Within the districts established by this title or amendments that may be adopted in the future, there are uses, buildings and structures that were lawful before this title was amended, but which would be prohibited, regulated or restricted under the ordinance as now in force. The following regulations permit the reasonable continuation of these uses, buildings and structures, but also eliminate them under certain circumstances over a period of time.

(Prior code § 9247)

Each nonconforming use, building and structure may be used and maintained, provided there is no alteration, addition or enlargement to any such use, building or structure, except as otherwise provided herein, or as specified as a condition of approval granted in accordance to Section 17.54.090, 17.54.110 or 17.54.120 of this chapter.

(Ord. 2167 § 5, 1997: prior code § 9247.1)

So long as a nonconforming use, building or structure exists upon any lot, no new use, building or structure may be established or constructed, except as provided herein, or as specified as a condition of approval granted in accordance to Section 17.54.090, 17.54.110 or 17.54.120 of this chapter.

(Ord. 2167 § 6, 1997: prior code § 9247.2)

The following section applies to all nonconforming buildings and structures. (See Chapter 17.08 of this code, Definitions.)

A.

Conforming Buildings. This section shall not place any limitation upon reconstruction, repair or remodeling by the property owner where the building or structure is conforming but the use is not.

B.

Nonconformity—Termination and Abatement.

1.

Termination. Nonconforming buildings and structures may continue in all zones unless any of the following occurs:

a.

The nonconforming building or structure has been removed or demolished (that is, more than fifty percent of the exterior walls are removed) for any reason except as provided in subsection C of this section;

b.

There is a change from a nonconforming use to a conforming use; or

c.

There is an increase or enlargement of the area, space or volume of the building, structure or land devoted to the nonconforming use, except as provided here.

2.

Abatement By Operation of Law. Nonconforming buildings and structures shall be abated, and usage shall be terminated upon the expiration of the periods of time indicated hereafter in this subdivision. The period of time shall begin on the date that such use, building or structure first became nonconforming by reason of the provisions of the zoning regulations of the city:

a.

The nonconforming building or structure has been abandoned for six months or more; or

b.

A nonconforming building or structure housing a nonconforming use: five years; or

c.

Nonconforming buildings or structures shall be abated, and the usage terminated, within the periods of time as herein set forth, based on the type of construction as defined in the building regulations of the city, as follows:

i.

Type IV and type V buildings per 1985 Uniform Building Code (light incombustible frame and wood frame buildings and structures): thirty-five years; and

ii.

Type III buildings per 1985 Uniform Building Code (heavy timber construction and ordinary masonry buildings and structures): forty years; and

iii.

Type I and type II buildings per 1985 Uniform Building Code (fire resistive, including, but not limited to, concrete buildings and structures): fifty years; and

iv.

Metal buildings: five years.

C.

Repair, Maintenance, Addition, Alteration and Replacement. The provisions apply to all nonconforming buildings and structures.

1.

Ordinary Repaired Maintenance. The ordinary repair and maintenance of a nonconforming commercial or industrial building in any zone, or a residential building in a commercial or industrial zone, is permitted and encouraged; provided, that the cost does not exceed fifteen percent in any twelve-month period, of the fair market value of the building or structure at the commencement of rehabilitation.

2.

Eminent Domain. Where a portion of a nonconforming building or structure is taken for any public use by any agency having the power of eminent domain, the building or structure may be repaired, reconstructed or remodeled. The repair, reconstruction or remodeling must be limited to rendering the building safe for continued use.

3.

Partial Destruction. If a nonconforming building or structure is damaged or partially destroyed, it may be restored to the condition in which it existed immediately prior to the occurrence of such casualty; provided, that the total reconstruction cost does not exceed thirty-seven percent of the fair market value of the building or structure. In addition, all such construction and/or repair work shall be completed within a period of one year from the date of the occurrence of the casualty. For the purposes of this section, units under condominium ownership that are located in one building will be considered as separate units.

4.

Elimination of Nonconformity. Alterations and/or additions shall be permitted in order to render the building or structure in conformity with the provisions of this title.

5.

Compliance with Laws. In order to comply with any law, other than zoning regulations, enacted after the adoption of the provisions hereof, alterations and/or additions shall be permitted.

6.

No Extension of Termination Date. Accomplishment of any work permitted pursuant to this section shall not extend the termination date of the nonconforming use, building or structure.

