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HomeMy WebLinkAbout102-Ordinance.pdfORDINANCE __________ An Ordinance amending Article 15-65 of the Saratoga Municipal Code related to regulations affecting Non-conforming Uses and Structures. and making conforming amendments to sections 15-19.060, 15-12.090, and 15-17.080 of the Saratoga Municipal Code Findings 1. The City of Saratoga wishes to update and clarify the standards applicable to non-conforming uses and structures in the City. 2. The Planning Commission of the City of Saratoga considered proposed amendments to the City Code and following a duly noticed public hearing on July 8, 2009 recommended adoption of this ordinance. 3. The City Council of the City of Saratoga held a duly noticed public hearing on September 2, 2009 and after considering all testimony and written materials provided in connection with that hearing introduced and adopted this ordinance. Therefore, the City Council hereby ordains as follows: Section 1. Adoption. Article 15-65 of the Saratoga City Code is hereby replaced in its entirety with the text shown in Attachment A. Sections 15-19.060, 15-2.090, and 15-17.080 of the Saratoga Code are hereby amended as set forth in Attachment A, and with respect to those sections text to be added is indicated in double-underlined font (e.g., double-underlined) and text to be deleted is indicated in strikeout font (e.g., strikeout). Text in standard font remains unchanged. Section 2. Severance Clause. The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub- section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. Section 3. California Environmental Quality Act. The ordinance is Categorically Exempt from the Environmental Quality Act (CEQA) pursuant to Section 15061(3) because it is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Here because the amendments are procedural only and do not change the standards applicable to issuance of use permits it can be seen with certainty that there is no possibility the procedural amendments may have a significant effect on the environment and therefore the activity is not subject to CEQA. Section 4. Publication. This ordinance or a comprehensive summary thereof shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. The foregoing ordinance was introduced and first reading waived at the regular meeting of the City Council of the City of Saratoga held on September 2, 2009, and was adopted by the following vote following a second reading on September 16, 2009: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: ATTEST: _________________________________ _____________________________ Chuck Page, Ann Sullivan, MAYOR OF THE CITY OF SARATOGA CLERK OF THE CITY OF SARATOGA APPROVED AS TO FORM: __________________________________ Richard Taylor, CITY ATTORNEY PROPOSED AMENDMENTS TO CITY OF SARATOGA NON-CONFORMING USES AND STRUCTURES ORDINANCE Zoning Ordinance Update ZOA 09-0004 Article 15-65 Non-Conforming Uses and Structures 15-65.010 Purposes of Article. This Article is intended to limit the number and extent of nonconforming uses and structures by prohibiting or restricting their repair, alteration, enlargement, intensification, reconstruction, or re-establishment after abandonment or restoration after destruction. Nothing in this Article shall authorize any action inconsistent with Chapter 13 or any other heritage preservation provisions of this Code. This Article is further intended to allow certain nonconforming uses and structures to remain where such uses or structures do not conflict with the objectives of this Chapter and the purposes of the zoning district in which they are located. 15-65.020 Definitions. The following definitions apply throughout this Article, unless the context or the provision clearly requires otherwise. (a) Construction Cost. “Construction cost” means the estimated cost to rebuild a structure (at the time work is proposed to be performed on the structure) as determined by the Community Development Director (using the Building Official’s current multiplier for calculating the per- square-foot valuation of new construction). (b) Expenditure. “Expenditure” means the estimated cost, as determined by the Community Development Director (using the Building Official’s current multiplier for calculating the per- square-foot valuation of new construction), of work to be performed in connection with any nonconforming use or structure. In making this determination the Director shall confirm that the portions of the structure which the plans show as not to be repaired or altered are in fact structurally sound and that it will not be necessary to repair or alter such portions of the structure during construction. The Director may require that a termite inspector, registered engineer or other professional(s) satisfactory to the Director be retained at the applicant’s expense to make certifications in this regard. (c) Maintenance. “Maintenance” means routine, recurring, and usual activities for the preservation, protection, and keeping of structure for its intended purposes in a safe and continually usable condition for which it was designed. Repainting or reroofing (in kind) of a structure is an example of maintenance. (d) Major Repair or Alteration. “Major Repair or Alteration” means any work that is estimated to result in expenditure (cumulatively), after October 16, 2009, of greater than 20 percent and not exceeding 50 percent of the estimated construction cost of the structure that is the subject of the work. (e) Minor Repair or Alteration. “Minor Repair or Alteration” means any work that is estimated to result in the expenditure (cumulatively), after October 16, 2009, of 20 percent or less of the estimated construction cost of the structure. (f) Nonconforming Structure. “Nonconforming Structure” means a structure lawfully