§ 36.360

This Division establishes uniform provisions for the regulation of nonconforming land uses, structures, and parcels.

A. Within the zoning districts established by this Zoning Code, there exist land uses, structures, and parcels that were lawful before the adoption, or amendment of this Zoning Code, but which would be prohibited, regulated, or restricted differently under the terms of this Zoning Code or future amendments. These are considered nonconforming uses, structures, and parcels.

B. This Division does not apply to land uses, structures, and parcels that were illegally established, constructed, or subdivided. These are instead subject to Division 36.640 (Enforcement).

(Ord. No. 2108 § 1.)

The following provisions shall apply to all nonconforming uses, structures, and parcels existing as of the effective date of this Division:

A. Continuation of use. Any nonconforming use may be maintained and continued; provided, there is no increase or enlargement of the area, space, or volume occupied by or devoted to the nonconforming use.

B. Abandonment or discontinuance of use.

1. Any part of a structure or land occupied by a nonconforming use, which use is:

a. Abandoned, shall not again be used or occupied for a nonconforming use;

b. Discontinued for a period of at least 12 months, shall not again be used or occupied for a nonconforming use, unless the use is nonconforming due to parking, in which case the use would not be considered to be abandoned or discontinued (see also Section

36.360.060(B)); or

c. Changed to or replaced by a conforming use shall not again be used or occupied by a nonconforming use.

2. Without any further action by the City, a nonconforming use shall not retain the nonconforming protection/benefits provided by this Division if:

a. The nonconforming use of land, or a nonconforming use within a structure, ceases for any reason for a continuous period of at least 180 days:

(1) A vacant nonconformity may be occupied by a use for which it was designed if so occupied within a period of 180 days after the effective date of the ordinance codified in this Zoning Code or after the date when the nonconformity first became vacant.

(2) If the use is discontinued for a continuous period of 180 days, the land or structure shall lose its nonconforming status, and shall be altered to conform to the current provisions of this Zoning Code. The use shall be considered discontinued when any of the following apply:

(a) The intent of the owner to discontinue use of the nonconformity is apparent; or

(b) Where characteristic furnishings and equipment of the use have been removed and not replaced with equivalent furnishings and equipment during this time.

(3) The determination of discontinuance (a.k.a. abandonment) shall be supported by evidence, satisfactory to the Director (e.g., the actual removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, the turning-off of the previously connected utilities, or where there are no business receipts/records available to provide evidence that the use is in continual operation).

b. The structure in which the nonconforming use is conducted or maintained is moved any distance on the site for any reason, or is removed from the site.

c. The use of the site after the discontinuance or removal of a nonconforming use shall comply with all current requirements of this Zoning Code and the subject zoning district.

C. Change from one nonconforming use to another. If no structural alterations are made, a nonconforming use of a structure may be changed to another nonconforming use of a more restrictive classification. However, the replacement use shall serve as the “new bench mark” in terms of establishing the acceptable level of nonconformity.

D. Maintenance of a nonconforming structure. Any nonconforming structure may be maintained and continued; provided, there is no physical change other than necessary maintenance and repair to the structure, except as allowed by this Division.

E. Legally established residential parcel. An existing residential parcel that is nonconforming with respect to lot size, and was legally subdivided, is a legal, nonconforming parcel, and is not affected by the minimum lot size requirements of this Zoning Code for new subdivisions. Each nonconforming parcel may continue to be used, but shall not be further divided. Each residential structure existing on a nonconforming residential parcel may continue to be used, and may be enlarged in compliance with this Zoning Code.

F. Made nonconforming by this Zoning Code. Any legally established use or structure made nonconforming by the adoption of this Zoning Code shall be considered legal nonconforming, and fully protected by the provisions of this Division.

(Ord. No. 2108 § 1; Ord. No. 2257 § 4, 2013.)

The following provisions shall apply to all nonconforming uses and structures, located within any zoning district in the City.

(Ord. No. 2108 § 1.)

Except as otherwise provided in this Division, each and every nonconforming use or structure may be continually utilized and maintained, provided that there is no addition, alteration, or enlargement to any use or structure.

(Ord. No. 2108 § 1.)

Except as hereinafter expressly provided, so long as a nonconforming use or structure exists upon any parcel, no new use or structure may be established or constructed on the parcel.

(Ord. No. 2108 § 1.)

