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HomeMy WebLinkAbout90-22 - Amending Title 20 of the Municipal Code as it Applies to Nonconforming Uses and Structures (Planning Commission Amendment No. 694)ORDINANCE NO. 90 -22 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING TITLE 20 OF THE MUNICIPAL CODE AS IT APPLIES TO NONCONFORMING USES AND STRUCTURES (Planning Commission Amendment No. 694) • WHEREAS, the City of Newport Beach has recently completed major revisions to the Land Use and Circulation Elements of the General Plan; and WHEREAS, as a part of these revisions the City reviewed all of its existing commercial intensity standards and permitted residential densities and determined that the previous allowable development would adversely impact the City's existing circulation system; and WHEREAS, in order to determine the levels of development that could be accommodated in the City, a computerized Traffic Model was developed to analyze the impacts of different levels of commercial, residential, and industrial growth on the City's circulation system; and WHEREAS, after over eighteen months of public input, extensive analysis by staff and consultants, and many public hearings before the Planning Commission and City Council, the Land Use Element of the General Plan now establishes specific levels of development, both commercial and residential, that are correlated with the Circulation Element; and WHEREAS, many areas have been rendered newly nonconforming as a result of the General Plan Amendment and associated zoning amendments; and WHEREAS, the Land Use Element of the General Plan provides for the review of existing ordinances pertaining to nonconforming uses and structures; and WHEREAS, at its meeting of August 10, 1989, the Planning Commission initiated Zoning Amendments No. 687, etc., in order to implement the provisions of the revised General Plan; and • WHEREAS, on April S, 1990, the Planning Commission of the City of Newport Beach held a public hearing regarding Amendment No. 694; WHEREAS, on May 14, 1990, the City Council of the City of Newport Beach held a public hearing regarding the amendment; and - 1 - WHEREAS, the public was duly noticed of the public hearing. NOW THEREFORE, the City Council of the City of Newport Beach does hereby ordain as follows: SECTION 1. Chapter 20.83 of the Newport Beach Municipal Code is • hereby amended to read as follows: Chapter 20.83 NONCONFORMING STRUCTURES AND USES Sections: 20.83.010 Intent and Purpose 20.83.020 Definitions • 20.83.030 Nonconforming Structures 20.83.040 Nonconforming Uses 20.83.050 Nonconforming Parking 20.83.060 Restoration of Damage or Destruction 20.83.010 INTENT AND PURPOSE. The purpose of this Chapter is to: A. Regulate the ability of property owners to continue in the use and enjoyment of their property; B. Permit and promote property maintenance; C. Discourage certain actions which might serve to perpetuate or intensify a • nonconforming use or structure; and D. Encourage conversions and alterations which will achieve greater conformity with current codes. -2- 20.83.020 DEFINITIONS For the purpose of this Title, the following words and phrases shall be defined as specified in this section. isA. NONCONFORMING. Lawful when established or constructed but, due to subsequent changes in this Title, not in conformance with current zoning ordinances. The term nonconforming does not include uses or structures which were not established or constructed in conformance with then current zoning ordinances. B. NONCONFORMING USE. A use of land which was lawful and in conformance with the zoning ordinance when established but, due to subsequent amendments to this Title, is not currently permitted in the district in which it is located or is permitted upon the approval of a use permit and no use permit has been approved in accordance with Chapters 20.72 and 20.80 . • C. NONCONFORMING STRUCTURE. A structure which was lawful and in conformance with this code when constructed but, due to subsequent amendments to the code, does not conform to the current development standards applicable to the district in which it is located. D. CATEGORY 1 ALTERATION. Minor, nonstructural alteration including, by way of illustration, replacement of less than twenty-five percent (25 %) of the exterior wall covering (by area) or interior remodelling involving less than twenty-five percent (25 %) of the gross floor area of the structure, within any twelve month period. E. CATEGORY 2 ALTERATION. Moderate alteration including, by way of illustration, replacement of up to fifty percent (50 %) of the exterior wall covering (by area), interior remodelling involving up to fifty percent (50 %) of the gross floor area, alteration of less than twenty-five percent (25 %) of structural elements, or replacement of less than twenty-five percent (25 %) of the perimeter walls (by area) of the structure within any twelve month period. - 3 - F. CATEGORY 3 ALTERATION. Significant alteration including, by way of illustration, replacement of over fifty percent (50 %) of the exterior wall covering (by area), interior remodelling involving over fifty percent (50 %) of the gross floor area, or alteration of up to fifty percent (50 %) of the structural elements, or replacement of up to fifty percent (50 %) of the perimeter walls (by area) of the structure within any twelve month period. G. CATEGORY 4 ALTERATION. Major alteration including, by way of illustration, alteration of up to seventy-five percent (75 %) of the structural members or replacement of up to seventy-five percent (75 %) of the perimeter walls (by area) of the structure within any twelve (12) month period. I. CHANGE IN OPERATIONAL CHARACTERISTICS shall include, without limitation and by way of illustration, any of the following: 1. Any substantial increase in the hours of operation; • 2. The introduction of live entertainment or dancing; 3. A loss of on -site or off -site parking spaces for a period of ninety (90) days or more which would reduce available parking below the number currently required by provisions of this Title. 4. The introduction of, or an increase in, the number of valet, tandem, or compact parking spaces. 20.83.030 NONCONFORMING STRUCTURES A. MAINTENANCE AND REPAIRS. Ordinary maintenance and repairs may be made to any nonconforming structure. No structural alterations shall be made except as provided in Subsection B below. Maintenance and repairs shall be limited to painting, patching, reroofing, and incidental replacement of nonstructural elements. B. ALTERATION OF NONCONFORMING STRUCTURES. Alteration of nonconforming structures is permitted only as provided in this subsection. Any alteration not expressly permitted requires the approval of a variance pursuant to Chapter 20.82. 1. Structures Nonconforming Due To An Encroachment Into a Setback or Into the isRequired Distance Between Buildings: a. Category 1 Alteration of the encroachment shall be permitted. b. Category 1 and 2 Alteration and an increase of twenty five percent (25 %) or less in the gross floor area of the remainder of the nonconforming structure (exclusive of the encroachment) shall be permitted. C. Any other alteration of the structure shall be permitted only upon the approval of a modification to the Zoning Code as provided in Chapter 20.81, unless exempt from this requirement pursuant to Section 20.83.030 0 E. 2 Structures Which Are Nonconforming Due To Height a. Alteration of the portion of the structure exceeding the height limit. i) Category 1 Alteration shall be permitted. ii) Category 2 Alteration shall be permitted only upon the approval of a modification to the Zoning Code. • iii) Category 3 Alteration shall be permitted only upon the approval of a use permit subject to the findings contained in Section 20.83.030 B 4. b. Alteration of the remainder of the structure, exclusive of the portion exceeding the height limit. - 5 - • 0 I i) Category 1 and 2 Alteration and an increase of twenty-five percent (25 %) or less in the gross floor area of the remainder of the structure (exclusive of the nonconforming portions) shall be permitted. ii) Category 3 Alteration and an increase of fifty percent (50 %) or less in the gross floor area of the remainder of the structure (exclusive of the nonconforming portions) shall be permitted upon the approval of a modification. iii) Category 4 Alteration and an increase of seventy-five percent (75 %) or less in the gross floor area of the remainder of the structure (exclusive of the nonconforming portions) shall be permitted upon the approval of a use permit subject to the findings contained in Section 20.83.030 B 4. 3. Structures Which Are Nonconforming With Regard to Open Space. Bulk. Or Gross Floor Area: a. Category 1 Alteration shall be permitted. b. Category 2 Alteration shall be permitted upon the approval of a modification. C. Category 3 and 4 Alteration shall be permitted upon the approval of a use permit subject to the additional findings specified in Section 20.83.030 B 4. 