These provisions provide for the regulation of legal nonconforming structures, uses, and property. Generally, nonconformities should be eliminated over time. Accordingly, nonconformities may be maintained, but not expanded. Further, nonconformities which substantially and adversely affect the orderly development and taxable value of other property in the district should be amortized. In these cases, the adoption of a reasonable amortization program permits the owner to realize an investment, thereby minimizing loss, while at the same time ensuring the public that the zoning district in which the nonconformity exists will eventually benefit from a substantial uniformity of permitted uses.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

No property in the city shall be used for any purposes except those permitted in the zoning district in which the property has been classified.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Nonconformities may be continued subject to the following conditions:

(a)

A nonconforming structure or nonconforming use may not be reestablished after having been abandoned or discontinued for a period of 90 consecutive days or a total of six nonconsecutive calendar months. This discontinuance shall cause the structure or use to be deemed to have ceased and the structure or use shall not be reinstated or further continued unless specifically permitted by the commission after a hearing in compliance with this chapter. The discontinuance or abandonment of the active and continuous operation or occupation of the nonconforming structure or use, or a part or portion thereof, for these periods, is construed and considered to be an abandonment of the nonconforming structure or use, regardless of any reservation of an intent not to abandon the same or of an intent to resume active operations. If abandonment is evidenced by the actual removal of structures, machinery, equipment or other evidences of the nonconforming structure or use, the abandonment shall be construed and considered to be completed within a period of less than 90 days and all rights to reestablish or continue the nonconforming structure or use shall thereupon terminate.

(b)

A nonconforming structure may not be added to, structurally altered or enlarged in any manner, except as provided in subsection (e). No nonconforming structure may be added to, structurally altered or enlarged unless the modification makes the structure more conforming or is required by this code, city ordinance or by state law.

(c)

A nonconforming use occupying a conforming structure or portion thereof or occupying any parcel shall not be enlarged or extended into any other portion of the structure or land.

(d)

Any nonconformity which does not conform to these conditions shall be immediately abated subject to the Notice and Hearing procedures described in sections 9.28.025 through 9.28.055.

(e)

Where a structure is nonconforming only by reason of inadequate setbacks, yard size or open space, structural additions, alterations or enlargements of the existing structure shall be permitted, provided the additions, alterations, or enlargements shall observe all current setback and open space requirements for the parcel or site. In no case shall an addition, alteration or enlargement of a nonconforming structure extend the original termination date, if any, of a nonconformity without an exception granted by the commission or council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Commencing with the service of notice described in section 9.28.025 the following nonconformities shall be discontinued and brought into conformity within the following time periods:

(1)

Where the property is unimproved, one year.

(2)

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.

(3)

Accessory structures, three years.

(4)

A nonconforming use conducted in a structure designed to serve a use permitted in the zoning district, five years.

(5)

Any nonconformity resulting from the addition of chapter 9.59 (Nuisance Abatement) to this code six months.

(6)

Type I and II buildings (fire resistive), 50 years.

(7)

Type III or type IV buildings (heavy timber construction and ordinary masonry), 40 years.

(8)

Type V building (light incombustible frame and wood frame), 30 years.

(9)

For all legal nonconforming signs existing on parcels within the city on the effective date of this chapter, the amortization period shall be as outlined in the following table:

For the purpose of this section, the value of a sign shall be the value of the sign on the effective date of this code, or any subsequent ordinance or regulation rendering the sign nonconforming. The director shall revise the replacement values annually based upon the increase in the local consumer price index.

(10)

A nonconforming sand and gravel use, ten years.

(11)

Roofing materials, the rated lifetime of the material, or 20 years where the rated lifetime of the material is not available, less the age of the roof, provided, that where the roofing material was installed in violation of the applicable covenants, conditions and restrictions, the otherwise applicable amortization period shall be reduced by two.

(12)

Any nonconforming structure or use which is not specifically enumerated, five years.

(b)

Any use which does not comply with this section shall be deemed a public nuisance and shall be abated accordingly unless an exception therefore shall have been granted by the commission or council.

(c)

As an exception to the contents of subsections (a) and (b) under this section, there are no amortization and termination provisions for dwellings, commercial buildings, and industrial buildings only nonconforming with regard to required yards and minimum lot size.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Upon determination that the provisions of this chapter apply to a given parcel of land, the director shall send a notice thereof by United States certified mail, return receipt requested, to the owner thereof as shown on the last equalized assessment roll, 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 section shall state that the property in question is a nonconformity, state the date of abatement established in section 9.28.020, and state that the date of abatement may be appealed to the commission within 30 days of the date appearing on the notice.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The owner of any parcel upon which a nonconforming structure or use is being maintained may appeal the length and the classification of the amortization period described in the notice provided pursuant to section 9.28.025 by submitting an appeal on a form provided by the director and accompanied by any required fee pursuant to chapter 9.55 (Applications and Fees), within 30 days of the date indicated on the notice.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Within 60 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 section 9.28.060.

(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 and commercial tenants of all abutting parcels.

