Chapter 18.130 — Nonconforming Uses, Structures, and Parcels

• A. Nonconforming regulations. This Chapter provides regulations for nonconforming land uses, structures, and parcels that were lawful before the adoption, or amendment of this Development Code, but which would be prohibited, or restricted differently under the current terms of this Development Code or future amendments.

• B. Discourage long-term continuance. It is the intent of this Development Code to discourage the long-term continuance of nonconformities other than residential uses, generally providing for their eventual elimination, while allowing them to exist under the limited conditions identified in this Chapter.

The following are definitions of special terms and phrases used in this Chapter. Other general definitions are provided in Chapter 18.220 (Definitions/Glossary).

• A. Catastrophic event. A fire, explosion, flood, earthquake, or similar disaster not caused by the property owner or his or her agent.

• B. Discontinuance of a nonconformity. The following Subsections serve to define the concept of discontinuance. Discontinuance may still occur even with the situation identified in Subsection B.4, below.

1. Discontinuance is typically evidenced by:

• a. The removal of equipment, furniture, improvements, inventory, machinery, structures, or other components so as to make the use inoperable; and/or

• b. The lack of on-site pedestrian or vehicular activity (e.g., customers, deliveries, employees, etc.) on a daily basis, which was evident before the discontinuance.

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2. Lack of business receipts/records. Where there are no business receipts/records available to provide evidence that the use is and has been in continual operation.

3. The discontinuance may be by:

  - a. Voluntary action of the owner/operator; 

  - b. Involuntary discontinuance due to: 

     - (1) Dilapidation of the site and/or structure(s); 

     - (2) Failure of the owner/operator to abide by State and/or non-zoning local laws (e.g., required compliance with annual health inspections, payment of sales tax or Transient Occupancy Tax); or 

  - c. Only a portion of the use, whether voluntary or involuntary. In this case the Director shall determine if the partial discontinuance is enough to make the use inoperable. 

4. Structure(s) are unoccupied but still connected to services. The site and/or structure(s) appear to be unoccupied even though they are still connected to services (e.g., cable television, electricity, protection alarm, sewer, telephone, water, etc.), or the owner/operator is still paying the required bills (maintenance, mortgage, phone, rent, utilities), etc.

5. Termination of nonconforming rights. Application of the definitions above shall render the discontinuance complete and all rights to reestablish or continue the nonconforming use shall terminate.

• C. Intensification of a nonconformity. A change in the use of a site, or structure, where the:

  1. More parking required. New or modified use is required by Chapter 18.48 (Off-Street Parking and Loading) to provide more off-street parking spaces than the former use; or

  2. Change in operational characteristics. Owner/operator implements a change in the operational characteristics of the use (e.g., increase in the number of days and/or hours of operation), which have the ability to generate more activity on the site.

• D. Nonconforming parcels. A parcel of record that was legally created before the adoption of this Development Code and which does not comply with the access, area, or width requirements of this Development Code for the zoning district in which it is located.

• E. Nonconforming signs. A sign of record (residence, business, or commercial/industrial center) that was legally created before the adoption of this Development Code and which does not comply with the sign standards and other applicable development standards of this Development Code.

• F. Nonconforming structure. A structure that was legally constructed before the adoption of this Development Code and which does not comply with applicable development standards (e.g. maximum lot coverage, setbacks, etc.) of this Development Code.

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• G. Nonconforming use. A use of land and/or within a conforming or nonconforming structure that was legally established and maintained before the adoption of this Development Code or amendment, but does not conform to the current Development Code requirements.

• H. Normal repair and maintenance. Normal site or structure repair and maintenance includes the following:

1. Site — Fix up or replace on-site:

  - a. Fences and/or walls; 

  - b. Landscaping, including the planting of new ground cover, scrubs, and trees; 

  - c. Paving or repaving, and striping of parking and circulation areas; or 

  - d. Service facilities (drainage, irrigation components, and utility service connections). 

2. Structure — Fix up or replace:

  - a. Exterior doors, siding, or windows; or 

  - b. Roof, service connections, or sewer/water system. 

3. Replacement materials. The replacement materials identified in Subsection H above shall maintain the same visual appearance and characteristics of the original materials, ensuring compatibility of the replacement materials with the site or structure.