A. Residential uses or structures.

1. A nonconforming single- or multifamily dwelling unit or an associated accessory residential structure that has been involuntarily damaged or destroyed by fire, explosion, act of God, or any other casualty, may be reconstructed or replaced with a new structure using the same development standards applied to the damaged or destroyed structures (e.g., setbacks, floor area, building height, and density standards) in compliance with State law (Government Code Section 65852.25), provided:

a. The applicant provides documentation satisfactory to the Director supporting the claim that the damage or destruction occurred involuntarily;

b. No expansion of the gross floor area occurs, except that a detached garage or carport may be enlarged to meet (but not exceed) current minimum Code requirements; and

c. The replacement structure complies with all applicable Building Code requirements; and

d. A Building Permit is issued no later than 18 months after the date of destruction, and construction is diligently pursued to completion.

2. If the preceding requirements are not met, the replacement structure shall comply with all current requirements of this Zoning Code in effect on the date of application for the required Building Permit. If the applicant submits a written request before expiration of the 18 months, containing a reasonable justification for an extension, the Director may extend the deadline for the issuance of the Building Permit for up to an additional 18 months.

B. Change of use with nonconforming parking. A use that is nonconforming only because it does not comply with applicable off-street parking requirements, may be changed to a use allowed in the zoning district that is required by Section 36.310.040 (Number of Parking Spaces Required) to provide off-street parking at the same ratio as the nonconforming use. A more intense use may be allowed provided an Administrative Use Permit is obtained. A parking study or other materials/information found to be satisfactory to the Director, may be required for the granting of an Administrative Use Permit.

C. Public utilities exempted. The provisions of this Division concerning the required removal of nonconforming uses and structures, and the reconstruction of nonconforming structures partially destroyed, shall not apply to public utility structures when the structures pertain directly to the rendering of the service of distribution of a utility (e.g., electric distribution and transmission substations, gas storage, metering, and valve control stations, steam electric generating stations, water wells and pumps, etc.); nor shall any provision of this Division be construed to prevent the expansion, modernization, or replacement of the public utility structures, equipment, and features, as are used directly for the delivery of or distribution of the service.

stribution and transmission substations, gas storage, metering, and valve control stations, steam electric generating stations, water wells and pumps, etc.); nor shall any provision of this Division be construed to prevent the expansion, modernization, or replacement of the public utility structures, equipment, and features, as are used directly for the delivery of or distribution of the service.

D. Public acquisition. Whenever any structure or parcel is rendered nonconforming within the meaning of this Division by reason of a reduction in a required parcel area, yard area, or reduction of off-street parking facilities, occurring solely by reason of dedication to, or purchase by, the City for any public purpose, or eminent domain proceedings, which result in the acquisition by the City or any agency authorized for the eminent domain proceedings of a portion of the property, the same shall not be deemed nonconforming within the meaning of this Division, provided that if the structures located on the parcel subsequent to the acquisition, are wholly destroyed, no reconstruction shall take place unless it is in full compliance with all applicable provisions of this Zoning Code.

(Ord. No. 2108 § 1; Ord. No. 2190 § 7, 2009; Ord. No. 2257 § 6, 2013.)

Except as expressly provided in this Division, whenever any of the following facts are found to exist with respect to a nonconforming use, the use shall be abated and the use terminated.

A. Violation. Violation of any applicable law;

B. Change to nonconforming use. A change from a nonconforming use to another nonconforming use, except as provided by this Division;

C. Change to conforming use. A change from a nonconforming use to a conforming use;

D. Increase in area. An increase or enlargement of the area, space, or volume of the structure or land occupied by or devoted to the nonconforming use, except as provided by this Division, and the requirements of the Uniform Building Code are met. New additions or alterations shall not increase existing nonconformities;

E. Structural alteration. Any structural alteration, except those required by law; or

F. Abandonment. Abandonment (discontinuance of the utilization of a nonconforming use for a period of at least 180 days shall be deemed to constitute abandonment), in compliance with Subsection 36.360.020.B (Abandonment or discontinuance of use), above.

(Ord. No. 2108 § 1.)

A. Ordinary repair and maintenance. The ordinary repair and maintenance of a nonconforming structure shall be allowed only in compliance with this Section.

B. Eminent domain. The reconstruction, remodeling, or repair of any structure shall be allowed where a part of the structure is taken for any public use by condemnation, dedication, or purchase by any agency having the power of eminent domain. The reconstruction, remolding, or repair shall be limited to that necessary to render the structure reasonably safe for continued use.

C. Involuntary damage or destruction—Nonresidential structures. Where any nonconforming nonresidential structure is involuntarily damaged or partially destroyed by fire, explosion, Act of God, or any other casualty:

1. To the extent that the costs for repair or replacement do not exceed 60 percent of the total replacement cost of the structure, as established by the Building Official, in any single calendar year, use of the structure may be resumed in compliance with the provisions applicable before the involuntary damage occurred.

