Burlingame City Zoning Code

Within the zoning districts established by this Title 25 or amendments that may later be adopted, there exists or will exist lots, structures, and uses of land and structures which were lawful before the adoption or amendment of this title but which no longer comply. The intent of this Article 5 (Nonconformities) is to permit those nonconformities to continue until they are removed or required to be terminated, but not to encourage their continuance. Such uses and structures are declared to be incompatible with permitted uses, structures, and standards in the zoning districts involved, and it is intended that they shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zoning district, except as may be expressly permitted in this article.

The eventual intent is that nonconformities, including certain classes of nonconforming uses, nonconforming structures of nominal value, and certain uses not meeting parking, performance, or screening standards, are to be altered to conform.

It is also the City's intent to encourage and accommodate the renovation of designated historic structures that may be nonconforming with respect to development standards, and therefore to provide additional relief from the provisions of this article with regard to correcting nonconformities.

The provisions of this article shall apply to all legally established nonconforming lots, structures, and land uses. A mere change in ownership or tenancy without any change in use, occupancy, or development shall not affect any of the legal nonconforming rights, privileges, and responsibilities provided under this article.

This article shall not apply to any use or structure established in violation of the previously adopted Zoning Ordinance for the City, unless the use or structure presently conforms to the provisions of this Zoning Code.

The provisions of this article shall regulate the continuation, termination, and modification of lots, structures, and uses which were lawfully established, but which no longer conform to the provisions of this title due to a change in zoning district boundaries or a change in the regulations for the zoning district in which it is located. A mere change in ownership or tenancy without any change in use, occupancy, or development shall not affect any of the legal nonconforming rights, privileges, and responsibilities provided under this article.

Lots, structures, and uses not having previously acquired proper permits are illegal and subject to immediate abatement.

Any nonconforming use or structure that becomes specifically authorized under the terms of some approval pursuant to this title, other than approval of an extension, expansion, change, or early termination of nonconformity, shall henceforth be governed by the terms of such approval and shall no longer be considered to be a nonconformity unless and until such approval expires or is revoked.

Whenever any lot or structure is rendered nonconforming within the meaning of this article solely by reason of: (1) dedication to, or customary purchase by, the City for any public purpose; or (2) eminent domain proceedings which result in the acquisition by the City of a portion of the subject property, the same shall not be deemed nonconforming within the meaning of this article.

The effective date of the Zoning Ordinance codified in this title or previous Zoning Ordinance codified herein shall determine the time of beginning for all existing nonconformities.

Burden of Proof. The property owner shall have the burden to prove the claim of legal nonconformity and the related protected status that comes with that claim. The property owner shall provide sufficient evidence to the satisfaction of the Director that the subject property or use is a legal nonconformity as specified in this article.

City Not Responsible. The City is not responsible to prove the absence of a legal nonconformity.

Director's Determination.

May Be Continued. Any legally established nonconforming structure that does not conform to the provisions of this title with regard to maximum permitted height, minimum required setback, lot coverage, and floor area ratio may be continued indefinitely.

Alterations and Additions. Alterations and additions may be made to a nonconforming structure, provided that there shall be no increase in the discrepancy between existing conditions and the standards for the zoning district, and provided that the alteration and addition does not qualify as substantial construction, as defined in this title, with the following exceptions:

Any nonconforming structure which is damaged or destroyed by any means to the extent of 50% or more of its current market value, as determined by a licensed appraiser, may be rebuilt or used thereafter only in compliance with the regulations of the zoning district in which it is located. Exceptions shall apply to multi-unit housing, as set forth in Section 25.54.040 (Residential Structures—Exceptions).

Any nonconforming structure other than a multi-unit residential structure which is damaged or destroyed by any means to the extent of less than 50% its current market value, as determined by a licensed appraiser, may be rebuilt to its original condition and the same occupancy and use resumed.

Any nonconforming structure in the Broadway Mixed-Use (BRMU) zoning district which is partially or totally destroyed by catastrophe or natural disaster may be rebuilt to its pre-existing size and dimensions if the same amount of parking is provided on site as existed before the loss.

