§ 35.101

A.

Purpose. This Chapter establishes uniform provisions for the regulation of nonconforming lots, structures, and uses of land and structures that were lawful before the adoption, amendment, or revision of this Development Code, or previously adopted County ordinances, but which would be prohibited, regulated, or restricted differently under the terms of this Development Code or future amendments.

B.

Intent.

1.

It is the intent of this Development Code, with limited specified exceptions, to:

a.

Discourage the long-term continuance of these nonconformities, providing for their eventual elimination, but to permit them to exist under the limited conditions outlined in this Chapter.

b.

Prevent nonconforming uses and structures from being enlarged, expanded, or extended, or being used as grounds for adding other structures or uses prohibited by the zone in which the nonconformity is located.

2.

Generally, this Chapter is intended to be administered in a manner which encourages the eventual abatement of these nonconformities.

A nonconforming use may be continued subject to the following provisions, so long as the use remains otherwise lawful.

A.

Structural change.

1.

Allowed enlargements, extensions, moving, reconstruction, or structural alterations. Except as listed below or otherwise provided in this Development Code, no existing structure devoted to a nonconforming use under this Development Code shall be enlarged, extended, moved, reconstructed, or structurally altered unless the use is changed to a use allowed in the zone in which it is located.

a.

Seismic retrofits allowed. Seismic retrofits as defined in Article 35.11 (Glossary) in compliance with Section 35.20.040 (Exemptions from Planning Permit Requirements), may be allowed but shall be limited exclusively to compliance with earthquake safety standards and other applicable Building Code requirements, including State law (e.g., Title 24, California Code of Regulations).

b.

Rehabilitation of dwellings. Existing structures devoted to a nonconforming residential use may be enlarged, extended, reconstructed, relocated, and/or structurally altered in compliance with Subsection F (Limited exceptions for certain nonconforming residential uses) below.

c.

Normal maintenance and repair. Normal maintenance and repair may occur provided no structural alterations are made.

d.

Historical landmarks. A structure that has been declared to be a historical landmark in compliance with a resolution of the Board may be enlarged, extended, reconstructed, relocated, and/or structurally altered provided the County Historical Landmarks Advisory Commission has reviewed and approved the proposed structural alterations and has determined that the proposed structural alterations will help to preserve and maintain the landmark in the long-term.

2.

Accessory to a conforming use. No structure accessory to a nonconforming use under this Development Code shall be enlarged, erected, or extended unless the structure is also accessory to a conforming use.

B.

Expansion or extension.

1.

An existing nonconforming use may be extended throughout or relocated within an existing structure; provided, no structural alterations are made except those required by law or ordinance (e.g., Building Code regulations).

2.

No existing nonconforming use shall be extended to occupy any land outside of the structure.

3.

No existing nonconforming use of land outside structures, or not involving structures, shall be enlarged, extended, or increased to occupy a greater area of land than was occupied at the time the use became nonconforming, or moved to any portion of the lot not currently occupied by the nonconforming use.

4.

In order to protect public health and support the reopening of the Santa Barbara County in a manner that effectively limits the spread of COVID-19 by allowing for the use of outdoor areas to ensure that physical distancing and/or other public health requirements can be met and to provide other forms of relief to support economic recovery from the impacts of COVID-19, the following provisions apply for the temporary time period specified below and take precedence over subsections 1, 2, and 3 included above, if the below provisions are applicable to a particular nonconforming use.

a.

Temporary time period. This provision shall take effect on June 16, 2020 and shall expire the earlier of October 31, 2024 or when the COVID-19 provisions (Sections 35.84.040.A.1, 35.84.030.D.8, 35.84.040.F, 35.101.020.B.4, and 35.108.090.C) are terminated by ordinance amendment.

b.

Development standards. For nonconforming uses, this section authorizes the temporary expansion or extension of a nonconforming use related to the following standards provided the requirements of Subsection B.4.c, below, are met:

i.

Setbacks.

ii.

Site coverage maximums.

iii.

Minimum open space.

iv.

Parking and loading standards.

v.

Signs.

vi.

The requirement that uses shall occur within a completely enclosed building.

vii.

Limitations on food service at wineries and tasting rooms.

viii.

Restrictions on uses in the right of way.

ix.

Other development standards as determined to be necessary by the Director for the protection of public health related to COVID-19 and/or to support economic recovery from the impacts of COVID-19.

c.

Requirements. To be eligible for this temporary expansion or extension, all of the following requirements must be met:

i.