4. Required Findings A use permit to allow the alteration of a nonconforming structure may be approved by the Planning Commission, or City Council on review or appeal, only if the following findings are made in addition to those findings specified in Section 20.80.060. • a. The cost of the improvements to be made is minor in comparison to the value of the existing nonconforming condition. b. The cost of correcting the nonconforming condition would exceed the cost of the other alterations proposed. C. Retention of the nonconforming condition is necessary to maintain reasonable use of the structure. d. Retention of the nonconforming condition is necessary to preserve a substantial property right. C. REMOVAL OF NONCONFORMING STRUCTURES OR PORTIONS THEREOF. Except as provided in this chapter and Chapter 20.06, a nonconforming structure, or nonconforming portion of a structure, shall not be replaced after removal. • D. DECREASES IN NONCONFORMITY. When a nonconforming structure or site has been altered to conform, or more nearly conform, to the provisions of this Title, the nonconforming structure may not thereafter be altered except in accordance with the provisions of this Title. E. B COMBINING DISTRICT. Nonconforming side yards for buildings located in R -1 -B, R -2 -B, R -3 -B, R -4 -B, and MFR -B Districts which are nonconforming only because amendments to this Title have changed side yard requirements subsequent to the original construction of such buildings may be continued in the construction of additions. F. SPECIAL PROVISIONS /TIME FRAMES. Notwithstanding any other provision • of this Section, where a residential structure has been rendered nonconforming solely because the property upon which the structure is located has been rezoned, alteration of those nonconforming conditions resulting solely from the zoning amendment shall be permitted within two years of the effective date of such amendment provided there is no -7- increase in the nonconforming condition and subject to compliance with all other provisions of this code. 20.83.040 NONCONFORMING USES • A. INCREASE AND INTENSIFICATION OF NONCONFORMING USES. A nonconforming use may be increased or intensified by way of a change in operational characteristics, provided that a use permit is first obtained and the use is permitted subject to the approval of a use permit. A nonconforming use may not be increased or intensified unless it is permitted by right or upon the approval of a use permit in the district in which it is located. However, a residential use made nonconforming by virtue of a zoning amendment adopted subsequent to October 24, 1988, and which is located in a district where residential uses are permitted, may be enlarged or increased subject to the approval of a use permit and compliance with the provisions of this Title. • B. CHANGE OF NONCONFORMING USE. A nonconformin g commercial or industrial use may be changed to a conforming use provided that the requirements of Chapter 20.07 (Floor Area Ratios and Building Bulk) are satisfied and the change does not create or increase a deficiency in code required offstreet parking. A nonconforming residential use may be altered to reduce the number of dwelling units provided there is no increase in gross square footage and the provisions of Chapter 20.69 (Low and Moderate Income Housing Within the Coastal Zone) are satisfied. A nonconforming use may be changed to a use of a similar nature provided no intensification or enlargement of nonconforming uses occurs except as provided in Subsection A above, and provided that the new use is no less compatible with the surrounding area. C. CESSATION OF NONCONFORMING USE. All rights to maintain a nonconforming use are lost if the use is voluntarily abandoned or changed to a conforming use, and the land shall thereafter be used only in accordance with current regulations for the District in which it is located. • • • 20.83.050 NONCONFORMING PARKING A. RESIDENTIAL USES. Where residential uses are nonconforming only because they do not provide the number of parking spaces required by this Title, the following alterations are permitted: 1. Number of Spaces a. Residential development having less than two parking spaces per dwelling unit: i) Category 1 and 2 Alterations, provided no increase in gross floor area is proposed. ii) Minor additions to existing buildings, such as the construction of bathrooms, closets and hallways, or the expansion of existing rooms. iii) Addition of a new room provided that there is no net increase in the number of habitable rooms, upon the approval of a modification to the Zoning Code. All other alterations shall be permitted only upon the approval of a variance in accordance with the requirements of Chapter 20.82. b. Residential development having at least two parking spaces per dwelling unit may be altered or expanded as provided in subsection a., except that: i) The approval of a modification to the Zoning Code shall not be required for the addition of a new room provided that there is no net increase in the number of habitable rooms. ii) Additional rooms may be added upon the approval of a modification to the Zoning Code. • • • 2. Size of Parking Spaces a. No discretionary approvals shall be required for the alteration or expansion