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16.105 NON-CONFOrMING USES
16.105.01 PURPOSE AND APPLICABILITY
The purpose of these regulations is to permit the continuation of uses and continued occupancy and maintenance of structures that were legally established but do not comply with all of the standards and requirements of the Zoning Code in a manner that promotes the public health, safety, and general welfare and does not conflict with the goals and objectives of the General Plan. More specifically, the purpose of these regulations is to distinguish between nonconforming uses that are detrimental to public health, safety, and general welfare and those uses that are economically productive and compatible with surrounding development despite being inconsistent with applicable regulations and requirements. These regulations are also intended to:
A. Permit nonconforming structures and uses to remain as long as they are not determined to be public nuisances, as defined in Title 7, Article III of the Vallejo Municipal
Code, and to allow for their regular maintenance and repair consistent with the regulations herein. B. Reduce the number of nonconforming structures and uses that are no longer appropriate in the zoning districts in which they are located after abandonment, destruction, or major damage. C. Permit the reestablishment of legally established residential units to provide additional housing opportunities for the community without changing the historic density and character of older residential areas. D. Limit the number and extent of nonconforming structures by prohibiting their movement, alteration, restoration, or enlargement in a manner that would increase the nonconformity between the existing conditions and the current standards for the zoning districts in which they are located. E. Permit the development of nonconforming lots consistent with the regulations herein of this Chapter and the provisions of the Subdivision Map Act.
16.105.02 ESTABLISHMENT OF LEGAL NONCONFORMING USES, STRUCTURES AND LOTS
A. Any legally established use, structure, or lot that is in existence on the effective date of the Zoning Code or any subsequent amendment but does not comply with all of the standards and requirements of the
Zoning Code shall be considered nonconforming.
Nonconforming uses and structures may only be continued subject to the requirements of this Chapter. B. These regulations shall apply to all nonconforming lots, structures, and uses, except for those within the Mare Island Specific Plan area. C. The provisions of these nonconforming regulations do not restrict any authority to require modification or termination of any nonconforming use or structure that has been declared to be a public nuisance by the City Council, pursuant to Title 7, Chapter III of the Vallejo Municipal Code. D. Nonconforming uses, structures, and lots include:
1. Those made nonconforming by the addition of a standard or requirement of the Zoning Code previously not required for such use or structure; and 2. Uses and structures reclassified from permitted to being subject to a Discretionary Permit.
E. Nothing contained in the Zoning Code shall be deemed to require any change in the plans, construction, or designated use of any building or structure for which a
Building Permit has properly been issued, in accordance with the provision of ordinances then in effect and upon which actual construction has been started prior to the effective date of the Zoning Code, provided that in all such cases, actual construction shall be diligently carried on until completion of the building or structure.
16.105.03 NONCONFORMITIES
A. A nonconformity may result from any inconsistency with the requirements of the Zoning Code including, but not limited to, location, density, floor area, height, yard, usable open space, buffering, performance standards, or the lack of an approved
Use Permit or other required authorization.
B. A use or structure shall not be deemed nonconforming solely because it does not conform with the parking dimension standards, overnight vehicle parking limitations, loading, planting area, or screening regulations of the zoning district in which it is located, or does not conform to the standards for the following building features:
1. Garage door location or garage door width; 2. Cornices, eaves, and other ornamental features that exceed maximum projections into required yards; or 3. Bay windows, balconies, and terraces above the second floor that exceed maximum projections into required yards. Also see, Section 16.508.02(D), Nonconforming Parking.
16.105.04 NONCONFORMING USES AND STRUCTURES— RIGHT TO CONTINUE
Any use or structure that was lawfully established prior to the effective date of the Zoning Code or of any subsequent amendments to its text or to the Zoning Map may only be continued and maintained provided there is no alteration, enlargement, or addition to any use, building or structure including, but not limited to:
A. No increase in occupant load; B. No enlargement of the area, space, or volume occupied by or devoted to such use, except as otherwise provided in this Chapter; and C. No substitution, expansion, or other change in use nor any alteration or other change in structures, except as otherwise provided in this Chapter. D. The right to continue a nonconforming use or structure shall attach to the land and shall not be affected by a change in ownership.
