Garden Grove City Zoning Code
CHAPTER 9
36 NONCONFORMITIES
§ 9.36.010 Purpose and Applicability.
A.
Within the zones established by this title, there exist lots, parcels, structures or uses that were lawful before June 18, 1956, or before the adoption of this chapter (date of adoption), but that now are prohibited or restricted by this title. It is the intent of this chapter to provide for the regulation of such nonconformities, and to specify the circumstances and conditions under which they may continue to exist. Further, it is the intent of this chapter to specify those circumstances and conditions under which those nonconforming uses, buildings and structures that adversely affect the maintenance, development or use and assessed value of other property in the zoning classification in which they are located, in order that they shall be gradually eliminated.
B.
It is necessary and consistent with the development of property that those nonconformities that substantially and adversely affect the orderly development of other property in the zone not be permitted to continue indefinitely. It is logical and reasonable that a time limit be placed upon the continuance of such existing nonconforming uses, based upon the nature of the use, and in the case of nonconforming buildings and structures, upon their character, age and the investment therein.
(2758 § 2, 2009)
§ 9.36.020 Nonconforming Defined.
A.
Lawfully Erected Building—Established Use. Any nonconforming building, structure or use lawfully established prior to June 18, 1956, shall be deemed lawfully erected.
B.
Nonconforming Building or Structure. A nonconforming building or structure is any building, structure or portion thereof, that was lawfully erected or altered and maintained, but that, because of the application of this title, no longer conforms to the development standards of the zone in which it is located.
C.
Nonconforming Lot or Parcel. A parcel or lot that was legally created prior to November 17, 1960, and is buildable for the uses permitted in the zone in which it is located, but that, because of the application of this title, does not meet the dimensions, area, width, depth and/or size specified for the zone in which it is located.
D.
Nonconforming Use. A nonconforming use is a use that was lawfully established and maintained, but that, because of the application of this title, no longer conforms to the use regulations of the zone in which it is located.
(2758 § 2, 2009)
§ 9.36.030 Nonconforming Lots or Parcels.
A.
Nonconforming Lots as of November 17, 1960. Any unimproved lot or parcel that was legally created prior to November 17, 1960, and that has not contained structures, or uses requiring structures, and is nonconforming solely due to lot area, street frontage, dimensions, lot width or depth may be permitted to be developed and used as if it were a conforming lot, upon approval of a variance application. All other requirements and development standards of the zone in which the property is located shall be met. The variance may be requested solely due to the nonconformities of the lot. No new use may be developed on a lot that is nonconforming as to access.
B.
Nonconforming Lots Created by Adoption of this Title. Any improved lot made nonconforming due to lot area, street frontage, dimensions, lot width or depth by adoption of this title, or any portion thereof, shall be subject to the provisions of this chapter. Upon removal of structures, or discontinuance of uses, as required by this chapter, new structures may be permitted to be developed and used, upon approval of a variance application. However, all other requirements of the zone in which the property is located must be met.
(2758 § 2, 2009)
§ 9.36.040 Nonconforming Buildings or Structures.
A.
Building Height and Setback. Buildings or structures that are nonconforming as to height, or are located in such a manner that they encroach into required yards or setbacks, shall be allowed to remain indefinitely with such nonconformity. However, any new structures built on the lot must conform to all standards of the zone or district in which such structure is located.
B.
Building Materials. Buildings that are nonconforming as to any surface material shall be allowed to continue indefinitely with such nonconformity, unless such material is determined to pose a safety or health risk or violates current building and fire codes so as to pose such a risk.
C.
Parking and Landscaping. Buildings that are nonconforming solely due to parking and landscaping requirements shall be allowed to remain indefinitely with such nonconformity.
(2758 § 2, 2009)
§ 9.36.050 Nonconforming Uses.
A.
Use of Land.
1.
Any nonconforming use of land that does not occupy or use any building or structure that would require a building permit if it were to be replaced may continue indefinitely, unless determination is made pursuant to the procedure set forth in Section 9.34.090 or 9.34.130, as amended, requiring termination of the use within a reasonable period.