The temporary expansion or extension of aspects of the nonconforming use related to development standards listed in Subsection B.4.b, above, are necessary to ensure physical distancing, comply with other public health requirements put in place by federal, State, or local public health officials to limit the spread of COVID-19, and/or to support economic recovery from the impacts of COVID-19.

ii.

The owner/applicant must follow all applicable State and local directives regarding reopening of businesses or community entities during the COVID-19 pandemic response, including certification or attestation and COVID-19 protection plan. Public health restrictions related to COVID-19 are subject to rapid change and nothing in this Subsection B.4 is intended, nor shall it be construed, to allow nonconforming uses to operate in violation of any federal, State, or local public health orders, rules, or regulations.

iii.

Any State or local permit or approval required by regulations other than this Development Code is obtained (e.g., a business purposes encroachment permit, health permit, alcoholic beverage control license, fire department authorization).

iv.

The nonconforming use is non-residential.

v.

The expansion or extension of the nonconforming use does not occur within environmentally sensitive habitat. No native vegetation or environmentally sensitive habitat would be removed to accommodate the use of outdoor areas.

vi.

No permanent structures are proposed, constructed, or erected (temporary coverings, such as canopies or umbrellas, to shade occupants from the sun and/or weather are allowed).

d.

Submittal of Checklist.

i.

Prior to implementation of the temporary expansion or extension, the owner/applicant may, and is encouraged to, submit a completed checklist, revised site plan, photos, and description of proposal describing the temporary expansion or extension and how the requirements of Subsection 35.101.020.B.4.c (Requirements) will be met.

ii.

Within 30 days of implementing a temporary expansion or extension, the owner/applicant shall submit a completed checklist, revised site plan, photos, and description of proposal describing the temporary expansion or extension and how the requirements of Subsection 35.101.020.B.4.c (Requirements) have been met.

e.

Enforcement.

i.

If a completed checklist, revised site plan, photos, and description of proposal are not submitted pursuant to Subsection B.4.d, or upon submittal the Director determines, in the Director's sole discretion, that the requirements of Subsection B.4.c, above, are not satisfied, the Director may notify the owner/applicant that the suspension of compliance to protect public health and/or to support economic recovery from the impacts of COVID-19 are not applicable and the Director may initiate enforcement action. The Director's action is not subject to appeal.

ii.

If a completed checklist, revised site plan, photos, and description of proposal are submitted pursuant to Section B.4.d and the requirements of Subsection B.4.c, above, are met, as determined in the sole discretion of the Director, the temporary expansion and/or extension of the nonconforming use shall not

constitute a violation subject to penalties, for the time period specified in Subsection B.4.a, above. The Director's action is not subject to appeal.

C.

Allowed changes of use. A nonconforming use may only be changed to a conforming use.

D.

Abandonment/discontinuance. A nonconforming use that is discontinued for a continuous period of at least 12 consecutive months shall be considered to be abandoned and the rights to continue the nonconforming use shall terminate. If a nonconforming use is abandoned, any future use shall comply with the provisions of the zone in which the use is located.

E.

Damage. This Section identifies the standards for allowing the continuation of a nonconforming use in a structure or other development that is damaged or destroyed by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of property on which the nonconforming use occurs.

1.

Non-residential uses.

a.

Damage 75 percent or more. If structure or other development dedicated to a non-residential nonconforming use is damaged by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of property on which the nonconforming use occurs to an extent of 75 percent or more of the replacement cost of the total structure before the damage, as determined by the Director, then the nonconforming use shall be discontinued and the damaged structure or other development thereafter used only in compliance with regulations of the zone in which it is located, unless allowed to continue by the Zoning Administrator, in compliance with Section 35.82.100 (Hardship Determinations).

b.

Damage less than 75 percent.

(1)

Except as provided below in Subsection E.1.b.(2), If the damage caused by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of property on which the nonconforming use occurs is less than 75 percent of the replacement cost of the total structure before the damage, as determined by the Director, the structure or other developments may be restored to the same or lesser size and in the same general footprint location.

(2)

Damage caused by debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features. If the damage caused by debris flow or other catastrophic event resulting

in a significant change in topography or alteration of drainage features (e.g., creeks, streams, waterways, etc.) of the lot on which the nonconforming use occurs is less than 75 percent of the replacement cost of the total structure before the damage, as determined by the Director, then:

(a)

The restored or replaced structure may be relocated on the lot as necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

(b)

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

(3)

The nonconforming use may be resumed and continued as before, or on a lesser scale, but shall not be enlarged or intensified.