16.105.05 NONCONFORMING LOTS
Any lot that is smaller than the minimum lot size required by the Zoning Code or does not meet any of the applicable dimensional requirements shall be considered a lawful nonconforming lot if it is described in the official records on file in the office of the Solano County Recorder as a lot of record under one ownership. A nonconforming lot may be used as a building site subject to compliance with all applicable requirements, unless a variance or other modification or exception is approved as provided for in this Ordinance. A. A nonconforming lot shall not be adjusted in any way that would increase in balance the degree of nonconformity. B. A conforming structure or use may be established on a nonconforming lot provided the structure or use conforms to the current standards of the zoning district in which it is located or meets the exception requirements in Chapter 16.608, Exceptions. C. A nonconforming lot within a residential zoning district shall conform to the maximum allowable density of that zoning district. However, at a minimum, one single-unit dwelling unit and customary accessory buildings may be established on a nonconforming lot, provided the unit and accessory buildings conform to the current standards of the zoning district.
16.105.06 NONCONFORMING STRUCTURES
A. Ordinary maintenance and repairs or nonstructural alterations are encouraged and may be made to a nonconforming structure as required to improve and preserve the structure’s existing condition, retard or eliminate wear or tear or physical depreciation, render space more usable, improve livability, or comply with the requirements of law. B. A nonconforming structure shall not be moved unless it results in more conformity with the current standards of the zoning district of the new location. C. Nonconforming structures not in a designated heritage or historic district may be restored as follows:
1. A nonconforming structure that is damaged, destroyed, or voluntarily demolished to the extent of less than 50 percent of the current market value may be restored with site development approval pursuant to Chapter 16.605, Development Review. The determination of the appraised value shall be the higher of:
a. The records of the Assessor of the County of Solano for the fiscal year during which the application is received; or b. An appraisal performed by a certified appraiser.
2. Restoration shall be authorized and completed within 12 months of the date the damage, destruction, or demolition occurred.
Failure to complete the restoration within 12 months, except as provided in Section 16.105.14, Time Extensions, may result in abatement pursuant to Chapter 7.54, Property
Maintenance, of the Vallejo Municipal Code. 3. A nonconforming structure that is damaged, destroyed, or voluntarily demolished to the extent of 50 percent or more of the current market value may be restored to its original condition or to a more conforming condition provided a Major
Use Permit is issued by the Planning Commission after making the findings required in Chapter 16.606, Minor and Major Use Permits. The restoration of the structure shall be authorized and completed within 12 months of the date of the damage, destruction or demolition. Failure to complete the restoration within 12 months, except as provided in this Chapter may result in abatement pursuant to Chapter 7.54, Property
Maintenance, of the Vallejo Municipal Code. 4. A nonconforming structure in a designated heritage or historic district may be restored to its original condition or to a more conforming condition with the approval of a Certificate of Appropriateness, pursuant to Chapter 16.614, Architectural
Heritage and Historic Preservation. The restoration of the structure shall be authorized and completed within 12 months of the date of the damage, destruction, or demolition. Failure to complete the restoration within 12 months may result in abatement pursuant to Chapter 7.54, Property
Maintenance, of the Vallejo Municipal Code.
D. If the nonconforming structure is required by law to be demolished, the structure shall not be restored except in full conformity with the current standards for the zoning district in which it is located. E. For the purposes of this Chapter, the extent of damage, destruction, or demolition shall be based on the ratio of the estimated market appraised value of the structure prior to such damage, destruction, or demolition to the estimated cost of duplicating the entire structure as it existed prior thereto. Estimates for this purpose shall be made in writing by the applicant and shall be reviewed by the Director and the chief building official and the Director. Their final determination of estimated market appraised value by the chief building official and Director shall be considered final.
