HomeMy WebLinkAbout2009-07-01; Planning Commission; ; ZCA 09-01|LCPA 09-01 - Nonconforming Buildings and Uses Ordinance RevisionThe City of Carlsbad Planning Department
A REPORT TO THE PLANNING COMMISSION
Item No. G)
Application complete date: NIA
P.C. AGENDA OF: July 1, 2009 Project Planner:
Project Engineer:
Gary Barberio, Chris DeCerbo
and Barbara Kennedy
NIA
SUBJECT: ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES
ORDINANCE REVISION -A request for a recommendation to adopt a
Negative Declaration, and recommendation of approval of a Zone Code
Amendment and Local Coastal Program Amendment to: 1) repeal and replace the
Nonconforming Buildings and Uses -Chapter 21.48 of the Zoning Ordinance, 2)
include new and amended associated definitions in Chapter 21. 04 -Definitions, 3)
amend Chapter 21.46 -Yards to delete Section 21.46.210 and 4) amend Chapter
21.44 -Parking to revise Section 21.44.010.
I. RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 6573
RECOMMENDING ADOPTION of a Negative Declaration and ADOPT Planning
Commission Resolutions No. 6574 and 6575 RECOMMENDING APPROVAL of ZCA 09-01
and LCP A 09-01 based on the findings contained therein.
III. PROJECT DESCRIPTION AND BACKGROUND
This item was previously heard and discussed by the Planning Commission on June 17, 2009.
The Planning Commission directed staff to amend the draft ordinance to allow single family
residential structures that are nonconforming due to inadequate setbacks to be expanded up to
40% of their existing floor area or 640 square feet, whichever is less, without the need for an
administrative Nonconforming Construction Permit, provided that the expansion area complies
with all existing development standards of the underlying zone.
Staff has modified the draft ordinance to incorporate this provision in Subsection 21.48.050.C.2
as follows:
2. Where a single-family residential structure is nonconforming only by
reason of substandard yards, the provisions of this chapter requiring a
nonconforming construction permit for an expansion may be waived provided
that:
a. The area of expansion is not more than 40% of the existing floor
space prior to the enlargement or a maximum of 640 square feet, whichever is
less; and
b. The area of expansion shall comply with all current development
standards including, but not limited to, setbacks, lot coverage and height
limitations.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
July 1, 2009
Pae 2
c. The provisions of this exception shall not result in an expansion or
multiple expansions that exceed the maximum area of enlargement permitted by
this exemption.
The resolutions have been revised to reflect the continuation of the public hearing to July 1,
2009. No additional correspondence has been received.
ATTACHMENTS:
1. Planning Commission Resolution No. 6573 (Neg. Dec.)
2. Planning Commission Resolution No. 6574 (ZCA)
3. Planning Commission Resolution No. 6575 (LCPA)
4. Revised Exhibit "Y" -Strike-out and underline vers10n of the proposed Zoning
Ordinance text amendments
5. Staff Report dated June 17, 2009 including attachments
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version !Page I
Title 21
ZONING
Chapters:-
21.48 Nonconforming Buildings and Uses Nonconforming Lots,
Structures and Uses
21.04.027 Alter.
Chapter 21.04
DEFINITIONS
"Alter" means any change to the interior or exterior of a structure that does
not result in an increase to the gross floor area of the structure.
21.04.140.1 Expansion.
"Expansion" means to enlarge or increase the size of an existing structure
or use including the physical size of the property, building, parking and other
improvements.
21.04.275 Nonconforming building structure.
"Nonconforming building structure" means a building structure, or portion
thereof, which was lawfully erected or altered and maintained, but which, because of the
application of this title to it, no longer conforms to the use, height or area regulations
current requirements and development standards of the zone in which it is located.
(Ord. 9060 § 254)
21.04.278 Nonconforming lot.
"Nonconforming lot" means a lot which was legally created, but which.
because of the application of this title to it, no longer conforms to the current
requirements and development standards of the zone in which it is located.
21.04.280 Nonconforming use.
21.04 .280 "Nonconforming use" means a use which was lavA'ully established and
maintained but which, because of the application of this title to it, no longer conforms to
the use regulations of the zone in w~ich it is located. A nonconforming building or
nonconforming portion of the building shall be deemed to constitute a nonconforming
use of the land upon which it is located.
(Ord. 9060 § 255)
21.04.280 Nonconforming non-residential use.
"Nonconforming non-residential use" means a non-residential use which
was lawfully established and maintained, but which, because of the application of
this title to it, no longer conforms to the current use regulations of the zone in
which it is located.
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Chapter 21.48 -Strike-out/Underline Version . !Page 2
21.04.281 Nonconforming residential use.
"Nonconforming residential use" means a residential use which was
lawfully established and maintained, but which exceeds the Growth Management
Control Point or the maximum density range of the underlying General Plan Land
Use designation.
21.04.299.1 Repair.
"Repair" means any improvements to correct deficiencies in a building or
structure.
21.04.299.2 Replace.
"Replace" means to construct a structure that is substantially equivalent in
size, shape and location to a structure that has been destroyed or demolished.
21.04.3" 354 Structure.
"Structure" means anything constructed or erected which requires location on the
ground or attached to something having a location on the ground, but not including
fences or walls used as fences less than six feet or less in height. All buildings are
structures.
(Ord. 9060 § 269)
21.04.355 Substandard lot.
See "Nonconforming lot".
21.44.010
Chapter 21.44
PARKING
Required off-street parking.
A. Qff.:.street parking, designed in accordance with the requirements of this
chapter, shall be provided for:
1. All newly constructed buildings;
2. Additions to existing buildings, except for:
a. Additions or alterations to an existing one family dwelling when the
addition or alteration results in less than 300 square feet of cumulative additional floor
space (over the amount of the original dwelling structure);
a. An existing single family residence which does not meet the
required parking standard (i.e. a two car garage) may expand floor area if a
minimum of two off-street parking spaces are provided on-site in a location
consistent with Section 21.44.060(4).
3. Any change of use within an existing building.
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version IJ,age 3
SECTION IV: That Chapter 21.45 of the Carlsbad Municipal Code is
amended to read as follows:
Chapter 21.45
PLANNED DEVELOPMENTS
21.45.090 Residential additions and accessory uses.
A. General.
1. Additions and accessory uses shall be subject to all applicable
development standards of this chapter, unless otherwise specified in this section.
2. Enlargement of Additions to buildings that are legally nonconforming
shall comply with the requirements of chapter 21.48 of this code. by reason of
inadequate setbacks is permitted, provided that such enlargement does not increase the
floor space more than 40% of that existing prior to such enlargement, and that the new
addition complies with the setbacks and lot co1.ierage requirements of this chapter.
Chapter 21.46
YARDS
21.46.210. Substandard Lots
When a lot has less than the minimum required area or width as set forth in any
of the zones contained herein, or in a precise plan, and was of record on the effective
date of the ordinance codified in this title, such lot shall be deemed to have complied
with the minimum lot area or 1,vidth as set forth in such zone or precise plan. The lot
area per dwelling unit shall, however, remain as specified in the applicable area district,
except that in no instance shall this provision prevent the erection of a single family
dwelling on any substandard lot.
(Ord. 9060 § 1620)
Sections:
21.48.010
21.48.020
21.48.030
21.48.040
21.48.050
21.48.060
21.48.070
21.48.080
21.48.090
Chapter 21.48
NONCONFORMING LOTS, STRUCTURES AND USES
Purpose and intent.
Applicability.
General provisions.
Nonconforming lots.
Nonconforming residential structures and uses.
Nonconforming non-residential structures.
Nonconforming non-residential uses.
Nonconforming construction permit.
Abatement of nonconforming structures and uses.
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Chapter 21.48 -Strike-out/Underline Version jpage 4
21.48.010 Purpose and intent.
The purpose and intent of this chapter is to:
Allow for the development of nonconforming lots that were legally
created.
2. Establish procedures for the abatement of structures and uses that
do not comply with all of the requirements and development standards of this title
and which may be adverse to the orderly development of the city and to the public
health, safety, or welfare of persons or property.
3. Permit the continuation of uses and continued occupancy and
maintenance of structures that were legally established but do not comply with all
of the requirements and development standards of this title, in a manner that is
not adverse to the public health, safety or welfare of persons or property.
4. Permit the repair, alteration, expansion or replacement of
nonconforming structures subject to the regulations herein.
5. Permit the expansion or replacement of nonconforming uses
subject to the regulations herein.
21.48.020 Applicability.
A. The provisions of this chapter apply to:
1. Legally created lots which do not conform to the current
requirements and development standards of the zone in which they are located.
2. Legally constructed structures and site development features
(except for nonconforming signs which are addressed in Section 21.41.130) which
do not comply with the current requirements and development standards of the
zone in which they are located.
3. Legally established uses which do not conform to the current
permitted use regulations of the zone in which they are located.
21.48.030 General provisions.
A. It shall be the responsibility of the owner of a nonconforming lot.
structure or use to prove to the planning director that such lot, structure or use
was lawfully established, existed on the date of adoption or amendment of this
chapter, and has existed continuously as defined herein.
B. Nothing in this chapter shall be deemed to prevent the
strengthening or restoring to a safe condition of any structure or part thereof
declared to be unsafe by any city official charged with protecting the public
safety, upon order of such official. Repairs and alterations may be made to
restore a structure to the same condition that existed prior to damage or
deterioration, provided that such repairs or structural alterations conform to the
provisions of this chapter.