2.

Residential uses.

a.

Except in industrial zones, and as provided in Subsection E.2.b, below, structures dedicated to nonconforming residential dwelling uses (e.g., one-family, two-family, and multi-family units, and second residential units), that are damaged or destroyed by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of property on which the nonconforming use occurs, may be reconstructed to the same or lesser size and in the same general footprint location.

b.

Damage caused by debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features. If the structure is damaged or destroyed by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then:

(1)

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

(2)

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

c.

The nonconforming residential dwelling use may be resumed and continued as before, or on a lesser scale, but shall not be enlarged, expanded, or intensified (e.g., increase in gross floor area, increase in the number of bedrooms). If the structure dedicated to a nonconforming residential dwelling use is located in an industrial zone, the damage standards of Subsection E. 1 (Non-residential uses) above, shall apply.

3.

Reconstruction shall commence within 24 months. The restoration of a nonconforming use allowed in compliance with Subsection E.1 (Non-residential uses) and Subsection E.2 (Residential uses) above, shall commence within 24 months of the time of damage and be diligently carried out to completion.

a.

The 24-month time limit may be extended by the Director for a maximum of 12 months for good cause, provided a written request, including a statement of reasons for the time extension request, is filed with the Department before the expiration of the 24-month period.

b.

If the restoration of the nonconforming use does not commence within 24 months or the extended time period that may be granted by the Director, it shall not be restored except in full compliance with the applicable zone regulations and other provisions of this Development Code.

4.

Applicability of permit requirements.

a.

Exempt from the Development Code permit requirements.

(1)

Except as provided in Subsection E.4.a.(2), below, the restoration or reconstruction of a structure or other development dedicated to a nonconforming use that is damaged or destroyed by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of property on which the nonconforming use occurs shall be exempt from the permit requirements of this Development Code only if the structure or

other development complies with the provisions of this Chapter and if the structure or other development conforms to the specifications documented to exist before the damage or destruction, as determined by the Director.

(2)

The relocation of a structure and/or a change to its finished floor elevation following a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features may be allowed if the Director, in consultation with the Flood Control District, determines the relocation or change in the finished floor elevation to be necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, and the structure complies with the provisions of this Chapter and applicable policies of the Comprehensive Plan.

(3)

Full compliance with applicable Building Code provisions is still required.

b.

Design Review required. Except as provided in Subsection E.4.b.(1), below, if the Director determines that the exterior design or specifications are proposed to be changed or the footprint of the structure is relocated, then the replaced or restored structure shall be subject to the provisions of Section 35.82.070 (Design Review), if otherwise subject to review (e.g., the site is subject to Section 35.28.080 (Design Review (D) Overlay Zone), the project is subject to Section 35.62.040 (Ridgeline and Hillside Development Standards)) in compliance with this Development Code.

(1)

If a structure has been damaged or destroyed as a result of a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features located on or affecting the lot on which the replaced or restored structure would be located, the restored or replaced structure, even if relocated on the lot or increased in height, shall not require Design Review unless the exterior design or specifications of the replaced or restored structure are substantially different from the prior structure(s), as determined by the Director. If the structure is otherwise exempt from requiring a planning permit but requires Design Review, the structure shall receive preliminary and final design review approval before an exemption is issued.

c.

Subject to Development Code permit requirements. Except as allowed herein, if the structure or other development is proposed to be altered from the original specifications, as determined by the Director, then the reconstruction or restoration shall be subject to all applicable permit requirements of this Development Code.

d.

Sites within the Toro Canyon Plan Area. The following shall apply to nonconforming uses located within the Toro Canyon Plan Area.

(1)

The replacement or re-establishment of nonconforming uses are subject to the regulations of the Toro Canyon Plan and this Development Code only to the extent that some type of permit may be required by this Development Code. Any permit may be approved only in compliance with the regulations of the Toro Canyon Plan and this Development Code.

(2)

Nonconforming uses located within nonconforming structures located on a bluff top or on the beach may not be increased or expanded into additional locations or structures.

F.

Limited exceptions for certain nonconforming residential uses. Existing structures devoted to a nonconforming residential use may be enlarged, extended, reconstructed, relocated, and/or structurally altered, subject to the following criteria:

1.

The site is within a zone which allows residential use as an allowed use requiring only a Land Use Permit.

2.

On any lot, only one existing structure devoted to a nonconforming residential use may be enlarged, extended, moved, reconstructed, and/or structurally altered.

3.