4. Exterior painting, stuccoing, or texture coating.

5. New construction not included. Normal site or structure repair and maintenance does not include the following examples:

  - a. New on-site construction; 

  - b. Additions to existing structure(s); or 

  - c. Grading and paving for a new or expanded parking area on previously vacant land. 

• I. Structural alterations. Any exterior or interior alteration(s) to the structure which requires a Town approved (e.g., discretionary or nondiscretionary) permit (e.g., Building Permit) before construction and/or operations on the site may be initiated.

• J. Total costs for repair/maintenance and investment improvements. The expenditure of funds for both labor and materials to complete the repairs, maintenance, and investment improvements. The construction of new expansions or additions to a nonconforming structure, which comply with all applicable standards and guidelines of the Development Code, shall not count towards the costs of repair/maintenance and investment improvements. Once the expansion or addition is completed, the expansion or addition shall be considered part of the nonconforming structure, and any subsequent repair/maintenance and investment improvements to the expansion or addition shall be counted towards the costs for

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repair/maintenance and investment improvements allowed for a nonconforming structure. The values for labor and materials shall be verified by a licensed contractors estimate. If the work will be conducted by the owner, the owner shall provide an estimate of the labor hours to complete the work and an estimate of the typical labor costs for the Truckee region for such similar work.

Nonconforming uses may be continued subject to the following regulations:

• A. Change of ownership, tenancy or management of a nonconforming use shall not affect its legal, nonconforming status.

• B. A nonconforming use may be continued and a nonconforming use may be changed to another nonconforming use provided:

  1. A nonconforming use may be replaced with another, provided that a Zoning Clearance is approved by the Director. The Zoning Clearance shall be issued in conformance with Chapter 18.72 (Zoning Clearance), including the requirement to mail notice of the Director’s intent to properties within 500 feet of the boundary which is the subject of the Zoning Clearance. The Director must find that the new use has similar or less severe impacts on its surroundings in terms of noise, traffic, parking demand, hours of operation and visual incompatibility. The applicant shall submit evidence of the date when the original nonconforming use was established.

  2. Nonconforming residential uses may be continued without limitation by this Section, and if involuntarily damaged or destroyed, may be reconstructed or replaced with a new structure with the same footprint and height, in compliance with current California Building Code requirements.

• C. A lot occupied by a legal, nonconforming use may be further developed by the addition of conforming uses and structures, provided a Zoning Clearance is approved by the Director. The Zoning Clearance shall be issued in conformance with Chapter 18.72 (Zoning Clearance), including the requirement to mail notice of the Director’s intent to properties within 500 feet of the boundary which is the subject of the Zoning Clearance.

Nonconforming structures may continue to be used subject to the following regulations:

• A. Residential Structures . Changes to structural elements, interior partitions or other nonstructural improvements and repairs may be made to nonconforming residential structures, including residential accessory structures. Changes which further exacerbate or increase the nonconformity of the structure may be approved, provided a Zoning Clearance is approved by the Director. The Zoning Clearance shall be issued in conformance with Chapter 18.72 (Zoning Clearance), including the requirement to mail notice of the Director’s intent to properties within 500 feet of the boundary which is the subject of the Zoning Clearance. In addition to the standard Zoning Clearance findings, the Director shall also find that change is compatible with and shall maintain the surrounding neighborhood character and would not adversely impact the surrounding properties. An addition or modification to a single-family dwelling

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within the side yard setback shall be reviewed in accordance with Section 18.30.120.F.7.c (Side Setback for Nonconforming Structure).

The conversion of non-habitable floor space (e.g., garage space, storage area) into habitable floor space may be allowed within a nonconforming garage structure (attached or detached) subject to the following: the garage complies with the front yard and rear yard setbacks for habitable space; the conversion will not result in further encroachment into the side yard setback; and the conversion complies with all other applicable Development Code provisions (detached living area, residential accessory structures, etc.). All other situations involving nonconforming garages (e.g., conversion of floor space in a garage that encroaches into the front yard setback) shall require a Minor Use Permit or Variance.

1. Single-Family. Nonconforming single family residential dwelling units including accessory dwelling units, involuntarily damaged or destroyed due to a catastrophic event, may be reconstructed or replaced with a new structure(s) using the same development standards applied to the damaged or destroyed structure(s) (e.g. development envelope, density, and footprint standards).