21.48.040 Nonconforming lots.
A. A nonconforming lot may be developed, provided that the
development is consistent with the General Plan and complies with all of the
requirements and development standards of the zone, master plan, or specific
plan in which it is located.
21.48.050 Nonconforming residential structures and uses.
Specific Provisions.
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Chapter 21.48 -Strike-out/Underline Version !Page 5
1. A nonconforming residential structure and/or nonconforming
residential use may be continued and the structure and/or use repaired, altered,
expanded or replaced in accordance with the provisions of this chapter provided
that the repair, alteration, expansion or replacement does not:
a. Result in an additional structural nonconformity; and,
b. Increase the degree of the existing nonconformity of all or part of
such structure or use (i.e. the addition of a new dwelling unit to an existing over
density residential use): and,
c. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of floor area or the addition of a new dwelling unit that
results in an increase in parking demand, pursuant to chapter 21.44,
shall provide additional parking to satisfy the increase in parking
demand.
3. An existing single family residence which does not meet the required
parking standard (i.e. a two car garage) may expand floor area if a
minimum of two off-street parking spaces are provided on-site in a
location consistent with Section 21.44.060(4).
B. • Repair or Alteration.
,i A nonconforming residential structure and/or a structure which is
occupied by a nonconforming residential use may be repaired or altered subject
to issuance of all required discretionary and building permits, provided that the
repair or alteration complies with all current fire protection and building codes
and regulations contained in Title 17 and Title 18.
C. Expansion.
1. A nonconforming residential structure and/or a nonconforming
residential use may be expanded, so as to occupy a greater area of land or more
floor area subject to issuance of all required discretionary and building permits
and provided that an application for a nonconforming construction permit is
submitted and the planning director approves the findings of fact pursuant to
Section 21.48.0B0(B).
2. Where a single-family residential structure is nonconforming only by
reason of substandard yards, the provisions of this chapter requiring a
nonconforming construction permit for an expansion shall not apply provided
that:
a. The area of expansion is not more than 40% of the existing floor
space prior to the enlargement or a maximum of 640 square feet, whichever is
less; and
b. The area of expansion, when combined with prior expansions of the
nonconforming structure, does not exceed 40% of the floor space that existed
prior to any expansions or 640 square feet, whichever is less: and
c. The area of expansion shall comply with all current development
standards including, but not limited to, setbacks, lot coverage and height
limitations: and
d. Expansions that exceed the limits of this exception shall require a
nonconforming construction permit.
D. Replacement in the Event of a Disaster.
,i A nonconforming residential structure and/or nonconforming
residential use that is destroyed by fire, explosion, or other casualty or natural
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Chapter 21.48 -Strike-out/Underline Version lµage 6
disaster, may be replaced subject to issuance of all required discretionary and
building permits and provided that an application for a nonconforming
construction permit is submitted within two years of the date of the disaster and
the planning director approves the findings of fact pursuant to Section
21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
1.:. A nonconforming residential structure and/or nonconforming
residential use that is proposed to be voluntarily demolished may be replaced
subject to issuance of all required discretionary and building permits and
provided that an application for a nonconforming construction permit is submitted
and the planning director approves the findings of fact pursuant to Section
21.48.080(8) prior to the date of the demolition.
21.48.060 Nonconforming non-residential structures.
A. Specific Provisions.
1.:. A nonconforming non-residential structure may be continued and
the structure repaired, altered, expanded or replaced in accordance with the
provisions of this chapter provided that the repair, alteration, expansion or
replacement does not:
a. Result in an additional structural nonconformity; and,
b. Increase the degree of the existing nonconformity of all or part of
such structure; and,
c. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of floor area that results in an increase in parking
demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the
increase in parking demand.
8. Repair or Alteration.
1. A nonconforming non-residential structure may be repaired or
altered subject to issuance of all required discretionary and building permits,
provided that the repair or alteration complies with all current fire protection and
building codes and regulations contained in Title 17 and Title 18.
C. Expansion.
!:. A nonconforming non-residential structure may be expanded, so as
to occupy a greater area of land or more floor area subject to issuance of all
required discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted and the planning director
approves the findings of fact pursuant to Section 21.48.080(8).
D. Replacement in the Event of a Disaster.
1.:. A nonconforming non-residential structure that is destroyed by fire,
explosion, or other casualty or natural disaster, may be replaced subject to
issuance of all required discretionary and building permits and provided that an
application for a nonconforming construction permit is submitted within two years
of the date of the disaster and the planning director approves the findings of fact
pursuant to Section 21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
1.:. A nonconforming non-residential structure that is proposed to be
voluntarily demolished may be replaced subject to issuance of all required
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Chapter 21.48-Strike-out/Underline Version !Page 7
discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted and the planning director
approves the findings of fact pursuant to Section 21.48.080(8) prior to the date of
the demolition.
21.48.070 Nonconforming non-residential uses.
A. Specific Provisions.
~ A nonconforming non-residential use and/or structure which is
occupied by a nonconforming non-residential use may be continued and the
structure and/or use repaired, altered, expanded or replaced in accordance with
the provisions of this chapter provided that the repair, alteration, expansion or
replacement shall not:
a. Increase the degree of the existing nonconformity of all or part of
such structure or use: and,
b. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of a non-residential use and/or structure which is
occupied by a nonconforming non-residential use that results in an increase in
parking demand, pursuant to chapter 21.44, shall provide additional parking to
satisfy the increase in parking demand.
8. Repair or Alteration.
~ A structure which is occupied by a nonconforming non-residential
use may be repaired or altered subject to issuance of all required discretionary
and building permits, provided that he repair or alteration complies with all
current fire protection and building codes and regulations contained in Title 17
and Title 18.
C. Expansion of Use.
~ A nonconforming non-residential use may be expanded, so as to
occupy a greater area of land or more floor area within a structure, subject to
issuance of all required discretionary and building permits, provided that an
application for a conditional use permit is submitted and the planning commission
approves the findings of fact pursuant to Section 21.42.030(A).
D. Relocation.
~ A nonconforming non-residential use may be moved, in whole or in
part, to any other on-site structure, or to any other portion of the structure, lot or
site within or upon which it is located, subject to issuance of all required
discretionary and building permits and provided that an application for a
conditional use permit is submitted and the planning commission approves the
findings of fact pursuant to Section 21.42.030(A).
E. Change of Use.
~ A nonconforming non-residential use may be changed to a use that
is permitted in the zone in which the subject property is located, or may be
changed to a use that is more conforming, subject to approval of the planning
director and the issuance of a business license.
F. Replacement of Use.
~ A nonconforming non-residential use may be replaced with the
same or a similar use, as determined by the planning director, so long as the
replacement use does not expand or in any other manner increase the degree of
nonconformity with the use regulations of this title.
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Chapter 21.48 -Strike-out/Underline Version !Page 8
G. Discontinuance.
1.:. If a structure or parcel of land which is occupied by a
nonconforming non-residential use is, or hereafter becomes vacant and remains
unoccupied either temporarily or permanently, whether with the intent to abandon
the use or not, for a continuous period of one year or more, the planning director
shall determine and shall notify the owner of the property, via certified return
receipt mail, that the nonconforming use has been discontinued and the
nonconforming use may not be renewed or reestablished.
H. Reestablishment of a Nonconforming Use in the Event of a Disaster.
1.:. A nonconforming non-residential use that is destroyed by fire,
explosion. other casualty or natural disaster, may be reestablished subject to
issuance of all required discretionary and building permits and provided that an
application for a conditional use permit is submitted within two years of the date
of the disaster, and the planning commission approves the findings of fact
pursuant to Section 21.42.030(A).
!.:. Voluntary Demolition and Subsequent Reconstruction.
1.:. A nonconforming non-residential use that is proposed to be
voluntarily demolished and subsequently reconstructed, may be reestablished
subject to issuance of all required discretionary and building permits and
provided that an application for a conditional use permit is submitted and the
planning commission approves the findings of fact pursuant to Section
21.42.030(A) prior to the demolition.
21.48.080 Nonconforming construction permit.
A. Authority. •
1.:. The planning director or his designee may approve, conditionally
approve or deny a nonconforming construction permit as prescribed in this
chapter, upon making the findings of fact listed in Section 21.42.080(8) of this
chapter.
B. Findings of Fact.
,t A nonconforming construction permit shall be granted only if the
following facts are found to exist in regard thereto:
a. The expansion/replacement of the structure and/or use would not
result in an adverse impact to the health, safety and welfare of surrounding uses,
persons or property.
b. The area of expansion shall comply with all current requirements
and development standards of the zone in which it is located, except as provided
in Subsection 21.48.050(A)(3) of this chapter.
c. The expansion/replacement structure shall comply with all current
fire protection and building codes and regulations contained in Title 17 and
Title 18.
d. The expansion/replacement would result in a structure that would be
considered an improvement to, or complementary to and/or consistent with the
character of the neighborhood in which it is located.
C. Application and Fees.
,t Application for a nonconforming construction permit may be made
by the owner of the property affected or the authorized agent of the owner.
Application shall be made in writing on a form provided by the planning
department. The application shall state fully the circumstances and conditions
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Chapter 21.48 -Strike-out/Underline Version !Page 9
relied upon as grounds for the application and shall be accompanied by adequate
plans. a legal description of the property involved and all other materials as
specified by the planning department.
2. At the time of filing the application. the applicant shall pay a
processing fee in an amount as specified by city council resolution.