existing on the effective date of a change in a development standard established by this Code and continuing since that date in nonconformance to the development standard. The use of this term in this Article shall refer only to a legal nonconforming structure. A structure that was not originally constructed in conformance with regulations applicable at the time is not a legal structure. (g) Nonconforming Use. “Nonconforming Use” means a use lawfully existing on the effective date of a change in a use restriction and continuing since that date in nonconformance to the use restriction. Site and structural dimensions are not considered use restrictions and are instead development standards applicable to structures. The following pre-existing uses shall constitute a nonconforming use subject to the provisions of this Article unless a conditional use permit is subsequently granted for such use: (1) a use established prior to any City regulation requiring a conditional use permit for such use, but which by virtue of later-adopted City regulation(s) becomes a use allowed only upon the granting of a conditional use permit; and (2) a use being conducted under a valid conditional use permit, but which by virtue of later-adopted City regulation(s) becomes a use no longer allowed to continue. The use of this term in this Article shall refer only to a legal nonconforming use. A use that was not originally commenced in conformance with regulations applicable at the time is not a legal use. (h) Reconstruction. “Reconstruction” means either of the following: (1) Any work that is estimated to result in expenditure cumulatively, after October 16, 2009, of greater than 50 percent of the estimated construction cost of the structure that is the subject of the work; or (2) Moving a nonconforming structure or a structure being used for a nonconforming use to any other location on the parcel or adjoining parcels (whether the structure movement is in whole or in part). (i) Statement of Acknowledgment of Legal Nonconforming Status. “Statement of Acknowledgment of Legal Nonconforming Status” means a document in form and content approved by the Community Development Director and recorded in the office of the County Recorder documenting that a use or structure on the subject property is nonconforming, but legal pursuant to the terms of this Article. (j) Work. “Work” means any work, whether structural or nonstructural, that is done to a structure including repair, alteration and reconstruction, but excluding maintenance and the replacement of the interior or exterior wall coverings, fixtures, or windows or doors (without altering their respective openings). 15-65.025 Summary Table of Thresholds The table below outlines defining thresholds for maintenance, minor vs. major repairs and alterations, voluntary vs. involuntary reconstruction, and applicable standards for such activities. Type of Work Maintenance Minor Repairs and Alterations Major Repairs and Alterations Voluntary Reconstruction Involuntary Reconstruction Description Routine and recurring actvity for the preservation and protection of a structure. Repainting or reroofing (in kind) is an example Work that is estimated to result in the expenditure (cumulatively) of 20% or less of the estimated construction cost of the entire structure Work that is estimated to result in the expenditure (cumulatively) of greater than 20% and not exceeding 50% of the estimated construction cost of the entire structure Reconstruction of any nonconforming structure exceeding 50% of the construction cost of the entire structure Reconstruction of a nonconforming structure which is involuntarily damaged not exceeding 75 percent of the construction cost of the entire structure Applicable Standards Routine maintenance is not subject to cumulative limits Permitted subject to required permits and specified standards Permitted subject to Planning Commission review and findings Reconstruction exceeding 50% is not permitted and the structure must conform to all applicable standards. Permitted up to 100% of its previous configuration subject to Planning Commission determination that reconstruction does not result in a health and/or safety hazard The text of this Article takes precedence over this Summary Table for purposes of interpreting this Article. 15-65.030 Continuation in general; Regulations applicable to nonconforming uses or structures. (a) Nonconforming uses and structures may be continued only in conformity with the provisions of this Article. The owner of property on which a nonconforming use or structure is claimed shall have the burden of proof in establishing to the satisfaction of the Community Development Director the nonconforming status claimed. The Community Development Director may charge a fee, as established in the City Fee Schedule, for the review of evidence submitted to meet the owner’s burden of proof. A use or structure that is not in conformity with the provisions of this Chapter, or that is not a legal nonconforming use or structure in accordance with this Article, shall constitute a violation of this Code and shall not be continued. (b) The following regulations apply to each nonconforming use or structure: (1) All new construction allowed to occur with respect to a nonconforming use or structure shall comply with current requirements of Chapter 16 of this Code. (2) Repair, alteration or reconstruction otherwise required by this Code or applicable law, and not otherwise prohibited by the rights or regulations of any other governmental agency having jurisdiction, shall be allowed in the following circumstances and shall not be considered in calculating any estimated construction cost: (i) Repair, alteration, or reconstruction required to retrofit unreinforced masonry structures or otherwise required to comply with earthquake