San Jose Municipal Code Part 1 General Provisions

The provisions in this chapter are intended to permit the continued operation of legal nonconforming uses and continued use and replacement of legal nonconforming structures in a manner that does not impair the public peace, health, safety morals or welfare. The provisions are also intended to encourage the eventual elimination of legal nonconforming uses.

(Ord. 26248.)

A. A legal nonconforming use may be continued indefinitely, but if such use is discontinued or abandoned for a period of six months or more, it shall thereafter conform to the provisions of this title, unless the nonconforming use is reinstated with issuance of a special use permit in accordance with Chapter 20.100.

B. A legal non-conforming structure may continue to be used or replaced as follows:

1. The restoration and/or replacement of a legal nonconforming structure wholly or partially destroyed by a catastrophic event or sudden 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 is permitted.

2. Failure to apply for a building permit within nine months of destruction or failure to begin construction within three months of the issuance of a building permit shall be deemed to be discontinuation or abandonment of the use pursuant to subsection A.

3. The building or structure, as restored, shall not occupy any portion of the lot or parcel not occupied by the building or structure when such destruction occurred unless the building or structure as restored will comply with all development regulations prescribed by this title for the district in which the lot or parcel is situate.

4. No building or structure shall be restored pursuant to this section unless all development and building permits required for new conforming uses in the district in which the use is located have been secured.

5. Irrespective of where the building or structure, as restored, is located on the lot or parcel:

a. It shall not have a greater floor area than the building or structure contained when such destruction occurred; and

b. It shall not exceed the height of nor the number of stories contained in the building or structure at the time of such destruction; and

c. The off-street loading spaces situate on the lot or parcel at the time of such destruction shall not be diminished in number or size.

C. Any legal nonconforming use or structure which is enlarged, altered, converted, or changed, as provided in this chapter, is subject to the parking requirements of Section 20.90.210 regarding any change in use.

(Ords. 26248, 26455, 30857.)

A. Upon the rezoning of land to a (PD) planned development combined district, other than by council initiation, only those uses specified in the general development plan therefore, as either temporary or permanent uses, are permitted in the planned development district.

B. Any use which becomes legal nonconforming in the base district because of a (PD) planned development rezoning initiated by council may be continued but only until such time as a PD permit pursuant to such rezoning is implemented on the site containing the legal nonconforming use(s).

(Ord. 26248.)

A. Whenever an existing use subject to a previously issued valid conditional use permit becomes a legal nonconforming use, it remains subject to all of the provisions and requirements of conditional use permit provisions of this title.

B. If a conditional use permit for a legal nonconforming use contains a time-limit condition, the owner of the lot or parcel for which the permit was issued may apply to the city for renewal of the conditional use permit, notwithstanding the fact that the existing use is not a permitted or conditional use in the district in which it is located or that it does not conform to the regulations of such district.

C. The owner of a lot or parcel, subject to a lapsed time-limited conditional use permit, may apply for a new conditional use permit, subject to the subsection B. above, if the use for which the conditional use permit is sought has continued to exist without interruption since the lapse of the conditional use permit. Nothing in this provision shall exempt such owner from the obligation to apply for a new conditional use permit in accordance with Chapter 20.100, and such owner shall be in violation of this title, and subject to all remedies therefore, whenever a time-limited conditional use permit lapses and no new conditional use permit has been issued.

(Ord. 26248.)

A. Any legal nonconforming use may be expanded only upon issuance of and in compliance with a special use permit, or conditional use permit for uses which this Code would require a conditional use permit, in accordance with the provisions in Chapter 20.100. Expansion includes, but is not limited to, the intensification of a use with or without an increase in floor area.

B. Any building or structure which conforms with the development standards of the district, the use of which is a legal nonconforming use, may be enlarged or structurally altered, only upon a finding that such enlargement or structural alteration does not expand or allow for subsequent expansion of the legal nonconforming use, and does not significantly increase any identified impact such as traffic, on-street parking or noise. Such determination shall be made as part of the consideration of any site development permit required for such enlargement or alteration by other provisions of this Code. If no site development permit is required, such enlargement or alteration shall be made only upon the issuance of and in compliance with a special use permit as provided in Chapter 20.100.

