Any use of land, structure or land and structure which was legally established but is nonconforming to subsequently adopted land use regulations is a legal nonconforming use.

A legal nonconforming land use may be continued from the time that legal nonconforming land use is established, except that.

A.

No such use shall be expanded, enlarged, increased, or extended to occupy a greater area than that occupied when the legal nonconforming use was established.

B.

No such use may be intensified over the level of use that existed at the time the legal nonconforming use was established.

C.

The legal nonconforming use may be changed to a use of a similar or more restricted nature, subject to a use permit in each case.

A legal nonconforming use of a structure may be continued except that:

A.

The nonconforming use of a structure may be changed to a use of the same or more restricted nature subject to the issuance of a use permit in each case.

B.

The nonconforming use of a portion of a structure may be extended throughout the structure subject to the issuance of a use permit in each case.

C.

A structure maintaining a legal residential nonconforming use may be increased for the expansion of the use by one hundred twenty (120) square feet, or ten (10) percent of the floor area, whichever is greater.

A.

The enlargement, extension, reconstruction or structural alteration of a nonconforming structure, nonconforming only as to height and yard regulations, may be permitted if the enlargement, extension, reconstruction or structural alteration conforms to all the regulations of the district in which they are located.

B.

Ordinary maintenance and repairs, including structural repairs and foundations, may be made to any structure which is nonconforming as to height or setbacks or to a structure used for a legal nonconforming use, provided:

1.

No structural alterations are made; and,

2.

Such work does not exceed fifty (50) percent of the appraised value of the structure in any one year period.

Additional maintenance and repair in a one year period may be allowed subject to the issuance of a use permit in each case.

C.

No legal nonconforming structure or sign shall be moved in whole or in part to any other location unless every portion of such structure or sign which is moved is made to conform to all the regulations of the district in which it is located.

If at any time any structure in existence at the time any provision of this Title becomes applicable to it, which does not conform to this Title, be damaged or destroyed by fire, explosion, act of God, or act of public enemy, the land and structure shall be subject to all the regulations specified by this Title for the district in which said land and structure are located; except that such structure may be rebuilt to a total floor area and volume not exceeding that of the structure destroyed and the use may continue as herein provided for nonconforming uses, if a use permit is first secured.

Means divisions of property into parcels when said parcels were shown on the 1964-65 County tax roll under separate ownership, or a division of property into four or less parcels shown on a record of survey recorded prior to March 2, 1964, or record or survey of four or less parcels, each of which is over two and one-half acres, recorded prior to March 7, 1972, or parcels of two and one-half acres or over when said parcels were shown under separate ownership prior to March 7, 1972, when shown on a deed or deeds recorded on or before March 7, 1972, when said parcels comply with applicable zoning ordinances in effect at the time of division, or when said parcels are lots on a recorded subdivision map approved by the Board of Supervisors of the County of Monterey.

All legal nonconforming wrecking yards and junk yards shall be enclosed by a solid board or masonry fence at least six feet in height for fire prevention and prevention of the spread of litter and debris. No junk, dismantled cars or machinery shall be stacked higher than the fence. Wrecking yards and junk yards shall comply with these special regulations, or shall be removed entirely by July 1, 1961, or secure a use permit.

A.

Nothing contained in this Title shall be deemed to require any change in the plans, construction, or designated use of any structure upon which actual construction was lawfully begun prior to the effective date of this Title.

B.

The foregoing provisions shall also apply to nonconforming uses in districts hereafter changed.

A.

If the actual operation of a legal nonconforming use of a structure, land, or structure and land ceases for a continuous period of twelve (12) months, the legal nonconforming use shall be deemed to be abandoned. Any and all subsequent uses of the structure and land shall conform in all respects to the provisions of this Title.

B.

Should the property owner, operator, prospective owner or operator, or any other person dispute whether or not the legal nonconforming use has in fact been abandoned, the Planning Commission shall determine said abandonment pursuant to the provisions of Chapter 21.78 of this Title.

A.

Findings and Declarations.

1.