16.105.07 NONCONFORMING USES
The following provisions shall apply to all nonconforming uses, except for residential uses made nonconforming from reductions in density that are subject to the provisions of Section 16.105.08, Nonconforming Residential Units Resulting From Reductions In Density. No lawful residential use can lapse regardless of the length of time of non-use.
A. Nonconforming uses may be continued indefinitely subject to the provisions of this Chapter. 1. A nonconforming residential use shall not intensify in terms of exceeding the residential density allowed by the applicable General Plan land use or zoning district in which the use is located. 2. The nonconforming use of a structure or portion of structure shall not be expanded into any other portion of the structure nor changed except to a conforming use. However, the nonconforming use of a structure may be changed to a use of the same or more restricted nature with the approval of a Major Use Permit by the Planning Commission, pursuant to Chapter 16.105, NonConforming Uses. For the purposes of this Chapter, “restricted nature” shall mean a lower residential density or a decrease in operational intensity. 3. If a nonconforming use ceases activity for a continuous period of 12 months, it shall be considered abandoned. Thereafter, the structure in which the nonconforming use was located shall be used only in accordance with the standards for the zoning district in which it is located Abandonment or discontinuance shall include the cessation of a use for any reason, regardless of intent to resume or not abandon the use, except as provided in Sections B and C below. An active Building Permit shall indicate the use is not abandoned.
4. If the primary structure occupied by a nonconforming use is hereafter removed, the subsequent use of the land on which such structure was located and the subsequent location and use of any new structure thereon shall be in conformity with the standards of the zoning district in which the land is located. 5. No accessory use to a primary nonconforming use shall continue after such primary use ceases or is terminated. 6. A nonconforming use may be reestablished when the structure occupied by the nonconforming use is damaged, destroyed, or voluntarily demolished by less than 50 percent of the estimated market appraised value is restored to its original condition or a more conforming condition with the approval of a Development Review Permit, pursuant to the
Zoning Code. Restoration of the structure shall be completed within 12 months of the date the damage or partial destruction occurred. Failure to complete the restoration within 12 months, except as provided in Section 16.105.14, Time Extensions, means the nonconforming status of the use is terminated and the use shall not be reestablished.
Further, the failure to complete the restoration within 12 months may result in abatement of the structure pursuant to Chapter 7.54, Property
Maintenance, of the Vallejo Municipal Code.
B. If a structure occupied by a nonconforming use is damaged, destroyed, or involuntarily demolished by 50 percent or more of the current market value, the nonconforming use may be restored under the following conditions:
1. If the structure is made to conform to all the current standards of the zoning district in which it is located with the approval of a
Development Review Permit, pursuant to
Chapter 16.105, Non-Conforming Uses; or 2. If the structure is restored to its original condition or a more conforming condition provided the Planning
Commission, pursuant to Chapter 16.105 Non-
Conforming Uses, approves a Major Use Permit. C. The restoration of the structure shall be authorized and completed within 12 months of the date of the damage or destruction. Failure to complete the restoration within 12 months, except as provided in Section 16.105.14, Time Extensions, Time Extensions, means the nonconforming status of the use is terminated and the use shall not be reestablished. Further, the failure to complete the restoration within 12 months may result in abatement of the structure pursuant to Chapter 7.54,
Property Maintenance, of the Vallejo Municipal Code. D. If a structure occupied by a nonconforming use is required by law to be demolished, the structure shall not be restored except in full conformity with the current standards for the zoning district in which it is located with the approval of a Development Review
Permit, pursuant to Chapter 16.600, Procedures And
Permits. The nonconforming status of the use shall be terminated, and the use shall not be reestablished. E. For the purposes of this Chapter, the extent of damage, destruction, or demolition shall be based on the ratio of the appraised value of the structure at the time of such damage, destruction, or demolition to the estimated cost of duplicating the entire structure as it existed prior thereto. Estimates for this purpose shall be made in writing by the applicant and shall be reviewed by the Chief Building Official and Director as follows:
1. The Chief Building Official or the Director may require submittal of an appraisal by a qualified real estate appraiser if the estimates are disputed by any affected party. 2. The cost of such an appraisal shall be the responsibility of the applicant. 3. Determinations of estimated market value by the Chief Building Official and Director resulting in controversy shall be forwarded to the
Planning Commission for final determination.