(c)

The commission shall receive written and oral testimony at the hearing in regard to the term of abatement. In conducting 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 find and determine whether the nonconformity should be abated and all facts in support thereof, whether the owner of the parcel can amortize his or her investment in the term for abatement provided in section 9.28.020 and if not, what term for abatement should be provided as specified in section 9.28.060. 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 section 9.28.020.

(e)

The commission shall also find and determine whether the structure encompassing the nonconforming use can economically be used in its present condition or can successfully be modified for a purpose permitted by the zoning district in which it is located.

(f)

The commission may require reasonable modifications or alterations to any nonconformity to improve the nonconformity's appearance or compliance with this code, Municipal Code, or state law, except that any modification or alteration which would extend the useful life of the nonconformity is expressly prohibited unless an exception has been granted by the commission or council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

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 United States certified mail, return receipt requested, within ten days after the decision is rendered. The order shall be binding upon the owners, and the owners' successors, heirs and assignees.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Any interested person may appeal the decision of the commission to the council within 15 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)

Each appeal shall be accompanied by other documents and information the director deems necessary to adequately explain and to provide proper notification for the appeal. Each 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.

(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.

(e)

The action of the council shall be to sustain, deny, 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.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

After the conclusion of all appeals, the notice of the decision and order of the commission, or the council in the case of a further appeal, shall be recorded with the Orange County Recorder's Office.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The council may appoint a hearing officer to conduct the hearing described in section 9.28.035 and appoint the commission to conduct the appeal described in section 9.28.045. If the council appoints the commission to hear appeals, there shall be no right of further appeal to the council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

The commission shall 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.

(b)

The commission shall base its decision as to the length of the permitted amortization period on any competent evidence presented, including, but not limited to, the following:

(1)

The nature of the use.

(2)

The amount of the owner's investment in improvements.

(3)

The convertibility of improvements to permitted uses.

(4)

The character of the neighborhood.

(5)

The detriment, if any, caused to the neighborhood by continuance of the nonconforming use.

(6)

The amount of time needed to amortize the investment.

(7)

The depreciation schedule attached to the owner's latest federal income tax return.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any owner of a nonconforming use resulting from the addition of chapter 9.48 to this code pertaining to conditional use permits shall apply for a conditional use permit within one year of receiving a notice from the director. The notice shall state that the owner has 1 year to apply for the permit, and that if the owner does not apply, or if the permit is denied, an amortization period will be established in compliance with this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Ordinary maintenance, repairs and alterations may be made to a nonconforming structure, or a conforming structure occupied by a nonconforming use, provided that no structural alteration shall be made if the expense of the restoration exceeds 50 percent of the replacement cost of the structure at the time the construction is proposed. Any nonconforming structure, or structure occupied by a nonconforming use partially destroyed may be restored provided restoration is started within 90 days of the date of partial destruction and diligently pursued to completion. Whenever a nonconforming structure or structure occupied by a nonconforming use is damaged in excess of 50 percent of its replacement cost at the time of damage, the repair or reconstruction of the structure shall conform to all the regulations of the zoning district in which it is located and it shall be treated as a new structure, and any nonconformity shall be cured.

(b)

Where any part of a nonconforming structure is acquired for public use, the remainder of the structure may be repaired, reconstructed, or remodeled, with the same or similar materials as used in the existing structure.

(c)

Disagreements with the interpretation of the provisions of this section shall be heard and resolved by the commission, subject to appeal to the council. The burden of proof shall be on the owner to demonstrate by a preponderance of the evidence that the cost of repairs is less than 50 percent of the replacement cost of the structure.

(d)

Nothing in this section shall be construed to excuse any owner, occupant or contractor from rebuilding or repairing any damaged structure in compliance with the requirements of the uniform construction codes, or any other health or safety requirements imposed by local, state, or federal law or regulation in effect at the time of the repair or rebuilding.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

An existing legal nonconforming structure or use may be minimally expanded or changed subject to the granting of a variance after a noticed public hearing as specified in chapter 9.56 (Hearing and Appeals), and if all of the following findings are made in addition to those listed in section 9.46.025 (Variance Findings):

(a)

That the expansion or change is minimal.

(b)

That the expansion or change will not adversely affect or be materially detrimental to adjoining properties.

(c)

That there is a need for relief of overcrowded conditions or for modernization in order to properly operate the use.

(d)

That the use is existing and has not been discontinued for a period of 90 consecutive days.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any nonconformity continuing beyond the date for abatement as established by this chapter or as extended by the commission or council is a public nuisance.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Subject to commission approval, a legal nonconforming use may be replaced by another nonconforming use, provided that the substitute use is less detrimental to the public welfare and to the property of persons located in the vicinity thereof than is the original nonconforming use. The change of use shall not extend the termination date established for the original nonconforming use.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any one of the following violations of the Municipal Code shall immediately terminate the right to operate a nonconformity, except as otherwise provided in this chapter:

(a)

Changing a nonconforming use to a use not permitted in the zoning district;

(b)

Increasing or enlarging the area, space or volume occupied by or devoted to a nonconformity; or

(c)

Addition to a nonconforming use of another use not permitted in the zoning district.

(Ord. No. 98-193, §§ 1—4, 10-19-98)