of buildings which are nonconforming only because amendments to this Title have changed the dimensions of required parking spaces subsequent to the original construction of the building, provided that the building and any proposed addition shall conform to current provisions of this Title with regard to the number of required parking spaces. b. Where the dimensions of required parking spaces do not meet provisions of Subsection 2 a, above, or current standards, alteration of the structure may be permitted only upon the approval of a modification to the Zoning Code. B. NONRESIDENTIAL USES. Where commercial structures and uses are nonconforming only because they do not provide the number of parking spaces required by this Title, the following shall be controlling: 1. Continuation or Change. Nonconforming uses and structures in commercial and industrial zoning districts may be continued or changed to a use requiring the same or less on -site parking, consistent with all other provisions of this Title. 2. Remodeling. Repairs or Alterations. A nonconforming structure may be altered without complying with the parking requirements currently set forth in this Title, provided no increase in required parking would result, and the provisions of Section 20.83.030 are satisfied. 3. Enlargement or Intensification. a. More Than Ten Percent (10 %) Increase The nonconforming structure or use may be enlarged by more than ten percent (10 %) of its original gross floor area, or onsite uses may be intensified such that code required parking would increase by more than 10 %, in any twelve month - 10 - • • period, only if all code required parking is provided, unless a waiver or reduction of the parking requirement is authorized by use permit. b. Less Than Ten Percent (10 %) Increase A nonconforming structure or use may be enlarged by less than ten percent (10 %) of its original gross floor area or intensified to generate less than a ten percent (10 %) increase in code required parking, upon the provision of code required parking attributable to the enlargement or intensification. 4. Removal. All nonconforming rights with regard to parking shall be lost for any structure which is demolished. 20.83.060. RESTORATION OF DAMAGE OR DESTRUCTION A. NONCONFORMING USE. A nonconforming use occupying land, a building, or portion thereof which is otherwise conforming and damaged or destroyed by fire, explosion, earthquake, or other disaster may be reestablished, provided that restoration work is commenced within twelve (12) months after the damage or destruction occurs and is pursued diligently to completion. B. NONCONFORMING STRUCTURE OR PARKING 1. Up To 90 % Damage or Destruction. a. General Provisions A nonconforming structure, which is partially destroyed by fire, explosion, earthquake, or other disaster, may be repaired or rebuilt as a matter of right if the cost of the repair or restoration is less than ninety percent (90 %) of the appraised value of the structure in excess of the building foundation at the time mom of the damage as determined by an independent, licensed appraiser. In the absence of such appraisal, the damage or destruction shall be presumed to exceed ninety percent (90 %) of the appraised value if, in the opinion of the Building Director, the cost of repair or restoration exceeds ninety percent (90 %) of the assessed value as specified on the latest equalized assessment roll. The rights • conferred by this section are contingent upon commencement of reconstruction within twelve (12) months after the damage or partial destruction occurs and diligent pursuit of repairs to completion. b. Special Provisions Notwithstanding the provisions of subparagraph a, where a structure is nonconforming due to an encroachment into a setback or into the required distance between buildings, and the encroachment is more than ninety percent (90 %) destroyed, a modification shall be required for replacement or repair of the encroachment. • When a structure is nonconforming due to excessive height, bulk, gross floor area, or lack of open space, and the nonconforming condition is more than ninety percent (90 %) destroyed, the nonconforming condition may be restored only after approval of a use permit pursuant to Chapter 20.80 with the following additional findings: i. That replacement of the nonconforming condition is necessary to maintain reasonable use of the structure. ii. That replacement of the nonconforming condition is necessary to preserve a substantial property right. If 2. Greater Than 90 % Destruction. If a nonconforming structure is damaged or destroyed by fire, explosion, earthquake, or other disaster to an extent of more -12- • • than ninety percent (90 %) of its appraised value in excess of the building foundation at the