D. Notices .
.1:. Upon the filing of an application for a nonconforming construction
permit. the planning director shall give written notice by mail or personal delivery
to the project applicant, the owner of the subject real property or the owner's duly
authorized agent and to all property owners as shown on the latest equalized
assessment roll within three hundred feet of the subject property at least fifteen
days prior to a decision on the application.
E. Decision-Making Process .
.1:. Applications for nonconforming construction permits shall be acted
upon in accordance with the decision process identified below:
a. Any person so notified in accordance with Section 21.48.080(0)
above may file written objections or a written request to be heard within ten days
after the mailing or personal delivery of the notice. If a written request to be heard
is filed. the planning director shall schedule an informal hearing and provide
written notice to the applicant and the requestor at least five days prior to the
hearing. The hearing is not a formal public hearing.
b. An application for a nonconforming construction permit may be
approved. conditionally approved or denied by the planning director based upon
his/her review of the facts as set forth in the application and review of the
circumstances of the particular case.
c. The planning director may approve the nonconforming construction
permit if all of the findings of fact in Section 21.48.080(8) of this chapter are found
to exist.
F. Announcement of Findings and Decision .
.1:. Not more than twenty days following the termination of the
proceedings for a nonconforming construction permit. the planning director shall
announce his/her findings by letter. The letter shall recite, among other things:
a. The facts and reasons which. in the opinion of the planning director,
make the granting or denial of the nonconforming construction permit necessary
to carry out the provisions and general purpose of this title;
b. That the nonconforming construction permit be granted or denied;
c. If the letter orders that the nonconforming construction permit be
granted. it shall also recite such conditions and limitations as the planning
director may impose.
G. Mailing of Notice of Decision .
.1:. Not later than seven days following the announcement of a decision
ordering that a nonconforming construction permit be granted or denied, a copy
of the letter shall be mailed to the applicant at the address shown on the
application filed with the planning director.
H. Appeals .
.1:. In the case of nonconforming construction permits. the action of the
planning director may be appealed to the planning commission in accordance
with Section 21.54.140 of this title. The planning commission's action to approve.
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Chapter 21.48 -Strike-out/Underline Version !Page 10
conditionally approve or deny is final.
!:. Expiration Period.
1. Expiration of Permit if Not Exercised.
a. Any nonconforming construction permit becomes null and void if
not exercised within twenty-four months of the date of approval.
2. Extension of Permit if Not Exercised.
a. The planning director may extend the time within which the right or
privilege granted under a nonconforming construction permit must be exercised
for one additional year upon receipt of a written request from the applicant prior to
the expiration of such nonconforming construction permit. In granting such
extension the planning director shall make a written finding that neighborhood
conditions have not substantially changed since the granting of such
nonconforming construction permit.
J. Amendment.
L Any approved nonconforming construction permit may be amended
by following the same procedure as for approval of a nonconforming construction
permit and upon payment of the application fee contained in the most recent fee
schedule adopted by the city council.
21.48.090 Abatement of nonconforming structures and uses.
A. If a nonconforming use and/or structure is determined by the
planning director to be adverse to the orderly development of the city and/or to
the public health, safety, or welfare of persons or property, the planning director
shall schedule a public hearing by the planning commission to establish the
conditions of abatement and the abatement period. The abatement period shall
start from the date of the applicable resolution and shall be:
L For all Residential Uses.
a. Not less than one or more than five years.
2. For all Non-Residential Uses.
a. Not less than one or more than ten· years.
3. For all Nonconforming Structures.
a. Not less than three years or more than twenty-five years.
4. Nothing in these provisions shall preclude abatement of a nuisance
pursuant to Section 6.16.150 of the Carlsbad Municipal Code.
B. Public Hearing Notice.
L Notice of said public hearing shall be given as required by Section
21.54.060.
C. Public Hearing Evidence.
L The planning commission shall consider at the public hearing, all
pertinent data to enable it to. arrive at an equitable abatement period which will
protect the public health, safety or welfare of persons or property, yet will allow
the owner of record, or lessee if applicable, to amortize their investment so that
any loss will be minimized.
2. The owner or lessee shall be allowed to present any evidence
related to the case.
3. When setting the abatement period, the planning commission shall
take into consideration the type of construction, age, condition, and extent of
nonconformity of the structure or use in question; any structural alterations or
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expansions; and/or the installation of major equipment designed into the structure
prior to the date of nonconformity.
D. Hearing Decision.
L After the close of the public hearing. the planning commission shall
determine and establish by resolution the abatement period, and shall set forth in
said resolution all findings and facts upon which the date of such abatement
period is based.
E. Notice of Decision to Owner.
L The secretary of the planning commission shall formally notify the
owner of the property of the action of the planning commission by mailing a copy
of the resolution, via certified return receipt mail, within ten days following the
date of its adoption by the planning commission.
F. Appeal.
L The above action of the planning commission shall be final unless
an appeal to the city council is filed in accordance with the procedure provided in
Section 21.54.150.
G. Recordation.
L The secretary of the planning commission shall transmit a final
signed copy of the resolution of the planning commission or city council,
whichever is final, to the County Recorder of San Diego for recordation.
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Chapter 21.48
NONCONFORMING BUILDINGS AND USES
21.48.010 Limitation on other uses.
21.48.020 Remo•,al of nonGonforming buildings or Ghange in status of
nonGonforming use.
21.48.030 AppliGation of Ghapter.
21.48.040 NonGonforming land use •Nhen no struGture involved.
21.48.050 NonGonforming use of a Gonforming building.
21.48.060 Removal of nonGonforming buildings.
21.48.070 Commission to determine Gonditions of abatement.
21.48.080 Alteration, repair or expansion of nonGonforming uses.
21.48.090 Alteration of building when nonGonforming by reason of inadequate
yards.
21.48.100 PubliG utility ex.emptions.
21.48.010 Limitation on other uses.
While a nonconforming use exists on any lot, no additional use may be
established thereon, even though such use would be a conforming use.
(Ord. 9060 § 1700)
21.48.020 Removal of nonGonforming buildings or Ghange in status of
nonGonforming use.
If any nonconforming building is removed, every future use of the land on 1.vhich
the building is located shall conform to the provisions of this title. If a nonconforming use
vacates and is succeeded by another and more restrictive use, it is evidence that the
heavier nonconforming use v,as ended and thereupon immediately loses any vested
right as such. If the substitute use is itself nonconforming, the degree of nonconformity
may not subsequently be increased by changing to a less restricted use.
(Ord. 9060 § 1701)
21.48.030 AppliGation of Ghapter.
The provisions of this chapter shall apply to buildings, lands and uses which
hereafter become nonconforming due to any reclassification of zones under this title.
(Ord. 9060 § 1702)
21.48.040 NonGonforming land use 'Nhen no struGtured involved.
In any zone the nonconforming use of land wherein no structure is involved shall
be abated within one year from the date the ordinance codified in this title becomes
applicable, and any future use of such land shall conform to the provisions of this
ordinance. If the nonconforming use of land existing at the time this ordinance takes
effect is thereafter discontinued for six months or more, any future use of such land shall
conform to the provisions of this title.
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version !Page 13
(Ord. 9060 § 1703)
21.48.050 NonGonforming use of a Gonforming building.
(a) IN R ZONES. All nonconforming uses of a conforming building in any of
the R zones shall be discontinued 1.vithin three years from the date of formal notice to the
owner from the planning commission, or not later than five years from the date the
provisions of this ordinance becomes applicable to it.
(b) INC ZONES. Every nonconforming use of a conforming building in a C
zone v.ihich use is first permitted in a less restrictive zone shall be completely removed
before the expiration of a ten year period measured from the date the ordinance codified
in this title becomes applicable to it.
(c) IN M ZONES. The nonconforming use of a conforming building which is
devoted to any residential purpose, hospital (except emergency hospitals), hotel,
institution or home for the treatment of convalescent persons, alcoholics, the wounded or
mentally infirm, lodginghouses, schools, trailers used for human habitation, or trailer
parks, shall be completely removed before the expiration of a ten year period measured
from the date the ordinance codified in this title becomes applicable to it.
(Ord. 9060 § 1704)
21.48.060 Removal of nonGonforming buildings.
(a) IN R ZONES. Every nonconforming building in any of the R zones, except
residential buildings, churches and schools, which nonconforming building was designed
or intended for a use not permitted in the R zone in v1hich it is located, shall be
completely removed or altered to structurally conform to the uses permitted in the zone
in which it is located within the herein specified times upon notice from the planning
commission, \\1hich time is measured from the date of construction. In no case shall this
period of time be less than five years from the date of notification by the planning
commission. As used in this section the designations "Type 1 Building", "Type 2
Building", "Type 3 Building", "Type 4 Building" and "Type 5 Building", are employed as
defined iri the existing building ordinance:
(1)
(2)
(3)
If property is occupied by structures of a type for which the existing
building ordinance does not require a building permit One year;
Type 4 or Type 5 buildings (light combustible frame and wood frame)
Forty years;
Type 2 or Type 3 buildings (heavy timber construction and ordinary
masonry):
(A)
(B)
Apartments, offices, hotels or residences having stores or offices
below and apartments or offices above Thirty five years,
VVarehouses, stores, garages, lofts Thirty five years,
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
(4)
(b)
(1)
(2)
Chapter 21.48 -Strike-out/Underline Version IJ,age 14
(C) Factories and industrial Forty five years;
Type 1 Buildings (fire resistant):
(A)
(B)
(C)
(D)
Offices and hotels Forty five years,
Theatres Fifty years,
VVarehouses, lofts, stores, garages Forty five years,
Industrial Thirty five years;
INC ZONES.
