Chapter 16.105 — NON-CONFORMING USES

The purpose of these regulations is to permit the continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the standards and requirements of the Zoning Code in a manner that promotes the public health, safety, and general welfare and does not conflict with the goals and objectives of the General Plan. These regulations are also intended to:

A.

Permit non-conforming structures and uses to remain as long as they are not determined to be public nuisances, as defined in Title 7, Article III of the Vallejo Municipal Code, and to allow for their regular maintenance and repair consistent with the regulations herein.

B.

Reduce the number of non-conforming structures and uses that are no longer appropriate in the zoning districts in which they are located after abandonment, destruction, or major damage.

C.

Permit the reestablishment of legally established residential units to provide additional housing opportunities for the community without changing the historic density and character of older residential areas.

D.

Limit the number and extent of non-conforming structures by prohibiting their movement, alteration, restoration, or enlargement in a manner that would increase the nonconformity between the existing conditions and the current standards for the zoning districts in which they are located.

E.

Permit the development of non-conforming lots in appropriate circumstances consistent with the regulations of this chapter and the provisions of the Subdivision Map Act.

16.105.02 - Establishment of legal non-conforming uses, structures and lots.

A.

Any legally established use, structure, or lot that is in existence on the effective date of the Zoning Code or any subsequent amendment but does not comply with all of the standards and requirements of the Zoning

Code shall be considered non-conforming. Non-conforming uses and structures may only be continued subject to the requirements of this chapter.

B.

These regulations shall apply to all non-conforming lots, structures, and uses, except for those within the Mare Island Specific Plan area.

C.

The provisions of these non-conforming regulations do not restrict any authority to require modification or termination of any non-conforming use or structure that has been declared to be a public nuisance by the city council, pursuant to Title 7, Chapter III of the Vallejo Municipal Code.

D.

Non-conforming uses, structures, and lots include:

1.

Those made non-conforming by the addition of a standard or requirement of the Zoning Code previously not required for such use or structure; and

2.

Uses and structures reclassified from permitted to being subject to a discretionary permit.

3.

Uses and structures reclassified from permitted or being subject to a discretionary permit to being nonpermitted or not allowed with a discretionary permit.

E.

Nothing contained in the Zoning Code shall be deemed to require any change in the plans, construction, or designated use of any building or structure for which a Building Permit has properly been issued, in accordance with the provision of ordinances then in effect and upon which actual construction has been started prior to the Effective Date of the Zoning Code, provided that in all such cases, actual construction shall be diligently carried on until completion of the building or structure.

A.

A nonconformity may result from any inconsistency with any one or more requirements of the Zoning Code including, but not limited to, location, density, intensity, floor area, coverage, height, yard, usable open space, buffering, performance standards, or the lack of an approved use permit, development review permit, or other required authorization.

B.

A use or structure shall not be deemed non-conforming solely because it does not conform with the parking dimension standards, overnight vehicle parking limitations, loading, planting area, or screening regulations of the zoning district in which it is located, or does not conform to the standards for the following building features:

1.

Garage door location or garage door width;

2.

Cornices, eaves, and other ornamental features that exceed maximum projections into required yards; or

3.

Bay windows, balconies, and terraces above the second floor that exceed maximum projections into required yards. Also see, Section 16.508.02(D), Non-conforming Parking.

Any use or structure that was lawfully established prior to the effective date of the Zoning Code or of any subsequent amendments to its text or to the zoning map may only be continued and maintained provided there is no alteration, enlargement, or addition to any use, building or structure including, but not limited to:

A.

No substitution, expansion, or other change in use nor any alteration or other change in structures, except as otherwise provided in this chapter.

B.

The right to continue a non-conforming use or structure shall attach to the land and shall not be affected by a change in ownership.

Any lot that is smaller than the minimum lot size required by the Zoning Code or does not meet any of the applicable dimensional requirements shall be considered a legal non-conforming lot if it is described in the official records on file in the office of the Solano County Recorder as a lot of record under one ownership. A non-conforming lot may be used as a building site subject to compliance with all applicable requirements, unless a Variance or other modification or exception is approved as provided for in this Zoning Code.

A.