safety standards established in Chapter 16 of this Code, provided the retrofitting or other work is limited exclusively to compliance with earthquake safety standards; (ii) Repair, alteration, or reconstruction required to elevate a habitable structure in a floodplain, provided the elevation work is limited exclusively to compliance with flood prevention standards; (iii) Repair, alteration, or reconstruction required to comply with required energy efficiency standards established in Chapter 16 of this Code, provided the work is limited exclusively to compliance with those standards; and (iv) Repair, alteration, or reconstruction which is limited exclusively to compliance with the Americans with Disabilities Act (ADA) or Chapters 11A and 11B of the State Building Code set forth in Volume II of Title 24 of the California Code of Regulations. (3) Any building permit or use permit or other approval issued pursuant to this Code for minor or major repairs or alterations, reconstruction, or change, expansion or intensification of a legal nonconforming use or structure shall include a condition requiring recordation of a Statement of Acknowledgment of Legal Nonconforming Status. (4) No otherwise legal existing use or structure shall be deemed to be a nonconforming use solely because of the lack of the required number of off-street parking facilities. However, any otherwise permitted intensification of a use or structure must comply with current parking standards. 15-65.035 Continuation after annexations; Regulations applicable to nonconforming uses or structures on property annexed to the City. (a) A structure lawfully existing on the effective date of its annexation into the City but which is in nonconformance at that time to any applicable City development standard shall be considered a legal nonconforming structure, unless, as hereby authorized, the City, at the time of annexation establishes a different status (in whole or in part) for that structure as a condition of such annexation. (b) A use lawfully existing on the effective date of its annexation into the City but which is in nonconformance at that time to any applicable City use regulation shall be considered a legal nonconforming use, unless, as hereby authorized, the City, at the time of annexation establishes a different status (in whole or in part) for that use as a condition of such annexation. 15-65.040 Residences and structures on substandard parcels. (a) Multiple residences on parcels resulting in nonconforming use. Where the number of residences on a parcel does not conform to later-adopted regulations, the result is a legal nonconforming residential use. In such case, the property owner shall identify as the conforming residence(s) on the parcel up to the number of residences allowed by current City regulations and such identified residence(s) shall not be subject to the regulations contained in this Article. The remaining residence(s) shall be deemed nonconforming uses and structures. The property owner election and status of the residence(s) on the property shall be documented in a Statement of Acknowledgment of Legal Nonconforming Status recorded by the property owner in the office of the County Recorder. (b) Structures on nonconforming sites. A nonconforming use results where there is an existing structure or a structure is proposed to be constructed on a lawfully created parcel having a site area, frontage, width or depth less than the minimum standards prescribed for the Zoning District in which the parcel is located. However, such structure shall be considered conforming and shall not be subject to the regulations contained in this Article if all of the following conditions are satisfied: (i) Where the width of a site does not conform with the applicable standard for the Zoning District, the minimum width of interior side setback areas for first floors shall be not less than ten percent of the width of the site or six feet, whichever is greater, and the minimum width of an exterior side setback area for first floors of a corner lot shall be not less than twenty percent of the width of the site or fifteen feet, whichever is greater. The second floor setback area for interior and exterior lot lines shall be increased an additional five feet. (ii) Where the depth of the site is less than the applicable standard for the Zoning District, the rear setback area for the first floor shall be twenty percent of the depth of the site or twenty feet, whichever is greater. The second floor rear setback area shall be increased an additional five feet. (iii) In the event the setbacks described in (i) and (ii) above are determined to be greater than those in the applicable Zoning District standard, then the Zoning District standard shall apply. Except as provided in (i) through (ii) above, the residence shall comply with all other regulations for the Zoning District, except the minimum site area and frontage which render the existing parcel substandard. 