

• (B) That the exception result in an increased benefit to the public and the adjacent properties over the increase in nonconformance; and

• (C) That the exception not be detrimental to either the occupants of the proposed project or to the neighborhood.

(e) Historic Movie Theater Marquees and Projecting Signs. Notwithstanding Subsection (a) of this Section, and in order that certain character-defining architectural elements of Qualified Movie Theaters be preserved and enhanced, a noncomplying Historic Movie Theater Projecting Sign, as defined in Section 602, and/or a noncomplying Historic Movie Theater Marquee, as defined in Section 602, may be preserved, rehabilitated, or restored. A noncomplying Historic Movie Theater Projecting Sign or a noncomplying Historic Movie Theater Marquee removed from a Qualified Movie Theater prior to or in absence of an application for replacement may be reconstructed.

(1) For the purposes of this Section, “Qualified Movie Theater” shall mean a building that: (A) is currently or has been used as a Movie Theater; and (B) is listed on or eligible for listing on the National Register of Historic Places or the California Register of Historical Resources, designated a City Landmark or a contributor to a City Landmark District under Article 10, or designated as a Significant or Contributory Building under Article 11.

vie Theater” shall mean a building that: (A) is currently or has been used as a Movie Theater; and (B) is listed on or eligible for listing on the National Register of Historic Places or the California Register of Historical Resources, designated a City Landmark or a contributor to a City Landmark District under Article 10, or designated as a Significant or Contributory Building under Article 11.

(2) Any preservation, rehabilitation, restoration, or reconstruction permitted under this Section shall be in strict conformity with the overall design, scale, and character of the existing or previously existing Historic Movie Theater Sign or Historic Movie Theater Marquee and:

(A) For a Qualified Movie Theater that retains its Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee, the signage features shall be limited to the following:

(i) On a Historic Movie Theater Projecting Sign, the historic name associated with a previous theater occupant;

(ii) On a Historic Movie Theater Marquee, the historic name associated with a previous theater occupant and, where applicable, on the signboard, other information that is an Identifying Sign, as defined in Section 602, provided such information shall be contained within the signboard, shall not consist of any logos, and shall be in the character of lettering historically found on Movie Theater signboards in terms of size, font, and detail.

(B) For a Qualified Movie Theater where the Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee has been removed and is proposed to be reconstructed, the overall design and signage features shall be limited to the following:

(i) On a Historic Movie Theater Projecting Sign, the historic name associated with a previous theater occupant; (ii) On a Historic Movie Theater Marquee, the historic name associated with a previous theater occupant and, where applicable, on the signboard, other information that is an Identifying Sign, as defined in Section 602, provided such information shall be contained within the signboard, shall not consist of any logos, and shall be in the character of lettering historically found on Movie Theater signboards in terms of size, font, and detail.

(C) Any application to reconstruct shall include evidence of the dimensions, scale, materials, placement, and features of the previously existing Historic Movie Theater Projecting Sign and/or Historic Movie Theater Marquee, as well as any other information required by the Zoning Administrator.

• (D) General advertising signs shall not be permitted on either a Historic Movie Theater Projecting Sign or a Historic Movie Theater Marquee.

(f) Notwithstanding Subsection (a) of this Section 188, a secondary structure that is noncomplying with respect to the maximum floor area ratio limit may be removed, in whole or in part, and reconstructed pursuant to the criteria below. For purposes of this Subsection (f), a secondary structure means a structure located on a lot with two or more structures that has no more than one-quarter of the gross floor area of the primary structure on the lot.

, a secondary structure that is noncomplying with respect to the maximum floor area ratio limit may be removed, in whole or in part, and reconstructed pursuant to the criteria below. For purposes of this Subsection (f), a secondary structure means a structure located on a lot with two or more structures that has no more than one-quarter of the gross floor area of the primary structure on the lot.