2.
Any nonconforming use that is eligible to be considered for a conditional use permit or other special use approval under this title shall be considered to be a nonconforming use unless and until such conditional use permit or other such special approval is granted.
3.
Any change, modification or expansion of any nonconforming use that is permitted as a conditional use in a zone under the terms of this title and occupies an otherwise conforming building or structure requiring a site plan or use permit shall require issuance of the applicable permit.
B.
Limits on Other Uses. While a nonconforming use exists within the specific area occupied by a nonconforming use, no new use may be established thereon, even though such new use would be a conforming use.
C.
Abandonment of Nonconforming Use. The criteria for abandonment in this section shall apply to extinguish nonconforming use rights in the unit of a building, building, or unimproved parcel of land to which that abandonment applies:
1.
Voluntary compliance with zoning ordinance standards after establishment of a permissible nonconforming use;
2.
A definite and regular conforming use of property over a six month period consecutively, or intermittently for nine months within a two year period;
3.
Vacation for 90 days with no continuing and concurrent efforts to resume the use during that period.
D.
Change in Land Area or Location. A nonconforming use may not expand the land area on which such use exists, nor shall such use change its location to become a nonconforming use in any other zone of the City.
E.
Uses Established Through Variance or Use Permit. Nonconforming uses established through a variance or conditional use permit are subject to the provisions of Title 9 of this code.
(2758 § 2, 2009)
§ 9.36.060 Continuance of Nonconforming Uses, Buildings and Properties.
A.
Continuance of Nonconforming Uses. The nonconforming use of a conforming or nonconforming building may be continued, provided:
1.
Such nonconforming use shall not be expanded or extended into any other portion of the building or changed to another nonconforming use.
2.
The building in which said use is being conducted shall not be structurally altered, enlarged in any way or in any area of the building, so as to increase the degree of nonconformity.
3.
No increase in intensity or scope of use is permitted that would increase the degree of nonconformity or extend the useful life of the nonconforming use.
4.
The nonconforming use may not continue past any amortization period established pursuant to provision of Title 9 of this code.
B.
Continuation of Nonconforming Residential Structures. The following nonconforming residential structures may be continuously maintained provided:
C.
Nonconforming Service Stations.
1.
If a nonconforming use in a service station is discontinued for a period of 60 consecutive days or terminated by abatement of a nuisance, such nonconforming use may not be reestablished, and any subsequent use of the building, structure or place wherein such nonconforming use was previously conducted must conform to all laws and regulations then currently applicable to the site.
2.
Such conforming use shall immediately cease upon revocation of any conditional use permit therefor.
(2758 § 2, 2009)
§ 9.36.070 Permitted Changes.
A.
Nonconforming Residential Property. Nonconforming residential properties may be improved with structural alterations, additions, ordinary repairs and maintenance work without being construed to increase the degree of nonconformance, provided:
2.
Maintenance work shall not include structural alterations, except those required by law or those required to make the structure and use conform to the standards and use regulations of the zone in which said structure and use are located;
3.
Ordinary repairs and the repair or replacement of nonbearing walls, fixtures, wiring and plumbing is made without additional building square footage being added, except as noted above;
4.
Structural alteration, additions, ordinary repairs and maintenance work complies with all codes, development standards and use regulations of the zone in which the property is located.
B.
Nonconforming Nonresidential Property. Nonconforming office, commercial, industrial and institutional properties may be improved, repaired and maintained without being construed to increase the degree of nonconformance, provided:
1.
There is no increase in square footage of the building or structure;
2.
The repair or replacement of nonbearing walls, fixtures, wiring, and plumbing is made without an increase in building square footage;
3.
Maintenance work is not inclusive of structural alterations, except those required by applicable building codes for safety and welfare, or those required to make the structure and use conform to the development standards and use regulations of the zone in which the building is located;
4.
Any repairs or remodeling comply with all applicable codes and development standards of the zone in which it is located.