Pursuant to Article XI of the California Constitution, the County of Monterey may adopt and enforce ordinances and regulations to protect and promote the public health, safety, and welfare of its citizens.

2.

The existence of legal nonconforming public use airports in or in the vicinity of a residentially-zoned area or other area not zoned for airport use may pose a threat to the public health, safety, and welfare, and may not be compatible with the objective of orderly development of the County. To protect the health, safety, and general welfare of the persons and property within the County and to promote the orderly development of the County, it is necessary and appropriate to establish a process to determine whether to eliminate nonconforming public use airports after a reasonable amortization period.

3.

This ordinance is necessary to enable the County to eliminate nonconforming public use airports if appropriate based on findings and to determine a reasonable amortization period for the elimination of such nonconforming uses and thereby promote and protect the public health, safety, and welfare of its citizens and achieve the objective of orderly development of the County, without infringing upon the constitutional rights of the owners of such nonconforming public use airports.

B.

Definitions. The following words, whenever used in this Section, shall be construed as defined in this subsection. Words and phrases not defined herein shall be construed as defined in the Monterey County Code.

1.

"Nonconforming public use airport" means a public use airport, as defined herein, wherein the use as a public use airport was legally established but which use is nonconforming to subsequently adopted land use regulations.

2.

"Owner" is the owner of the property on which the subject nonconforming public use airport is located.

3.

"Personal use airport" is an airport limited to the noncommercial activities of an individual owner or family and occasional invited guests and includes any personal use airport as that term is defined by Section 3527 of Title 21 of the California Code of Regulations as of the date of this ordinance.

4.

"Public use airport" is an airport that is open for aircraft operation to the general public and includes any "public use airport" as that term is defined by Section 3527 of Title 21 of the California Code of Regulations as of the date of this ordinance.

5.

"Value" as used in this Section with respect to the value of a nonconforming public use airport, or to the value of improvements on such a facility, or to the value of reconstruction or replacement, means the current cost of construction, or the current cost of replacement in kind of existing structures or improvements, excluding consideration of the value of land.

C.

Applicability. The regulations set forth in this Section shall apply to properties located in the unincorporated areas outside of the coastal zone in Monterey County.

D.

Scope.

1.

All nonconforming public use airports may be continued and maintained from the effective date of this ordinance until one of the following events occurs: the owner abandons said use; or the Board of Supervisors eliminates the nonconforming public use airport after a reasonable period of amortization determined in accordance with the procedures outlined in this Section. When the owner abandons said use or at the end of the reasonable period of amortization, each such nonconforming public use airport shall lose its status as a legal nonconforming use, and any such nonconforming public use airport shall then cease to operate as a public use airport.

2.

This section is not intended to nullify any regulations set forth in this Chapter 21.68 pertaining to alteration or abandonment of nonconforming uses. Any expansion, intensification, or alteration to the nonconforming use, including conversion of a nonconforming public use airport to a personal use airport, shall comply with the regulations of this Chapter.

E.

Notice—Public Hearing—Action.

1.

The Director of Planning shall identify all nonconforming public use airports in the unincorporated area of the County.

2.

The Director of Planning shall provide written notice to the owners of any such nonconforming use airports. The notice shall inform the owner that the County will initiate a process to determine whether to continue to allow the legal nonconforming use or whether to eliminate the use following a reasonable period of amortization. The notice shall request that the owner inform the Director of Planning within thirty (30) days of the date notice was sent if the owner desires to cease the nonconforming use within thirty (30) days of owner so notifying the Director. The notice shall further request that, if the owner does not presently desire to cease the nonconforming use, the owner provide to the Director the following information:

a.

The location and size of the property and the public use airport.

b.

History of the use of the property as a public use airport, including information about the length of time it has existed as a public use airport and any relevant permits or other official regulatory documents related to the use of the property as a public use airport.

c.

Owner's total investment in the use of the property as a public use airport and such other information as owner deems relevant to a determination of the economic value of owner's investment in the property as a public use airport.

d.

A map of the subject property, indicating the location of all parcels of real property within a distance of one thousand (1,000) feet from the exterior boundary of the subject property, and a list of the name and address of the owner of record of each such parcel as shown in the last equalized assessment roll.

e.