Residential structures in a "C" zone existing on the effective date of the
ordinance codified in this title shall be considered as nonconforming uses
and as such, shall be subject to those provisions of this ordinance which
provide that a nonconforming building removed or destroyed may not be
replaced by other than a conforming building. Structural alterations or
enlargements may be made; provided, that the degree of nonconformity
may not be increased by changing to a less restricted residential use or
by reducing yard widths less than the prescribed minimum required in R 3
zefl&,-
Every nonconforming building in a C zone 1Nhich is designed for a use •
first permitted in an M zone shall be completely removed or altered to
conform to those uses permitted in the C zone in which such building is
located within the herein specified times, upon notice from the planning
commission, which times are measured from the date of construction
except that in no case shall this period of time be less than five years
from date of such notice by the planning commission. As used in this
section, the designations "Type 1 Building", "Type 2 Building", "Type 3
Building", "Type 4 Building" and "Type 5 Building" are employed as
defined in the existing building ordinance:
(A)
(B)
(C)
Where property is unimproved except for structures of a type for
which the existing building ordinance does not require a building
permit One year,
Type 4 or Type 5 buildings (light combustible frame and 'Nood
frame) Forty years,
Type 2 or Type 3 buildings (heavy timber construction and
ordinary masonry):
(i) Apartments, offices, hotels or residences having stores or
offices belmv and apartments or offices above Thirty five
yeafS
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
(c)
(1)
(2)
(D)
Chapter 21.48 -Strike-out/Underline Version !Page 15
(ii)
(iii)
Warehouses, stores, garages, lofts Thirty five years
Factories and industrial Forty five years
Type 1 buildings (fire resistant):
(i)
(ii)
(iii)
(iv)
Offices and hotels Forty five years
Theatres Fifty years
VVarehouses, lofts, stores, garages Forty five years
Industrial Thirty five years.
IN "M" ZONES.
Residential structures in an "M" zone existing on the effective date of the
ordinance codified in this title shall be considered as nonconforming uses
and as such, shall be subject to those provisions of this ordinance which
provide that a nonconforming building removed or destroyed may not be
replaced by other than a conforming building. Structural alterations or
enlargements may be made; pro11ided, that the degree of nonconformity
may not be increased by changing to a less restricted residential use or
by reducing yard widths less than the prescribed minimum required in R 3
ZGR&.-
Every nonconforming building in the "M" zone which is used for, or
devoted to, any hospital (except emergency hospitals), hotel, institution or
home for the treatment of convalescent persons, alcoholics, the wounded
or mentally infirm, lodginghouses, schools, trailers used for human
habitation, or trailer parks, and which nonconforming building was
designed or intended for a use not permitted in the "M" zone in which it is
located, shall be completely removed or altered to structurally conform to
the uses permitted in the zone in 1Nhich it is located within the herein
specified times upon notice from the planning commission, which times
are measured from the date of construction, except that in no case shall
this period of time be less than five years from the date of such notice. As
used in this section the designations "Type 1 building", "Type 2 building",
"Type 3 building", "Type 4 building", and "Type 5 building" are employed
as defined in the existing building ordinance:
(A)
(B)
(C)
Where property is unimproved except for structures of a type for
which the existing building ordinance does not require a building
permit One year,
Type 4 or Type 5 buildings (light combustible frame and wood
frame) Forty years,
Type 2 or Type 3 buildings (heavy timber construction and
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
(D)
Chapter 21.48 -Strike-out/Underline Version jpage 16
ordinary masonry):
(i)
(ii)
(iii)
Apartments, offices, hotels or residences having stores or
offices below and apartments or offices above Thirty five
yeafS
VVarehouses, stores, garages, lofts Thirty five years.
Factories and industrial Forty five years,
Type 1 buildings (fire resistant):
(i)
(ii)
(iii)
Offices and hotels Forty five years
Theatres Fifty years
VVarehouses, lofts, stores, garages Forty five years
(iv) Industrial Thirty five years.
(Ord. 9088 §§ 1, 2; Ord. 9060 § 1705)
21.48.070 Commission to determine conditions of abatement.
VVhen any nonconforming condition exists in any zone, other than the
nonconforming use of land when no structure is involved, it shall be the responsibility of
the planning commission, on its own initiative, to fix a date upon 1Nhish the
nonconforming building was established. It shall also be the responsibility of the planning
commission to determine whether, by reason of structural alterations or enlargements, or
the installation of major equipment designed into the building prior to the date the
ordinance codified in this title becomes applicable thereto, it is deemed necessary to
establish a later date for abatement than that prescribed herein for the building itself in
order to assure that the investment represented by sush structural alterations,
enlargements or equipment installations may be amortized. In performing this function
the commission shall consider all pertinent data in connection there1Nith to provide the
opportunity for the 01Nner of record, or lessee if there be such, to present such evidence
as they may possess and which properly relate to sush sase. When the date of
abatement has been determined, the commission by resolution, shall establish such
date and shall set forth sush fasts as bear upon the case upon which the determination
of sush date of abatement is based, and shall formally notify the o'>~mer of sush
nonconforming property of the action of the commission by mailing to sush o•.vner a sopy
of the formally adopted resolution not later than ten days following the date of subject
action by the planning commission.
(Ord. 9060 § 1706)
21.48.080 Alteration, repair or expansion of nonconforming uses.
(a) Except as provided in this section, a nonconforming use or building shall
not be altered, improved, reconstructed, restored, repaired, intensified, expanded or
extended.
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version lµage 17
(b) A nonconforming building destroyed to the extent of not more than
twenty five percent of its replacement value as determined by the community
development director at the time of its destruction by fire, explosion, or other casualty or
act of God, or public enemy, may be restored and the occupancy or use of such building,
or part thereof, •.vhich exists at the time of such partial destruction may continue subject
to all other provisions of this chapter. Such restoration shall not extend the time of
abatement as established by this chapter.
(c) Incidental reconstruction, repair or rebuilding of a nonconforming building
rendered necessary by ordinary ·.vear and tear and which does not increase the degree
of nonconformity of a nonconforming building, nor increase the degree or size of a
nonconforming use may be made, provided that:
( 1)
(2)
The aggregate value of such repairs or alterations shall not exceed ten
percent of the building's replacement value at the time the building permit
is applied for as determined by the community development director;
That such reconstruction, repair or rebuilding complies with the provisions
of Title 18 of this code;
(3) Such repairs, reconstruction or rebuilding shall not extend the time of
abatement established by this chapter.
(d) A nonconforming use or building may be altered, impro•.ied,
reconstructed, restored, repaired or extended as may be permitted by the planning
commission upon granting of the conditional use permit processed according to the
procedures established in Chapter 21.50 of this code. Before a conditional use permit
may be granted all provisions of Chapter 21.50 shall be met and it shall be shovm that:
( 1)
(2)
(3)
The aggregate value of the proposed alteration, improvement,
reconstruction, restoration, repair or extension shall not exceed twenty
five percent of the total replacement at the time the conditional use permit
is applied for as determined by the community development director of all
improvements on the site unless the building or structure is changed to a
conforming use. Such aggregate value may be increased up to fifty
percent of total replacement for those uses which provide a public service
traditionally provided by the city;
The proposed alteration, impro•.iement, reconstruction, restoration, repair
or extension is of a type of structure that is specifically designed to be
easily removed;
The proposed alteration, improvement, reconstruction, restoration, repair
or extension meets all construction setback, coverage, planning and all
other applicable requirements of this code.
In approving such conditional use permit, the planning commission shall
establish a date by which all nonconforming structures and uses shall be made
conforming or removed from the site. In no event shall the date for such removal or
compliance extend beyond the date set according to the provisions of this title for
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version IJ,age 18
abatement of the existing nonconforming use. Extensions of said date for abatement
shall be permitted only upon approval of amendment of the conditional use permit and,
then, only upon sho•.ving of good cause. A conditional use permit or amendment shall be
effecfr,e only upon execution by the applicant of written acceptance of the conditional
use permit, or amendment. Such acceptance shall include an agreement by the
applicant to remove all nonconforming uses and buildings or structures, or make them
conforming, on or before the date for removal established by the conditional use permit
or amendment in exchange for permission to alter, improve, reconstruct, restore, repair
or extend.
The planning director shall cause such conditional use permit, complete with
abatement date, or any amendment to the conditional use permit, extending an
abatement date, to be recorded at the office of the county recorder within five days after
the issuance of the permit or amendment. Any alteration, improvement, reconstruction,
restoration, repair or extension undertaken pursuant to the conditional use permit shall
be commenced within three months after the issuance of the permit unless an extension
is granted by the planning commission.
(e) No nonconforming building, structure, or use shall be changed to any
other nonconforming use, building or structure.
(Ord. NS 675 §§ 76 (part), 79 (part), 2003; Ord. 1261 § 50, 1983; Ord. 1256 § 7 (part),
1982; Ord. 9538 § 2, 1979: Ord. 9060 § 1707)
21.48.090 Alteration of building •.-:hen nonconforming by reason of inadequate
yards.
Where a building or buildings, and customary accessory buildings are
nonconforming only by reason of substandard yards or open spaces, the provisions of
this title prohibiting structural alterations or enlargements shall not apply; provided, that
any structural alterations or enlargements of an existing building shall conform to the
following:
(1) That such nonconforming structure may be enlarged or extended to the
same degree of nonconformity as may exist but in no e1,ent shall such
addition or enlargement encroach closer than three feet to any side yard
lot line, ten feet to any front line or five feet to any rear lot line; .