F. A use that does not conform with the parking, loading, landscaping, screening, or sign regulations of the zoning district in which it is located shall not be considered a nonconforming use solely because of one or more of these physical nonconformities.
G. Once a nonconforming residential unit is abandoned, and unless a certificate of conformity has been issued pursuant to Section 16.105.08, Nonconforming
Residential Units Resulting From Reductions In
Density, the Chief Building Official and/or Director may require the removal of features of the unit contributing to the nonconformity. These features include, but are not limited to, multiple kitchens, multiple exterior doors and walls defining individual units.
Nonconforming residential units resulting from decreases in density or other changes in zoning may be reestablished after ceasing activity for more than 12 months under the circumstances described below.
A. Reestablishing the Conformity of a Nonconforming
Residential Unit. It shall be the responsibility of the applicant seeking a certificate of conformity to provide substantial evidence to support the required findings. Such evidence could include, but not be limited to, the following: 1. Completed application form; 2. Application fee, as established by the Master Fee Schedule; and 3. Substantial evidence to support the required findings in Section (5), below, with the applicant responsible for the burden of proof as defined in Section 16.105.15, Burden of Proof including: 4. Plans showing original construction of the unit. 5. Copies of Building Permits and/or other authorization for the unit. 6. Historic photographs and/or documents. 7. Written declarations made under the penalty of perjury. 8. Upon receipt of a complete application, the Director shall provide a public notice pursuant to Chapter 16.602, Common Procedures. 9. The Director shall issue a certificate of conformity only if, based on substantial evidence, all the following findings are made:
a. The unit was originally and legally constructed (as can best be determined by available plans, permits, and other documentation) either as part of a multi-unit structure or as a separate structure within a group of units on one parcel; b. The reestablishment of the unit will not be detrimental to any existing or potential use or structure in the zoning district in which the nonconforming use is located. (Issues to be considered include but shall not be limited to the availability of parking, aesthetics, privacy, and physical compatibility with adjacent properties); c. The structure containing the unit cannot be easily converted for a use which conforms to the current zoning district; and d. If the structure is on the City’s historic resources inventory, the loss of the nonconforming unit could result in the degradation of the architectural integrity of the structure or other adjacent structures or could result in the loss of the structure.
10. Appeals shall be processed and acted upon in compliance with Chapter 16.602, Common Procedures. 11. Once a certificate of conformity is issued, the unit shall be considered conforming. This conforming status shall not be lost, except as described in Section (B), below, even if the unit is not occupied for over 12 months.
B. All units reestablished under the provisions of this
Chapter shall be brought into compliance with current building and housing codes, including the State Historic
Building Code for eligible structures, as determined necessary by the chief building official, within 6 months of the date of the certificate of conformity. Failure to complete all required improvements within the 6-month period may result in the revocation of the certificate and the termination of the unit, except as provided in Section 16.105.07, Nonconforming Uses.
No lawful nonconforming use shall be changed to a different use type or sub-classification without the approval of a Major Use Permit unless the new use is permitted by right. This requirement shall not apply to a change of ownership, tenancy, or management where the new use is of the same use type and use classification, if applicable, as the previous use, as defined in Part VII, and the use is not expanded or intensified. For the purposes of this Chapter, intensification includes an increase in the number of vehicle trips generated by a use, parking demand, number of employees on a site, hours of operation, and other similar characteristics as determined by the Director.
16.105.10 CHANGE FROM NONCONFORMING TO PERMITTED USE
Any nonconforming use may be changed to a use that is allowed by right in the zoning district in which it is located and complies with all applicable standards for such use.