D.

Nonconforming Buildings or Structures—Provisions for Each Zone. In addition to the preceding, the following provisions provide regulations by zone for nonconforming buildings and structures, regardless of whether or not such building or structure is the primary structure on the site:

1.

Residential Zones.

a.

Repair, Maintenance, Addition, Alteration and Replacement. The aforementioned work on nonconforming buildings and structures is permitted under the following conditions:

i.

Any nonconforming dwelling unit, which is nonconforming solely by reason of deficient off-street parking facilities (see Chapter 17.52 of this code for the off-street parking requirements chart); provided, that the number of dwelling units on the lot does not increase. In addition, such construction or reconstruction can not result in any portion of a building or structure being located on the only portion of the lot physically available for required off-street parking facilities or access thereto or any required yard or open space area; or

ii.

Where a second unit is a legal nonconforming structure, and the primary unit is conforming, additions and alterations to the primary unit may be allowed, subject to a scheduled review and approval by the planning commission. The primary unit shall be the largest unit, or in case both units are the same size, the front unit shall be considered primary.

iii.

Any building which is rendered legal nonconforming by the adoption of the residential development standards on April 28, 1986, and which is totally destroyed by fire, earthquake or other calamity beyond the control of the owner, may be reconstructed with the same number of dwelling units it had prior to such fire, earthquake or other calamity; provided, that as reconstructed it shall comply with all other building and zoning ordinance requirements.

iv.

The ordinary repair and maintenance of a nonconforming residential building in a residential zone shall be permitted under the following limitations; provided, that in no case shall the structure be altered to expand the use or increase the nonconformity:

(A)

No limit shall be placed on work which would improve the health and life safety features of the building. The health and life safety related work shall be defined as that necessary to meet the city's adopted building, electrical, plumbing, mechanical, fire and health codes.

(B)

The cost of the nonhealth and safety related repairs and maintenance in any twelve-month period shall be limited to thirty-seven percent of the fair market value of the building or structure prior to the commencement of rehabilitation.

b.

Nonconformity—Yard Areas. If a nonconforming building or structure is nonconforming because of a failure to observe required yard areas, the same may be altered or added to so long as the addition or enlargement will not encroach into required setback area more than the existing encroachment of the building, except that:

i.

In no event shall the addition or enlargement be closer than three feet to the internal side or rear lot line; and

ii.

In no event shall any addition or enlargement be made into the front setback or side setback, except to enclose an existing porch, or to add an enclosed entryway; provided, that the enclosure does not encroach into the front setback or side street setback more than the existing encroachment of the facade closest to the right-of-way; and

iii.

In all other respects such additions or alterations shall conform to all other required yard and open space requirements (for required yard areas, see residential development standards and minimum setback requirements Exhibits, Chapters 17.10 through 17.20 of this code); and

iv.

Nonconforming Fencing. If a fence in a residential zone is nonconforming and is damaged or partially destroyed to the point where the total reconstruction cost exceeds twenty-five percent of the existing fence, the fence must be completely removed or replaced with a conforming fence at the proper setbacks.

2.

Commercial and Industrial Zones. Alteration, enlargement and replacement of nonconforming buildings and structures are permitted under the following conditions:

a.

Nonconformity—Parking Facilities. Such work shall be permitted for any building or structure which is nonconforming solely with respect to its existing parking facilities in accordance with the following:

i.

If the total cost of such work to be performed exceeds thirty-seven percent of the fair market value of the building, then parking for the entire building as altered should be provided per Section 17.52.050.

ii.

If the total cost of the work to be performed is less than or equal to thirty-seven percent of the fair market value of the building, and no additional parking spaces would otherwise be required for such work, then no additional parking spaces are required.

iii.

If the total cost of the work performed is less than or equal to thirty-seven percent of the fair market value of the building, and such work would in itself require an additional number of parking spaces, then the minimum number of spaces shall be the greater of the following up to the number of spaces which would make the building as altered conform to Section 17.52.050:

(A)

Seventy-five percent of the already existing number of spaces in the parking facility; or

(B)

The number of spaces required for the alteration or enlargement.

b.