No enlargements shall result in a structure devoted to a nonconforming residential use that exceeds 1,200 square feet of gross floor area and no enlargements shall be allowed to any structure which has a current legal nonconforming residential gross floor area of 1,200 square feet or more.

4.

No enlargement, extension, reconstruction, relocation, or structural alteration shall exceed the height of, or protrude higher than, the highest point of, the existing structure.

5.

The structure shall comply with all applicable building, electrical, fire, mechanical, and plumbing codes, and shall not compromise the adequate performance of any existing water system or liquid waste disposal (e.g., septic) system, as determined to the satisfaction of the County Public Health Department.

6.

Any enlargement, extension, reconstruction, relocation, or structural alteration shall comply with all height, lot coverage, parking, setback, and other requirements of the zone in which the structure is located.

G.

Limited exception determinations for certain nonconforming industrial uses.

1.

Process and findings required. Improvements comprising minor enlargements, expansions, extensions, or structural alterations of a structure dedicated to an industrial, public works, or energy-related nonconforming use may be allowed, subject to the following process and findings.

2.

Requirement for limited exception determination. The review authority shall approve a Limited Exception Determination in compliance with Section 35.82.120 (Limited Exception Determinations) before the approval of any permit in compliance with Section 35.82.110 (Land Use Permits) to allow minor enlargements, expansions, extensions, or structural alterations.

a.

Where a discretionary permit has not been previously approved for the existing nonconforming industrial use, appropriate non-discretionary permits may be issued after a Limited Exception Determination has been approved in compliance with Section 35.82.120 (Limited Exception Determinations).

b.

Where a discretionary permit has previously been approved, changes to that permit may be made in compliance with this Development Code and the appropriate non-discretionary permits may be issued after a Limited Exception Determination has been approved in compliance with Section 35.82.120 (Limited Exception Determinations).

H.

Parking. If a use is nonconforming solely with respect to existing parking standards, the structure devoted to the use may be altered but the use may not be expanded, extended, or intensified in a manner that would increase the required number of off-street parking spaces in compliance with Chapter 35.36 (Parking and Loading Standards) unless:

1.

The use is brought into compliance with the requirements of Chapter 35.36 (Parking and Loading Standards); or

2.

A modification to the parking requirements has been approved.

(Ord. No. 5180, § 2, 5-16-2023)

A structure that is conforming as to use but nonconforming as to height, lot coverage, setbacks, or other requirements concerning the structure may remain so long as it is otherwise lawful, subject to the following

provisions.

A.

Structural change, expansion, or extension.

1.

Enlargements or extensions allowed in limited circumstances.

a.

Except as listed in Subsection A.1.b (Allowed structural alterations), below or otherwise provided in this Development Code, a nonconforming structure shall not be enlarged, extended, moved, or structurally altered unless the enlargement, extension, etc., complies with the height, lot coverage, setback, and other requirements of this Development Code.

b.

Allowed structural alterations.

(1)

Seismic retrofits allowed. Seismic retrofits as defined in Article 35.11 (Glossary) and in compliance with Section 35.20.040 (Exemptions from Planning Permit Requirements) may be allowed but shall be limited exclusively to compliance with earthquake safety standards and other applicable Building Code requirements, including State law (e.g., Title 24, California Code of Regulations).

(2)

Normal maintenance and repair. Normal maintenance and repair may occur provided no structural alterations are made.

(3)

Historical landmarks. A structure that has been declared to be a historical landmark in compliance with a resolution of the Board may be enlarged, extended, reconstructed, relocated, and/or structurally altered provided the County Historical Landmarks Advisory Commission has reviewed and approved the proposed structural alterations and has determined that the proposed structural alterations will help to preserve and maintain the landmark in the long-term.

(4)

Conforming residential uses and residential accessory uses. A nonconforming structure that is devoted to a conforming residential use or that is normally or historically accessory to the primary residential use may be structurally altered in a manner that is not otherwise allowed in compliance with Subsection A.1.a, above, provided that the alteration does not result in a structure that extends beyond the existing exterior, and, for structures that are 50 years old or greater, the Director determines that the alteration will not result in a detrimental effect on any potential historical significance of the structure.

(5)

Accessory dwelling units and junior accessory dwelling units. A nonconforming structure may be enlarged, extended, or structurally altered to convert the structure into an accessory dwelling unit or junior accessory dwelling unit provided that the accessory dwelling unit or junior accessory dwelling unit complies with Section 35.42.015 (Accessory Dwelling Units and Junior Accessory Dwelling Units).

c.