(2) That any such enlargement shall not increase the floor space more than
forty percent of that existing prior to such enlargement.
(Ord. 9060 § 1708)
21.48.100 Public utility mc:emptions.
The foregoing provisions of this chapter concerning the required removal of
nonconforming buildings and uses and the reconstruction of nonconforming buildings
partially destroyed, shall not apply to public utility buildings and structures when such
buildings and structures pertain directly to the rendering of the service or distribution
such as power generating plants and electrical distribution substations; water wells and
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48-Strike-out/Underline Version lµage 19
pumps; gas storage, metering and valve control stations. Nor shall anything in this article
be construed or applied so as to prevent the expansion, modernization or replacement of
such public utility buildings, structures, equipment and features as are used directly for
the delivery of, or distribution of, the service; provided the provisions of this section shall
not exempt from the provisions covering nonconformity of such buildings, structures, or
uses as do not immediately relate to the direct service by consumers, such as
warehouses, storage yards and the like.
(Ord._ 9060 § 1709)
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version IJ,age 20
(Existing definitions are for reference)
Chapter 21.04 -DEFINITIONS
21.04.050 Building.
"Building" means any structure having a roof, including all forms of inhabitable
vehicles even though immobilized. Where this title requires, or where special authority
granted pursuant to this title requires that a use shall be enclosed within a building, this
definition shall be qualified by adding "and enclosed on all sides."
(Ord. 9060 § 211)
21.42.210 Lot.
"Lot" means a parcel of record legally created by subdivision map, adjustment
plat, certificate of compliance or a parcel legally in existence prior to incorporation of the
lot into the jurisdiction of the city. Any parcel created prior to May 1, 1956, shall be
presumed to be lawfully created if the parcel resulted from a division of land in which
fewer than five parcels were created. A lot shall have frontage that allows usable access
on a dedicated public street accepted by the city. This street or easement shall have a
minimum right-of-way width of forty-two feet. Special lot and street configurations for
affordable housing projects may be allowed subject to the provisions of Section
21.53.120.
(Ord. NS-602 § 1, 2001: Ord. 207 § 7, 1992: Ord. 9605 § 1, 1981: Ord. 9459 § 1 {part),
1976: Ord. 9060 § 241)
The City of Carlsbad Planning Department
A REPORT TO THE PLANNING COMMISSION
P.C. AGENDA OF: June 17, 2009
Item No. 0
Application complete date: NIA
Project Planner:
Project Engineer:
Gary Barberio, Chris DeCerbo
and Barbara Kennedy
NIA
SUBJECT: ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES
ORDINANCE REVISION -A request for a recommendation to adopt a
Negative Declaration,. and recommendation of approval of a Zone Code
Amendment and Local Coastal Program Amendment to: 1) repeal and replace the
Nonconforming Buildings and Uses -Chapter 21.48 of the Zoning Ordinance, 2)
include new and amended associated definitions in Chapter 21.04 -Definitions, 3)
amend Chapter 21.46 -Yards to delete Section 21.46.210 and 4) amend Chapter
21.44 -Parking to revise Section 21.44.010.
I. RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 6573
RECOMMENDING ADOPTION of a Negative Declaration and ADOPT Planning
Commission Resolutions No. 6574 and 6575 RECOMMENDING APPROVAL of ZCA 09-01
and LCP A 09-01 based on the findings contained therein.
II. INTRODUCTION
This proposal includes a City-initiated Zone Code Amendment (ZCA) and Local Coastal
Program Amendment (LCPA) to: 1) repeal and replace the Nonconforming Buildings and Uses-
Chapter 21.48 of the Zoning Ordinance, 2) include new and amended associated definitions in
Chapter 21.04-Definitions, 3) amend Chapter 21.46 -Yards to delete Section 21.46.210 and 4)
amend Chapter 21.44 -Parking to revise Section 21.44.010.
The new ordinance is applicable to structures or uses that were legally established (with building
permits), but do not conform to current regulations. The proposed amendments would allow: 1)
nonconforming structures and uses to be repaired or altered, 2) nonconforming residential and
non-residential structures and nonconforming residential uses to expand by a new administrative
Nonconforming Construction Permit, and 3) would allow for the expansion or replacement of
nonconforming non-residential uses by Conditional Use Permit. The City's right to abate a legal
nonconforming use or structure that is no longer desirable would be preserved and an abatement
process is included with the proposed revisions. The provisions that relate to nonconforming lots
would be relocated from Section 21.46.210 to Section 21.48.040. The provision that restricts the
expansion of a single family residence which does not have a two-car garage to a maximum of
300 square feet of additional floor area would be revised to allow unlimited additions, otherwise
consistent with applicable development standards, if a minimum of two off-street parking spaces
are provided on-site consistent with location provisions of the Parking Ordinance. Additional
applicable definitions in CMC Chapter 21.04 will also be included for clarity. This proposal is
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 2
consistent with the applicable portions of the General Plan and internally consistent with the
Zoning Ordinance and the Local Coastal Program. '
III. PROJECT DESCRIPTION AND BACKGROUND
The City's existing Nonconforming Ordinance was written around 50 years ago when the
primary objective of the relatively new City of Carlsbad was to have a law that would enable the
City to abate uses and buildings that were legally built under the old County Codes but which
didn't comply with the permitted land uses and development standards of the City's new Zoning
Ordinance. Accordingly, the existing Ordinance includes mandatory abatement schedules for
nonconforming uses referenced relative to the date of .the adoption of the original
Nonconforming Ordinance and abatement schedules for nonconforming structures subject to
notification from the Planning Commission. Historically, the City has rarely (if ever) abated a
nonconforming use or structure pursuant to these provisions. Furthermore, since the primary
objective of the Ordinance was the eventual abatement of nonconforming uses and buildings, the
Ordinance was also written to severely restrict the amount and type of improvements that could
be made to repair, alter or expand nonconforming structures and uses.
It is fifty years later and we are living with older nonconforming uses and buildings which were
never abated nor allowed to be substantially improved or repaired. Most of these are located
within the northwest quadrant of the City and are in need of repair, alteration or replacement.
In December 2008, the City Council directed staff to undertake this ordinance amendment with
the specific objective of allowing existing over-density (nonconforming) residential uses and
other nonconforming structures within the Barrio Area to be repaired, altered or replaced. As
discussed above, because the existing Nonconforming Ordinance was not implemented as
originally intended and no longer appears to address the City's· objectives with respect to
nonconforming uses and structures, the Planning Department in association with the City
Attorney's Office is recommending that the proposed ordinance revisions apply citywide.
The new ordinance is applicable to structures or uses that were legally established (with building
permits), but do not conform to current regulations. The proposed revisions would repeal and
replace the Nonconforming Buildings and Uses -Chapter 21.48 of the Zoning Ordinance to meet
the following objectives:
1. Allow for the repair, alteration, replacement and expansion of nonconforming ( over
density) residential uses.
2. Allow for the repair and alteration of nonconforming non-residential uses and structures.
3. Allow nonconforming structures and nonconforming residential uses to expand by an
administrative Nonconforming Construction Permit (NCP).
4. Allow nonconforming non-residential uses to expand by Conditional Use Permit (CUP).
5. Preserve the City's right to abate a legal nonconforming use or structure that is no longer
desirable.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 3
6. Include an abatement process.
The ordinance revisions would allow the City to delete many unused abatement provisions, and
instead focus abatement on illegal buildings and uses. The ordinance amendment also: deletes
the provisions for "substandard lots" in Section 21.46.210 and relocates the amended provisions
for "nonconforming lots" to Section 21.48.040 and revises the existing Parking Ordinance
provision that restricts the expansion of a single family residence which does not have a two-car
garage to a maximum of 300 square feet of additional floor area to allow unlimited additions,
otherwise consistent with applicable development standards, if a minimum of two off-street
parking spaces are provided on-site consistent with location provisions of the Parking Ordinance.
Several new and amended associated definitions in Chapter 21.04 -Definitions are included for
clarity.
The proposed ordinance revisions would apply to properties citywide, with the exception of
properties located within the redevelopment area. The Carlsbad Village Redevelopment Master
Plan contains provisions for nonconforming uses and structures which supersede the provisions
contained in the Zoning Ordinance.
As previously discussed, the majority of nonconforming uses and structures consist of over-
density residential properties or nonconforming residential structures which are older and in need
of refurbishment that are located within the northwest quadrant of the City. If approved, it is
anticipated that the new ordinance would encourage property owners to repair, update or replace
nonconforming residential structures or uses that exceed the current allowable residential
density.
The various processes required for the repair, alteration, expansion, or replacement of
nonconforming uses and structures are summarized in Table 1 below:
TABLE 1 -PROCESS FOR NONCONFORMING STRUCTURES AND/OR USES
Nonconforming Nonconforming Nonconforming
Residential Structure Non-Residential Non-Residential Use
and/or Structure
Nonconforming
Residential Use
Repair/ Alteration Req'd. Discretionary/ Req'd. Discretionary/ Req'd. Discretionary/
Bldg. Permits Bldg. Permits Bldg. Permits
Expansion NCP + Required NCP + Required CUP + Required
Discretionary/ Discretionary/ Discretionary/
Bldg. Permits Bldg. Permits Bldg. Permits
Voluntary NCP + Required NCP + Required CUP + Required
Demolition and Discretionary/ Discretionary/ Discretionary/
Replacement Bldg. Permits Bldg. Permits Bldg. Permits
Replacement after NCP + Required NCP + Required CUP + Required
Destruction by Discretionary/ Discretionary/ Discretionary/
Natural Disaster Bldg. Permits Bldg. Permits Bldg. Permits
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 4
The new Nonconforming Construction Permit would allow the Planning Director to
administratively approve expansions for nonconforming residential and non-residential
structures, nonconforming residential uses and for the replacement of over-density residential
uses. The new permit requires findings to be made to ensure that that the area of expansion
and/or replacement would not result in any adverse affect to persons or property; that it complies
with all fire protection and building code regulations; and that it would result in a structure that
would be considered an improvement to, or consistent with, the character of the neighborhood.
