Palm Desert City Zoning Code
CHAPTER 25
62 NONCONFORMING PROVISIONS
§ 25.62.010 Purpose.
Where lots, buildings, or uses legally existing prior to the adoption of certain zoning provisions are not in conformity with the provisions of this title, it is the intent and purpose of this chapter to declare such lots, buildings, uses and land to be nonconforming, for the purpose of protecting the public health, safety, and general welfare.
(Ord. 1259 § 1, 2013)
§ 25.62.020 Nonconforming Lots, Buildings, and Uses in Residential Zones.
A.
All nonconforming uses within any residential zone shall be terminated or made to conform within five years after the adoption of any new zoning regulations.
B.
Nonconforming buildings within a residential zone shall be permitted to expand providing the expanded area conforms to this title.
C.
A nonconforming lot may be developed if it has been legally created and the construction proposed is conforming.
(Ord. 1259 § 1, 2013; Ord. 1279 § 13, 2015)
§ 25.62.030 Nonconforming Lots, Buildings, and Uses in Nonresidential Zones.
A.
Nonconforming lots. A nonconforming lot may be developed if it has been legally created and the construction proposed is conforming.
B.
Nonconforming use of conforming building. The nonconforming use of a building may be continued, provided that such nonconforming use shall not be expanded or extended into any other portion of the conforming building, and if such nonconforming use is discontinued, any future use of such building shall conform to the provisions of this title.
C.
Nonconforming use of a nonconforming building. The nonconforming use of a nonconforming building may be continued but may not be expanded or extended within such building. If such nonconforming use is discontinued, any future use of such nonconforming building shall conform to the provisions of this title.
D.
Change in status of nonconforming use. If a nonconforming use is discontinued for a period of six months or is succeeded by another and conforming use, it is evidence that the nonconforming use has ended and any vested right to the continuance of such use is terminated.
E.
Change in status of nonconforming use. If a nonconforming use is discontinued for a period of six months or is succeeded by another and conforming use, it is evidence that the nonconforming use has ended and any vested right to the continuance of such use is terminated.
(Ord. 1259 § 1, 2013; Ord. 1279 § 14, 2015)
§ 25.62.040 Reconstruction of Nonconforming Building Partially Destroyed.
A nonconforming building that is destroyed to the extent of not more than 50 percent of its reasonable replacement value at the time of its destruction may be restored and the occupancy or use of such building or part thereof that existed at the time of such partial destruction may be continued subject to all other provisions of this title.
(Ord. 1259 § 1, 2013)
§ 25.62.050 Nonconforming Uses and Buildings Resulting from Reclassification.
The provisions of Sections 25.62.010 through 25.62.040 shall apply to buildings, land, and uses that become nonconforming due to any reclassification of zones under this title.
(Ord. 1259 § 1, 2013)
§ 25.62.060 Outdoor Storage in Nonresidential Zones.
Notwithstanding any other provision of this title, the outdoor storage of materials and goods associated with a lawful use carried on within a building shall be permitted, provided that the outdoor storage is effectively screened from view by a wall, fence, or landscaping buffer complying with the height and setback restrictions of the zone in which it is located.
(Ord. 1259 § 1, 2013)
§ 25.62.070 Public Acquisition.
Whenever any lot, any building, any structure, or any use is rendered nonconforming within the meaning of this title solely by dedication to, or purchase by, the city for any public purpose, or by eminent domain proceedings that result in the acquisition by the City of a portion of such property, the same shall not be deemed nonconforming within the meaning of this chapter; provided, however, that if subsequent to such acquisition, the buildings and/or structures located upon such a lot are wholly destroyed, no reconstruction shall take place unless compliance is had with all applicable provisions of this title. In the event, however, subsequent to such acquisition, the buildings and/or structures located upon such a lot are destroyed to the extent of not more than 50 percent of their reasonable replacement value, at the time of their destruction, the provisions of Section 25.62.040 of this chapter shall apply to any reconstruction of the buildings and/or structures.
(Ord. 1259 § 1, 2013)
§ 25.62.080 Conforming Process for Legal Nonconforming Residential Uses in Residential Zones and Office Professional Zones.
