Fountain Valley City Zoning Code
CHAPTER 21
56 NONCONFORMING USES, STRUCTURES AND PARCELS
§ 21.56.010 Purpose.
(a)
Regulations. This chapter establishes uniform provisions for the regulation of legal nonconforming land uses, structures and parcels. Within the zoning districts established by this title, there exist land uses, structures and parcels that were lawful before the adoption, or amendment of this title, but which would be prohibited, regulated or restricted differently under the terms of this title or future amendments.
(b)
Discourage Continuation. It is the intent of this title to discourage the long-term continuation of these nonconformities, providing for their eventual elimination, but to allow them to exist under the limited conditions identified in this chapter.
(c)
Encourages Abatement. Generally, this chapter is intended to be administered in a manner that encourages the eventual abatement/elimination of these nonconformities.
(d)
Amortization Program. The adoption of a reasonable amortization program ensures the eventual abatement/elimination of these nonconformities while informing the owner and the public of the date upon which the nonconformity shall be terminated.
(Ord. 1308 § 5, 2000)
§ 21.56.020 Definitions.
Nonconformities are defined as follows:
means a parcel that was legally created before the adoption of this title and which does not conform to current ordinance provisions/standards (e.g., access, area or width requirements, etc.) prescribed for the zoning district in which the parcel is located.
means a structure, or a portion of the structure, that was legally altered or constructed before the adoption of this title and which does not conform to current ordinance provisions/standards (e.g., area, distance between structures, height, open space, setbacks, etc.) prescribed for the zoning district in which the structure is located.
means a use of a structure (either conforming or nonconforming) or land that was legally established and maintained before the adoption of this title and which does not conform to current ordinance provisions governing allowable land uses for the zoning district in which the use is located.
means that nonconformities shall include a use, structure or parcel legally existing and located in the unincorporated territory and which upon annexation to the city, does not comply with the provisions of this title.
(Ord. 1308 § 5, 2000)
§ 21.56.030 Restrictions on nonconforming uses and structures.
Nonconformities may be continued subject to the following provisions:
(1)
Nonconforming Uses of Land. A nonconforming use of land may be continued, transferred or sold, provided that the use shall not be enlarged or intensified, nor be extended to occupy a greater area than it lawfully occupied before becoming a nonconforming use, except in compliance with subsection (3)(B) of this section; and
(2)
Nonconforming Use of a Nonconforming Structure. A nonconforming use may be replaced by another nonconforming use only in compliance with the following:
(3)
Nonconforming Structures. A nonconforming structure may continue to be used as follows:
(A)
Changes to, or Expansion of, a Structure. The addition, enlargement, extension, reconstruction or relocation of a nonconforming structure, may be allowed, if the additions or improvements conform to applicable provisions of this title and the exterior limits of the new construction do not encroach further into the setbacks than the comparable portions of the existing structure.
(B)
Findings. The addition, enlargement, extension, reconstruction or relocation of the nonconforming structure would not result in the structure becoming:
(i)
Incompatible with other structures in the surrounding neighborhood;
(ii)
Inconsistent with the actions, goals, objectives and policies of the general plan and any applicable specific plan;
(iii)
A restriction to the eventual/future compliance with the applicable regulations of this title;
(iv)
Detrimental to the public convenience, health, interest, safety or welfare of persons residing in the surrounding neighborhood; and
(v)
Detrimental and/or injurious to property and improvements in the surrounding neighborhood.
(C)
Parking. A nonconforming structure, rendered nonconforming due to lack of compliance with current parking standards, may undergo changes (e.g., replacement of use, expansion or modification of the structure) in compliance with subsection (3) of this section subject to the following provisions:
(i)
Residential Uses.
a.
A single-family use that does not conform to the parking requirements of this title shall be brought into compliance at the time additions or alterations are made that cumulatively increase the existing floor area by more than twenty-five percent, as measured over a five-year period preceding and including the proposed modification.
b.
