The purpose of this chapter is to generally permit uses and structures which do not conform to the current zoning regulations to continue in their existing form, while allowing for reasonable improvements and maintenance, and limiting the extent to which they may be expanded, enlarged, or replaced.

(Ord. No. 268, § 3, 5-10-2017)

A.

Nonconforming Use. A "nonconforming use" is a use lawfully occupying a structure or a site that does not conform with the current use regulations or required conditions for the zoning district in which it is located.

B.

Nonconforming Structure/Building. A "nonconforming structure" or "nonconforming building" is one which was lawfully permitted at the time it was constructed, but which does not conform with one or more of the current zoning standards and regulations for the district in which it is located. The definition of a "nonconforming structure" includes a "nonconforming building."

C.

Nonconforming Lot. A "nonconforming lot" is one that was lawfully subdivided or established, but that does not conform with the current minimum lot area, width or depth requirements as prescribed in the regulations for the zoning district in which it is located.

(Ord. No. 268, § 3, 5-10-2017)

When the town changes the boundaries of a land use district, rezones an area from one land use district to another, or modifies zoning standards or regulations, this chapter applies to a nonconforming use, structure/building, or lot created by the change in boundaries, change in land use district classification or modification of zoning standards or regulations.

(Ord. No. 268, § 3, 5-10-2017)

Except as otherwise specified in this chapter, a nonconforming use, building, structure or lot, which is in existence on the effective date of this title, or of any subsequent rezoning or other amendment thereto, which makes such use, structure, building or lot nonconforming, and which existed lawfully under the previous zoning ordinances, may thereafter be continued and maintained indefinitely, and the rights to such use shall run with the land.

(Ord. No. 268, § 3, 5-10-2017)

A.

Limitations on Expansion or Intensification of a Nonconforming Use. A nonconforming use may not be extended to occupy a greater area, increased in intensity, changed to a different nonconforming use, or altered in any other manner that increases the degree of nonconformity of the use.

B.

Limitations on a Conforming Building or Structure Occupied by a Nonconforming Use. When a structure that conforms with the applicable regulations for the zoning district in which it is located is occupied by a nonconforming use, the structure may not be enlarged, altered or moved, unless such modification will not increase the degree of nonconformity of the use.

C.

Discontinuance or Abandonment of a Nonconforming Use.

1.

Whenever a nonconforming use is discontinued or abandoned for a continuous period of one hundred eighty (180) days or more, such use may not be resumed and all future use of the structure or premises must thereafter conform to the use regulations of the zoning district in which it is located.

2.

The planning director shall determine discontinuance based on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use; disconnected or discontinued utilities; or the lack of business records to document continued operation.

D.

Revocation of a Nonconforming Use.

1.

The planning commission may revoke the right to continue a nonconforming use if it makes all of the following findings, based on the facts presented at a public hearing:

a.

That the use is being or has been exercised so as to be detrimental to the public health, safety or welfare, or so as to constitute a nuisance, hazard or detriment to the surrounding properties, neighborhood, or the town in general; and

b.

That terminating the nonconforming use would not impair the constitutional rights of the owner or occupant.

If the planning commission finds that such grounds for revocation exist, it may revoke its continuance.

2.

Revocation procedures, including notice, hearing, decision and appeal shall be in accordance with the provisions specified in Chapter 8.12.

E.

Change of Use of a Building or Structure that is Nonconforming Solely with Respect to Parking. When the use of a property is nonconforming solely with respect to required parking, a new use may be established within a building or structure on that property provided that the minimum parking requirement for the proposed use, as set forth in Section 8.76.090, is equal to or less than the minimum parking requirement for the previous use.

(Ord. No. 268, § 3, 5-10-2017)

A.

Repairs and Maintenance Permitted. The routine maintenance, repair, or painting of a nonconforming structure shall be permitted, provided that these improvements do not substantially alter the structure to create any new nonconformity or increase the degree of any existing nonconformity that applies to the structure.

B.

Limitations on Alterations, Expansion or Enlargement. Except as provided in subsection C, a nonconforming structure may not be altered, enlarged, or reconstructed in any way that increases the degree of nonconformity related to the development standards for the zoning district in which it is located, including but not limited to setbacks; height; distances between structures; or usable open space, unless such alteration is permitted by a variance approved pursuant to Chapter 8.16 and Section 8.12.130.

C.

Exceptions to Limitations on Alterations, Expansion or Enlargement.

1.

Alterations for seismic safety, State Building Code Compliance, or ADA access facilities.

Alterations, reconstruction, or repairs may be performed on a nonconforming structure without a variance as follows:

a.