Fee In Lieu of Parking. In lieu of providing the number of spaces required by subsection D(2)(a) of this section and upon application by the property owner, the city may, at its discretion, accept payment of fees or alternative methods to provide for the required parking off-site; provided, that such alternative is determined to be feasible and substantially equivalent to the provision of parking on-site.

c.

Decorative Facade. If a building or structure is nonconforming solely due to lack of a decorative facade, any addition, alteration or replacement in excess of fifteen percent of the fair market value in any twelve-month period will require that the building be made to conform with all provisions of this code.

(Ord. 2047 §§ 5 and 6, 1991: prior code § 9247.3)

The following section applies to all nonconforming uses (see Chapter 17.08 of this code, Definitions) regardless of whether or not such use occupies whole or part of a lot or space.

A.

Abandonment and Termination. Nonconforming uses may continue in all zones unless any of the following conditions occur:

1.

There is a change from one use to a different use, or

2.

There is an increase or enlargement of the area, space or volume of the building, structure or land devoted to the nonconforming use, except as provided here; or

B.

Abatement by Operation of Law. Nonconforming buildings, uses and structures shall be abated, and usage shall be terminated, upon the expiration of the periods of time indicated hereafter in this subsection. The period of time shall begin on the date that such use, building or structure first became nonconforming by reason of the provisions of the zoning regulations of the city.

1.

The nonconforming use has been abandoned for six months or more, or

2.

Where the property is unimproved or paved; one year, or

3.

Where the property is unimproved or paved, except for structures of a type for which the building code does not require a building permit, or which contain less than four hundred square feet of gross floor area: three years, or

4.

A nonconforming use housed in a nonconforming building or structure shall be terminated within five years, or

5.

A nonconforming use of a conforming building or structure: twenty years, except for such uses which are nonconforming solely by reason of a lack of off-street parking facilities.

(Prior code § 9247.4)

A.

Change of Use. A permitted use which is nonconforming only because it does not meet the requirements of the standards of development for that zone or the off-street parking requirements may be changed to a similar or less intense use permitted in the zone. No change of use shall extend the termination date for the original nonconforming use.

B.

Buildings or Structures Under Construction. Any building or structure for which a building permit has been issued, and is in force prior to the operative date of any amendment to the provisions of this title which has the effect of rendering the building or structure nonconforming, may be completed and used; provided, that it is completed in accordance with the plans and specifications upon which the building permit was issued. The building permit must be validly issued and remain unrevoked and unexpired.

C.

Existing Variances and Conditional Use Permits. No use, building or structure shall be defined as nonconforming for the purpose hereof, where it was previously authorized by a zone variance or conditional use permit, so long as the use, building or structure conforms with the terms and conditions of the variance or permit. The variance or permit must be validly issued and remain unrevoked and unexpired.

D.

Public Utilities Exempted. The previous provisions hereof concerning the required removal of nonconforming buildings and uses, and the reconstruction of nonconforming buildings partially destroyed, shall not apply to public utility buildings and structures when such buildings and structures pertain directly to the rendering of the service or distribution of a utility, nor shall any provision hereof be applied so as to prevent the expansion, modernization or replacement of such public utility buildings, structures, equipment and features used directly for the delivery or distribution of the service.

E.

Public Acquisition. Whenever any lot, building or any structure is rendered nonconforming within the meaning of this code by reason of a reduction in a required yard area, lot area or reduction in off-street parking facilities occurring by reason of

(1)

Dedication to, or purchase by the city for any public purpose, or

(2)

Eminent domain proceedings, the same shall be considered as conforming to the same extent as prior to the dedication or eminent domain proceedings; provided, that if the buildings and/or structures located on the lot are partially destroyed after such acquisition so that the reconstruction cost would exceed more than fifty percent of the fair market value of such building or structure, such reconstruction shall not take place unless compliance is had with Chapter 17.52 of this code, Off-Street Parking.

F.

Nonconforming Uses in Conforming Buildings. A nonconforming use of a conforming building or structure which is nonconforming exclusively by reason of an inadequate number of off-street parking spaces shall conform to all of the provisions of this code, including, but not limited to, the off-street parking requirements hereof:

1.

Where such building or structure is partially destroyed within the meaning of Section 17.54.040(C)(3); or

2.

Where such nonconforming use is terminated as described in Section 17.54.050 (A) and (B).

(Prior code § 9247.5)

A.