Additional parking spaces or driveway paving shall not be required provided the change does not result in:
c.
The director may waive the requirement for covered parking when a nonconforming structure is proposed for rehabilitation if the director determines that the existing structure location, parcel size or topography renders the requirement unreasonable.
(ii)
Nonresidential Uses. A nonresidential structure not complying with off-street parking standards may undergo changes subject to the provisions and standards identified for the use or structure, except for applicable parking requirements, provided the following:
a.
A parking analysis shall be required by the director to support a proposed parking reduction;
b.
The proposed use has the same or lesser parking requirements as the existing or previous use;
c.
The change does not result in the elimination of the only portion of the parcel that can be used for the required/existing vehicle parking or access; and
d.
The proposed changes are completed in compliance with the plans and specifications for which the building permit was issued.
(D)
Maintenance and Repairs. A nonconforming structure may undergo normal maintenance and repairs in the following manner:
(i)
Minor normal maintenance and repairs to a nonconforming structure:
a.
Provided no structural alterations are made and the work does not exceed twenty-five percent of the current value of the structure during any twelve-month period;
c.
A nonconforming publicly owned structure(s) may be reconstructed, remodeled or repaired without complying with the twenty-five percent limitation provided that the same or similar materials as used in the existing structure(s) are used in the repaired structure(s).
(ii)
Major Repairs. Major repairs to a nonconforming structure, when the cost of repairing or replacing the damaged portion(s) of the structure does not exceed fifty percent of the current value of the structure during any twelve-month period, before the damage or destruction.
(E)
Repairs or Alterations Otherwise Required by Law Shall Be Allowed. Reconstruction required to reinforce unreinforced masonry structures or to comply with building code requirements shall be allowed without cost limitations, provided the retrofitting and code compliance are limited exclusively to compliance with earthquake safety standards and other applicable building code requirements, including, state law (e.g., Title 24, California Code of Regulations, etc.);
(F)
Ensure Added Safety and Conformity.
(i)
The addition, enlargement, extension, reconstruction or structural alteration of a nonconforming structure may be allowed provided the modification is necessary to ensure added safety, to reduce the fire hazard and/or to ensure aesthetic advantages through the alignment, architecture or closer conformity to surrounding allowed structures in the immediate neighborhood; and
(ii)
Nothing in this chapter shall be construed to prevent a property owner from making necessary repairs to a nonconforming structure(s) for purposes of ensuring safety for the employees, residents, tenants or visitors to the structure(s).
(4)
Nonconforming Use of a Conforming Structure.
(A)
The nonconforming use shall not be expanded or extended into any other portion of the structure, nor shall any additions or structural alterations, except those required by law be made.
(B)
If the nonconforming use is unlawfully expanded or extended, or discontinued in compliance with subsection (a) of Section 21.56.040 (Termination by discontinuance) of this chapter, any future use of the structure shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this title.
(Ord. 1308 § 5, 2000)
§ 21.56.040 Loss of nonconforming status.
(a)
Termination by Discontinuance.
(1)
Termination of Rights. All rights to a legal nonconforming status shall terminate, regardless of the owner's intention(s), if the nonconforming use of land or a nonconforming use of a conforming structure is discontinued for a period of at least one hundred eighty consecutive days or a total of twelve nonconsecutive months.
(2)
Abandonment. The determination of abandonment shall be supported by evidence, satisfactory to the director (e.g., the actual removal of equipment, furniture, machinery, structures or other components of the nonconforming use, the turning-off of the previously connected utilities or where there are no business receipts/records available to provide evidence that the use is in continual operation).
(3)
Loss of Legal Nonconforming Status. Without further action by the city, further use of the site or structure shall comply with all of the regulations of the applicable zoning district and all other applicable provisions of this title.
(b)
Termination by Destruction.