Permit required. The issuance of a Land Use Permit in compliance with Section 35.82.110 (Land Use Permits) is required prior to the commencement of any structural alteration allowed in compliance with Subsections A.1.a or A.1.b, above, unless the alteration is determined to be exempt in compliance with Section 35.20.040 (Exemptions from Planning Permit Requirements).

2.

Accessory living quarters. No living quarters may be extended into an accessory structure located in the required front, side, or rear setbacks by any addition or enlargement.

3.

Loss of nonconforming status.

a.

A nonconforming structure that is enlarged, extended, moved, reconstructed, or structurally altered in violation of Subsection A.1, above, shall no longer be considered to be nonconforming and the rights to continue the nonconforming structure shall terminate unless the enlargement, extension, moving, reconstruction, or structural alteration is specifically allowed by this Development Code.

b.

If the rights to continue the nonconforming structure are terminated then the structure shall either be demolished or altered so that the structure may be considered a conforming structure. Failure by the owner to either demolish the structure or alter the structure so that it may be considered a conforming structure shall be considered a violation of this Article and subject to enforcement and penalties in compliance with Chapter 35.108 (Enforcement and Penalties).

B.

Damage. This Section identifies the standards for allowing the reconstruction or restoration of a nonconforming structure that is damaged by earthquake, fire, flood, vandalism or other calamity beyond the control of the owner of the structure.

1.

One-family dwellings. Nonconforming one-family dwellings that are damaged or destroyed by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure may be reconstructed to the same or lesser size in the same general footprint location except that if a

nonconforming structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features (e.g., creeks, streams, waterways, etc.), then:

a.

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

b.

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

2.

Structures other than one-family dwellings.

a.

Damage 75 percent or more.

(1)

Except as provided below in Subsection B.2.a.(3), if a nonconforming structure, other than a one-family dwelling, is damaged by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure to an extent of 75 percent or more of the replacement cost of the total structure before the damage, as determined by the Director, then the structure may not be reconstructed unless allowed by the Zoning Administrator, in compliance with Section 35.82.100 (Hardship Determinations).

(2)

If the damaged nonconforming structure is accessory to a primary structure and there is substantial question regarding the extent of damage, as determined by the Director, the Zoning Administrator shall first find, in compliance with Section 35.82.140 (Nonconforming Status and Extent of Damage Determination) that the structure is nonconforming and shall determine the extent of damage.

(3)

Damage caused by debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features. If a nonconforming structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then:

(a)

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

(b)

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

b.

Damage less than 75 percent.

(1)

Except as provided below in Subsection B.2.b.(2),where a nonconforming structure, other than a one-family dwelling, is damaged by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure to an extent of less than 75 percent of the replacement cost of the total structure before the damage, as determined by the Director, the structure may be reconstructed to the same or lesser size in the same general footprint location.

(2)

Damage caused by debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features. If a nonconforming structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then:

(a)

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

(b)

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

(3)

If the damaged nonconforming structure is accessory to a primary structure, notice of the potential reconstruction shall be given in compliance with Section 35.106.020 (Notice of Public Hearing and Review Authority Action). If a request for public hearing is received by the Department within the applicable period of time, then the reconstruction of the accessory structure shall not commence unless the Zoning Administrator first finds, in compliance with Section 35.82.140 (Nonconforming Status and Extent of Damage Determination) that the structure is nonconforming and that the extent of damage is less than 75 percent.

3.

Sites within the Mission Canyon Community Plan area or the Toro Canyon Plan Area. Notwithstanding the above, the following standards apply to nonconforming structures on lots located within the Mission Canyon Community Plan area or the Toro Canyon Area Plan area. In case of a conflict, the standards of this Subsection B.3 shall take precedence.

a.

The following shall apply to the repair or reconstruction of nonconforming structures.

(1)

Residential structures.

(a)

A residential structure that is damaged or destroyed by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure may be reconstructed to the same or lesser size on the same site and in the same general footprint location except that if a nonconforming structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then the restored or replaced structure may be relocated on the lot if the Director, in consultation with the Flood Control District, determines the relocation and/or change in the finished floor elevation to be necessary in order to comply with applicable setbacks from top-of-bank and to reduce flood hazards, and the structure complies with the provisions of this Chapter and applicable policies of the Comprehensive Plan.