(2758 § 2, 2009)
§ 9.36.080 Reconstruction.
A.
Reconstruction of a Nonconforming Structure(s) Partially Destroyed. A nonconforming structure that is partially destroyed (partially destroyed meaning less than 50% of the market value of the structure at the time of its destruction) may be restored to original design and the occupancy, or use of such building or part thereof may be continued. All construction or repairs shall be started within one year from date of damage and is subject to all other provisions of this chapter, provided:
B.
Reconstruction of Nonconforming Structure More than Partially Destroyed. A nonconforming structure that is more than partially destroyed (more than partially destroyed meaning more than 50% of the market value of the structure at the time of its destruction) may not be restored, and the occupancy or use of such building(s) or part thereof may not be continued.
(2758 § 2, 2009)
§ 9.36.090 Violation of Laws.
Any of the following shall terminate the right to operate a nonconforming use or to occupy or maintain a nonconforming structure, except as otherwise provided in this chapter:
A.
Conducting therein a use not permitted in the zone, except as provided by Section 9.34.150, continuously for 30 days, or intermittently 30 times in a 90-day period;
B.
Substantially increasing or enlarging the area, space or volume occupied or devoted to such nonconforming use;
C.
Increasing or enlarging the area, space or volume of a nonconforming structure, a portion or the entirety of which is occupied by a nonconforming use;
D.
Addition to a nonconforming use of another use not permitted in the zone;
E.
Maintaining or allowing to be conducted therein or thereon a criminal enterprise, such as prostitution, drug dealing or usage, trafficking in stolen property or other such felonious activities;
F.
Using the property or structures in such a way as to unreasonably interfere with the use and enjoyment of the adjacent property.
(2758 § 2, 2009)
§ 9.36.100 Nonconforming Signs.
A.
Except as otherwise provided in this chapter, any sign that was legally erected and maintained, but that does not conform with the provisions of this chapter, shall become nonconforming.
Any sign erected contrary to and not in compliance with the laws in effect at the time of erection shall be termed illegal, and shall be removed within 90 days subsequent to receipt of written notice.
B.
Temporary advertising devices that are not in conformance with this chapter shall be removed within 30 days subsequent to the receipt of written notice.
C.
Any billboard erected prior to June 18, 1956, or that was lawfully erected and maintained between June 18, 1956, and July 1, 1971, but that does not conform with the provisions of this chapter, shall become nonconforming, and shall be removed on or before the expiration of the time periods specified below.
1.
Any billboard located on any "C" zoned property shall be removed within 10 calendar years from July 1, 1971.
2.
Any billboard located on "M" zoned property shall be removed within 15 years from July 1, 1971.
3.
Any billboard located in or within 100 feet of any underground utility district shall be removed as undergrounding occurs.
4.
Any billboard located in the community center district shall be removed as development occurs on the parcel upon which said billboard is located. Removal shall not commence until the City requests same, and gives a 60-day notice to do so.
5.
Any billboard erected or maintained subsequent to June 18, 1956, that does not have a valid permit as required by ordinance or City code, shall be termed illegal, and shall be removed by the owner of such billboard or the owner of the property upon which such billboard is located, within 20 days after the date written notice is mailed to the owner of such billboard and the owner of the property upon which such billboard is located.
6.
Any billboard lawfully erected or maintained prior to July 1, 1971, that does not comply with the provisions of the Outdoor Advertising Act contained in the Business and Professions Code of the State of California, shall comply with all abatement provisions contained in such Act.
D.
Except as otherwise provided in this chapter, the following signs that were erected and maintained after May 27, 1971, that do not conform with the provisions of this chapter, shall become nonconforming, and shall be removed or altered to conform with the provisions of this section:
1.
Any sign erected that did not comply with the ordinance and regulations in effect at the time of its construction and erection or use. Such signs shall be termed illegal;
2.
A sign that was lawfully erected, but whose use has ceased, or the structure upon which the display has been abandoned by its owner for a period of at least 90 days;
3.
Any sign whose owner seeks relocation thereof and relocates the sign;
4.
