Encinitas City Zoning Code
CHAPTER 30
76 NONCONFORMITIES
§ 30.76.010 Purpose.
A.
The purpose of this chapter is to establish regulations for nonconforming uses and structural nonconformities with special regulations for nonconforming dwelling units.
B.
This chapter is not intended to restrict the City's ability to remove a public nuisance.
C.
This chapter is not intended to limit the City's ability to condemn a use or structure and pay to the owner thereof reasonable compensation.
D.
Nothing in this chapter shall preclude the City from declaring a building, structure, improvement or use to constitute a danger to the safety, health or welfare of the public and to take lawful action to remedy that danger.
E.
This chapter does not preclude the City from requiring an owner of a structure which has been constructed, expanded or altered either without a required building permit or contrary to the provisions of an issued building permit to modify or remove such structure or to obtain a required building inspection and final approval.
(Ord. 2017-03)
§ 30.76.020 Nonconforming Use.
A "nonconforming use" is a use that:
A.
Is not within the scope, either expressly or implicitly, of the zoning restrictions set forth in this title that announce the purpose, intent, permissible uses, accessory uses and prohibited uses for the zone in which the particular use is located;
B.
Did comply with the zoning restrictions contained in the Zoning Ordinance in effect at the time the use was created and was lawfully created; and
C.
Has not been terminated in accordance with the provisions of this chapter.
§ 30.76.030 Structural Nonconformity.
"Structural nonconformity" is a physical aspect of a building, structure or improvement that:
A.
Does not conform to the development standards announced in this title to include, without limitations, height, setbacks, lot area, parking, type of building, or coverage of lot by structure;
B.
Did comply with the development standards contained in the Zoning Ordinance in effect at the time the building, structure or improvement was constructed or structurally altered and was lawfully constructed; and
C.
Has not been terminated in accordance with the provisions of this chapter.
§ 30.76.040 Establishment of a Nonconformity.
In order to legally continue a use or structural aspect of a building, structure or improvement that is not consistent with the zoning regulations of this title, the person asserting a claim of nonconforming use or structural nonconformity has the burden of proof to establish that the use or structural feature qualifies in accordance with the provisions of this chapter.
§ 30.76.050 Limit on Utilizing Nonconformity-General.
A.
It is unlawful for any person to enlarge, extend, expand or in any other manner change a nonconforming use or a structural nonconformity so as to increase its inconsistency with the zoning regulations of this chapter.
B.
A nonconforming use may be replaced with the same or a similar use so long as the subsequent use does not enlarge, extend, expand or in any other manner increase the inconsistency with the regulations of this title.
C.
Repairs and maintenance may be performed on structural nonconformities so long as the nonconformity is not enlarged, relocated or increased in intensity, unless permitted by this chapter.
§ 30.76.070 Remodeling or Reconstruction of Nonresidential Building with Structural Nonconformity.
A.
Any application for a project for the remodeling/additions of a building with one or more structural nonconformities at an estimated cost of more than 50% of the building's value, as established by the Planning and Building Director at the time of application, shall be approved only if the project complies with all of the regulations of this Code.
B.
Any project for a building with one or more structural nonconformities that is damaged to less than 75% of its valuation or that is the subject of a remodeling and addition project less than 50% of the building's value as determined by the Planning and Building Director at the time of the application, may be approved with the continuation of the nonconformities so long as the nonconformities are not enlarged, extended or expanded. However, the owner must covenant to complete the project within 18 months of the issuance of the required permits, or, in the alternative, to abandon the structural nonconformities and comply with the regulations contained in this Code. This shall not result in review of any existing use permits for the subject parcel unless the use is to be altered or expanded.
C.
In applying this section to remodeling and additions, the City shall include all remodeling and additions accomplished in the 12 months preceding the application in determining whether "more than 50% of the building's value" is involved in the present application.
(Ord. 2003-08)
§ 30.76.080 Nonconforming Lots.
A single building may be constructed on a lot of less area than required by this title so long as the lot is a legal lot of record, was created prior to the imposition of the present zoning regulation which makes it nonconforming, has sufficient area to provide a building site, has not merged, and is not mergeable.