2. To the extent that the costs for repair or replacement exceed 60 percent, or the structure is voluntarily razed or is required by law to be razed, use of the structure shall not be resumed, except in full conformance with the current provisions of this Zoning Code.

Provided that:

a. All reconstruction and/or repair work shall be completed within a period of 18 months from the date of application for the required Building Permit. If the applicant submits a written request before expiration of the 18 months, containing a reasonable justification for an extension, the Director may extend the deadline for completion for up to an additional 18 months;

b. Historic landmarks and structures in historic districts shall be eligible for an extended period of time in which to complete the reconstruction and/or repair work as determined to be appropriate by the Director; and

c. The reconstruction or replacement structure shall be subject to Design Review in compliance with Section 36.410.040 (Design Review).

(Ord. No. 2108 § 1.)

Nothing in this Division shall be deemed to prevent the construction, enlargement, expansion, extension, or reconstruction (hereafter referred to as “work”) of a nonconforming structure as follows:

A. Elimination of nonconformity. The work shall be allowed in order to render the use or structure in conformity with this Zoning Code;

B. Compliance with laws. The work shall be allowed in order to comply with any law enacted subsequent to the adoption of this Zoning Code;

C. Increase in area. The work shall be allowed if it results in an increase or enlargement of the area, space, or volume of the structure only if the structure is nonconforming with respect to setbacks, height, distance between structures, architectural projections, staircase and landing area encroachments, and the requirements of the Uniform Building Code are met. New additions or alterations shall not increase existing nonconformities (e.g., the construction may comply with the existing nonconforming setbacks but shall not propose any further encroachment into the required setbacks);

D. Damaged by earthquake. A nonconforming structure damaged by an earthquake or that has been identified as subject to the provisions of City Council Ordinance Number 1912 (The Earthquake Hazard Reduction in Existing Buildings), may be replaced with a new structure having the same nonconformity, provided further, that any additions or enlargements beyond that of the original structure shall conform to all applicable current developmental standards. The replacement structure shall be subject to Design Review in compliance with Section 36.410.040 (Design Review);

E. Nonresidential off-street parking.

1. The work shall be allowed in connection with any nonresidential use or structure which is nonconforming solely by reason of an insufficient number of off-street parking spaces, and the work would not otherwise require, by reason of the construction or reconstruction, any additional parking spaces.

2. If the number of existing off-street parking spaces is insufficient to comply with the requirements after the expansion, increase, or modification, additional parking spaces shall be added. The number of spaces to be added shall be equal only to the number required for the area of expansion, increase, or modification. Any additional required off-street parking spaces shall be developed in compliance with Division 36.310 (Parking and Loading).

F. Residential off-street parking.

1. If the work is in connection with a residential unit that is listed on the City’s Cultural Heritage Inventory (hereinafter “cultural resource”) and is nonconforming due to an insufficient number of covered parking spaces, the Director may waive the requirement for two covered spaces if as part of a Certificate of Appropriateness, the Cultural Heritage Commission first determines that either of the following circumstances apply:

a. Providing the two covered parking spaces would otherwise result in a substantial adverse change in the historic significance of a cultural resource; or

b. Providing the two covered parking spaces would jeopardize the integrity of the cultural resource (as defined in National Register Bulletin 15: How to Apply the National Register Criteria for Evaluation).

In determining whether to waive the requirement for two covered parking spaces in connection with work to a cultural resource, all of the following conditions shall exist:

c. The existing garage contributes to the historic significance of the cultural resource. Supporting documentation shall be provided to show that the existing garage was constructed during the period of significance of the cultural resource.

d. The existing garage space can accommodate at least one vehicle.

e. The historic garage shall be structurally sound or, if deteriorated, the Cultural Heritage Commission approves a rehabilitation plan for the historic garage as part of the Certificate of Appropriateness approval.

f. The second required parking space can be accommodated outside of the existing covered parking space within an existing legal driveway, tandem space, carport, etc.

g. Increases in square footage to the cultural resource would not exceed 50 percent of the square footage of the floor area within the structure that legally existed as of the date of adoption of the ordinance codified in this Section, including any detached accessory buildings and/or guest house.

h. The proposed work is not associated with the addition of a second residential unit as authorized in SPMC Section 36.350.200, or is not associated with an increase in the number of dwelling units on land zoned for multi-family uses.

(Ord. No. 2108 § 1; Ord. No. 2183 § 17, 2009; Ord. No. 2243 § 4, 2013.)