The "expansion area" (i.e., a new family room in a single family residence or additional
bedrooms in a multifamily residential apartment or an increase in floor area in a nonresidential
structure which does not comply with required setbacks) would be required to comply with all
current applicable development standards of the zone in which it is located. Any expansion of
floor area that results in an increase in parking demand, pursuant to the Parking Ordinance,
would also need to provide additional parking to satisfy the increase in parking demand.
The proposed ordinance revisions would also allow for the expansion or replacement of a
nonconforming non-residential use subject to Planning Commission approval of a CUP. The
CUP to expand or replace a nonconforming non-residential use is an appropriate permit in that
the required CUP findings focus on the compatibility of the proposed expanded/replaced use
with the existing permitted uses in the vicinity. All other required discretionary permits (i.e.
Coastal Development Permit, etc.) would need to be included with the CUP request, and all
proposed construction would be conditioned to comply with all current fire protection and
building codes contained in Title 17 and Title 18.
The current ordinance mixes and confuses terms for buildings and uses, sets a limitation on the
maximum value that an expansion or repair can have; and includes a complicated abatement
process that has generally been disregarded. The proposed revisions include a comprehensive
format change to Chapter 21.48 that includes renaming the Chapter to Nonconforming Lots,
Uses and Structures. The new ordinance has been organized into sections that specifically
address: 1) nonconforming lots; 2) nonconforming residential uses and structures; 3)
nonconforming non-residential structures; 4) nonconforming non-residential uses, 5)
nonconforming construction permit; and 6) abatement of nonconforming structures and uses.
Attachment 4 (Summary of Amendments) includes a discussion/analysis of how the proposed
amendment meets the objectives and identifies the significant differences between the current
and proposed ordinances. Exhibit "Y" includes a strike-out and underline version of the
proposed Zoning Ordinance text amendments.
Prior to scheduling this proposed Zone Code Amendment for public hearing, staff distributed the
draft ordinance text revisions to the Carlsbad Development Community (i.e.; the Chamber of
Commerce, Developers, Planning Consultants) and key community members representing the
northwest quadrant of the City. Additionally, the project requires a 6-week public notice period
for the associated LCPA. A web-link to the digital version of the draft ordinance was posted on
the Planning Department home page. No comments opposing the ordinance revisions were
received.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pa e 5
IV. ANALYSIS
As discussed above, this project would: 1) rescind and repeal the Nonconforming Buildings and
Uses -Chapter 21.48 of the Zoning Ordinance, 2) include new and amended associated
definitions in Chapter 21.04 -Definitions, 3) amend Chapter 21.46 -Yards to delete Section
21.46.210 and amend Chapter 21.44 -Parking to revise Section 21.44.010. The
recommendation for approval of this project was developed by analyzing its
compliance/consistency with the following:
A. Carlsbad General Plan;
B. Zoning Ordinance (Title 21 ); and
C. Local Coastal Program.
A. General Plan
Pursuant to State Planning Law, a City's Zoning Ordinance is ·one of the primary means for
implementing a City's General Plan. Accordingly, any amendment to a Zoning Ordinance is
required to be consistent with the applicable policies and programs of the General Plan. As
described above, this proposal would repeal and replace the Nonconforming Buildings and Uses
-Chapter 21.48 of the Zoning Ordinance in order to allow: 1) nonconforming structures and uses
to be repaired or altered, 2) nonconforming residential and non-residential structures and
nonconforming residential uses to expand by a new administrative Nonconforming Construction
Permit, and 3) would allow nonconforming non-residential uses to expand by Conditional Use
Permit. The City's right to abate a legal nonconforming use or structure that is no longer
desirable would be preserved and an abatement process is included in the new ordinance.
The proposed ordinance revisions to allow the continuation of over-density residential uses
would comply with the City's Growth Management Program in that these older properties have
already been acknowledged in the Local Facility Management Plans. The existing units are
included in the City's Quadrant Dwelling Unit Report which tracks the number of dwelling units
constructed within each of the four quadrants to ensure that the Prop E dwelling unit limitations
are not exceeded.
The amendment is consistent with the applicable policies and programs of the General Plan. The
Land Use, Housing and Public Safety Elements are particularly relevant to this project as
discussed in Table 2 below.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 6
TABLE 2 -GENERAL PLAN COMPLIANCE
ELEMENT GOAL, OBJECTIVE, ORDINANCE CONSISTENCY
POLICY OR PROGRAM
Land Use Introduce programs to The proposed ordinance amendment would
revitalize all residential areas encourage owners of a nonconforming structure
which are deteriorating or to repair, replace, alter or expand the structure
have a high potential of by eliminating the existing code restrictions that
becoming deteriorated. set limitations on the maximum value of
improvements proposed for nonconforming
residential structures and/or uses and otherwise
severely restrict the repair and or restoration of
such structures. The amended ordinance would
provide considerable flexibility to enable the
revitalization of deteriorated structures.
Housing Report to the Housing and Nonconforming residential structures that are
Redevelopment Department deteriorating may qualify for assistance under
(H&R Dept.) information on the City's existing programs for rehabilitation.
housing stock that is The proposed ordinance amendment would
substandard and/or provide the necessary flexibility to rehabilitate
deteriorating. Identified substandard and/or deteriorating residential
structures will continue to be structures.
reported to the H&R Dept. for
possible assistance under the
City's rehabilitation and
assistance programs.
Housing Provide loans, rebates and Many of the City's nonconforming residential
other support to preserve the structures and/or uses are located in areas of
existing stock of low and existing low and moderate income rental stock.
moderate income rental The proposed ordinance amendment would
housing. Priority will be preserve the existing housing stock by revising
given to housing identified by the current ordinance provisions that discourage
the Building Dept. as being the major renovation of a nonconforming
sub-standard or deteriorating residential structure and/or use. Property
which houses families of owners may be eligible for funds that would
lower income and in some offset the costs of rehabilitation.
cases moderate income. This
program depends partially on
outside funding from State
and Federal sources.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 7
TABLE 2 -GENERAL PLAN COMPLIANCE CONTINUED
ELEMENT GOAL, OBJECTIVE, ORDINANCE CONSISTENCY
POLICY OR PROGRAM
Housing Provide financial and The proposed ordinance amendment would
processing incentives for the provide ministerial or administrative processes
owners of lower income rental for the repair, alteration, expansion, or
stock in need of rehabilitation replacement of nonconforming residential
and preservation. These structures or nonconforming residential uses as
incentives may include, but an incentive to encourage rehabilitation of
are not limited to: the deferral lower income rental housing. However, any
or subsidy of planning and other required discretionary permits (i.e.
building fees, priority Coastal Development Permit) would require
processing and financial approval by the Planning Commission.
incentives such as low-
interest rehabilitation and
property acquisition loans.
Housing Ensure that development and The proposed ordinance requires an
housing construction achieved administrative Nonconforming Construction
through the use of modified Permit for the expansion and/or replacement of
codes and standards will a nonconforming residential structure,
reduce the cost of housing, residential use, or non-residential structure; and
and will retain quality design a Conditional Use Permit for the expansion
and architecture. and/or replacement of a nonconforming non-
residential use. These discretionary processes
will ensure that existing projects are upgraded
in a manner that will enhance the character of
the surrounding neighborhood.
Public Enforce the Uniform Building The proposed ordinance revisions require that
Safety Code and Fire Codes, adopted any proposed repair, replacement, alteration, or
by the City, to provide fire expansion shall comply with all current fire
protection standards for all protection and building codes contained in Title
existing and proposed 17 and Title 18.
structures.
B. Zoning Ordinance
An integral component of any Zoning Ordinance Amendment is a requirement to find that the
proposed text amendments are internally consistent with the procedures and standards of the rest
of the existing Zoning Ordinance that is not proposed for amendment. The primary objective of
this project is to replace the Nonconforming Buildings and Uses Ordinance with a new Chapter
21.48 -Nonconforming Lots, Uses and Structures. Associated amendments to Chapters 21.46 -
Yards and 21.04 -Definitions, and 21.44 -Parking respectively, would amend and relocate those
provisions for nonconforming lots from Section 21.46.210 to Section 21.48.040, would include
additional applicable definitions and amended definitions for clarity and would revise the code to
allow unlimited additions to existing single family residences which do not have a required two
car garage.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pa e 8
The new ordinance is applicable to structures or uses that were legally established (with building
permits), but do not conform to current regulations. The proposed amendment would allow for:
1) the repair or alteration of all nonconforming structures and uses subject to approval of
required discretionary and building permits; 2) the expansion and/or replacement of
nonconforming structures and nonconforming residential uses subject to approval of a new
administrative Nonconforming Construction Permit; and 3) the expansion and/or replacement of
nonconforming non-residential uses by Conditional Use Permit (see Table 1 ). The City's right to
abate a legal nonconforming use or structure that is no longer desirable is preserved, and the
amendment establishes a new abatement process.
