Carlsbad City Zoning Code
CHAPTER 21
48 NONCONFORMING LOTS, STRUCTURES AND USES
§ 21.48.010 Purpose and intent.
A.
The purpose and intent of this chapter is to:
1.
Allow for the development of nonconforming lots that were legally created.
2.
Establish procedures for the abatement of structures and uses that do not comply with all of the requirements and development standards of this title and which may be adverse to the orderly development of the city and to the public health, safety, or welfare of persons or property.
3.
Permit the continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the requirements and development standards of this title, in a manner that is not adverse to the public health, safety or welfare of persons or property.
4.
Permit the repair, alteration, expansion or replacement of nonconforming structures subject to the requirements of this chapter.
5.
Permit the expansion or replacement of nonconforming uses subject to the requirements of this chapter.
(Ord. CS-050 § VI, 2009)
§ 21.48.020 Applicability.
A.
The provisions of this chapter apply to:
1.
Legally created lots which do not conform to the current requirements and development standards of the zone in which they are located.
2.
Legally constructed structures and site development features that do not comply with the current requirements and development standards of the zone in which they are located.
3.
Legally established uses which do not conform to the current permitted use regulations of the zone in which they are located.
B.
The provisions of this chapter do not apply:
2.
When an accessory dwelling unit or junior accessory dwelling unit is proposed on a lot with an existing nonconforming residential structure that is nonconforming with regard to geologic setback, public view encroachment, coastal access, or habitat preserve buffers, and development of the proposed accessory dwelling unit or junior accessory dwelling unit does not result in redevelopment of the nonconforming residential structure. Pursuant to California Government Code Section 65852.2, the city shall not require, as a condition for approval of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions, except where the accessory dwelling unit or junior accessory dwelling unit is located in the coastal zone and is attached to the nonconforming residential structure that is nonconforming with regard to geologic setback, public view encroachment, coastal access, or habitat preserve buffers, and will result in redevelopment of the nonconforming structure. For purposes of this section, redevelopment shall mean alterations to the residential structure resulting from construction of an accessory dwelling unit or junior accessory dwelling unit that consist of: (a) additions to an existing structure; or (b) exterior or interior renovations; or (c) demolition or replacement of an existing principal structure, or portions thereof, any of which results in replacement (including demolition, renovation or alteration) of fifty percent or more of major structural components including exterior walls, floor, roof structure or foundation, or a fifty percent increase in gross floor area.
(Ord. CS-050 § VI, 2009; Ord. CS-384 § 26, 2020; Ord. CS-427 § 6, 2022)
§ 21.48.030 General provisions.
A.
It shall be the responsibility of the owner of a nonconforming lot, structure or use to prove to the City Planner that such lot, structure or use was lawfully established, existed on the date of adoption or amendment of this chapter, and has existed continuously as defined herein.
B.
Nothing in this chapter shall be deemed to prevent the rehabilitation, repair, alteration, strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any city official charged with protecting the public safety, upon order of such official. Repairs and alterations may be made to restore a structure to the same condition that existed prior to damage or deterioration, provided that such repairs or structural alterations conform to the provisions of this chapter.
(Ord. CS-050 § VI, 2009)
§ 21.48.040 Nonconforming lots.
A nonconforming lot may be developed, provided that the development is consistent with the general plan and complies with all of the requirements and development standards of the zone, master plan, or specific plan in which it is located.
(Ord. CS-050 § VI, 2009)
§ 21.48.050 Nonconforming residential structures and uses.
A.
Specific Provisions.
1.
A nonconforming residential structure and/or nonconforming residential use may be continued and the structure and/or use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not:
a.
Result in an additional structural nonconformity; and
b.
Increase the degree of the existing nonconformity of all or part of such structure or use (i.e. the addition of a new dwelling unit to an existing over density residential use except as otherwise allowed by the General Plan); and
c.
Reduce the number and size of any required existing parking spaces.
3.
An existing single family residence which does not meet the required parking standard (i.e. a two-car garage) may expand floor area if a minimum of two off-street parking spaces are provided on-site in a location consistent with Section 21.44.060(4).
B.
Repair or Alteration. A nonconforming residential structure and/or a structure which is occupied by a nonconforming residential use may be repaired or altered, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18.
C.
Expansion.
1.
A nonconforming residential structure and/or a nonconforming residential use may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the City Planner approves the findings of fact pursuant to Section 21.48.080(D).
2.