• (1) The proposed removal and reconstruction shall:

• (A) Be located within a C-3-R District on Block 295, Lot 16;

• (B) Promote and enhance the C-3-R District as a retail destination;

• (C) Result in an increased benefit to the public and the adjacent properties;

• (D) Enhance the aesthetic qualities and/or character of the lot;

• (E) Result in a net decrease of gross floor area of all structures on the subject property;

• (F) Result in a structure that more closely conforms to the floor area ratio limit;

• (G) Not result in an adverse impact to a historic resource;

• (H) Not cause significant shadows or wind impacts on public sidewalks or parks;

• (I) Not obstruct significant public view corridors; and

• (J) Not significantly impair light and air to abutting properties.

• (2) An application for removal and reconstruction of a non-complying secondary structure shall be considered under the provisions of Section 309(b) of this Code.

(g) Notwithstanding subsection (a) of this Section 188, Terrace Infill, defined as new floor area or building volume located within an existing terrace may be permitted on a noncomplying structure, as defined in Planning Code Section 180, that is designated as a Significant Building under Article 11 of this Code, notwithstanding otherwise applicable height, floor area ratio, and bulk limits, as follows: on Assessor’s Block 0316, Terrace Infill may be permitted to be enclosed within an existing terrace that is already framed by no less than one wall; and on Assessor’s Block 3707, Terrace Infill may be permitted within an existing rooftop terrace that is behind a parapet at least 17 feet in height along the primary building frontage. An application for Terrace Infill shall be considered a Major Alteration under Section 1111.1 of this Code and shall be subject to the applicable provisions of Article 11 of this Code, including but not limited to the requirement to apply for and procure a Permit to Alter. As part of the Historic Preservation Commission’s consideration of such application, in addition to other requirements set forth in this Code, the facts presented must establish that the Terrace Infill (1) would not be visible from the primary building frontage, and (2) would not exceed 1,500 net new square feet per building. Unless the Board of Supervisors adopts an ordinance extending the term of this subsection (g), it shall expire by operation of law on January 31, 2028. After that date, the City Attorney shall cause this subsection to be removed from the Planning Code.

t the Terrace Infill (1) would not be visible from the primary building frontage, and (2) would not exceed 1,500 net new square feet per building. Unless the Board of Supervisors adopts an ordinance extending the term of this subsection (g), it shall expire by operation of law on January 31, 2028. After that date, the City Attorney shall cause this subsection to be removed from the Planning Code.

(Added by Ord. 443-78, App. 10/6/78; amended by Ord. 268-91, App. 6/26/91; Ord. 227-92, App. 7/14/92; Ord. 242-08, File No. 071431, App. 10/30/2008; Ord. 224-11 , File No. 110590, App. 11/15/2011, Eff. 12/15/2011; Ord. 25-14, File No.

131059, App. 3/17/2014, Eff. 4/16/2014; Ord. 217-16, File No. 160424, App. 11/10/2016, Eff. 12/10/2016; Ord. 11-17, File No. 161068, App. 2/3/2017, Eff. 3/5/2017; Ord. 211-19, File No. 190702, App. 9/20/2019, Eff. 10/21/2019; Ord. 3324, File No. 231144, App. 2/21/2024, Eff. 3/23/2024; Ord. 146-25, File No. 250284, App. 8/5/2025, Eff. 9/5/2025) AMENDMENT HISTORY

Division (b) amended; Ord. 224-11 , Eff. 12/15/2011. Division (f) added; Ord. 25-14, Eff. 4/16/2014. Division (e) amended; Ord. 217-16, Eff. 12/10/2016. Division (g) added; Ord. 11-17, Eff. 3/5/2017. Division (g) removed; Expired 1/31/2019. Section header and division (a) amended; new division (g) added; Ord. 211-19, Eff. 10/21/2019. Division (c) amended; Ord. 33-24, Eff. 3/23/2024. Division (a) amended; divisions (a)(1)-(2) added; Ord. 146-25, Eff. 9/5/2025.