Any sign that is temporary;
5.
Any sign that is or may become a danger to the public, or is unsafe;
6.
Any sign that constitutes a traffic hazard not created by an act of the City;
7.
A sign whose owner requests permission to remodel, excluding a change in sign copy only, and remodels that sign, or a sign that is affected by the construction enlargement or remodeling of a building or land use upon which the sign is located, or a sign whose cost of construction, enlargement or remodeling of the advertising display exceeds 50% of the cost of reconstruction of the building;
8.
Any sign that has been more than 50% destroyed, and the destruction is other than facial copy replacement, and the sign cannot be repaired within 30 days of the date of its destruction.
(2758 § 2, 2009; 2837 § 4, 2014)
§ 9.36.110 Amortization-Generally.
The nonconforming uses and structures set out in this section shall be discontinued and structures removed from their sites within the time periods specified in this section, commencing with the adoption date of the ordinance codified in Title 9, except as provided in this chapter.
(2758 § 2, 2009)
§ 9.36.120 Amortization-Nonconforming Structures.
The amortization period for a nonconforming structure in a nonconforming zone shall be measured from the date of construction, or June 18, 1956, whichever is later, and shall be as follows (excluding nonconforming residential structures or uses):
C.
Type II (1-hour), II-N, IV and V. Light metal and/or wood-frame, including buildings used for:
(2758 § 2, 2009)
§ 9.36.130 Amortization Period for Adult Uses.
A.
Two-Year Amortization Period.
1.
Any existing nonconforming adult use shall cease operation, or otherwise be brought into compliance with Title 9 of the municipal code, by not later than February 28, 1999.
2.
This amortization period is established based upon the finding that the existing nonconforming adult uses constitute a public nuisance because of the secondary deleterious effects arising from these uses on the community. These secondary effects are chronicled in the University of California Study (McCleary and Meeher), entitled "The Relationship between Crime and Adult Business Operations on Garden Grove Boulevard," dated October 23, 1991, on file in the City Clerk's office.
3.
The City Council further finds that the secondary adverse effects from adult uses have increased by reason of a synergism between the seven adult uses existing along Garden Grove Boulevard. In requiring a relocation of these nonconforming uses to other parts of the community, the increase in crime activity among the clientele of these adult uses can be broken, and crime thereby diminished by breaking the concentration of these adult uses from just one part of the community.
B.
Extension of Amortization Period.
1.
An affected party may apply for an extension of time beyond the two-year amortization period set forth in subsection A of this section.
a.
The affected landowner and/or tenant shall receive written notice that this section has been enacted within 90 days from its effective date. Failure of any person to receive such notice shall not affect the validity of any amortization enforcement action taken hereunder.
b.
The application for an extension must be filed by the owner of the business, or the property owner, by not later than 90 days prior to the termination of the two-year amortization period.
c.
The application shall be obtained from and filed with the City. The application shall be filled out completely and shall provide whatever additional applicable information as may be required by the City Manager or designee.
d.
If the application is not complete, the City Manager or designee shall specify the manner in which the application shall be completed within 30 days from the date of the application submittal. If the application is not completed pursuant to the City Manager or designee's instructions, the application shall be deemed withdrawn, and the amortization period shall be deemed final and conclusive.
2.
Within 10 days following receipt of a fully completed application, the City Manager shall appoint a hearing officer within 20 business days to hear and determine whether an extension shall be granted. The hearing officer shall then conduct a hearing on the matter within 20 days of appointment, unless some other mutually agreeable date is set by the parties.
3.
At the hearing, the hearing officer shall conduct an informal administrative hearing to receive evidence and testimony as to whether the business has been provided a reasonable amortization period commensurate with the investment involved. The hearing officer shall utilize a nonexclusive set of factors in evaluating whether the amortization period provided in this section is reasonable. These factors include, but are not limited to, the owner's financial investment in the business prior to the legally effective date of this section; applicable Internal Revenue Service depreciation schedules; and remaining useful life of the business improvements. The hearing shall be conducted as a public meeting.