(b)

A residential structure that is nonconforming solely due to any policy, development standard, or zoning regulation first applied and adopted under the applicable Plan that requires partial or complete reconstruction or structural repair due to normal wear-and-tear (e.g., structural pest damage or dry rot) may be reconstructed or repaired to the same or lesser size on the same site and in the same general footprint location.

(c)

A residential structure that is nonconforming solely due to its location within an Environmentally Sensitive Habitat area or Environmentally Sensitive Habitat buffer area may be expanded upward, or outward and away from the Environmentally Sensitive Habitat area, consistent with Development Standards BIO-MC-3.8

of the Mission Canyon Community Plan or BIO-TC-7.5 and BIO-TC-7.8 of the Toro Canyon Plan, and in a manner that otherwise complies with the regulations of the applicable Plan and this Development Code.

(d)

For the purpose of this Subsection, "residential structure" shall mean primary dwellings, accessory dwelling units, junior accessory dwelling units, agricultural employee dwellings, farmworker dwelling units, farmworker housing complexes, guesthouses, and all attached appurtenances (e.g., garages and storage rooms) that share at least one common wall with the residential structure. One detached private garage structure may be included within the meaning of "residential structure" in compliance with Section 35.82.140 (Nonconforming Status and Extent of Damage Determination).

(2)

Non-residential agricultural support structures.

(a)

A nonconforming agricultural support structure that is damaged by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure may be reconstructed to the same or lesser size on the same site and in the same general footprint location except that if a nonconforming agricultural support structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then:

1.

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

2.

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

(b)

An agricultural support structure that is nonconforming solely due to any policy, development standard, or zoning regulation first applied and adopted under the applicable Plan which require partial or complete reconstruction or structural repair due to normal wear-and-tear (e.g., structural pest damage or dry rot) may be reconstructed or repaired to the same or lesser size on the same site and in the same general footprint location.

(c)

Expansion of nonconforming agricultural support structures located within Environmentally Sensitive Habitat areas or Environmentally Sensitive Habitat buffer areas: Any agricultural support structure that is nonconforming solely due to its location within an Environmentally Sensitive Habitat area or Environmentally Sensitive Habitat buffer area may be expanded upward, or outward and away from the Environmentally Sensitive Habitat area, consistent with Development Standards BIO-MC-3.8 of the Mission Canyon Community Plan or BIO-TC-7.5 and BIO-TC-7.8 of the Toro Canyon Plan and in a manner that otherwise conforms with the regulations of the applicable Plan and this Development Code.

(d)

For the purpose of this Subsection, "agricultural support structure" shall mean any structure that is essential to the support of agricultural production on agriculturally-zoned property.

(3)

Non-residential structures, not including agricultural support structures.

(a)

A nonconforming non-residential structure that is damaged by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure to an extent of 75 percent or more of the replacement cost of the total structure before the damage, as determined by the Director, may be reconstructed to the same or lesser size on the same site and in the same general footprint location, provided that the reconstruction complies with the regulations of the applicable Plan and this Development Code to the maximum extent feasible, and if allowed by the review authority in compliance with Section 35.82.100 (Hardship Determinations). If a nonconforming non-residential structure is damaged by a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features, then:

1.

The restored or replaced structure may be relocated on the lot if necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, as long as the structure complies with the setback requirements of the applicable zone and with the applicable policies of the Comprehensive Plan.

2.

Notwithstanding the height measurement methodology contained in Subsection 35.30.090.C, the height of the structure may exceed the height of the destroyed or damaged structure if necessary to comply with the base flood elevation that exists for the lot following a debris flow or other catastrophic event, as long as the structure complies with the height requirements of the applicable zone. However, the height of the structure as measured from the lowest, finished floor to the highest part of the structure, excluding chimneys, vents and noncommercial antennas, shall not exceed the equivalent height of the damaged or destroyed structure.

(b)

A nonconforming non-residential structure that requires partial or complete reconstruction or structural repair due to normal wear-and-tear (e.g., structural pest damage or dry rot) may be reconstructed or structurally repaired to the same or lesser size on the same site and in the same general footprint location, provided that the repair or reconstruction conforms with the regulations of the applicable Plan and this Development Code to the maximum extent feasible and if allowed by the review authority in compliance with Section 35.82.100 (Hardship Determinations).

(c)

A structure that is nonconforming solely due to its location within a front, rear, or side setback area, due to any increase in the setback area that resulted from a change of zone adopted with the applicable Plan may be enlarged or expanded in a manner that does not further encroach into any setback area and otherwise complies with the regulations of the applicable Plan and this Development Code.

4.

Reconstruction shall commence within 24 months.

a.