(1)
Involuntarily Damaged. If a nonconforming structure, or a conforming structure used for a nonconforming use, is involuntarily damaged, destroyed or demolished due to a catastrophic event (e.g., explosion, fire or other casualty, or by act of God, or by act of war), the right to continue occupancy of the nonconforming structure or to continue the nonconforming use, shall cease.
(2)
Costs. The structure may be repaired or rebuilt and reoccupied only if the cost of repairing or replacing the damaged portion of the structure does not exceed fifty percent of the current value of the structure, immediately before the damage or destruction.
(A)
Alternate Methods of Assessment. The value of the structure may be calculated by one the following methods:
(i)
The current appraised value as shown on the latest county equalized assessment role;
(ii)
The current value as established by a state licensed appraiser;
(iii)
The current costs to construct the original structure as shown on the building department's official records; and
(iv)
In determining the current value, the cost of the land shall not be included.
(B)
Timely Restoration. The restoration (reconstruction, repair or replacement) may only occur if the restoration is started within twelve months of the date of damage or destruction, and is diligently pursued to completion in compliance with this title and the city's adopted Uniform Building Code. Otherwise, all rights to restore, in compliance with this section, are terminated.
(c)
Termination by Operation of Law.
(1)
Amortization Schedule.
(A)
Commencing with the service of notice described in paragraph (B) of this subsection, all nonconformities (structures/uses) except single-family and multi-family residential structures shall be discontinued or brought into conformity with this title. The length of the amortization period shall be as provided in Table 5-1 below.
TABLE 5-1 | |
|---|---|
AMORTIZATION SCHEDULE | |
Description of Property | Length of Amortization* |
Where the property is unimproved. | One year. |
Where the property is unimproved except for structures of a type for which the City Building Code does not require a Building Permit. | Three years. |
Where the property is unimproved except for structures which contain less than 100 square feet of gross floor area. | Three years. |
Signs. | Fifteen years. |
A nonconforming use conducted in a structure designed to serve a use allowed in the zoning district. | Five years. |
Type IV and Type V structures (light incombustible frame and wood frame construction). | Twenty-five years. |
Type I and Type II structures (fire resistive) and Type III structures (heavy timber construction and ordinary masonry construction). | Thirty years. |
Notes: | |
|---|---|
* The length of amortization shall be measured from the effective date, or operative date where later, of the ordinance or amendment establishing the nonconforming status. |
(B)
Owners of property which are in receipt of an official city notice regarding the property's nonconformity before the adoption of this title shall conform with the standards for abatement in effect at the time of original notice; and
(C)
Any use which does not comply with this subsection shall be deemed a public nuisance and shall be abated accordingly, unless an exception/extension is granted by the commission.
(2)
Notice.
(A)
Upon determination that the provisions of this subsection apply to a given parcel of land, the director shall send a notice by certified mail, return receipt requested, to the owner as shown on the current tax assessor's rolls, shall cause the property to be posted with a similar notice, and shall publish the notice at least once in a newspaper of general circulation;
(B)
The notice provided for in this subsection shall state the following:
(C)
The city has no legal obligation to notify subsequent owners of the affected parcels of land.
(3)
Appeal. The owner of any parcel upon which a nonconforming structure or use is being maintained may appeal the length and/or the classification of the amortization period described in the notice provided in compliance with paragraph (2) of this subsection above by submitting an appeal, on a form provided by the director and accompanied by any required fee in compliance with the city's fee resolution, within thirty days of the date indicated on the notice.
(4)
Hearing.