15-65.050 Minor or Major Repairs or Alterations to Structures. (a) Minor. Subject to the provisions of this Article, minor repair or alteration to a nonconforming structure may be performed without Planning Commission approval, provided such alterations do not increase the degree of noncompliance or otherwise increase the discrepancy between existing conditions and the requirements of this Chapter, and further provided that all otherwise required permits are first obtained. (b) Major. Subject to the provisions of this Article, major repair and alteration of a nonconforming structure may be permitted if the Planning Commission makes the following determinations: (1) the repair and/or alteration will accommodate a conforming use; (2) the repair and/or alteration does not increase the degree of noncompliance, or otherwise increase the discrepancy between existing conditions and the requirements of this Chapter; and (3) The repair and/or alteration does not effectively extend or perpetuate the useful life of any particular feature or portion of the structure which is nonconforming. In no event shall the cumulative expenditures for repairs and/or alterations on any nonconforming structure exceed 50 percent of the estimated construction cost of the structure prior to such repairs and/or alterations, unless such structure is changed to a conforming structure or unless the structure is subject to section 15-65.070 of this Code. 15-65.060 Expansion of nonconforming structures. A nonconforming structure shall not be moved or altered so as to increase in any way the discrepancy (or change the footprint) between existing conditions and the development standards established by this Code. Examples of prohibited alterations include the following: (1) A legal nonconforming single family dwelling which exceeds the current Floor Area Ratio (or Site Coverage) limit may not add 100 square feet to the structure by decreasing another portion of the dwelling by 100 square feet to keep the dwelling at the original square footage, even though there would be no net gain in Floor Area (or Site Coverage) as to the legal nonconforming structure. (2) A legal nonconforming structure which is nonconforming (in part) because a portion of the structure extends into a setback area may not expand by continuing the setback encroachment along the entire structure by removing equivalent nonconforming square footage from another yard setback area, even though there would be no net gain in the total nonconforming area encroaching into a required setback. The prohibition against moving or increasing the discrepancy of a legal nonconforming structure shall not apply if a variance for the moving or increase is granted pursuant to Article 15-70 of this Chapter. 15-65.065 Reconstruction. Reconstruction of any nonconforming structure exceeding 50 percent of the construction cost of the entire structure must conform to all standards in this Chapter unless the structure is subject to section 15-65.070 of this Code. 15-65.070 Reconstruction following involuntary damage to or destruction of nonconforming structure. (a) Reconstruction to previous configuration. A nonconforming structure which is involuntarily damaged or destroyed by fire, flood, earthquake, vandalism or other catastrophic event not exceeding 75 percent of the construction cost thereof may be reconstructed up to its previous configuration (as to both horizontal and vertical building envelope) so long as such reconstruction does not restore, create or result in a health and/or safety hazard. If the damaged or destroyed structure qualifies as a heritage resource as defined in Chapter 13, it may be reconstructed, in compliance with Chapter 13 and this subsection, in a manner that reproduces the design of the predamaged structure to the maximum extent feasible, even if damaged or destroyed up to 100 percent of the construction cost thereof. (b) Reconstruction of multi-family dwellings subject to Government Code section 65852.25. When a nonconforming multi-family dwelling is involuntarily damaged or destroyed by fire, flood, earthquake, vandalism or other catastrophic event and the structure is subject to Government Code section 65852.25 (or any successor thereto) it may be reconstructed so long as the City Council has not made findings in accordance with that section to prohibit the reconstruction provided that the reconstruction does not exceed the structure’s predamaged size and number of dwelling units and otherwise conforms with that section. (c) Residential structure in commercial zoning district. When the structure is at least in part a residential structure in a commercial district it may be reconstructed provided that the reconstruction (i) does not exceed the structure’s predamaged size and number of dwelling units; and (ii) maintains the same amount of floor area devoted to residential use as the predamaged structure; and (iii) reproduces the design of the predamaged structure to the maximum extent feasible or is of a revised design approved pursuant to then current design review standards and procedures. (d) Compliance with other regulations. Except as otherwise provided in this section with regard to reconstruction of all or a portion of a structure to its previous nonconforming condition, all reconstruction shall be subject to all applicable laws, regulations and procedures otherwise governing construction on the site at the time such reconstruction is undertaken. (e) Time to commence reconstruction. The reconstruction work authorized by this section shall be commenced within two years from the date of damage or destruction (unless, prior to the expiration of that two year period, the deadline to commence reconstruction is extended by the Community Development Director for up to another two years) and be prosecuted diligently to completion. 15-65.080 Unsafe buildings. Nothing in this Article shall be construed as repealing, abrogating or modifying any provision of this Code or of any law relating to requirements for construction, maintenance, repair, demolition or removal of structures, or requiring the immediate removal of any structure, or any portion thereof, determined to be unsafe for human occupancy or otherwise constituting a public nuisance. 15-65.090 Change of use. (a) A nonconforming use shall not be replaced or supplemented by another nonconforming use. (b) Any portion of a nonconforming use, which is changed to a conforming use, shall not be re- established. 