A non-conforming lot shall not be adjusted in any way that would increase the nonconformity in any way.

B.

A conforming structure or use may be established on a non-conforming lot provided the structure or use conforms to the current standards of the zoning district in which it is located or meets the exception

requirements in Chapter 16.608, Exceptions.

C.

A non-conforming lot within a residential zoning district shall conform to the maximum allowable density of that zoning district. However, at a minimum, one single-unit dwelling unit and customary accessory buildings may be established on a non-conforming lot, provided the unit and accessory buildings conform to the current standards of the zoning district.

A.

Ordinary maintenance and repairs or nonstructural alterations are encouraged and may be made to a nonconforming structure as required to improve and preserve the structure's existing condition, retard or eliminate wear or tear or physical deterioration, render space more usable, improve livability, or comply with the requirements of law.

B.

A non-conforming structure shall not be moved unless it results in more conformity with the current standards of the zoning district of the new location.

C.

Non-conforming structures not in a designated heritage or historic district may be restored as follows:

1.

A non-conforming structure that is damaged, destroyed, or voluntarily demolished to the extent of less than fifty percent of the current market value may be restored with development review approval pursuant to Chapter 16.605, Development Review. The determination of the appraised value shall be the higher of:

a.

The records of the Assessor of the County of Solano for the fiscal year during which the application is received; or

b.

An appraisal performed by a certified appraiser.

2.

Restoration shall be authorized and completed within twelve months of the date the damage, destruction, or demolition occurred. Failure to complete the restoration within twelve months, except as provided in Section 16.105.12, Time Extensions, may result in abatement pursuant to Chapter 7.54, Property Maintenance, of the Vallejo Municipal Code.

A non-conforming structure that is damaged, destroyed, or voluntarily demolished to the extent of fifty percent or more of the current market value may be restored to its original condition or to a more conforming condition provided a major use permit is issued by the planning commission after making the findings required in Chapter 16.606, Minor and Major Use Permits. The restoration of the structure shall be authorized and completed within twelve months of the date of the damage, destruction or demolition. Failure to complete the restoration within twelve months, except as provided in this chapter may result in abatement pursuant to Chapter 7.54, Property Maintenance, of the Vallejo Municipal Code.

4.

A non-conforming structure in a designated heritage or historic district may be restored to its original condition or to a more conforming condition with the approval of a certificate of appropriateness, pursuant to Chapter 16.614, Architectural Heritage and Historic Preservation. The restoration of the structure shall be authorized and completed within twelve months of the date of the damage, destruction, or demolition. Failure to complete the restoration within twelve months may result in abatement pursuant to Chapter 7.54, Property Maintenance, of the Vallejo Municipal Code.

D.

If the non-conforming structure is required by law to be demolished, the structure shall not be restored except in full conformity with the current standards for the zoning district in which it is located.

E.

For the purposes of this chapter, the extent of damage, destruction, or demolition shall be based on the ratio of the estimated market appraised value of the structure prior to such damage, destruction, or demolition to the estimated cost of duplicating the entire structure as it existed prior thereto. Estimates for this purpose shall be made in writing by the applicant and shall be reviewed by the director and the chief building official and the director. Their final determination of estimated market appraised value by the chief building official and director shall be considered final.

The following provisions shall apply to all non-conforming uses, except for residential uses made nonconforming from reductions in density that are subject to the provisions of Section 16.105.08, Nonconforming Residential Units Resulting From Reductions In Density. No lawful residential use can lapse regardless of the length of time of non-use.

A.

Non-conforming uses may be continued indefinitely subject to the provisions of this chapter.

1.

A non-conforming residential use shall not intensify in terms of exceeding the residential density allowed by the applicable General Plan land use or zoning district in which the use is located.

The non-conforming use of a structure or portion of structure shall not be expanded into any other portion of the structure nor changed except to a conforming use.

3.

If a non-conforming use ceases activity for a continuous period of twelve months, it shall be considered abandoned. Thereafter, the structure in which the non-conforming use was located shall be used only in accordance with the standards for the zoning district in which it is located. Abandonment or discontinuance shall include the cessation of a use for any reason, regardless of intent to resume or not abandon the use, except as provided in Sections B and C below. An active building permit shall indicate the use is not abandoned.