• a. The building permit(s) for the reconstruction or replacement of the nonconforming single-family residential structure(s) with a new structure(s) shall be issued within one year from the date of the catastrophic event and construction shall be completed within two years from the date of issuance of the building permit(s).

• b. The reconstruction or replacement of the nonconforming single-family residential structure(s) with a new structure(s) in the 100-year floodplain and/or an avalanche hazard zone shall be in compliance with all applicable requirements of Chapter 18.34 (Floodplain Management) and Section 18.20.060 (Snow Avalanche Overlay District) and shall not exacerbate the non-conformity.

2. Multifamily. Nonconforming multifamily residential dwelling units, involuntarily damaged or destroyed due to a catastrophic event, may be reconstructed or replaced with a new structure(s) of an equivalent number of dwelling units and size in compliance with State law (Government Code Sec. 65852.25) and the standards of this Section. Multifamily is defined as two or more dwelling units on a single parcel for the purposes of this Section.

• a. The multifamily reconstruction shall be in compliance with all applicable Development Code requirements provided that the pre-damaged size and number of dwelling units shall be allowed. The Director may waive or reduce requirements if compliance with such requirements would result in the size and/or number of dwelling units being less than that in existence prior to damage or destruction.

• b. The building permit(s) for the reconstruction or replacement of the nonconforming residential structure(s) with a new structure(s) shall be issued within one year from the date of the catastrophic event and construction shall be completed within two years from the date of issuance of the building permit(s).

• c. The reconstruction or replacement of the nonconforming residential and nonresidential structure(s) with a new structure(s) in the 100-year floodplain and/or an avalanche hazard zone shall be in compliance with all applicable requirements of

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Chapter 18.34 (Flood Plain Management) and Section 18.20.060 (Snow Avalanche Overlay District) and shall not exacerbate the non-conformity.

• B . Non-Residential Structures . Changes to structural elements or other nonstructural improvements and repairs of non-residential structures shall comply will all applicable standards and guidelines of this Development Code. Any intensification to a nonconforming structure shall comply with all applicable standards and guidelines of this Development code. An interior remodel which does not result in either an expansion or intensification of use, is allowed without limitation.

• C . Historic Structures. Exceptions to this chapter may be granted by the Director for historic structures designated as such in any list or General Plan element adopted by the Town. In granting an exception, the Direction shall find that the proposed addition(s) or modification(s) are compatible with the surrounding neighborhood and do not impair the historic integrity of the structure.

A. Termination by discontinuance.

1. If a nonconforming use of land, nonconforming use of a conforming structure or nonconforming structure is discontinued for a continuous period of 180 days or more, all rights to legal nonconforming status shall terminate.

2. The Director shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, or lack of business records to document continued operation as defined within this Chapter.

3. Once the rights to a legal nonconforming status have terminated, any further use of the site or structure shall comply with the regulations of the applicable zone and all other applicable provisions of this Development Code.

• B. Termination by destruction. Nonconforming status shall terminate if a nonconforming structure, or a conforming structure occupied by a nonconforming use, is involuntarily damaged or destroyed; except as provided by Sections 18.130.040 A and C, above for dwellings, and except as follows:

  1. If the cost of repairing or replacing the damaged portion of the structure is 50 percent or less of the assessed value of the structure immediately before damage, the structure may be restored to no more than the same size and use, and the use continued, if the restoration is started within 12 months following the date of damage and is completed within two years.

  2. Minor Use Permit approval shall be approved to maintain the nonconformity if the cost of repairing or replacing the damaged portion of the structure is more than 50 percent of the assessed value of the structure immediately before the damage. Minor Use Permit approval shall require a finding, in addition to those required in Section 18.76.030 (Use Permits and Minor Use Permits), that the benefit to the public health, safety, or welfare exceeds the detriment inherent in the restoration and continuance of a nonconformity.

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3. Repair or replacement cost shall be determined by the Chief Building Official, whose decision may be appealed to the Council.

A nonconforming parcel of record that does not comply with the access, area, or width requirements of this Development Code for the zoning district in which it is located, shall be considered to be a legal building site if it meets at least one of the five criteria specified by Subsection A.