Unless a building permit is obtained within a period of one year of determination of market value by a licensed appraiser and rebuilding has been initiated within six months of the issuance of a building permit and pursued to completion, or longer time period as may be granted by the Commission pursuant to Section 25.88.030 (Time to Implement—Time Extensions), the nonconforming status of the structure shall expire.

Single-Unit Residential Structures. Notwithstanding the provisions of Section 25.54.030 (Damage to or Destruction of Legal Nonconforming Structures), a nonconforming primary single-unit residential structure which is partially or totally destroyed by catastrophe or natural disaster may be rebuilt to its pre-existing size and dimensions, provided that any nonconforming use in such structure may not be continued. In the event of disagreement regarding the size or dimensions of the pre-existing structure, the property owner shall have the burden of proof. If any increase in size or floor area is made to such structure as a part of reconstruction or remodel the structure shall be subject to the provisions of Section 25.54.010.B (Alterations and Additions).

Multi-Unit Residential Structures. Notwithstanding the provisions of Section 25.54.030 (Damage to or Destruction of Legal Nonconforming Structures), an involuntarily damaged or destroyed multi-unit residential nonconforming structure located in any zoning district except the Innovation Industrial (I-I) zoning district may be reconstructed or replaced with a new structure with the same footprint (including preexisting nonconforming setbacks), height, and number of dwelling units in compliance with current Building and Fire Code requirements and pursuant to California Government Code Sections 65852.25 and 65863.4.

No Physical Expansion. No nonconforming use shall be extended within the structure where it exists beyond the confines of the structure which it occupies or the location upon which it is situated, except as specified below.

Change in Operating Conditions. A nonconforming use shall not be permitted to increase in intensity of operation. An increase in intensity shall include, but not be limited to, extended hours of operation, substantial remodeling, or an increase in the number of seats or service areas for bars and food establishments.

The Director may authorize a change from a legally established nonconforming use to the same or similar nonconforming use upon making the finding that the use is similar in character to the existing nonconforming use and does not have the potential to result in adverse impacts on surrounding uses.

Whenever any part of a building, structure, or land occupied by a nonconforming use is changed to or replaced by a use conforming to the use regulations of the zoning district, such premises shall not thereafter be used or occupied by any nonconforming use, even though the building may have been originally designed or constructed for the prior nonconforming use.

Automatic Change Due to Abandonment of Use. If any legal nonconforming use is discontinued for a period of 180 consecutive days or more, subsequent use of the property shall be in conformance with the provisions of this Title 25. Maintenance of a valid business license shall of itself not be considered a continuation of the use. Remodeling or active marketing shall not constitute abandonment of a nonconforming use so long as such activity complies with the applicable City construction codes and is completed within 12 months of receiving a building permit.

Change of Use Because of Dilapidation. When any building or land which has been used other than in conformity with the zoning district in which it is located and which the Council, after due notice and hearing, has found that the use has become dangerous or injurious to the public health, safety, or welfare by reason of dilapidation, neglect, decay, or otherwise, such use shall cease, and any subsequent use shall comply with the use regulations of the applicable zoning district.

Removal of Structure. If any structure which is occupied by a nonconforming use is removed, the subsequent use of the subject property shall be in conformance with the provisions of this Title 25.

Generally. Any nonconformity with respect to parking spaces or improvements may continue indefinitely, except that with any change of use, or an expansion or intensification of use, the additional parking required for the change, expansion, or intensification shall be in full compliance with the parking provisions specified in Chapter 25.40 (Parking Regulations).

Broadway Mixed Use — Exception. In the Broadway Mixed-Use (BRMU) zoning district, additional parking shall not be required if a structure is totally destroyed by catastrophe or natural disaster so long as the uses in the new structure are the same size as existed before the loss.

Legally established fencing shall be allowed to continue. Where nonconforming fencing is to be replaced with new fencing, it will be subject to the requirements specified in Section 25.31.070 (Fences, Walls, and Hedges).

Any fences and landscaped buffers that are required along property lines shall be provided at the time of any expansion or intensification of a nonresidential use, unless this requirement is modified or waived through the approval of a minor modification, granted in compliance with Chapter 25.74 (Minor Modifications).