Where a single-family residential structure is nonconforming only by reason of substandard yards, the provisions of this chapter requiring a nonconforming construction permit for an expansion shall not apply provided that:
a.
The area of expansion is not more than forty percent of the existing floor space prior to the enlargement or a maximum of six hundred forty square feet, whichever is less; and
b.
The area of expansion, when combined with prior expansions of the nonconforming structure, does not exceed forty percent of the floor space that existed prior to any expansions or six hundred forty square feet, whichever is less; and
c.
The area of expansion shall comply with all current development standards including, but not limited to, setbacks, lot coverage and height limitations; and
d.
Expansions that exceed the limits of this exception shall require a nonconforming construction permit.
D.
Replacement in the Event of a Disaster. A nonconforming residential structure and/or nonconforming residential use that is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted within two years of the date of the disaster and the City Planner approves the findings of fact pursuant to Section 21.48.080.D. The City Planner may grant an extension to the above two-year application submittal limit upon demonstration of good cause by the applicant.
E.
Voluntary Demolition and Subsequent Replacement. A nonconforming residential structure and/or nonconforming residential use that is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the City Planner approves the findings of fact pursuant to Section 21.48.080.D prior to the date of the demolition.
(Ord. CS-050 § VI, 2009; Ord. CS-178 §§ XC—XCII, 2012)
§ 21.48.060 Nonconforming nonresidential structures.
A.
Specific Provisions.
1.
A nonconforming nonresidential structure may be continued and the structure repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not:
B.
Repair or Alteration. A nonconforming nonresidential structure may be repaired or altered subject to issuance of all required discretionary and building permits, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18.
C.
Expansion. A nonconforming nonresidential structure may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the City Planner approves the findings of fact pursuant to Section 21.48.080.D.
D.
Replacement in the Event of a Disaster. A nonconforming nonresidential structure that is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted within two years of the date of the disaster and the City Planner approves the findings of fact pursuant to Section 21.48.080.D.
E.
Voluntary Demolition and Subsequent Replacement. A nonconforming nonresidential structure that is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the City Planner approves the findings of fact pursuant to Section 21.48.080.D prior to the date of the demolition.
(Ord. CS-050 § VI, 2009; Ord. CS-178 §§ XCIII—XCV, 2012)
§ 21.48.070 Nonconforming nonresidential uses.
A.
Specific Provisions.
1.
A nonconforming nonresidential use and/or structure which is occupied by a nonconforming nonresidential use may be continued and the structure and/or use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not:
B.
Repair or Alteration. A structure which is occupied by a nonconforming nonresidential use may be repaired or altered subject to issuance of all required discretionary and building permits, provided that he repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18.
C.
Expansion of Use. A nonconforming nonresidential use may be expanded, so as to occupy a greater area of land or more floor area within a structure, subject to issuance of all required discretionary and building permits, provided that an application for a conditional use permit is submitted and the Planning Commission approves the findings of fact pursuant to Section 21.42.030(A).
D.
Relocation. A nonconforming nonresidential use may be moved, in whole or in part, to any other on-site structure, or to any other portion of the structure, lot or site within or upon which it is located, subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted and the Planning Commission approves the findings of fact pursuant to Section 21.42.030(A).
E.
Change of Use. A nonconforming nonresidential use may be changed to a use that is permitted in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval of the City Planner and the issuance of a business license.
F.
Replacement of Use. A nonconforming nonresidential use may be replaced with the same or a similar use, as determined by the City Planner, so long as the replacement use does not expand or in any other manner increase the degree of nonconformity with the use regulations of this title.
G.
Discontinuance. If a structure or parcel of land which is occupied by a nonconforming nonresidential use is, or hereafter becomes vacant and remains unoccupied for a continuous period of one year or more, the Planning Director shall determine and shall notify the owner of the property, in writing, that the nonconforming use has been discontinued and the nonconforming use may not be renewed or reestablished.
H.
Reestablishment of a Nonconforming Use in the Event of a Disaster. A nonconforming nonresidential use that is destroyed by fire, explosion, other casualty or natural disaster, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted within two years of the date of the disaster, and the Planning Commission approves the findings of fact pursuant to Section 21.42.030(A).
I.
Voluntary Demolition and Subsequent Reconstruction. A nonconforming nonresidential use that is proposed to be voluntarily demolished and subsequently reconstructed, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted and the Planning Commission approves the findings of fact pursuant to Section 21.42.030(A) prior to the demolition.