None of the proposed ordinance revisions are inconsistent with other provisions of the Zoning
Ordinance. The proposed amendment to Chapter 21.04 -Definitions includes both revisions to
existing terms and the inclusion of new definitions to ensure clarity and consistency throughout
the Zoning Ordinance.
C. Local Coastal Program
The existing Chapter 21.04-Definitions, Chapter 21.44 -Parking, Chapter 21.46-Yards and
Chapter 21.48-Nonconforming Buildings and Uses are included in the City's Zoning Ordinance,
which is one of the implementing ordinances for the Carlsbad Local Coastal Program (LCP).
Because ,the proposed amendments to the Zoning Ordinance would apply within the City's
Coastal Zone, a Local Coastal Program Amendment is being processed to ensure consistency
between the proposed amended Zone Code and the City's LCP. LCP A 09-01 will add the
replacement version of Chapter 21.48 -Nonconforming Lots, Uses and Structures and amended
Yards, Parking and Definitions Chapters to the implementation portion of all of the City's LCP
segments.
The policies of the Local Coastal Program emphasize topics such as preservation of agricultural
lands and scenic resources, protection of environmentally sensitive resources, provision of
shoreline access, and prevention of geologic instability and erosion.
The proposed revisions to the Zoning Ordinance will not adversely impact coastal resources,
obstruct coastal views or otherwise damage the visual beauty of the coastal zone and are
therefore consistent with the policies of the Local Coastal Program. No permanent construction
or development is involved with the proposed amendment. In addition, all projects processed
pursuant to these revised standards that also require a Coastal Development Permit shall be
required to comply with all applicable provisions and policies of the certified Local Coastal
Program and shall not result in significant adverse impacts to coastal resources. Given the above,
the proposed amendments to Chapters 21.04, 21.44, 21.46 and 21.48 of the Zoning Ordinance
are consistent with the Local Coastal Program.
V. ENVIRONMENTAL REVIEW
The proposed project was reviewed for potential adverse environmental impacts in accordance
with the requirements of the California Environmental Quality Act (CEQA). Since the proposal
does not involve physical development, no significant environmental impacts are anticipated to
occur. The ordinance revisions are applicable to existing nonconforming uses and structures and
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE
REVISION
June 17, 2009
Pae 9
any proposed modifications processed pursuant to the new prov1s1ons in Chapter 21.48 -
Nonconforming Lots, Uses and Structures of the Zoning Ordinance shall be subject to site-
specific environmental review at the time of project application. Given the environmental
analysis, a Notice of Intent to Adopt a Negative Declaration was posted in the newspaper and
mailed to the State Clearinghouse on May 8, 2009 for public review. One comment letter and
one letter of support were received during the 30-day public review and comment period. The
correspondence and the staff response letter are included as Attachment 6.
ATTACHMENTS:
1. Planning Commission Resolution No. 6573 (Neg. Dec.)
2. Planning Commission Resolution No. 6574 (ZCA)
3. Planning Commission Resolution No. 6575 (LCPA)
4. Summary of Amendments
5. Exhibit "Y" -Strike-out and underline version of the proposed Zoning Ordinance text
amendments
6. Correspondence and staff response
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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22
23
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PLANNING COMMISSION RESOLUTION NO. 6573
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
ADOPTION OF A NEGATIVE DECLARATION FOR A ZONE
CODE AMENDMENT AND LOCAL COASTAL PROGRAM
AMENDMENT TO: 1) REPEAL AND REPLACE THE
NONCONFORMING BUILDINGS AND USES -CHAPTER
21.48 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND
AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04-
DEFINITIONS, 3) AMEND CHAPTER 21.46 -YARDS TO
DELETE SECTION 21.46.210 AND 4) AMEND CHAPTER
21.44-PARKING TO REVISE SECTION 21.44.010.
CASE NAME: NONCONFORMING BUILDINGS AND
USES ORDINANCE REVISION
CASE NO.: ZCA 09-01/LCPA 09-01
WHEREAS, the City of Carlsbad "Applicant," has filed a verified application
with the City of Carlsbad regarding property described as Citywide ("the Property"); and
WHEREAS, a Negative Declaration was prepared in conjunction with said
project; and
WHEREAS, the Planning Commission did on June 17, 2009, hold a duly noticed
public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
• and arguments, examining the initial study, analyzing the information submitted by staff, and
considering any written comments received, the Planning Commission considered all factors
relating to the Negative Declaration.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as
follows:
A)
B)
That the foregoing recitations are true and correct.
That based on the evidence presented at the public hearing, the Planning
Commission hereby RECOMMENDS ADOPTION ofthe Negative Declaration,
Exhibit "ND," according to Exhibits "Notice of Intent (NOI)," and
"Environmental Impact Assessment Form -Initial Study (EIA)," attached hereto
and made a part hereof, based on the following findings:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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Findings:
I. The Planning Commission of the City of Carlsbad does hereby find:
a.
b.
c.
d.
it has reviewed, analyzed, and considered the Negative Declaration for
NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION -
ZCA 09-01/LCP A 09-01, the environmental impacts therein identified for this
project and any comments thereon prior to RECOMMENDING APPROVAL of
the project; and
the Negative Declaration has been prepared in accordance with requirements of
the California Environmental Quality Act, the State Guidelines and the
Environmental Protection Procedures of the City of Carlsbad; and
it reflects the independent judgment of the Planning Commission of the City of
Carlsbad; and
based on the EIA and comments thereon, there is no substantial evidence the
project will have a significant effect on the environment.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, California, held on June 17, 2009, by the following vote, to
wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
MARTELL B. MONTGOMERY, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PC RESO NO. 6573 -2-
CASE NAME:
CASE NO:
PROJECT LOCATION:
NOTICE OF INTENT TO ADOPT A
NEGATIVE DECLARATION
Nonconforming Buildings and Uses Ordinance Revision
ZCA 09-01/LCPA 09-01
Citywide
PROJECT DESCRIPTION: This proposal includes a City-initiated Zone Code Amendment (ZCA)
and Local Coastal Program Amendment (LCPA) to: 1) rescind and replace the Nonconforming Buildings
and Uses Chapter of the Zoning Ordinance, 2) include new and amended associated definitions in
Chapter 21.04-Definitions, and 3) amend Chapter 21.46 -Yards to delete Section 21.46.210. The new
ordinance is applicable to structures or uses that were legally established (with building permits), but do
not conform to current regulations. The proposed amendments would: allow non-conforming residential
and non-residential structures and nonconforming residential uses to expand by a new administrative
Nonconforming Construction Permit; allow non-conforming non-residential uses to expand by
Conditional Use Permit; preserve the City's right to abate a legal non-conforming use or structure that is
no longer desirable; include an abatement process; and, would amend the provisions that relate to
nonconforming lots and relocate those provisions from Section 21.46.210 to Section 21.48.040; and
would include additional applicable definitions in CMC Chapter 21.04 for clarity. The project applies to
regulations that are applicable to properties citywide. There is no specific project site with a specific
environmental setting or surrounding land uses.
PROPOSED DETERMINATION: The City of Carlsbad has conducted an environmental review of
the above described project pursuant to the Guidelines for Implementation of the California
Environmental Quality Act (CEQA) and the Environmental Protection Ordinance of the City of Carlsbad.
As a result of said review, the initial study (EIA Part 2) did not identify any potentially significant
impacts on the environment. Therefore, a Negative Declaration will be recommended for adoption by
the City of Carlsbad Planning Commission.
A copy of the initial study (EIA Part 2) documenting reasons to support the proposed Negative
Declaration is on file in the Planning Department, 1635 Faraday Avenue, Carlsbad, California 92008.
Comments from the public are invited. Pursuant to Section 15204 of the CEQA Guidelines, in reviewing
Negative Declarations, persons and public agencies should focus on the proposed finding that the project
will not have a significant effect on the environment. If persons and public agencies believe that the
project may have a significant effect, they should: ( 1) identify the specific effect; (2) explain why they
believe the effect would occur; and (3) explain why they believe the effect would be significant. Please
submit comments in writing to the Planning Department within 30 days of the date of this notice.
The proposed project and Negative Declaration are subject to review and approval/adoption by the City
of Carlsbad Planning Commission and City Council. Additional public notices will be issued when those
public hearings are scheduled. If you have any questions, please call Barbara Kennedy in the Planning
Department at (760) 602-4626.
PUBLIC REVIEW PERIOD
PUBLISH DA TE
May 8, 2009-June 7, 2009
May 8, 2009
CASE NAME:
CASE NO:
PROJECT LOCATION:
NEGATIVE DECLARATION
Nonconforming Buildings and Uses Ordinance Revision
ZCA 09-01/LCPA 09-01
Citywide
PROJECT DESCRIPTION: This proposal includes a City-initiated Zone Code Amendment (ZCA) and
Local Coastal Program Amendment (LCPA) to: 1) rescind and replace the Nonconforming Buildings and
Uses Chapter of the Zoning Ordinance, 2) include new and amended associated definitions in Chapter 21.04-
Definitions, and 3) amend Chapter 21.46 -Yards to delete Section 21.46.210. The new ordinance is
applicable to structures or uses that were legally established (with building permits), but do not conform to
current regulations. The proposed amendments would: allow non-conforming residential and non-
residential structures and nonconforming residential uses to expand by a new administrative Nonconforming
Construction Permit; allow non-conforming non-residential uses to expand by Conditional Use Permit;
preserve the City's right to abate a legal non-conforming use or structure that is no longer desirable; include
an abatement process; and, would amend the provisions that relate to nonconforming lots and relocate those
provisions from Section 21.46.210 to Section 21.48.040; and would include additional applicable definitions
in CMC Chapter 21.04 for clarity. The project applies to regulations that are applicable to properties
citywide. There is no specific project site with a specific environmental setting or surrounding land uses.