For the purpose of improving seismic safety or to comply with California Building Standards Code requirements, provided that the work does not change the structure's footprint or height; or

b.

To provide accessible facilities in compliance with the Americans with Disabilities Act (ADA). See also Chapter 8.168, Reasonable Accommodation.

2.

Residential additions—Nonconforming setbacks.

a.

The provisions of Section 8.68.050 front and side yard setbacks established under county zoning shall apply to proposed additions to single family residences that were constructed prior to November 7, 1980 and are located in areas formerly designated as R-10, R-15 and R-20 zones under county zoning regulations in effect at the time of construction.

b.

For existing residential buildings that do not conform with current setback requirements, but are not eligible to apply the provisions of Section 8.68.050, when an addition is proposed to the existing residential building, continuation of exterior walls that do not conform with current setback requirements may be allowed without a variance, provided that all of the following criteria are met:

i.

The total floor area of any such addition is twenty (20) percent or less of the floor area of the existing building prior to its expansion; except that this maximum area allowed without a variance may be reduced by the reviewing authority based on site-specific factors pursuant to the design review process in Chapter 8.72;

ii.

The total floor area of the resulting structure does not exceed the allowable floor area ratio (FAR) under the Town of Moraga Design Guidelines;

iii.

Only a maximum of thirty (30) linear feet may be added to the exterior wall of a first habitable floor or level that does not conform with current setback requirements without a variance; except that this maximum may be reduced by the reviewing authority based on site-specific factors pursuant to the design review process in Chapter 8.72. Foundation or skirt walls enclosing non-habitable space directly beneath the area of the first habitable floor being extended may be extended in a similar manner to that permitted for the habitable floor above.

iv.

No new nonconformity will be created and no other existing nonconformity will be increased, beyond that related to an addition permissible pursuant to subsection i. above;

v.

Only one addition per building shall be permitted under the provisions of this section; and

vi.

Approval of a second story addition directly over an addition permitted under the provisions of this section may only be permitted subject to approval of a variance.

3.

Attached decks—Nonconforming setbacks.

a.

For existing residential buildings that do not conform with current setback requirements, but are not eligible to apply the provisions of Section 8.68.050, when a new attached deck or expansion of an existing attached deck is proposed, the footprint of the deck may continue the line of existing exterior building walls without requiring a variance, provided that:

i.

For a new attached deck, the area of the deck is one hundred twenty (120) square feet or less; except that this maximum area allowed without a variance may be reduced, including to the point of barring any such construction, by the reviewing authority based on site-specific factors pursuant to the design review process in Chapter 8.72.

ii.

For an expansion of an existing attached deck, the additional deck area does not exceed one hundred twenty (120) square feet or fifty (50) percent of the area of the existing deck, whichever is less; except that this maximum area allowed without a variance may be reduced, including to the point of barring any such expansion by the reviewing authority based on site-specific factors pursuant to the design review process in Chapter 8.72.

iii.

Only one new deck or expansion of an existing deck per building shall be permitted under the provisions of this section.

b.

For construction or expansion of a new deck located below an existing, legally constructed upper story deck that does not conform with current setback requirements, such construction or expansion shall be allowed without a variance, provided that the requirements of paragraph (a) above are satisfied and the footprint of the new deck does not extend beyond the footprint of the existing upper story deck.

c.

An open, uncovered deck twenty-four (24) inches or less above existing grade shall be subject to the provisions of Section 8.70.040.A.

4.

Attic and basement conversion. The conversion of existing unfinished space to new habitable space in an attic or basement which is fully contained within the existing building envelope of any nonconforming residential building shall not require a variance. Such conversions shall continue to be subject to all applicable provisions of Chapter 8.72, Design Review, including but not limited to the design guidelines provisions related to maximum floor area ratio and the provisions that discourage placement of more than two two-story homes in a row. Such conversions shall also comply with Policy LU1.3 of the Moraga General Plan.

D.

Damage or Destruction—Right to Rebuild. In the event that a nonconforming building or structure is involuntarily damaged or destroyed by a natural force or accident, such as an earthquake, flood or fire, the structure may be restored or reconstructed in its entirety to its prior condition.

(Ord. No. 268, § 3, 5-10-2017)

A.

Right to Develop. A nonconforming lot shall be considered a legal and buildable lot, and may be developed in accordance with the development standards applicable to the zoning district in which it is located. Setbacks and other development standards must be met, unless a variance is requested and approved under the applicable criteria in Section 8.12.130.

B.

Subdivision or Adjustment of a Nonconforming Lot. No subdivision or lot line adjustment shall be approved that would increase the degree of nonconformity of an existing nonconforming lot.

(Ord. No. 268, § 3, 5-10-2017)