A.

The provisions of division 16-62 provide regulations for nonconforming land uses, structures, and lots that were lawfully established, but which would be prohibited, regulated, or restricted differently under the terms of this zoning ordinance or an amendment that changed the originally applicable requirements.

B.

It is the intent of this zoning ordinance to gradually eliminate, through attrition, the number and extent of nonconforming uses by (1) prohibiting their enlargement; (2) prohibiting their reestablishment after abandonment; and (3) regulating the alteration of the structures they occupy, while allowing them to exist under the limited conditions outlined in this section.

C.

The requirements set forth herein do not regulate nonconforming signs, which are subject to the provisions of chapter 16A (signs).

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Legal nonconforming use defined. A "legal nonconforming use" is a use of a structure or land that was lawfully established and maintained prior to the adoption of this zoning ordinance, but which no longer conforms to the use regulations set forth herein. An example of a legal nonconforming use would be a multi-unit apartment building located in a single-family or two-family residential zone, or a commercial use located in any residential zone.

B.

Legal nonconforming structure defined. A legal nonconforming structure is a structure that was lawfully erected prior to the adoption of this zoning ordinance, but that no longer conforms to the standards of coverage, setbacks, height, distance between structures, or other prescribed regulation applicable under this zoning ordinance.

1.

Examples of a nonconforming structure could be:

a.

A residence taller than thirty feet that did not receive a variance to be built higher than thirty feet;

b.

A lot in an RO-1 zone that exceeds fifteen percent lot coverage and that did not receive a variance to exceed the fifteen percent lot coverage limit; or

c.

A building with a setback less than that required in its zone and that did not receive a variance for the reduced setback area.

2.

A structure shall not be considered nonconforming where its apparent nonconformity results solely from a variance, adjustment, or conditional use permit granted by the town or by the County of Marin and subsequently vested. Records of these permits may be on file in the department.

3.

Lawfully existing structures shall not be considered nonconforming solely on the basis of floor area guidelines described in subsection 16-52.020.I (Floor area ratio guidelines).

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 564 N.S., § (P), 4-6-2016)

A nonconforming land use and the use of a nonconforming structure may be continued, including transfers of ownership, provided that their continuation shall comply with the requirements of this section.

A.

Nonconforming use of land. A nonconforming use of land may continue to be used as follows:

1.

Maintenance and repairs. Legal nonconforming uses, as defined above, and the structures they occupy, may continue to be operated and occupied except as provided in subsection A.2 below. Routine maintenance and repairs may be performed on land or structures containing a nonconforming use.

2.

Expansion and alteration.

a.

No nonconforming use shall be moved, altered, enlarged, or extended in any way that would increase the nonconformity, unless the purpose of such change is to eliminate the nonconformity, and as otherwise set forth in subsection B. (Nonconforming structure). This provision shall include structures containing nonconforming uses.

b.

A nonconforming use of a structure or site shall not be changed to another nonconforming use.

3.

Termination of nonconforming status by discontinuance. Whenever a nonconforming use has been discontinued for a continuous period of one year, the nonconforming use shall not be reestablished, and the use of the structure or site thereafter shall conform to the regulations for the zone in which it is located.

4.

Termination of nonconforming status by destruction.

a.

Whenever fifty percent or less of the structural square footage used for the nonconforming use is involuntarily damaged or destroyed, the structure may be restored, subject to the provisions of subsection B.2 below (Alteration, enlargement and replacement) and the nonconforming use may be resumed, provided that work of reconstruction is commenced within one year of the date of damage and is diligently pursued to completion.

b.

Whenever more than fifty percent of the structural square footage used for the nonconforming use is involuntarily damaged or destroyed, then the structure shall be considered destroyed, and the nonconforming use shall not be resumed unless general plan consistency can be demonstrated and a conditional use permit is first obtained as provided in section 16-52.040 (conditional use permit).

c.

A two-family dwelling or multifamily dwelling that is involuntarily damaged or destroyed may be reconstructed, pursuant to the requirements of California Government Code Section 65852.25, or successor sections thereto.

(1)

If the structure is proposed to be rebuilt substantially to the same floor area, form, appearance, elevations, footprint, volume, lot coverage and number of dwelling units as the previously existing structure, site plan and architectural review approval shall be required only for exterior materials and colors, provided that reasonable efforts are made to correct or mitigate conditions that do not conform to this chapter.

(2)

If the structure is not proposed to be rebuilt substantially the same as the previously existing structure as set forth in subsection (1) above, site plan and architectural review approval of all new and altered construction shall be required. Existing nonconforming conditions that are not directly affected by the new, enlarged or altered construction need not be brought into full conformity, unless otherwise required by law.

B.

Nonconforming structure. A legal nonconforming structure may continue to be used as follows:

1.

Maintenance and repairs. Routine maintenance and repairs may be performed on a legal nonconforming structure.

2.

Alteration and/or enlargement. A legal nonconforming structure may be altered, remodeled or enlarged subject to the following provisions:

a.

The discrepancy between existing conditions and the standards of coverage, setback, height or any other standard prescribed in the regulations for the zone in which the structure is located shall not be increased.

b.

The alteration, remodeling, or enlargement receives site plan and architectural review approval as set forth herein.

c.

A legal nonconforming structure destroyed in whole or in part by fire, explosion, earthquake, flood, landslide, or similar disaster may be reconstructed in conformance with currently applicable building and fire codes, provided that:

(1)

If the structure is proposed to be rebuilt substantially to the same floor area, form, appearance, elevations, footprint, volume, and lot coverage as the previously existing structure, site plan and architectural review approval shall be required only for exterior materials and colors, provided that reasonable efforts are made to correct or mitigate conditions that do not conform to this zoning ordinance.

(2)

If the structure is not proposed to be rebuilt substantially the same as the previously existing structure, full site plan and architectural review approval of all new and altered construction shall be required, but existing nonconforming conditions that are not directly affected by the new, enlarged or altered construction need not be brought into full conformity.

(3)

An existing commercial building may be rebuilt or reconstructed to the same floor area as the former structure. If the building is located in Downtown Tiburon, the resulting building shall substantially conform to the guidelines of the "Downtown Tiburon Design Handbook".

(4)

Whenever any other legal nonconforming structure is voluntarily razed or shall be required by law to be razed, the structure shall be replaced or reconstructed only when in full conformity with the regulations for the zone in which it is located.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 541 N.S., § 2(CC), 8-15-2012)

A.

Within a number of zones, legally created or legally recognized lots exist that do not meet the area, width, access, or frontage requirements set forth in this zoning ordinance and chapter 14 (subdivision of land). These are classified as legal nonconforming lots.

B.

Development and improvement of legal nonconforming lots shall be permitted in accordance with provisions of this zoning ordinance. The town recognizes that certain lot nonconformities may impose unusual hardships for the property owner, and that these hardships should be considered in the review of zoning permit applications. Development and improvement of these lots, as approved by the town, shall be considered legal and conforming.

C.

Prior to issuance of zoning permits for a vacant nonconforming lot, evidence shall be provided that the lot was legally created or has been recognized by a recorded certificate of compliance, in compliance with the State Subdivision Map Act.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)