A. Use allowed with Conditional Use Permit approval. If a land use was legally established without the requirement for a Conditional Use Permit, but would be required by current Zoning Code provisions to have a Conditional Use Permit, that use shall:

1. Not be considered a nonconforming use; and

2. Not be altered in any way unless a Conditional Use Permit is first obtained.

B. Use no longer allowed with Conditional Use Permit approval. A land use that was established with Conditional Use Permit approval, but is not allowed with Conditional Use Permit approval by the current Zoning Code may continue only in compliance with the original Conditional Use Permit. If the original Conditional Use Permit specified a termination date, then the use shall terminate in compliance with the requirements of the Conditional Use Permit.

(Ord. No. 2108 § 1.)

A. Violations. Uses and structures which did not comply with the applicable provisions of this Zoning Code or prior planning and zoning regulations when established are violations of this Zoning Code and are subject to the provisions of Division 36.640 (Enforcement).

B. Illegal uses and structures prohibited. This Division does not grant any right to continue occupancy of property containing a use or structure that was unlawfully established.

C. Permits required. The unlawful use or structure shall not continue unless/until permits and entitlements required by this Zoning Code and the Municipal Code are first obtained.

(Ord. No. 2108 § 1.)

The following requirements apply within the AM overlay zoning district instead of the preceding provisions of this Division.

A. Illegal uses, structures and lots. The following requirements apply to uses, structures, and lots that were illegal pursuant to the Municipal Code prior to the adoption of the AM overlay zone.

1. Illegal—Failure to obtain proper permits. Any building, lot or use that was illegal pursuant to the Municipal Code before adoption of the AM overlay zone, because the current or former owner failed to obtain proper permits in compliance with the Municipal Code, shall not be considered legalized by any provision of the AM overlay zone. The building, lot or use shall remain subject to abatement irrespective of its location within the geographic area of the AM overlay zoning district.

2. Illegal—Failure to conform to SPMC requirements. Any building, lot or use that was illegal pursuant to the South Pasadena Municipal Code before adoption of the AM overlay zone, because it failed to conform to the Code’s development standards or other requirements, may be considered legalized by operation of law upon the effective date of the AM overlay zone, if it conforms with the standards and requirements set forth in the AM overlay zone (Section 36.250.030).

B. Nonconforming uses, structures, and lots. The following requirements apply to uses, structures, and lots that were legally established in compliance with to the Municipal Code prior to the adoption of the AM overlay zone, but which became nonconforming as a result of the adoption of the AM overlay zone.

1. Nonconforming status. Any building, lot or use that was legal pursuant to the South Pasadena Municipal Code before adoption of the Overlay Zone, but which became illegal pursuant to the standards and requirements of the Overlay Zone, shall be deemed legal, nonconforming.

2. Allowable changes. Changes to legal, nonconforming buildings, lots or uses shall be allowed as follows:

a. Standard maintenance and repair shall occur as deemed necessary by the property owner or upon request by the City pursuant to any and all applicable laws.

b. A nonconformity will be allowed to continue without any specified termination date, but the nonconformity shall not be exacerbated by alteration or expansion of the existing building, lot or use.

c. Partial destruction or demolition shall be governed by the regulations set forth in the other Sections of this Division.

d. The total destruction or demolition of the building, lot or use shall result in a forfeiture of its legal, nonconforming status. Any replacement or rebuilding shall be in conformance with AM overlay zone standards and all applicable laws and regulations.

3. Items stored in required setback areas. As required by the AM overlay zone, recreational vehicles, automobiles, boats and similar objects may not be stored or parked for more than 72 hours in any required yard setback. Any storage of such objects must occur behind a solid fence or wall so as to be screened from public view.

4. Alterations and expansions. The alteration or expansion of a legal nonconforming building, lot, or use that does not intensify or increase any existing nonconformity and which otherwise complies with the development standards in Section 36.250.030 shall be allowed. Any alteration or expansion that expands, intensifies, enlarges or modifies an existing nonconformity of the main building may be allowed by obtaining a Variance or Conditional Use Permit, as applicable. An alteration or expansion which expands, intensifies, enlarges or modifies an existing nonconformity of the main building shall be limited to 15 percent of the main building area and shall not be subject to further Variance.

(Ord. No. 2108 § 1.)

Division 36.370. Affordable Housing Incentives

Sections:

36.370.010 Purpose of Division.

36.370.020 Eligibility for Affordable Housing Incentives.

36.370.030 Density Bonus Allowance.

36.370.040 Incentives and/or Concessions.

36.370.050 Waivers.

36.370.060 Alternative Parking Standards.

36.370.070 Density Bonus for Land Donations.

36.370.080 Density Bonus and Incentives for Childcare Facilities.

36.370.090 Location of Designated Dwelling Units.

36.370.100 Processing of Density Bonus Review and Affordable Housing Review.

36.370.110 Affordable Housing Covenant.