15-65.100 Expansion or intensification of nonconforming uses. (a) Except as provided in subsection (b) below, a nonconforming use may not be expanded or intensified. This prohibition shall include (but not be limited to) any expansion or intensification of a nonconforming use which: (1) Increases the site area or floor area occupied by such nonconforming use on the same or any additional site; or (2) Increases the number of structures or size of any structure housing a nonconforming use or any portion thereof; or (3) Increases the amount, volume, or intensity of a nonconforming business use, or the machinery, equipment, trade fixtures or other personal property utilized in the conduct of such use; or (4) Displaces any conforming use occupying a structure or site. (b) The Planning Commission may approve the expansion and/or intensification of a nonconforming use upon finding that such expansion and/or intensification will not adversely affect existing or anticipated uses in the immediate neighborhood, and will not adversely affect surrounding properties or the occupants thereof. Any such approval shall include a condition requiring recordation of a Statement of Acknowledgment of Legal Nonconforming Status and specification therein of the limit(s) of such approved expansion and/or intensification. 15-65.110 Reconstruction of damaged or destroyed nonconforming use. (a) A nonconforming use which is involuntarily damaged or destroyed by fire, flood, earthquake, vandalism or other catastrophic event not exceeding 75 percent of the use may be re- established for continued occupancy by the nonconforming use or uses(s) previously conducted therein, subject to the following limitations: (1) The extent of nonconformity (i.e., neither the intensity of activity, nor the site area or floor area occupied by the nonconforming use subsequent to reconstruction or restoration of the site or structure(s)) shall exceed that existing prior to the damage or destruction of the use. (2) Reconstruction or restoration of the use shall be subject to all applicable laws, regulations and procedures otherwise governing construction on the site at the time such construction is undertaken. (3) The re-establishment of the use authorized by this section shall be commenced within two years from the date of damage or destruction (unless, prior to the expiration of that two year period, the deadline to commence re-establishment is extended by the Community Development Director by up to another two years) and prosecuted diligently to completion. 15-65.120 Termination of nonconforming uses and structures by abandonment or discontinuance/cessation of use. (a) Whenever a nonconforming use has ceased, been abandoned or discontinued for a period of 180 consecutive days or longer, such use shall not be resumed, re-established, or continued and all subsequent uses of the site and the structures thereon shall conform to the requirements of this Chapter. (b) Whenever a nonconforming structure has been abandoned or its use has ceased for a continuous period of one year or longer, the structure shall be removed from the site or changed to a conforming structure. (c) Discontinuance of a nonconforming use for a period of 180 consecutive days or nonuse of a nonconforming structure for a continuous period of one year, shall conclusively be presumed an abandonment, discontinuance/cessation of such use or structure under the terms of this section; provided, however, a discontinuance of use in either of the following circumstances shall not be counted toward such time periods: (1) Any discontinuance of use of up to 360 days in connection with a pending sale or other transfer of ownership or management of a nonconforming use or structure to a designated person where the discontinuance of use is solely for the purpose of accomplishing the sale or transfer. (2) Any discontinuance of use during the period of reconstruction of a damaged or destroyed nonconforming structure, where such reconstruction is permitted under this Article. CONFORMING AMENDMENTS Sections 15-19.060, 15-12.090, and 15-17.080 are amended to read as follows: 15-19.060 Continuation of nonconforming uses. Notwithstanding the provisions of Section 15-55.130 15-65.020(g)(1) of this Chapter, any clinic operating no earlier than 7:00 A.M. and no later than 9:00 P.M., any establishment engaged in the sale of alcoholic beverages; and any restaurant, market or delicatessen which, as of September 6, 1989, was lawfully established and legally operating as a permitted use, shall be exempted from the requirement for elimination after lapse of time pursuant to Section 15-65.110 of this Chapter and also exempted from the necessity to obtain a use permit for continuation of such use, but in all other respects shall be regarded as a nonconforming use. Any mini-storage facility lawfully operating pursuant to a use permit granted prior to September 6, 1989, may continue to operate pursuant to the terms and conditions of such use permit. 15-12.090 Front, side, and rear setback areas. (a) For any nonconforming site, as defined in this Chapter, the requirements provided in Section 15-65.160 15-65.040(b) apply to the site. For any conforming site, the minimum setback area requirements in the R-1 district are as follows: 15-17.080 Front, side, and rear setback areas. (a) For any nonconforming site, as defined in this Chapter, the requirements provided in Section 15-65.160 15-65.040(b) apply to the site. For any conforming site, except as otherwise provided in this Section, the minimum front, side and rear setback areas of any lot in each R-M district shall be as follows: 15-55.130 Pre-Existing Permitted Uses. This Section is hereby deleted. 15-55.140 Pre-Existing Conditional Uses. This Section is hereby deleted. 15-55.150 Appeals. This Section is hereby renumbered as 15-55.130. Text to be added is indicated in double-underlined font (e.g., double-underlined) and text to be deleted is indicated in strikeout font (e.g., strikeout). Text in standard font remains unchanged.