4.
The decision of the hearing officer shall be in writing and shall be final and binding, except that the City Council may elect to call the matter up for review within 21 days of the hearing officer's decision. In such event, the City Council shall utilize the same criteria for decision making as governed the hearing officer. The hearing officer shall render a written decision with supporting findings within 15 days of the hearing.
5.
The hearing of the City Council shall not be a public hearing. It shall be restricted to testimony from the applicant and city staff, unless otherwise opened to public comment by a vote of the City Council.
(2758 § 2, 2009)
§ 9.36.150 Extension of Amortization Periods.
A.
Nonconforming Extensions. Abatement periods set by this chapter may be extended by order of the Planning Commission on a case-by-case basis at a duly-advertised public hearing. Any affected party, with approval of the property owner, may apply for an extension. The extension shall be granted if the Commission finds the private loss from removal outweighs the public gain and, if the public gain outweighs the private loss, the public health, safety and welfare would be adversely affected by the retention of the structure or the use. The hearing body shall establish the length of the extension of time. In making its findings, the Commission shall consider the following factors:
1.
The cost of the structure, its depreciated value, its remaining useful life;
2.
The length and remaining term of the lease under which it is maintained;
3.
The harm to the public if the use or structure remains standing or continues beyond the prescribed amortization period;
4.
The nature of the nonconforming use and the structure in which it is conducted;
5.
The location, and its relation to uses in the neighborhood;
6.
Depreciation for income tax purposes;
7.
The time period for which the building has been used;
8.
The monopoly or advantage, if any, resulting from the prohibition of completing new structures in the area; and,
9.
The proportion of the individual's total business that is concerned with the use or building targeted for abatement.
10.
The extensions may be granted on such conditions as may mitigate the adverse effects on the neighboring uses and property and the impacts on the general welfare.
B.
Nonconforming Uses in Nonconforming Structures. In those cases where a nonconforming use is located in a nonconforming structure, and the amortization period for the use or type of use is shorter than that prescribed for the structure or type of structure, then, a nonconforming use may be permitted to continue or the nonconforming use may be changed to another nonconforming use of a more restrictive nature, provided:
1.
A conditional use permit is approved by the Planning Commission that permits the operation of the nonconforming use until the amortization period of the building terminates. Any nonconforming use that is to be newly introduced onto the site requires a conditional use permit.
2.
No extensions of the amortization period shall be given to nonconforming uses permitted by this conditional use permit process or to nonconforming structures housing nonconforming use for which an amortization period has been prescribed may be permitted to continue. No extensions of the amortization period for any use shall be construed to extend the termination date of the structure.
(2758 § 2, 2009)
§ 9.36.160 Violation of Amortization Period.
A.
In the event the City adopts an amortization period, the following procedure shall be applied to all property owners whose property, upon adoption of the ordinance codified in this chapter or any ordinance, is, or becomes, nonconforming. The intent of this procedure is to notify such property owners of the nonconforming status of their property, and the possibility that such property may be subject to amortization periods as described in Sections 9.36.120 through 9.36.150 as amended.
B.
The City shall notify a property owner by certified mail, within 60 days, that a property is, or has become, nonconforming. The City shall clarify the terms of the nonconformity and notify the property owner of any and all amortization periods that may apply. In addition, the City shall notify the property owner that it is considered a violation of law to enter into a lease agreement with a tenant after notification of nonconformity, if that lease extends beyond the amortization period stated in Sections 9.36.120 through 9.36.150 as amended.
C.
Within 30 days of the receipt of notification of the property's nonconforming status, the property owner shall file with the City a notice stating receipt and that he or she understands the terms of the amortization period and the limitations on lease agreements.
D.
It shall be considered a violation of this section and Title 9 of this code for the property owner to enter knowingly into a lease with a tenant if that lease exceeds the length of any amortization period as identified to the property owner and as identified in this section. The City shall be held harmless for any violation of this section by the property owner.
(2758 § 2, 2009)