§ 30.76.090 Termination of Nonconformity, General.
A.
If a nonconforming use is changed to a use that conforms to or is more consistent with the regulations of this title, then any entitlement to maintain the nonconforming use is modified in that same degree.
B.
Unless otherwise provided in this chapter, a nonconforming use which remains inactive for 180 consecutive days, shall be deemed to have ceased, and shall not thereafter be renewed.
C.
If a nonconforming use or structural nonconformity is enlarged, extended, expanded or in any other manner changed to increase its inconsistency with the regulations of this title, then, in addition to any other consequences imposed by this Code, any entitlement to thereafter maintain the nonconformity is terminated.
§ 30.76.100 Nonconforming Rental Dwelling Use.
A nonconforming rental dwelling use is inactive if the rental dwelling area is not occupied and is not subject to being occupied in accordance with an existing lease or rental agreement:
§ 30.76.110 Nonconforming Guest Dwelling Use.
§ 30.76.120 Remodeling or Reconstruction of Residential Buildings with Structural/Use Nonconformity.
A.
Any residential project of four or fewer dwelling units with one or more structural or use nonconformities that is damaged up to 100% (by accident or voluntary) of its valuation can be reconstructed with the continuation of the nonconformities provided such nonconformities are not increased in density or intensity. Nonconforming residential buildings of four units or less may be reconstructed, added to, or structurally altered so long as neither the density nor the intensity of the nonconformity is increased, and the number and size of existing required parking spaces is not reduced.
1.
An increase to the "intensity" of a nonconforming structure/use would refer to:
a.
Expanding the structural nonconformity, e.g., not meeting development standards.
b.
Any additions to a nonconforming use (e.g., an existing duplex in a single-family zone) that would expand or intensify the nonconforming use. Expansions/additions to such nonconforming uses shall not be considered an intensification when the combined development of all units on the subject property does not exceed the cumulative limitations of the underlying zone. Where more than one dwelling unit exists on a legal lot, the development allowances of the underlying zone shall be applied on a pro-rata basis (for example, if two dwelling units exist on one lot, each would be allowed one half of the lot coverage and/or floor area ratio applicable to the zone). Where all of the units on the lot are under common ownership, or, in the case of multiple ownership, where all owners of units on the property are in agreement, a different combination of percentages may be established and recorded on the subject property by covenant.
c.
An addition for the enclosing of parking shall not be considered an increase in intensity of the nonconforming use.
d.
Conversion of a nonconforming detached accessory structure from an unhabitable use type (for example, storage building or garage) to a habitable structure type (for example, a portion of the primary dwelling) shall be considered an intensification or creation of a nonconformity. However, conversion of such uninhabitable structures to accessory dwelling units permitted under Subsection 30.48.040T shall not be considered an intensification, unless the structure does not conform with the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.
2.
An increase to the "density" of a legal nonconforming structure/use is new construction or conversion of existing structures with the result of creating any dwelling units above the number allowed for the subject property in the applicable zone.
3.
New construction, a conforming addition to an existing dwelling, or the conversion of existing structures in order to create an accessory dwelling unit or junior accessory dwelling unit in accordance with Subsections 30.48.040T and 30.48.040U shall not be considered an increase in density or intensity for purposes of this section, unless the reconstructed structure does not conform with the coastal bluff and inland hillside, sensitive habitat, or scenic views and visual resource protection policies of the Local Coastal Program.
B.
For multifamily dwellings of five or more units, the building profile may be modified if the resulting profile does not result in a structure contrary to this section and the following findings are made by the authorized agency:
1.
There are no additional negative impacts to the character of the neighborhood beyond the assumed negative impacts of the nonconformity; and
2.
The resulting design will enhance the neighborhood and will not significantly increase the economic life of the nonconformity thereby expanding the nonconformity beyond that which would occur through normal maintenance practices; and either:
(Ord. 88-02; Ord. 2006-06; Ord. 2020-10; Ord. 2022-03)