Where any of the facts set forth in this chapter are found to exist by the director of planning, or where he finds that the abatement period, as to a building, use or structure, as set forth in this chapter has expired, he shall issue a written order of abatement (hereafter "order"), and give notice. The order shall contain a description of the property affected; the basis for the issuance of such order; and the time within which the use shall terminate. The order shall be final and conclusive thirty days after the date of the giving of notice in the absence of an appeal. The decision of the director of planning may be appealed as described in Sections 17.54.090 and 17.54.100 as hereafter provided. The utilization of the nonconforming building, structure and/or use which is the subject of such an order, shall be terminated within the time specified in such order. The time for termination shall not exceed one year. Failure to issue a notice shall not prejudice the city's rights to subsequently issue such an order or subsequently to require compliance with the then applicable laws of the city.

B.

Upon issuance of a written order of abatement by the director of planning, notice shall be given by mailing a copy of such order addressed to the owners and/or persons in possession of the property to which the order relates. Postage will be prepaid and addressed to their last known address as determined from records available to the director of planning, alternately, the director of planning may personally serve such person with copies of the order.

(Ord. 2167 § 7, 1997: prior code § 9247.6)

A.

If the property owner disagrees with the planning department's determination of the fair market value of a legal nonconforming building for the purpose of administering any part of this chapter, the property owner may appeal this decision to the planning commission, with a further right of appeal to the city council.

B.

The planning commission shall conduct an informal hearing within thirty days after receiving the appeal, and shall mail notice of the hearing to the property owner at least ten days before the hearing. The decision of the planning commission shall be final unless appealed by the property owner to the city council within fifteen days after such decision. Upon an appeal to the city council, the city council shall conduct an informal hearing within thirty days of such appeal and shall mail notice of the hearing to the property owner at least ten days before the hearing.

(Ord. 2047 § 7, 1991: prior code § 9247.7)

A.

Appeal. A recipient of an abatement order may appeal the director of planning's determination to the planning commission as provided in Chapter 17.78 of this code. Alternatively, the recipient using the same procedures, may request an extension of the amortization period applicable to the recipient's nonconforming use, building or structure.

B.

Standard of Review. On appeal, the commission shall conduct a public hearing at which it shall uphold the director's determination and deny any requested extension unless the commission makes one or more of the following findings:

1.

That the director wrongly determined that the use, building or structure subject to abatement is nonconforming;

2.

That the director wrongly determined that the amortization period of the use, building or structure subject to abatement had expired;

3.

That the director wrongly determined that the use, building or structure had been abandoned for a period of at least six months;

4.

That to require cessation of such use, building or structure would impair the property rights of any person to such an extent as to be an unconstitutional taking of property; or

5.

That such use, building or structure does not now and will not during the extension period requested:

a.

Adversely affect the health, peace or welfare of persons residing or working in the surrounding area; and

b.

Be materially detrimental to the use, enjoyment or valuation of the property of other persons located in the vicinity of the site; and

c.

Jeopardize, endanger or otherwise constitute a menace to the public health, safety or general welfare.

If circumstances exist as described in subsections (B)(3), (4) or (5) of this section, the commission may, but is not obligated to, extend the amortization period of a nonconforming use, building or structure.

C.

Conditional Approvals. The commission, in approving an application to extend an amortization period may impose conditions which it deems necessary to insure that the extension will satisfy the required findings set forth in subsection (B)(5) of this section or to mitigate against any harm associated with a nonconforming use, building or structure if the commission makes a finding under subsection (B)(4) of this section.

D.

Limitations on extensions of an amortization period. Extensions of an amortization period granted by the commission shall not be greater than ten years.

E.

Evidentiary Burden. A person appealing a determination of the director or requesting an extension of an amortization period has the burden of proving that the findings required by subsection B of this section are satisfied. No evidence shall be considered in connection with such an application except for evidence contained in the application presented to the commission, reports prepared by the city, testimony presented at a hearing or other evidentiary submissions made at or prior to the hearing.

(Ord. 2167 § 8, 1997)

A.

Notwithstanding any contrary provision within this code, the director of planning may issue or recommend that the planning commission issue a special amortization order requiring the termination of a nonconforming use, building or structure prior to the date on which that use, building or structure would lose its legal nonconforming entitlement under this code. The order shall not require termination of the use, building or structure for at least one year from the date of the order, and shall not reduce the amortization period originally accorded to the use, structure or building by more than one-half. The abatement order shall be issued only if the director or commission concludes that:

1.