Legal nonconforming residential uses in residential zones and OP zones may apply for legal conforming status if they are brought into substantial compliance with present design quality standards. The ARC shall receive and review applications for conforming status. As part of its review the ARC may require significant upgrading and rehabilitation of the existing facility consistent with the constraints of the original site plan. Reduction in the project dwelling unit total will only be considered if it is required to protect public health and safety. If a rehabilitation plan is approved by the ARC, required work must occur within one year. Once the plan has been satisfactorily completed, a certificate of conforming status will be issued. Certificates of conformance include a requirement that the project be maintained substantially in the condition specified by the rehabilitation plan, in perpetuity. Failure to maintain the property could result in revocation of conforming status. Decisions of the ARC may be appealed to the Council.
(Ord. 1259 § 1, 2013; Ord. 1279 § 15, 2015)
§ 25.62.090 Notice of Nonconformity.
The owner or occupant of property that is determined to be a nonconforming lot, building, or use under this chapter shall receive a notice, in writing, of that determination.
A.
Notice contents. The notice shall state the grounds for the decision and shall require the nonconforming lot, building, use, or land to be abated within a time determined by the City staff to be reasonable. The letter shall advise that if the nonconforming lot, building, or use is not abated within the time specified, the abatement work will be completed by the City and the costs thereof will be charged against the property or its owner. The notice shall furthermore provide that any person having any record title or legal interest in the building or lot may request a hearing, provided that the request is made in writing, as provided in this section, and filed with the City within 30 days from the date of service of such notice. The notice shall finally provide that failure to request a hearing will constitute a waiver of all right to an administrative hearing and determination of the matter.
B.
Service of notice of nonconformity. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner, and posted on the property. One copy thereof shall be served on each of the following persons, if known to the City or disclosed from public records:
1.
The holder of any mortgage or deed of trust or other lien or encumbrance of record.
2.
The owner or holder of any lease of record.
3.
The holder of any other estate or legal interest of record in or to the building, or the land on which it is located. The failure of the City to serve any person required in this subsection to be served shall not invalidate any proceedings under this section as to any other person duly served or relieve any such person from any duty or obligation imposed on them by the provisions of this section.
C.
Method of service—Effective date of service. Service of the notice shall be made upon all persons entitled thereto, either personally, or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt requested, to each such person at their address as it appears on the last equalized assessment roll of the County or as known to the City. If no address of any such person so appears, or is known to the City, then a copy of the notice shall be so mailed, addressed to such person at the address of the lot or building involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service by certified mail in the manner provided in this subsection shall be effective on the date of mailing.
D.
Proof of service. Proof of service of the notice shall be certified to at the time of service by written declaration, under penalty of perjury, executed by the persons effecting such service, declaring the time, date, and manner in which service was made. The declaration, together with any receipt card returned and acknowledgment of receipt by certified mail shall be affixed to the copy of the notice and retained by the City staff.
(Ord. 1259 § 1, 2013; Ord. 1393 § 24, 2023)
§ 25.62.100 Abatement Hearings.
A.
Request for hearing. Any person entitled to notice under Section 25.62.090 of this chapter may, within 30 days of receipt of the notice, request a hearing. The request for hearing shall be in writing, and shall contain the following information:
1.
A brief statement setting forth the legal interest of each of the persons requesting the hearing in the building, land, or lot involved.
2.
A brief statement in ordinary and concise language of the specific City action protested, together with any material facts claimed to support the contentions of the persons requesting the hearing.
3.
A brief statement, in ordinary and concise language, of the relief sought, and the reasons why it is claimed the protested City action should be reversed, modified, or otherwise set aside.
4.
The signatures of all parties requesting the hearing, and their official mailing addresses.
5.
The verification, by declaration under penalty of perjury, of at least one person who is requesting the hearing, as to the truth of the matters stated in the request for hearing.
B.
Abatement hearing board established. In order to provide for final interpretation of the provisions of this chapter, and to conduct hearings provided for below, there is established an abatement hearing board, hereinafter referred to as the "board," consisting of 3 members. One such member shall be a member of the Council. A second member shall be a member of the Commission. A third member shall not be an employee of the City. The Director shall be an ex-officio member of, and shall act as secretary to the board. The board shall be appointed by the Council and shall hold office at its pleasure. The board shall adopt reasonable rules and regulations for conducting its business, and shall render all decisions and findings, in writing, to the person requesting a hearing, with a copy to the Director. Copies of all rules and regulations adopted by the board shall be delivered to the Director, who shall make them freely accessible to the public.
C.
