Chapter 9 — Nonconforming Uses and Structures

DC 9.1.1 Purpose

This chapter establishes standards for the continuation, expansion, modification, discontinuance, and restoration of nonconforming uses and structures. The intent is to allow legal nonconformities to continue while discouraging their perpetuation and encouraging their eventual elimination or conformance, in order to improve the character and livability of McLainberg's neighborhoods and districts over time.

DC 9.1.2 Legal Nonconforming Status

A use or structure shall be considered legally nonconforming only if it: (a) was lawfully established prior to the adoption of the provision of this Code that made it nonconforming; and (b) has been maintained continuously since that time. The burden of proving legal nonconforming status rests with the property owner. Evidence of legal establishment shall include building permits, business licenses, property records, or sworn statements with corroborating evidence.

DC 9.2.1 Continuation

A lawfully established nonconforming use may continue indefinitely, subject to the limitations of this chapter. Nonconforming status runs with the land and is unaffected by a change of ownership, provided the use continues without interruption.

DC 9.2.2 Expansion Prohibited

A nonconforming use shall not be expanded in area, intensity of use, hours of operation, or scope of activity. A nonconforming use shall not be moved to a different location on the site, except to bring it into greater conformance with this Code. Normal maintenance and repair of the structures associated with a nonconforming use is permitted.

DC 9.2.3 Change of Nonconforming Use

A nonconforming use may be changed to another nonconforming use of the same or lesser intensity only with approval of a Conditional Use Permit. The Planning Commission shall find that the proposed use is no more intensive and no more incompatible with the surrounding area than the existing nonconforming use. Once changed to a conforming use, a use shall not be re-established as a nonconforming use.

DC 9.2.4 Discontinuance

If a nonconforming use is discontinued, abandoned, or ceases to operate for a period of twelve (12) consecutive months, the right to continue the nonconforming use shall terminate. Any subsequent use of the site shall conform to the regulations of the applicable zoning district. The following shall constitute evidence of discontinuance: removal of fixtures or equipment; cancellation of business licenses or permits; removal of signage; and cessation of utility services.

DC 9.3.1 Maintenance and Repair

Nonconforming structures may be maintained, repaired, and subject to routine maintenance as needed to keep them in safe and sanitary condition. No permit is required solely by reason of a structure's nonconforming status.

DC 9.3.2 Alterations

Alterations to a nonconforming structure are permitted provided the alteration does not increase the degree of nonconformity. Alterations that would bring any aspect of the structure into greater conformance with the current standards are encouraged and are always permitted.

DC 9.3.3 Additions

Additions to a nonconforming structure are permitted if: (a) the addition itself complies with all current development standards; (b) the addition does not increase the degree of any existing nonconformity; and (c) the total floor area of additions since the adoption of this Code does not exceed fifty percent (50%) of the floor area of the original nonconforming structure without Planning Commission approval.

DC 9.4.1 Development on Nonconforming Lots

A lawfully created lot that is smaller than the minimum lot size of the applicable zoning district may be developed with a use permitted in the district, provided all other development standards (setbacks, height, coverage) are met to the extent feasible. The Planning Director may approve minor exceptions to setback and coverage standards on nonconforming lots using the findings of Section 10.2 of this Code.

DC 9.5.1 Nonconforming Structures

If a nonconforming structure is damaged or destroyed by fire, earthquake, flood, or other casualty, it may be restored or rebuilt as follows:

1. If the damage is fifty percent (50%) or less of the replacement value, the structure may be restored to its original nonconforming condition with a building permit.
2. If the damage exceeds fifty percent (50%) of replacement value, the structure may only be rebuilt in conformance with the current development standards, unless the Planning Commission grants an exception upon finding that full conformance would create an unreasonable economic hardship.

DC 9.5.2 Wildfire Exception

Notwithstanding Section 9.5.1, structures destroyed by a wildfire disaster declared by the Governor may be rebuilt to their pre-disaster size, location, and use regardless of the degree of destruction, consistent with Government Code § 65963.1 and any applicable emergency ordinance adopted by the City Council.