The reconstruction or restoration of a nonconforming structure that is required due to damage by earthquake, fire, flood, vandalism, or other calamity beyond the control of the owner of the structure shall commence within 24 months of the time of damage and be diligently carried out to completion.

b.

Within the applicable Plan area, reconstruction or structural repair required due to normal wear and tear (e.g., structural pest damage or dry rot) as allowed above shall commence within 24 months of the time of the owner's first documented discovery of the need for reconstruction or repair, and shall be diligently carried out to completion.

c.

The 24-month time limit may be extended by the Director one time for good cause, provided a written request, including a statement of reasons for the time extension request, is filed with the Department before the expiration of the 24-month time period.

d.

If the reconstruction or restoration of the structure does not commence within 24 months or the extended time period that may be granted by the Director, it shall not be restored except in full compliance with the applicable zone regulations and other provisions of this Development Code.

(1)

Within the Mission Canyon Community Plan area, where the reconstruction or structural repair of a nonhistoric structure allowed above does not commence within the specified 24 months or the extended time period that may be granted by the Director, the structure shall not be reconstructed or repaired except in full compliance with the regulations of the Mission Canyon Community Plan.

(2)

Within the Toro Canyon Plan Area, where the reconstruction or structural repair allowed above does not commence within the specified 24 months or the extended time period that may be granted by the Director, the structure shall not be reconstructed or repaired except in full compliance with the regulations of the Toro Canyon Plan.

5.

Applicability of permit requirements.

a.

Exempt from Development Code permit requirements.

(1)

Except as provided in Subsection B.5.a.(2), below, the restoration of a nonconforming structure that is damaged by earthquake, fire, flood, vandalism or other calamity beyond the control of the owner of the structure shall be exempt from the permit requirements of this Development Code only if the structure complies with the provisions of this Section and if the structure conforms to the specifications documented to exist before the damage or destruction, as determined by the Director.

(2)

The relocation of a structure and/or a change to its finished floor elevation following a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features may be allowed if the Director, in consultation with the Flood Control District, determines the relocation or change in the finished floor elevation to be necessary to comply with applicable setbacks from top-of-bank and to reduce flood hazards, and the structure complies with the provisions of this Chapter and applicable policies of the Comprehensive Plan.

(3)

Full compliance with applicable Building Code provisions is still required.

b.

Design Review required. Except as provided in Subsection B.5.b.(1), below, if the Director determines that the exterior design or specifications are proposed to be changed or the footprint of the structure is relocated, the restored structure shall be subject to the provisions of Section 35.82.070 (Design Review) if otherwise subject to review (e.g., the site is subject to Section 35.28.080 (Design Review (D) Overlay Zone), the project is subject to Section 35.62.040 (Ridgeline and Hillside Development Standards)) in compliance with this Development Code.

(1)

If a structure has been damaged or destroyed as a result of a debris flow or other catastrophic event resulting in a significant change in topography or alteration of drainage features located on or affecting the

lot on which the replaced or restored structure would be located, the restored or replaced structure, even if relocated on the lot or increased in height, shall not require Design Review unless the exterior design or specifications of the replaced or restored structure are substantially different from the prior structure(s), as determined by the Director. If the structure is otherwise exempt from requiring a planning permit but requires Design Review, the structure shall receive preliminary and final design review approval before an exemption is issued.

c.

Subject to Development Code permit requirements. Except as allowed herein, if the structure is proposed to be altered from the original specifications, as determined by the Director, then the restoration shall be subject to all applicable permit requirements of this Development Code.

A.

Chapter shall not require changes. To avoid undue hardship, nothing in this Chapter shall be deemed to require a change in the plans, construction, or designated use of any structure on which actual construction was lawfully begun before the effective date of adoption or any amendment of this Development Code rendering the structure or its use nonconforming and upon which actual construction has been carried on diligently.

B.

Construction defined. Actual construction is defined to mean the placing of construction materials in permanent position and fastened in a permanent manner.

In addition to the provisions for termination of certain nonconforming uses contained elsewhere in this Chapter, any nonconforming use or uses of either land or structures or both may be ordered terminated by the Board, after a public hearing, as provided in Section 35.101.070 (Termination Procedures), below, if one or more of the three following conditions is found to apply to any nonconforming use.

A.

Improvements can be used only for those uses allowed in the zone. The condition of the improvements, if any, on the property exist in a manner that to require the property to be used only for those uses allowed in the zone where it is located would not impair the constitutional rights of any person;

B.