16.105.11 ABSENCE OF PERMIT
Any use that is nonconforming solely by reason of the absence of a Use Permit may be changed to a conforming use by obtaining a Minor Use Permit pursuant to the requirements in Chapter 16.606, Minor and Major Use Permits.
16.105.12 SUBSTITUTIONS
The Director may allow substitution of a nonconforming use with another nonconforming use, subject to approval of a Minor Use Permit in accordance with the provisions of this Chapter. In addition to any other findings required by this Ordinance, approval of a Minor Use Permit under this Chapter shall be based on findings that;
A. The existing nonconforming use was legally established; B. The proposed new use would not be detrimental to public health, safety, or welfare; C. The proposed new use would not preclude or interfere with implementation of the General Plan or any applicable adopted specific, area, or community plan; D. The proposed new use will not depress the value of nearby properties or create conditions that would impede their redevelopment or use in compliance with the General Plan; E. The proposed new use will be no less compatible with the purposes of the district and surrounding uses that comply with the requirements of this
Ordinance than the nonconforming use it replaces; F. The proposed new use will not result in an average daily trip increase of more than 5 percent of the current use based on the Institute of
Traffic Engineers (ITE) trip generation rates, or the unique operational characteristics; G. The proposed new use will not be detrimental to the health, safety, peace, comfort, or general welfare of persons residing or working in the surrounding area or be detrimental or injurious to property and improvements of adjacent properties, the surrounding area, or the neighborhood because of noise, odors, dust, glare, vibrations, or other effects; and H. The proposed new use will comply with all applicable standards of the district and Citywide standards, there are special circumstances peculiar to the property and its relation to surrounding uses or to the district itself that would justify modification to applicable standards, or the impacts of the new use will be mitigated.
16.105.13 GENERAL PLAN CONSISTENCY
The Planning Commission or the Director may find that the continuation, expansion, or substitution of a nonconforming industrial or light industrial use is consistent with the General Plan if the Use Permit is subject to a condition that limits the term of such use or any other restriction deemed necessary to ensure that approval of the Use Permit would not interfere with, impede, or preclude eventual implementation of the General Plan. This determination shall be based on information in the record including, but not limited to, financial analysis and market studies.
16.105.14 TIME EXTENSIONS
There shall be no extension of time granted for an abandoned nonconforming use or structure, except as noted in Sections 16.105.06, Nonconforming Structures, and 16.105.07 Nonconforming Uses.
A. In the event of judicial proceedings pertaining to the nonconforming use or structure that prevent the active operation of the use or occupation of the structure, the use or structure shall be considered abandoned if active operation or occupation has not occurred within 12 months after the conclusion of the judicial proceedings.
B. The Director may grant an extension of time, not to exceed an additional 12 months, to complete the authorized restoration of a nonconforming structure if the following findings are made:
1. An unreasonable hardship would otherwise be imposed on the applicant; 2. The delay in completing the restoration was beyond the control of the applicant; and 3. The extension of time to complete the restoration would not be detrimental to any existing or potential permitted use or structure in the zoning district in which the structure is located.
16.105.15 BURDEN OF PROOF
A. Continuing the nonconforming status of a structure or use. It shall be the responsibility of the party interested in continuing the nonconforming status of a structure or use to prove that the structure or use is in active operation. Such proof could include, but not be limited to, the following: 1. Active building permits; 2. Judicial proceedings, including probate; 3. Rental receipts; 4. Utility records showing service periods and levels of consumption consistent with the active operation of the use or structure; and/or 5. Records documenting efforts to actively rent, market, or sell the use or structure.
B. The burden of proof shall be met only if the following findings can be made:
1. The use or structure was permitted when established; 2. No conditions have occurred since the legal establishment that would require its abatement; and 3. No unauthorized expansion, enlargement, or intensification of the use or structure has occurred and currently exists.
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