Article 3 — Nonconforming Uses and Structures — Walnut Creek Zoning Code

10-2.3.301 Purpose. ¶

The purpose of this Article is to encourage the elimination of existing uses and structures which do not conform to current zoning standards, while recognizing the hardship involved if all such nonconforming uses and structures were absolutely prohibited. Accordingly, this Article is intended to generally permit existing Nonconforming Uses and Structures to continue in their existing form while limiting their enlargement or their reestablishment after abandonment or destruction in order to encourage their redevelopment.

10-2.3.302 Continuation of Nonconforming Uses. Revised 10/25 ¶

A. An existing nonconforming use (as defined in Section 10-2.1.303, Definitions) may continue to exist in the same location, except as otherwise provided in this code. A nonconforming use may not be enlarged, increased, changed to a different nonconforming use or extended to occupy a greater area unless permitted by a conditional use permit approved pursuant to this article.

A structure devoted in whole or in part to a nonconforming use may not be enlarged, extended, reconstructed, remodeled or structurally altered (except as required by law) unless both the structure and the use thereafter conform to all provisions of this chapter or unless permitted by a conditional use permit approved pursuant to this article. Notwithstanding the foregoing, existing nonconforming residential structures may be reconfigured to increase the bedroom count, up to two (2) bedrooms, within an existing dwelling unit, ministerially pursuant to California Government Code Section 65850.02 or its successor statute. This subsection is not intended to prevent routine maintenance, repair and painting of such structures, but is intended to prevent all other alterations to such structures.

B. Premises licensed by the Department of Alcoholic Beverage Control that would otherwise be required to obtain a conditional use permit by the amendments made by Ordinance No. 1927 or Ordinance No. 2033 and that were in operation on the effective date of either ordinance (July 17, 1998 and July 16, 2004) shall be allowed to operated without the conditional use permit under the following conditions:

The premises retain the same type of retail liquor license within a license classification.
The licensed premises are operated continuously without substantial change in mode or character of operation.

For purposes of this subdivision, a break in continuous operation does not include:

a. A closure for not more than one hundred eighty (180) days for purposes of repair, if that repair does not change the nature of the licensed premises and does not increase the square footage of the business used for the sale of alcoholic beverages.

b. The closure for restoration of premises rendered totally or partially inaccessible as provided for and described in Section 10-2.3.305 (Reconstruction of Nonconforming Structures), if the restoration does not increase the square footage of the business used for the sale of alcoholic beverages.

The transfer of an existing retail liquor license to a new owner on the same licensed premises who operates continuously without substantial change in mode or character of operation shall not trigger the application of the use permit requirement to such premises.

C. Premises licensed by the Department of Alcoholic Beverage Control that would otherwise be prohibited by the amendments made by Ordinance No. 1927 or 2033 and that were in operation on the effective date of either ordinance (July 17, 1998 and July 16, 2004) shall be allowed to operated under the following conditions:

The premises retain the same type of retail liquor license within a license classification.
The licensed premises are operated continuously without substantial change in mode or character of operation.

For purposes of this subdivision, a break in continuous operation does not include:

10-2.3.303 Continuation of Nonconforming Structures. Revised 10/25 ¶

An existing nonconforming structure (as defined in Part I, Article 3, Definitions) may continue to exist in the same location, except as otherwise provided in this code. A nonconforming structure may not be enlarged, extended, reconstructed, remodeled or structurally altered (except as required by law) unless both the structure and the use thereafter conform to all provisions of this chapter or unless permitted by a variance or by a conditional use permit approved pursuant to this article. This section is not intended to prevent routine maintenance, repair and painting of such structures, but is intended to prevent all other alterations to such structures. Notwithstanding the foregoing:

A. Any structure which is nonconforming solely because of inadequate yards or setbacks may be enlarged, extended, reconstructed or structurally altered; provided, that no such enlargement, extension, reconstruction or alteration shall occur within any yard or setback area or otherwise create further nonconformance with this chapter.