Notice of hearing—Form. As soon as practicable, after receiving the written request for a hearing, the board shall fix a date, time, and place for the hearing by the board. Such date shall be not less than 10 days or more than 60 days from the date the request for hearing was filed. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing, to each person requesting a hearing by the secretary of the board, either by causing a copy of such notice to be delivered to the persons requesting the hearing personally, or by mailing a copy thereof, postage prepaid, addressed to the person requesting the hearing at their address shown on the request for a hearing. The notice to the person requesting the hearing shall be substantially in the following form, but may include other information:
1.
You are hereby notified that a hearing will be held before the abatement hearing board at _____ on the _____ day of _____, _____, at the hour of _____, upon the notice served upon you. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses, and the production of books, documents, or other things by filing an affidavit therefor with the abatement hearing board.
D.
Hearing procedures. The following procedures shall apply to the conduct of the hearing:
1.
The hearing shall take place before the 3 members of the abatement hearing board, who shall act as hearing examiners to conduct the hearings.
2.
A record of the entire proceeding shall be made by tape recording, or by any other means of permanent recording, determined to be appropriate by the board.
3.
The proceedings at the hearing shall also be reported by a stenographic reporter, if requested by any party thereto. A transcript of the proceedings shall be made available to all parties, upon request and upon payment of the fee prescribed therefor. Such fees may be established by the board, but shall, in no event, be greater than the cost involved.
4.
The board may grant continuances for good cause shown.
5.
In any proceedings under this chapter, the board, or any board member, has the power to administer oaths and affirmations and to certify to official acts.
6.
The board and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives.
7.
The board may obtain the issuance and service of a subpoena for the attendance of witnesses, or the production of other evidence at a hearing upon the request of a member of the board, or upon the filing of an affidavit therefor, which states the name and address of the proposed witness; specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness has the desired things in their possession or under their control.
8.
Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
9.
Oral evidence shall be taken only on oath or affirmation.
10.
Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient, in itself, to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state.
11.
Any relevant evidence shall be admitted, if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule, which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
12.
Irrelevant and unduly repetitious evidence shall be excluded.
13.
In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state, or of official records of the board or departments and ordinances of the City, or rules and regulations of the hearing board.
14.
The board may inspect any buildings or lots involved in the hearing during the course of the hearing, provided that notice shall be given to the parties before the inspection is made, the parties are given an opportunity to be present during the inspection, and the board shall state for the record, upon completion of the inspection, the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the board.
15.
The hearing shall be open to the public.
16.
The City shall have the burden of proof, and shall first present its evidence as the first order of business. The party requesting the hearing may then cross-examine the witnesses presented on behalf of the City. The person requesting the hearing may then present evidence. The City may then cross-examine the witnesses presented on behalf of the person requesting the hearing.
17.
Upon receipt of all the evidence the board shall then retire to deliberate and shall render a decision not less than 5 days after the date of the hearing. The City has the burden of persuasion by a preponderance of the evidence, which burden shall be taken into consideration by the board in rendering its decision.
18.
The decision of the board shall be in writing and shall contain findings of fact; a determination of the issues presented, and shall also contain the requirements to be complied with by the person requesting the hearing. A copy of the decision shall be delivered to the person requesting the hearing, personally, or sent to them by certified mail, postage prepaid, return receipt requested. The effective date of the decision shall be as stated thereon.
E.
Rights of parties at the hearing. Each party shall have these rights, at the hearing:
1.
To call and examine witnesses on any matter relevant to the issues of the hearing.
2.
To introduce documentary and physical evidence.
3.
To cross-examine opposing witnesses on any matter relevant to the issues of the hearing.
4.
To impeach any witness, regardless of which party first called them to testify.
5.
To rebut the evidence against them.
6.
To represent themselves, or to be represented by anyone of their choice, including an attorney at law, who is lawfully permitted to do so.
F.
Appeal to Council. The decision of the board may be appealed to the Council within 15 days of the date of service of the decision of the board. The Council shall hear the appeal as soon as practicable. The appeal shall not be de novo, and shall be based only on the hearing transcript, the evidence presented at the hearing, those matters officially noticed, and the written decision of the board. Any action of the board shall be stayed pending the outcome of the appeal. The decision of the Council shall be final.
(Ord. 1259 § 1, 2013; Ord. 1393 § 25, 2023)