Any other information owner may wish to submit which is relevant to the continuation or elimination of the nonconforming use and to a determination of a reasonable period of amortization.

f.

Any other information as the Director of Planning may require.

3.

If, within the thirty (30) days following the date notice was sent, the owner notifies the Director of Planning that owner desires to cease the nonconforming use, the owner shall cease using the property as a public use airport within thirty (30) days of owner so notifying the Director of Planning. Thereafter, the use of the property as a public use airport shall no longer be allowed as a nonconforming use.

4.

If, within the thirty (30) days following the date notice was sent, the owner does not notify the Director of Planning that owner desires to cease the nonconforming use, then the Director of Planning shall initiate the process outlined in this Section with respect to each such nonconforming public use airport. The owner shall promptly supply the information requested in the notice to the Director of Planning. The Department of Planning shall prepare a staff report with a recommended course of action for consideration by the Planning Commission. The recommendation shall consist of one of the following: the nonconforming use be allowed to continue; or the nonconforming use be eliminated following a reasonable period of amortization, together with a recommendation of what would constitute a reasonable period of amortization. In making the recommendation, the Department of Planning staff may take into account relevant factors such as the following: the compatibility of the nonconforming uses with the uses designated in the General or Area Plan for the surrounding area and properties; the owner's total investment in the use of the property as a public use airport; the original cost of any improvements made to use the property as a public use airport; the present actual and depreciated value and any salvage value of the structures and improvements made for the public use airport; dates of construction; the remaining useful life of the improvements; the appraised market value of the subject public use airport; the length of time the nonconforming use has continued; potential health and safety hazards, if any, to the surrounding community from the continuation of the nonconforming use; and the potential harm to the public if the nonconforming use is continued or is eliminated.

5.

The Director of Planning shall conduct any appropriate environmental review pursuant to the California Environmental Quality Act (CEQA) of the recommended course of action.

6.

The Director of Planning shall set a date for a public hearing before the Planning Commission on the recommended course of action. Notice of the hearing shall be given in the same manner as provided in Chapter 21.78 of the Monterey County Code, except that, in addition, notice shall be provided to all owners of real property within one thousand (1,000) feet of the subject property, as shown on the last equalized assessment roll.

7.

Upon the date set for the hearing the Planning Commission shall conduct a public hearing thereon. At said hearing, the Planning Commission shall determine whether the nonconforming use of the property as a public use airport poses a threat to the public health, safety, and welfare of County residents and whether the nonconforming use of the property is compatible with and not detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties.

a.

In the event the Planning Commission finds that the nonconforming use of the property as a public use airport poses a threat to the public health, safety, and welfare of County residents or is not compatible with or is detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties, it shall recommend to the Board of Supervisors that the nonconforming use as a public use airport be terminated after a reasonable period of amortization. The recommendation shall include a recommendation of a reasonable period of amortization of the nonconforming use, determined in accordance with Subsection F of this Section 21.68.110.

b.

In the event the Planning Commission finds that the nonconforming use of the property as a public use airport does not pose a threat to the public health, safety, and welfare of County residents and is compatible with and not detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties, it shall recommend to the Board of Supervisors that the nonconforming use as a public use airport be allowed to continue.

8.

Upon receipt of the recommendation of the Planning Commission, the Clerk of the Board of Supervisors shall set the matter for a public hearing de novo within a reasonable time in accordance with Chapter 21.78 of the Monterey County Code. Notice of the hearing shall be given in the same manner as provided to all owners of real property within one thousand (1,000) feet of the subject property, as shown on the last equalized assessment roll. At said hearing, the Board of Supervisors shall determine whether the nonconforming use of the property as a public use airport poses a threat to the public health, safety, and welfare of County residents and is compatible with and not detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties.

a.