B. Any structure which is nonconforming solely because of inadequate minimum FAR may be enlarged, extended, or structurally altered; provided, that there shall be no reduction from the existing FAR, and that said

modification to the building does not require the demolition or replacement of fifty percent (50%) or more of either the existing building's exterior wall area or floor area.

C. An existing nonconforming residential structure may be reconfigured to increase the bedroom count, up to two (2) bedrooms, within an existing dwelling unit ministerially pursuant to California Government Code Section 65850.02 or its successor statute. (§15, Ord. 2194, eff. 6/7/19; §3, Ord. 2250, eff. 9/5/25)

10-2.3.304 Conditional Use Permit. ¶

A conditional use permit authorized by Sec. 10-2.3.302. and 10-2.3.303. may be applied for and approved or disapproved pursuant to Part IV, Article 6. of this Chapter. In addition to the findings required by that Article for the granting of a conditional use permit, a conditional use permit authorized by this Article may be granted only upon a finding of all of the following:

A. The requested action will not impP1air the character of the zone in which such use exists;

B. The requested action will not lead to an alteration in the purpose and intent of the zoning district;

C. The requested action will improve the general appearance or economic viability of the district or otherwise benefit the public health, safety or welfare; and

D. It is unlikely that the Nonconforming Use or the Nonconforming Structure would be converted to a conforming use or structure in the foreseeable future even if the requested action were denied.

10-2.3.305 Reconstruction of Nonconforming Structures. ¶

A. Destruction. In the event that a Nonconforming Structure or a structure devoted in whole or in part to a Nonconforming Use is destroyed by a natural force or accident to the extent that the reconstruction cost exceeds fifty percent (50%) of the total structure value after reconstruction, the structure shall not be reconstructed except in conformity with all provisions of this Chapter. Notwithstanding the foregoing, a Nonconforming Structure which was so destroyed may be reconstructed with up to the same amount of square footage or number of dwelling units that originally existed on the site prior to destruction, regardless of the applicable maximum floor area ratio or minimum lot size requirements provided that the structure will otherwise conform to this Chapter. Similarly, single family residences with non-conforming rear yard setbacks in the R-8, R-8.5 and R-10 Single Family Residential districts, may be reconstructed with a rear yard setback of 10 feet, provided that the structure will otherwise conform to this Chapter.

B. Damage. In the event that a Nonconforming Structure or a structure devoted in whole or in part to a Nonconforming Use is damaged by a natural force or accident to the extent that the reconstruction cost is fifty percent (50%) or less than the total building value after reconstruction, the structure may be rebuilt exactly as it previously existed and any Nonconforming Use may continue, provided that restoration is started within six months and diligently pursued to completion.

C. Inadequate Parking. Notwithstanding Subsection A above, if a main building in a P-R zone is destroyed and the building was a Nonconforming Structure solely because the site on which the building was situated did not have the amount of parking that is required by this Chapter, the amount of floor area that existed immediately prior to the destruction may be replaced without providing the required parking. Any parking that existed immediately prior to destruction shall not be decreased. In the event an area was used prior to destruction for parking but was not paved and striped and if following reconstruction the parking will be paved and striped, the

quantity of required spaces shall be the square footage of the previous parking area divided by 325 square feet. In the event an owner desires to construct more floor area than previously existed, off-street parking for such additional floor area shall be provided according to the provisions of Part III, Article 2. of this Chapter.

D. Determination of Value. All determinations of reconstruction costs and the value of buildings pursuant to this Section shall be made at the sole discretion of the City's Building Official, whose determinations shall be final. (§6, Ord. 2005, eff. 12/19/02)

10-2.3.306 Nonconforming Lots. ¶

A. Lots in Single-Family Districts. No single-family dwellings may be developed on any lot which is in a singlefamily zoning district and which does not contain the area, width and/or frontage required by the zoning district in which such lot is located unless a variance is approved pursuant to Part IV, Article 9, or unless the Zoning Administrator determines that such a limitation would constitute an unconstitutional taking of property without compensation. Notwithstanding the foregoing, if a dwelling unit exists or previously existed on the same lot and the lot does not contain the required area, width and/or frontage, one single-family dwelling may be developed on the lot to replace the existing or previously existing dwelling unit, provided that the single-family dwelling otherwise complies with this Chapter.