• A. Criteria for nonconforming status. It shall be the responsibility of the applicant to produce sufficient evidence to establish the applicability of one or more of the following, which shall determine that a parcel is a legal building site for purposes of development and new land uses:

  1. The parcel was created through an approved subdivision;

  2. The parcel is under one ownership and of record, and was legally created by a recorded deed in accordance with County or Town subdivision regulations in effect at the time of its creation and before the effective date of the zoning amendment that made the parcel nonconforming;

  3. The parcel was approved through a Variance in compliance with Chapter 18.82 (Variances and Historic Variances) or resulted from a lot line adjustment as provided in Chapter 18.86 (Lot Line Adjustments);

  4. A Certificate of Compliance was issued for the parcel; and/or

  5. The parcel was created in compliance with the provisions of this Development Code, but was made nonconforming when a portion of the parcel was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing any public right-of-way was decreased not more than 50 percent.

  • B. Limitation on subsequent subdivision. Where structures have been erected on a nonconforming parcel, the area where structures are located shall not be later divided so as to reduce the building site area and/or frontage below the requirements of the applicable zoning district or other applicable provisions of this Development Code, or in any way that makes the use of the parcel more nonconforming.

• A. A nonconforming use, which has been abandoned for a period of more than 180 days may be reactivated to an equivalent or more restricted use through approval of a Zoning Clearance. In evaluating whether or not to allow the reactivation of a nonconforming use, the Director shall consider the following additional criteria, in addition to the standard Zoning Clearance findings:

  1. That any improvements for the reactivation of the nonconforming use on the site shall be less than 50 percent of the value of the structure. The value of the structure shall be determined by an independent real estate appraiser licensed in the State of California. The value of the improvement shall be determined based upon the contractor’s bid for said improvements, which shall be required as part of the Zoning Clearance application.

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Personal property necessary for the operation of the business or site improvements not included in the structure shall not be counted as improvements under this criterion.

2. An assessment that traffic generated by the proposed use would not be greater than permitted uses on the site. In assessing the traffic generated by the proposed use, the Director shall consider the number of vehicle trips per day, the hours of operation, and the types of traffic generated (i.e. truck or passenger vehicle). The Director shall modify the Zoning Clearance so the operation of the nonconforming use is limited to the same traffic impact as permitted uses in the same zone.

3. That the noise generated by the proposal will be addressed so it complies with Chapter 18.44 and also does not exceed the average ambient noise level already existing in the area, as measured by this standard.

4. That there will be no lighting of the property which would have direct illumination on adjacent uses and that there would be no reflected light from the property greater than the amount of reflected light from any permitted use in that same zone district.

5. Nothing herein shall apply to nonconforming signs, which are governed by the provisions of Section 18.54.100.

• A. Upon the filing of a request for extension by the applicant, the Director may extend the time limits for the rights provided under the nonconforming status if the use is discontinued. The applicant shall file a written request for an extension of time with the Director in advance of the expiration date, together with the filing fee required by the Council’s Fee Resolution.

• B. In considering the extension, the Director shall determine whether the property owner has made a good faith effort to re-establish the nonconforming use. If the Director determines that the owner has proceeded in good faith and has exercised due diligence in seeking to re-establish the nonconforming use, the Director may grant an extension of the period for discontinuance of a nonconforming use for up to a total of 180 days.

Uses and structures that did not comply with the applicable provisions of this Development Code or other planning and zoning regulations that applied to the use when it was established, are violations of this Development Code and are subject to the provisions of Chapter 18.200 (Enforcement). No right to continue occupancy of property containing an illegal use or structure is granted by this Chapter. The activity shall not be lawfully allowed to continue unless/until all land use permits required by this Development Code are first obtained.

In the event that a legal nonconforming use or structure is found to constitute a public nuisance, nothing in this Chapter shall be construed to permit the retention of the nonconformity. The Town Attorney may, with the consent of the Council, commence an action or preceding for the abatement and removal of the nonconformity.

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Appeals

18.140

– CHAPTER 18.140 APPEALS

Sections:

18.140.010 - Purpose of Chapter 18.140.020 - Allowable Appeals 18.140.030 - Filing and Processing of Appeals