4.

If the primary structure occupied by a non-conforming use is hereafter removed, the subsequent use of the land on which such structure was located and the subsequent location and use of any new structure thereon shall be in conformity with the standards of the zoning district in which the land is located.

5.

No accessory use to a primary non-conforming use shall continue after such primary use ceases or is terminated.

6.

A non-conforming use may be reestablished when the structure occupied by the non-conforming use is damaged, destroyed, or voluntarily demolished by less than fifty percent of the estimated market appraised value is restored to its original condition or a more conforming condition with the approval of a development review permit, pursuant to the Zoning Code. Restoration of the structure shall be completed within twelve months of the date the damage or partial destruction occurred. Failure to complete the restoration within twelve months, except as provided in Section 16.105.14, Time Extensions, means the non-conforming status of the use is terminated and the use shall not be reestablished. Further, the failure to complete the restoration within twelve months may result in abatement of the structure pursuant to Chapter 7.54, Property Maintenance, of the Vallejo Municipal Code.

B.

If a structure occupied by a non-conforming use is damaged, destroyed, or involuntarily demolished by fifty percent or more of the current market value, the non-conforming use may be restored under the following conditions:

1.

If the structure is restored to its original conditions and conforms to all the current standards of the zoning district in which it is located with the approval of a development review permit, pursuant to Chapter 16.105, Non-Conforming Uses; and

Provided the Planning Commission, pursuant to Chapter 16.105 Non-Conforming Uses, approves a Major Use Permit.

C.

The restoration of the structure shall be authorized and completed within twelve months of the date of the damage or destruction. Failure to complete the restoration within twelve months, except as provided in Section 16.105.14, Time Extensions, Time Extensions, means the non-conforming status of the use is terminated and the use shall not be reestablished. Further, the failure to complete the restoration within twelve months may result in abatement of the structure pursuant to Chapter 7.54, Property Maintenance, of the Vallejo Municipal Code.

D.

If a structure occupied by a non-conforming use is required by law to be demolished, the structure shall not be restored except in full conformity with the current standards for the zoning district in which it is located with the approval of a development review permit, pursuant to Chapter 16.600, Procedures And Permits. The non-conforming status of the use shall be terminated, and the use shall not be reestablished.

E.

For the purposes of this chapter, the extent of damage, destruction, or demolition shall be based on the ratio of the appraised value of the structure at the time of such damage, destruction, or demolition to the estimated cost of duplicating the entire structure as it existed prior thereto. Estimates for this purpose shall be made in writing by the applicant and shall be reviewed by the chief building official and director as follows:

1.

The chief building official or the director may require submittal of an appraisal by a qualified real estate appraiser if the estimates are disputed by any affected party.

2.

The cost of such an appraisal shall be the responsibility of the applicant.

3.

Determinations of estimated market value by the chief building official and director resulting in controversy shall be forwarded to the Planning Commission for final determination.

F.

A use that does not conform with the parking, loading, landscaping, screening, or sign regulations of the zoning district in which it is located shall not be considered a non-conforming use solely because of one or more of these physical nonconformities.

G.

Once a non-conforming residential unit is abandoned, and unless a certificate of conformity has been issued pursuant to Section 16.105.08, Non-conforming Residential Units Resulting From Reductions In Density, the chief building official and/or director may require the removal of features of the unit contributing to the nonconformity. These features include, but are not limited to, multiple kitchens, multiple exterior doors and walls defining individual units.

Non-conforming residential units resulting from decreases in density or other changes in zoning may be reestablished after ceasing activity for more than twelve months under the circumstances described below.

A.

Reestablishing the Conformity of a Non-conforming Residential Unit. It shall be the responsibility of the applicant seeking a certificate of conformity to provide substantial evidence to support the required findings. Such evidence could include, but not be limited to, the following:

1.

Completed application form;

2.

Application fee, as established by the Master Fee Schedule; and

3.

Substantial evidence to support the required findings in Section (5), below, with the applicant responsible for the burden of proof as defined in Section 16.105.13, Burden of Proof including:

4.