B. Lots in Multiple-Family Districts. Any existing legally created lot in a multiple-family residential district which does not contain the area, width and/or frontage required for the zoning district in which such lot is located may be developed according to the density permitted in such zoning district. If the lot is of such small size that no dwelling units can be developed in accordance with the permitted density, one single-family dwelling may be developed on the lot if the Zoning Administrator finds that the application of this Chapter to the lot would otherwise constitute an unconstitutional taking of property without compensation.

C. Lots in Nonresidential Districts. Any existing legally created lot in any nonresidential zoning district may be developed according to the intensity permitted in that zoning district even if the lot does not meet the required area, width and/or frontage required for that zoning district.

D. Remnant Lots. Notwithstanding the foregoing, if any lot is created as a result of land being conveyed to or from a governmental agency, a public entity, a public utility or a subsidiary of a public utility without the approval of a parcel map or subdivision map, a primary structure may be developed on the lot only if a Certificate of Compliance is issued pursuant to Sec. 10-2.3.307 or if the Zoning Administrator finds that the application of this Chapter to the lot would otherwise constitute an unconstitutional taking of property without compensation.

lic utility or a subsidiary of a public utility without the approval of a parcel map or subdivision map, a primary structure may be developed on the lot only if a Certificate of Compliance is issued pursuant to Sec. 10-2.3.307 or if the Zoning Administrator finds that the application of this Chapter to the lot would otherwise constitute an unconstitutional taking of property without compensation.

E. Determination of Taking. An application for a determination by the Zoning Administrator that the provisions of this Chapter would constitute an unconstitutional taking of property without compensation shall be filed pursuant to Part IV, Article 2. Such an application must include, in addition to the information specified in Part IV, Article 2., evidence that the lot was legally created, information concerning whether the lot was created through an acquisition of property by a public entity or utility, evidence that the lot cannot be sold to any adjacent property owner and evidence that the lot would not have any economically viable use unless the requested use were permitted. The burden of proof shall be on the applicant. The Zoning Administrator shall approve the application only if he or she finds that the lot was created legally and that the application of this Chapter to the lot would constitute an unconstitutional taking of property without compensation. Even if the Zoning Administrator makes the foregoing findings, the application shall be denied if the lot was created through an acquisition of property by or under threat of eminent domain and the then-owner of the property received severance damages based on the resulting non-conformance of the remaining lot.

10-2.3.307 Nonconforming Lots Created by Eminent Domain. ¶

If part of a legally created lot which conforms to all requirements of the zoning district in which it is located is acquired for public use in any manner, the remainder and any improvements thereon shall be deemed to conform to the provisions of this Chapter if the Zoning Administrator issues a Certificate of Compliance. An application for a Certificate of Compliance may be filed by any party with an interest in the lot, the entity acquiring a portion of the lot or the City. The application may be filed at any time prior to or following the acquisition. The application shall be filed in accordance with Part IV, Article 2. The Zoning Administrator may approve or conditionally approved the application if he or she makes the following findings:

A. Issuance of the Certificate of Compliance is in the best interest of the public health, safety and welfare;

B. The remainder lot is not less than eighty percent (80%) of the required area, width and frontage for the zoning district in which the lot is located;

C. If any structures are located on the lot, (1) the structures conformed to the provisions of this Chapter prior to the acquisition, (2) the remainder lot will contain at least eighty percent (80%) of the required yards and setbacks and (3) the acquisition will not result in the lot coverage exceeding the maximum permitted lot coverage percentage by more than twenty percent (20%); and

D. That the existing lot, prior to eminent domain proceedings, contained the required number of off-street parking spaces and the remainder lot, after acquisition, will contain: (1) not less than eighty percent (80%) of the required number of off-street parking spaces; and (2) in any event will contain at least one off-street parking space.