(A)
Within sixty days after receipt of an appeal, the commission shall hold a public hearing to determine whether the nonconformity should be abated as indicated in the notice, or whether a time extension should be granted as provided in paragraph (8) (Extension of time) of this subsection;
(B)
Notice of the hearing shall be provided in the same manner as the notice of abatement. In addition, notice shall be provided by mail to the owners of abutting parcels;
(C)
The commission shall receive written and oral testimony at the hearing relating to the term of abatement. During the hearing, the owner shall be permitted to call witnesses and be represented by counsel;
(D)
At the close of the hearing, the commission shall determine whether the nonconformity should be abated, and whether the owner of the parcel can amortize the investment in the term for abatement provided in paragraph (1) (Amortization schedule) of this subsection, and if not, what term for abatement should be provided. The burden of proof shall be upon the owner to demonstrate, by a preponderance of the evidence, that the owner is entitled to a longer abatement period than provided for in paragraph (1) (Amortization schedule) of this subsection;
(E)
In the case of a nonconforming use, the commission shall also determine whether the structure including the nonconforming use can economically be used in its present condition or can successfully be modified for a purpose allowed by the zoning district in which it is located; and
(F)
The commission may require reasonable modifications or alterations to any nonconformity to improve the nonconformity's appearance or compliance with this title, code or state law, except that any modification or alteration which would extend the useful life of the nonconformity is expressly prohibited.
(5)
Decision and Order. The decision of the commission, and the findings in support thereof, shall be in the form of a written order and shall be served upon the property owner personally or by certified mail, return receipt requested, within ten days after the decision is rendered. The order shall be binding upon the owner, and the owner's successors, heirs and assignees.
(6)
Right of Further Appeal.
(A)
Any interested person may appeal the decision of the commission to the council within ten days of service of the order upon the owner. the appeal hearing shall be noticed in the same manner as the original hearing before the commission;
(B)
The appeal shall be accompanied by any documents, information and fee the director deems necessary to adequately explain and to provide proper notification for the appeal. The appeal shall outline specifically and in detail the grounds for the appeal. The council may refuse to consider issues not raised in the written appeal of the commission's decision;
(C)
When an appeal has been accepted, the director shall forward to the council all documents and information on file pertinent to the appeal, together with the minutes or official action of the commission and a report on the basis of the decision and the appropriateness of the appeal;
(D)
The council shall consider the appeal at a public hearing, including all information and evidence submitted with the original application, and any additional information and evidence the appellant may submit which the council finds to be pertinent; and
(E)
The action of the council shall be to sustain, disapprove, conditionally sustain or refer the appeal back to the commission with direction(s), all in compliance with the same requirements and procedures that were applicable to the commission.
(7)
Recordation of Order. At the conclusion of all hearings, notice of the decision and order of the commission, or the council in the case of an appeal, shall be recorded in the office of the county recorder.
(8)
Extension of Time.
(A)
The commission may grant an extension of the time for abatement of a nonconformity where it finds that an unreasonable hardship would otherwise be imposed on the property owner; and
(B)
The commission shall base its decision as to the length of the allowed amortization period on any competent evidence presented, including the following:
(i)
The nature of the use;
(ii)
The amount of the owner's investment in improvements;
(iii)
The convertibility of improvements to allowed uses;
(iv)
The character of the neighborhood;
(v)
The detriment, if any, caused to the neighborhood by continuance of the nonconforming use;
(vi)
The amount of time needed to amortize the investment; and
(vii)
The depreciation schedule attached to the owner's latest federal income tax return.
(Ord. 1308 § 5, 2000)
§ 21.56.050 Unlawful uses and structures.
(a)
Violations. Uses and structures which did not comply with the applicable provisions of this title or prior planning and zoning regulations when established are violations of this title and are subject to the provisions of Chapter 21.64 (Enforcement Provisions) of this title.
(b)
Illegal Uses and Structures Prohibited. This chapter does not grant any right to continue occupancy of property containing an illegal use or structure.
(c)
Entitlements Required. The activity shall not be lawfully allowed to continue unless/until entitlements required by this title and the this code are first obtained.
(Ord. 1308 § 5, 2000)
§ 21.56.060 Nuisance abatement.
In the event that a nonconforming use or structure is found to constitute a public nuisance, appropriate action shall be taken by the city, in compliance with Chapter 8.04 of this code.
(Ord. 1308 § 5, 2000)