(Ord. 26248.)

A. Any legal nonconforming structure, the use of which is not legal nonconforming, may be expanded upon such land only upon issuance of and in compliance with a site development permit in accordance with the applicable development standards of the zoning district said structure is in. Nothing in this provision permits the further diminution of an existing nonconforming development standard except as otherwise provided for in this title.

(Ords. 26248, 30857.)

A. For the purposes of this section, a "change in use" shall be defined as a change from one enumerated use to a different enumerated use as set forth in Tables 20-30, 20-50, 20-90, 20-110 and 20-140.

B. A legal nonconforming use may be changed to another nonconforming use of a like nature upon issuance of and in compliance with a special use permit, provided such use is not subject to a conditional use permit or special use permit under any other provisions of this title. Any enlargement made in conjunction with such change must conform to the provisions of this chapter.

C. Two uses are of "like nature" when the director determines that they are treated in essentially the same manner for all purposes under this title and that the new use will not create an increase in such impacts as traffic, or noise. The "like nature" determination shall be made as part of the consideration of a special use permit as provided in this title.

D. Where a lot or parcel which contains a legal nonconforming use also contains a conforming use, the existing conforming use may be changed to another conforming use only upon a finding that such proposed conforming use is compatible with such legal nonconforming use in terms of architecture as well as use. Such determination of compatibility shall be made as part of the consideration of any site development permit, conditional use permit, or special use permit required for such change by other provisions of this Code. If no such permits are required, such change in use shall be made only upon the issuance of and in compliance with a special use permit as provided in this title.

(Ords. 26248, 30857.)

A. No additional nonconforming use may be added to a property which contains a legal nonconforming use.

B. Additional uses which conform to the provisions of this title may be added to a property which contains a legal nonconforming use only upon a finding that such proposed additional use is compatible with the existing nonconforming use or uses in terms of architecture as well as use. Such determination of compatibility shall be made as part of the consideration of any site development permit or conditional use permit required for such additional use by other provisions of this Code. If no site development permit or conditional use permit is otherwise required, such additional use shall be added only upon the issuance of and in compliance with a special use permit as provided in this title.

(Ords. 26248, 26455.)

Where property in a nonresidential district contains a legal nonconforming residence, such use shall continue to maintain the minimal side and front set backs as if it were located in an R-1-8 residence district and shall in addition comply with all other applicable regulations and development standards for lots with a one-family dwelling.

(Ord. 26248.)

A parcel which contains a legal nonconforming use or structure may be subdivided pursuant to Title 19 of this Code only if such subdivision does not, in any way, increase the degree or extent of the nonconformity.

(Ord. 26248.)

A. The director, or the planning commission, on appeal, shall issue a special use permit for a nonconforming use only if the following findings can be made:

1. In case of an application for a special use permit for reinstatement of a legal nonconforming use:

a. No more than eighteen (18) months has elapsed between the date the legal nonconforming use was first discontinued or abandoned and the date the application for the special use permit was filed and found complete; and

b. The conversion to a conforming use would create undue hardship under the particular circumstances presented.

c. The finding required by subsection a above does not need to be made for reinstatement of residential legal nonconforming uses or the residential mixed use residential/commercial legal nonconforming uses.

2. In case of an application for a special use permit for expansion or enlargement:

a. The expansion of the use upon the land, or the alteration or enlargement of the building or structure, does not significantly increase any identified impact such as traffic, on-street parking or noise.

3. In the case of an application for a special use permit for a change in use, it is found that:

a. The nonconforming use is being changed to a use of like nature.

4. In case of an application for a special use permit for determination of compatibility of nonconforming and conforming uses when either changing a conforming use to another conforming use or adding a conforming use, it is found that:

a. The change or addition of a conforming use on site is compatible with any existing nonconforming use on site in terms of architecture as well as use.

B. In addition to the findings required by Subsection A, no special use permit shall be issued, pursuant to this part, unless it is found that:

1. The permit will not impair the character and integrity of the neighborhood; and

2. The permit will not impair the utility or value of adjacent property or the general welfare of the neighborhood; and

3. The permit is not detrimental to the public peace, health, safety, morals or welfare.

(Ord. 26248.)