Improvements can be altered to be used with those uses allowed in the zone. The nature of the improvements exist in a manner that they can be altered so as to be used in conformity with the uses allowed in the zone in which the property is located without impairing the constitutional rights of any person; or

C.

Use is detrimental or a public nuisance. Except in the case of a dedicated cemetery, the nonconforming use is detrimental to the public health or safety or is a public nuisance.

After a public hearing, as provided in Section 35.101.070 (Termination Procedures), below, any expansion of or change in a nonconforming use of structures or land, or both, not expressly allowed under and strictly in compliance with the provisions of this Development Code, and especially this Chapter, nor required by law, may be ordered terminated by the Board.

A.

Procedures for termination of nonconforming uses. All nonconforming uses to be terminated under the provisions of this Chapter may be ordered terminated by the Board in compliance with the following procedures.

1.

Upon recommendation of the Commission, or upon petition by a person affected by a nonconforming use of structures or land or both, or on its own initiative, the Board may set a date for, and call for a public hearing to determine whether or not a nonconforming use of land or structures, or both, or an unpermitted expansion of or change in the use, should be ordered terminated.

2.

Fifteen days notice of the hearing shall be given by publication once in a newspaper of general circulation within the County or in the area where the affected property is located, and by service upon the owner of the land and upon the person operating or maintaining the nonconforming use, if not the owner.

3.

Service of the notice shall be either personal or by mail addressed to the last known address of the person to be served.

4.

The notice shall specify the date, time, and place of the hearing and shall specify the grounds on which the nonconforming use or changes or expansion of the use is sought to be terminated.

B.

Hearing procedures.

1.

All hearings held in compliance with this Section by the Board shall be open to the general public, be presided over by the Chairperson, vice-chairperson, or acting chairperson of the Board, and the proceedings shall be recorded by an electronic recording device.

2.

The owner, the party maintaining the nonconforming use, the Board, and all other interested persons may be represented by attorneys of their own choosing, may submit written and oral evidence; provided, oral evidence shall be taken only on oath or affirmation, may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, to impeach any witness regardless of which party first called the witness to testify, and to rebut the evidence against the witness.

3.

If the person maintaining the nonconforming use does not testify in their own behalf they may be called and examined as if under cross-examination.

C.

Rules of evidence. The hearing need not be conducted in compliance with technical rules relating to evidence and witnesses.

1.

Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely on in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions in courts.

2.

Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts.

3.

The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions and irrelevant and unduly repetitious evidence shall be excluded.

D.

Board's action on the termination, change, or expansion of use.

1.

The Board shall render its decision in writing, containing findings of fact, within 30 days after the date on which the public hearing was completed and closed.

2.

It shall deliver copies by mail or personally to the parties concerned in the hearing.

3.

Failure to render the decision within 30 days, or any extension thereof stipulated to by the parties, shall be deemed to permit the continuance of the nonconforming use or the change or expansion thereof, which was the subject of the hearing.

4.

The decision shall, if it ordered the nonconforming use, or change or expansion thereof terminated, specify the time within which the person maintaining the nonconforming use or change or expansion thereof, shall terminate, as the Board deems reasonable and proper under the circumstances.

E.

Hearings may be continued. The hearings may be continued from time to time by the Board.

F.

Judicial review. Judicial review of any order of the Board made in compliance with this Section may be had by filing a petition for a writ of mandate in compliance with the provisions of the California Code of Civil Procedure.

G.

Failure to comply with order of termination. Any non-compliance with an order of termination of the Board made in compliance with this Section, as well as any continuance of any nonconforming use beyond the expressed period of time identified in this Section shall be deemed a violation of the terms of this Development Code.

35.101.080 - Nonconforming Due to Lack of a Discretionary Permit

A.

Conformity of uses requiring a discretionary permit. A use lawfully existing without the approval of a discretionary permit that would be required by this Development Code, shall be deemed conforming only to the extent that it previously existed (e.g., maintain the same site area boundaries, hours of operation).

B.

Previous permits in effect. A use that was authorized by a discretionary permit but is not allowed by this Development Code in its current location may continue, but only in compliance with the discretionary permit.

C.

Previous Land Use Permits for commercial cannabis cultivation. This section shall not apply to commercial cannabis cultivation (outdoor, mixed-light, indoor, and nursery) in the AG-II, zones that was authorized by a Land Use Permit and remains allowed by this Development Code in its current location.

(Ord. No. 5161, § 7, 8-16-2022)

CHAPTER 35.102 - APPEALS