Plans showing original construction of the unit.

5.

Copies of building permits and/or other authorization for the unit.

6.

Historic photographs and/or documents.

7.

Written declarations made under the penalty of perjury.

8.

Upon receipt of a complete application, the director shall provide a public notice pursuant to Chapter 16.602, Common Procedures.

The director shall issue a certificate of conformity only if, based on substantial evidence, all the following findings are made:

a.

The unit was originally and legally constructed (as can best be determined by available plans, permits, and other documentation) either as part of a multi-unit structure or as a separate structure within a group of units on one parcel;

b.

The reestablishment of the unit will not be detrimental to any existing or potential use or structure in the zoning district in which the non-conforming use is located. (Issues to be considered include but shall not be limited to the availability of parking, aesthetics, privacy, and physical compatibility with adjacent properties);

c.

The structure containing the unit cannot be easily converted for a use which conforms to the current zoning district; and

d.

If the structure is on the city's historic resources inventory, the loss of the non-conforming unit could result in the degradation of the architectural integrity of the structure or other adjacent structures or could result in the loss of the structure.

10.

Appeals shall be processed and acted upon in compliance with Chapter 16.602, Common Procedures.

11.

Once a certificate of conformity is issued, the unit shall be considered conforming. This conforming status shall not be lost, except as described in Section (B), below, even if the unit is not occupied for over twelve months.

B.

All units reestablished under the provisions of this chapter shall be brought into compliance with current building and housing codes, including the state historic building code for eligible structures, as determined necessary by the chief building official, within six months of the date of the certificate of conformity. Failure to complete all required improvements within the six-month period may result in the revocation of the certificate and the termination of the unit, except as provided in Section 16.105.07, Non-conforming Uses.

No legal non-conforming use shall be changed to a different use type or sub-classification without the approval of a major use permit unless the new use is a principally permitted use.

This requirement shall not apply to a change of ownership, tenancy, or management where the new use is of the same use type and use classification, if applicable, as the previous use, as defined in Part VII, and the use is not expanded or intensified. For the purposes of this chapter, intensification includes an increase in the number of vehicle trips generated by a use, parking demand, number of employees on a site, hours of operation, and other similar characteristics as determined by the director.

Any non-conforming use may be changed to a principally permitted use in the zoning district in which it is located and complies with all applicable standards for such use.

Any use that is non-conforming solely by reason of the absence of a use permit may be changed to a conforming use by obtaining a minor use permit pursuant to the requirements in Chapter 16.606, Minor and Major Use Permits.

There shall be no extension of time granted for an abandoned non-conforming use or structure, except as noted in Sections 16.105.06, Non-conforming Structures, and 16.105.07 Non-conforming Uses.

A.

In the event of judicial proceedings pertaining to the non-conforming use or structure that prevent the active operation of the use or occupation of the structure, the use or structure shall be considered abandoned if active operation or occupation has not occurred within twelve months after the conclusion of the judicial proceedings.

B.

The director may grant an extension of time, not to exceed an additional twelve months, to complete the authorized restoration of a non-conforming structure if the following findings are made:

1.

An unreasonable hardship would otherwise be imposed on the applicant;

2.

The delay in completing the restoration was beyond the control of the applicant; and

3.

The extension of time to complete the restoration would not be detrimental to any existing or potential permitted use or structure in the zoning district in which the structure is located.

16.105.13 - Burden of proof.

A.

Continuing the Non-conforming Status of a Structure or Use. It shall be the responsibility of the party interested in continuing the non-conforming status of a structure or use to prove that the structure or use is in active operation. Such proof could include, but not be limited to, the following:

1.

Active building permits;

2.

Judicial proceedings, including probate;

3.

Rental receipts;

4.

Utility records showing service periods and levels of consumption consistent with the active operation of the use or structure; and/or

5.

Records documenting efforts to actively rent, market, or sell the use or structure.

B.

The burden of proof shall be met only if the following findings can be made:

1.

The use or structure was permitted when established;

2.

No conditions have occurred since the legal establishment that would require its abatement; and

3.

No unauthorized expansion, enlargement, or intensification of the use or structure has occurred and currently exists.