In the event the Board of Supervisors finds that the nonconforming use of the property as a public use airport poses a threat to the public health, safety, and welfare of County residents and is not compatible with and not detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties, the Board shall adopt a resolution terminating the nonconforming public use airport after a reasonable period of amortization. The resolution shall include a determination of a reasonable period of amortization of the nonconforming use, determined in accordance with the provisions of Subsection F of this Section 21.68.110.

b.

In the event the Board of Supervisors finds that the nonconforming use of the property as a public use airport does not pose a threat to the public health, safety, and welfare of County residents and is compatible with and not detrimental to the land uses designated in the General or Area Plan for the surrounding areas and properties, the Board shall allow the nonconforming use as a public use airport to continue.

F.

In determining a reasonable period of amortization, the following factors may be considered:

1.

The owner's total investment in the use of the property as a public use airport;

2.

The original cost of any improvements made to use the property as a public use airport;

3.

The present actual and depreciated value and any salvage value of the structures and improvements which were made to use the property as a public use airport and the remaining useful life of the improvements;

4.

Dates of construction of the structures and improvements, and the source of funds therefor, which were made to use the property as a public use airport and the remaining useful life of the improvements;

5.

The appraised market value of the subject public use airport, as determined by a qualified appraiser;

6.

The length of time the nonconforming use has continued;

7.

Potential adverse effects, if any, of the nonconforming use on the surrounding community, neighboring uses, and on the implementation of the General and Area Plan;

8.

Potential health and safety hazards, if any, to the surrounding community from the continuation of the nonconforming use;

9.

Potential harm, if any, to the public from the elimination of the nonconforming use;

10.

The owner's ability to convert the use of the property from a nonconforming use to a conforming use.

G.

Enforcement.

1.

It shall be the duty of the Director of Planning of the County of Monterey and all officers and employees of said County herein charged by law with the enforcement of this Section, to enforce all provisions of this Section.

2.

Any person, firm, or corporation, whether as principal or agent, employee or otherwise, violating or causing or permitting the violation of any of the provisions of this Section shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable for a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the County Jail of said County for a term not exceeding one hundred eighty (180) days or by both such fine and imprisonment. Such person, firm, or corporation shall be deemed to be guilty of a separate offense for each day during any portion of which any violation of this Section is committed, continued, or permitted by such person, firm, or corporation, and shall be punishable as herein provided.

3.

Any building or structure set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of this Section, shall be, and the same is hereby declared to be, a violation of this Section and a public nuisance.

4.

The County may summarily abate the public nuisance and the County Counsel or District Attorney may bring civil suit, or other action, to enjoin or abate the nuisance.

5.

Each day any violation of this Section continues shall be regarded as a new and separate offense.

6.

Any person, firm, or corporation who creates or maintains a public nuisance in violation of this Section shall be liable for costs of abatement which shall include, but not be limited to:

a.

Costs of investigation;

b.

Court costs;

c.

Attorneys' fees;

d.

Costs of monitoring compliance.

7.

Upon a continuation of the public nuisance after notice from the County to cease the nuisance, any person, firm, corporation shall be liable for the costs of abatement set forth above plus a civil penalty of fifty (50) percent of those costs payable to the County in addition to any other costs of enforcement imposed by the Court.

H.

Severability. If any subsection, sentence, clause, or phrase of this Section is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Section. The Board of Supervisors hereby declares that it would have passed this Section and each subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more subsections, sentences, clauses, or phrases be declared invalid.

I.

Actions Held in Abeyance. Should any person, firm, or corporation violate the terms of this Section and any action is authorized either by the Board of Supervisors, County Counsel, or District Attorney, or is in fact filed by said agencies for said violation, no other action shall be taken on any application filed by or on behalf of said person, firm, or corporation, until the litigation has been resolved.

J.

No Taking of Property Intended. Nothing in this Section shall be interpreted to effect an unconstitutional taking of property of any person. If the Board of Supervisors determines, based on specific evidence in the administrative record, that the application of one or more of the provisions of this Section to a public use airport would effect an unconstitutional taking of private property, the Board shall disregard such provision or provisions to the extent necessary to avoid such unconstitutional taking.

(Ord. 4115, 2001)

(Ord. No. 5135, § 147, 7-7-2009)