Continuation of the nonconforming use, building or structure will adversely affect the health, peace or welfare of persons residing or working in the surrounding area;

2.

Any alterations to the improvements on the property necessary to fully or partially satisfy the then current zoning will not result in a taking of property or a violation of law; and

3.

Any cessation of a use on the property necessary to fully or partially satisfy the then current zoning will not result in a taking of property or a violation of law.

B.

Appeal. A property or business owner affected by an order issued under this section may appeal that determination as provided in Chapter 17.78 of this code. An order may be sustained by the commission in its original, a modified or a conditional form if the commission makes the findings required by subdivision A. An order may be set aside if the commission cannot make the findings required by subdivision A or the commission finds that setting aside the order will serve the general welfare, equity or fairness.

C.

Evidentiary Burden. The city shall have the burden to present evidence to sustain the findings required by subsection (A)(1). The property or business owner shall have the burden to make all other evidentiary showings. No evidence shall be considered in connection with such an application except for evidence contained in the application presented to the commission, reports prepared by the city, testimony presented at a hearing or other evidentiary submissions made at or prior to the hearing.

D.

Other City Powers. Nothing in this section shall restrict the powers of the city to control or terminate a nonconforming use, building or structure using any power or remedies available to the city under this code or state law, including the power to abate nuisances.

(Ord. 2167 § 9, 1997)

Notwithstanding any contrary provision within this code, a property owner may request that the planning commission, subsequent to conducting a public hearing using the procedures established in Chapter 17.78 of this code, extend the period of time upon expiration of which a nonconforming use, building or structure shall be abated by operation of law. A property owner may also make such a request after the expiration of such time periods has passed.

A.

Standard of Review. Upon receiving such a request, the commission shall conduct a public hearing at which it shall deny any requested extension unless the commission makes the findings as specified in Section 17.54.090(B)(4) or (5) of this chapter. If circumstances exist as described in Section 17.54.090(B)(4) or (5) of this chapter, the commission may, but is not obligated to, extend the amortization period of a nonconforming use, building or structure.

B.

Conditional Approvals. The commission in approving such an extension may impose conditions which it deems necessary to insure that the extension will satisfy the required findings set forth in Section 17.54.090(B)(5) or to mitigate the impacts of an extension pursuant to Section 17.54.090(B)(4).

C.

Limitations on Extensions of an Amortization Period. Extensions of an amortization period granted by the commission shall not be greater than ten years. Nothing in this section shall prohibit the approval of additional extensions of an amortization period.

D.

Evidentiary Burden. A person requesting an extension of an amortization period has the burden of proving that the findings required by Section 17.54.090(B)(4) or (5) are satisfied. No evidence shall be considered in connection with such an application except for evidence contained in the application presented to the commission, reports prepared by the city, testimony presented at a hearing or other evidentiary submissions made at or prior to the hearing.

(Ord. 2167 § 10, 1997)

Notwithstanding any contrary provision within this code, a property owner may request that the planning commission, subsequent to conducting a public hearing using the procedures established in Chapter 17.78 of this code, transfer an existing entitlement for a nonconforming use from one location to another location which does not have a similar entitlement for such nonconforming use.

A.

Standard of Review. Upon receiving such a request, the commission shall conduct a public hearing at which time it shall deny any requested transfer of entitlement unless it makes the following findings:

1.

That such use at the proposed location will promote the overall health and welfare of the city; and

2.

Negative impacts on the city will be reduced if the use is relocated from its current location to the proposed location.

B.

Amortization Period for New Location. Upon the commission approving such a request, the remaining amount of the amortization period for the nonconforming entitlement shall transfer to the new location. Extensions of the amortization period or special amortization periods may be granted as specified in Sections 17.54.100 and 17.54.110. The commission shall also have the authority to approve a shorter amortization period than is otherwise specified in Sections 17.54.100 and 17.54.110.

C.

Conditional Approvals. The commission in approving such a transfer of nonconforming entitlements may impose conditions which it deems necessary to insure that the transfer will satisfy the required findings as specified in subsection A of this section.

(Ord. 2167 § 11, 1997)