time of the damage as appraised by an independent, licensed appraiser, then the nonconformity may be restored only if a use permit is first approved by the Planning Commission, or City Council on review or appeal, provided application for the use permit is made within twelve months after the damage or destruction occurs and the following findings are made in addition to those findings required in accordance with Section 20.80.060 A: a. That replacement of the nonconforming condition is necessary to maintain reasonable use of the property. b. That replacement of the nonconforming condition is necessary to preserve a substantial property right. C. AGING AND DETERIORATION. The provisions of this Section shall not be construed to permit replacement of nonconforming conditions in structures undergoing renovation, remodel, or reconstruction, structures damaged by ongoing natural processes such as dry rot or termites or structure which have deteriorated due to age. SECTION 2. Section 20.10.050 E of the Newport Beach Municipal Code shall be amended to read as follows: 20.10.050 PARKING E. Structures which were in existence or under construction on the effective date of this Ordinance, and which do not provide the required number of parking spaces, may be expanded or altered in accordance with the provisions of Chapter 20.83 SECTION 3. Section 20.30.030 of the Newport Beach Municipal Code shall be amended to read as follows: - 13 - 20.30.030 COMMERCIAL USES. AUTOMOBILE STORAGE OR PARKING SPACE FOR A. REQUIRED PARKING. Off - street parking in accordance with the requirements of • Section 20.30.035 entitled "H" Combining District shall be required of all property in all commercial zoning districts which has not previously been included within a 7" or "I3" Combining District. All properties in Commercial Districts which do not meet the requirements of this Section shall be classified as nonconforming uses. B. NONCONFORMING USES. The provisions of Chapter 20.83 entitled "NONCONFORMING STRUCTURES AND USES" shall be applicable to structures and uses which are nonconforming only because they do not comply with the parking requirements set forth in Subsection A above. SECTION 4. Section 20.63.020 of the Newport Beach Municipal Code shall • be amended to read as follows: 20.63.020 GENERAL CONTROLS. A. APPLICABILITY. The provisions of this section shall apply to all property in the Cannery Village /McFadden Square Specific Plan District. 1. CONSTRUCTION OF BUILDINGS REGULATED. No building, structure, or sign shall be erected, reconstructed or structurally altered in any manner nor shall any building or land be used for any purpose, other than as permitted by, and in conformance with this Plan and all other ordinances, laws and maps referred to herein. Where other sections of the Municipal Code conflict with any provision of this Plan, the provisions of this Specific Plan shall take precedence. 2. NONCONFORMING USES AND STRUCTURES. Nonconforming uses and structures shall be governed by the provisions of Chapter 20.83. - 14 - SECTION S. Section 20.72.150 of the Newport Beach Municipal Code shall be amended to read as follows: 20.72.150 NONCONFORMING STRUCTURES AND USES. 0 A. Except as provided in Section 20.72.020, the provisions of Chapter 20.83 shall be applicable to all types of restaurants. In the event of any conflict between the provisions of this Chapter and the provisions of Chapter 20.83, the provisions of this Chapter shall control. B. Maintenance, repairs, and structural alterations can be made as provided in Chapter 20.83 SECTION 6. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official • newspaper of the City within fifteen (15) days of its adoption. This Ordinance shall be effective thirty days after the date of its adoption. • SECTION 7. The City shall not refuse to issue building permits in the basis of zoning consistency with respect to any project for which plans had been submitted to the Building Department or Planning Department for a building permit or approval in concept prior to the effective date of this ordinance, provided such submittal has been accepted as full and complete, provided that no discretionary approval is required, and provided further that the applicant diligently processes the plans and provides the Building and Planning Departments with all necessary information preliminary to the issuance of a building permit or approval in concept. -15- I U is This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 23rd day of April , 1990, and was adopted on the 14th day of May , 1990, by the following vote, to wit: AYES, COUNCIL MEMBERS TURNER, WATT, SANSONE, PLUMMER, HART, STRAUSS, COX NOES, COUNCIL MEMBERS NONE ABSENT COUNCIL MEMBERS NONE ATTEST CITY CLERK SLG \NONCON \A694ORD - 16 -