(Ord. CS-050 § VI, 2009)
§ 21.48.080 Nonconforming construction permit.
A.
Application and Fees.
1.
An application for a nonconforming construction permit may be made by the owner of the property affected or the authorized agent of the owner. The application shall:
2.
At the time of filing the application, the applicant shall pay the application fee contained in the most recent fee schedule adopted by the City Council.
B.
Notices and Hearings. Notice of an application for a nonconforming construction permit shall be given pursuant to the provisions of Sections 21.54.060.B and 21.54.061 of this title.
C.
Decision-Making Authority.
1.
An application for a nonconforming construction permit may be approved, conditionally approved or denied by the City Planner based upon his/her review of the facts as set forth in the application, of the circumstances of the particular case, and evidence presented at the administrative hearing, if one is conducted pursuant to the provisions of Section 21.54.060.B.2 of this title.
2.
The City Planner may approve or conditionally approve the nonconforming construction permit if all of the findings of fact in Section 21.48.080.D of this title are found to exist.
D.
Findings of Fact.
1.
A nonconforming construction permit shall be granted only if the following facts are found to exist in regard thereto:
a.
The expansion/replacement of the structure and/or use would not result in an adverse impact to the health, safety and welfare of surrounding uses, persons or property.
b.
The area of expansion shall comply with all current requirements and development standards of the zone in which it is located, except as provided in Section 21.48.050(A)(3) of this chapter.
c.
The expansion/replacement structure shall comply with all current fire protection and building codes and regulations contained in Titles 17 and 18.
d.
The expansion/replacement would result in a structure that would be considered an improvement to, or complementary to and/or consistent with the character of the neighborhood in which it is located.
E.
Announcement of Decision and Findings of Fact. When a decision on a nonconforming construction permit is made pursuant to this chapter, the decision-making authority shall announce its decision in writing in accordance with the provisions of Section 21.54.120 of this title.
F.
Effective Date and Appeals. The City Planner's decision on nonconforming construction permits shall become effective unless appealed in accordance with the provisions of Section 21.54.140 of this title.
G.
Expiration, Extensions and Amendments.
1.
Expiration of Permit if Not Exercised. The expiration period for an approved nonconforming construction permit shall be as specified in Section 21.58.030 of this title.
(Ord. CS-050 § VI, 2009; Ord. CS-164 §§ 10, 14, 2011; Ord. CS-178 § XCVI, 2012; Ord. CS-212 § 1, 2013)
§ 21.48.090 Abatement of nonconforming structures and uses.
A.
If a nonconforming use and/or structure is determined by the City Planner to be adverse to the orderly development of the city and/or to the public health, safety, or welfare of persons or property, the City Planner shall schedule a public hearing before the Planning Commission to establish the conditions of abatement and the abatement period. The abatement period shall start from the date of the applicable resolution and shall be:
B.
Notices and Hearings. Notice of said public hearing shall be given as required by Section 21.54.060.A and 21.54.061 of this title.
C.
Public Hearing Evidence.
1.
The Planning Commission shall consider at the public hearing, all pertinent data to enable it to arrive at an equitable abatement period which will protect the public health, safety or welfare of persons or property, yet will allow the owner of record, or lessee if applicable, sufficient time to amortize their investment.
2.
The owner or lessee shall be allowed to present any evidence related to the case.
3.
When setting the abatement period, the Planning Commission shall take into consideration the type of construction, age, condition, and extent of nonconformity of the structure or use in question; any structural alterations or expansions; and/or the installation of major equipment designed into the structure prior to the date of nonconformity.
D.
Hearing Decision. After the close of the public hearing, the Planning Commission shall determine and establish by resolution the abatement period, and shall set forth in said resolution all findings and facts upon which the date of such abatement period is based.
E.
Notice of Decision to Owner. The secretary of the Planning Commission shall formally notify the owner of the property of the action of the Planning Commission by mailing a copy of the resolution, via certified return receipt mail, within ten days following the date of its adoption by the Planning Commission.
F.
Effective Date and Appeals. The above action of the Planning Commission shall become effective unless appealed in accordance with the provisions of Section 21.54.150 of this title.
G.
Recordation. The secretary of the Planning Commission shall transmit a final signed copy of the resolution of the Planning Commission or City Council, whichever is final, to the County Recorder of San Diego for recordation.
(Ord. CS-050 § VI, 2009; Ord. CS-178 § XCVI, 2012)