DETERMINATION: The City of Carlsbad has conducted an environmental review of the above described
project pursuant to the Guidelines for Implementation of the California Environmental Quality Act and the
Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the initial study
(EIA Part 2) did not identify any potentially significant impacts on the environment, and the City of
Carlsbad finds as follows:
[8] The proposed project COULD NOT have a significant effect on the environment.
D The proposed project MAY have "potentially significant impact(s)" on the environment, but at least
one potentially significant impact 1) has been adequately analyzed in an earlier document pursuant
to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier
analysis as described on attached sheets. (Negative Declaration applies only to the effects that
remained to be addressed).
D Although the proposed project could have a significant effect on the environment, there WILL NOT
be a significant effect in this case because all potentially significant effects (a) have been analyzed
adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION
pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier
ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION, including revisions or
mitigation measures that are imposed upon the proposed project. Therefore, nothing further is
required.
A copy of the initial study (EIA Part 2) documenting reasons to support the Negative Declaration is on file
in the Planning Department, 1635 Faraday Avenue, Carlsbad, California 92008.
ADOPTED: [CLICK HERE date] pursuant
(CLICK HERE Administrative Approval, PC/CC Resolution No., or CC Ordinance No.]
ATTEST:
DON NEU
Planning Director
to
ENVIRONMENTAL IMP ACT ASSESSMENT FORM -INITIAL STUDY
(TO BE COMPLETED BY THE PLANNING DEPARTMENT)
BACKGROUND
CASE NO: ZCA 09-01/LCPA 09-01
DATE: April 27, 2009
1. CASE NAME: NONCONFORMING LOTS, STRUCTURES AND USES ORDINANCE
AMENDMENT
2. LEAD AGENCY NAME AND ADDRESS: City ofCarlsbad-1635 Faraday Avenue, Carlsbad,
CA 92008
3. CONTACT PERSON AND PHONE NUMBER: Barbara Kennedy, Associate Planner-(760)
602-4626
4. PROJECT LOCATION: _C_ityw......._~id~e_-_N_o~t_s_it_e_sp,_e_c_ifi_1c ______________ _
5. PROJECT SPONSOR'S NAME AND ADDRESS: Same as Lead Agency, above
6. GENERAL PLAN DESIGNATION: --=-N-'-'-/_,_,A,_--'n=o=t--=s=ite=---~sp"'""'e=c=ifi=1c'-------------
7. ZONING: NIA-not site-specific
8. OTHER PUBLIC AGENCIES WHOSE APPROVAL IS REQUIRED (i.e., permits, financing
approval or participation agreements): California Coastal Commission (Local Coastal
Program Amendment)
9. PROJECT DESCRIPTION/ ENVIRONMENTAL SETTING AND SURROUNDING LAND
USES:
This proposal includes a City-initiated Zone Code Amendment (ZCA) and Local Coastal Program
Amendment (LCPA) to: 1) rescind and replace the Nonconforming Buildings and Uses Chapter of the
Zoning Ordinance, 2) include new and amended associated definitions in Chapter 21.04-Definitions, and
3) amend Chapter 21.46 -Yards to delete Section 21.46.210. The new ordinance is applicable to structures
or uses that were legally established (with building permits), but do not conform to current regulations.
The proposed amendments would: allow non-conforming residential and non-residential structures and
nonconforming residential uses to expand by a new administrative Nonconforming Construction Permit;
allow non-conforming non-residential uses to expand by Conditional Use Permit; preserve the City's right
to abate a legal non-conforming use or structure that is no longer desirable; include an abatement process;
and, would amend the provisions that relate to nonconforming lots and relocate those provisions from
Section 21.46.210 to Section 21.48.040; and would include additional applicable definitions in CMC
Chapter 21.04 for clarity.
The project applies to regulations that are applicable to properties citywide. There is no specific project
site with a specific environmental setting or surrounding land uses.
1 Rev. 11/17/08
ENVIRONMENT AL FACTORS POTENTIALLY AFFECTED:
The summary of environmental factors checked below would be potentially affected by this project,
involving at least one impact that is a "Potentially Significant Impact," or "Potentially Significant Impact
Unless Mitigation Incorporated" as indicated by the checklist on the following pages.
D Aesthetics
D Agricultural Resources
D Air Quality
D Biological Resources
D Cultural Resources
D Geology/Soils 0Noise
D Hazards/Hazardous Materials D Population and Housing
D Hydrology/Water Quality
D Land Use and Planning
D Mineral Resources
D Mandatory Findings of
Significance
2
D Public Services
D Recreation
D Transportation/Circulation
D Utilities & Service Systems
Rev.11/17/08'
DETERMINATION.
(To be completed by the Lead Agency)
1:8] I find that the proposed project COULD NOT have a significant effect on the environment, and a
NEGATIVE DECLARATION will be prepared.
D I find that although the proposed project could have a significant effect on the environment, there will not
be a significant effect in this case because the mitigation measures described on an attached sheet have
been added to the project. A MITIGATED NEGATIVE DECLARATION will be prepared.
D I find that the proposed project MAY have a significant effect on the environment, and an
ENVIRONMENTAL IMPACT REPORT is required.
D I find that the proposed project MAY have "potentially significant impact(s)" on the environment, but at
least one potentially significant impact 1) has been adequately analyzed in an earlier document pursuant to
applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis
as described on attached sheets. A Negative Declaration is required, but it must analyze only the effects
that remain to be addressed.
D I find that although the proposed project could have a significant effect on the environment, there WILL
NOT be a significant effect in this case because all potentially significant effects (a) have been analyzed
adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION
pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier
ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION, including revisions or
mitigation measures that are imposed upon the proposed project. Therefore, nothing further is required.
Date r 1
Planning Director's Signature Date I I
3 Rev.11/17/08
ENVIRONMENTAL IMPACTS
STATE CEQA GUIDELINES, Chapter 3, Article 5, Section 15063 requires that the City conduct an Environmental
Impact Assessment (EIA) to determine if a project may have a significant effect on the environment. The
Environmental Impact Assessment appears in the following pages in the form of a checklist. This checklist
identifies any physical, biological and human factors that might be impacted by the proposed project and provides
the City with information to use as the basis for deciding whether to prepare an Environmental Impact Report (EIR),
Negative Declaration, or to rely on a previously approved EIR or Negative Declaration.
• A brief explanation is required for all answers except "No Impact" answers that are adequately supported
by an information source cited in the parentheses following each question. A "No Impact" answer is
adequately supported if the referenced information sources show that the impact simply does not apply to
projects like the one involved. A "No Impact" answer should be explained when there is no source
document to refer to, or it is based on project-specific factors as well as general standards.
• "Less Than Significant Impact" applies where there is supporting evidence that the potential impact is not
significantly adverse, and the impact does not exceed adopted general standards and policies.
• "Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation
measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact."
The developer must agree to the mitigation, and the City must describe the mitigation measures, and briefly
explain how they reduce the effect to a less than significant level.
• "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significantly
adverse.
• Based on an "EIA-Initial Study", ifa proposed project could have a potentially significant adverse effect on
the environment, but all potentially significant adverse effects (a) have been analyzed adequately in an
earlier EIR or Mitigated Negative Declaration pursuant to applicable standards and (b) have been avoided
or mitigated pursuant to that earlier EIR or Mitigated Negative Declaration, including revisions or
mitigation measures that are imposed upon the proposed project, and none of the circumstances requiring a
supplement to or supplemental EIR are present and all the mitigation measures required by the prior
environmental document have been incorporated into this project, then no additional environmental
document is required.
• When "Potentially Significant Impact" is checked the project is not necessarily required to prepare an EIR
if the significant adverse effect has been analyzed adequately in an earlier EIR pursuant to applicable
standards and the effect will be mitigated, or a "Statement of Overriding Considerations" has been made
pursuant to that earlier EIR.
• A Negative Declaration may be prepared if the City perceives no substantial evidence that the project or
any of its aspects may cause a significant adverse effect on the environment.
• If there are one or more potentially significant adverse effects, the City may avoid preparing an EIR ifthere
are mitigation measures to clearly reduce adverse impacts to less than significant, and those mitigation
measures are agreed to by the developer prior to public review. In this case, the appropriate "Potentially
Significant Impact Unless Mitigation Incorporated" may be checked and a Mitigated Negative Declaration
may be prepared.
4 Rev. 11/17/08
• An EIR must be prepared if "Potentially Significant Impact" is checked, and including but not limited to
the following circumstances: (1) the potentially significant adverse effect has not been discussed or
mitigated in an earlier EIR pursuant to applicable standards, and the developer does not agree to mitigation
measures that reduce the adverse impact to less than significant; (2) a "Statement of Overriding
Considerations" for the significant adverse impact has not been made pursuant to an earlier EIR; (3)
proposed mitigation measures do not reduce the adverse impact to less than significant; or (4) through the
BIA-Initial Study analysis it is not possible to determine the level of significance for a potentially adverse
effect, or determine the effectiveness of a mitigation measure in reducing a potentially significant effect to
below a level of significance.
A discussion of potential impacts and the proposed mitigation measures appears after each related set of questions.
Particular attention should be given to discussing mitigation for impacts, which would otherwise be determined
significant.
5 Rev. 11/17 /08
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant No
Impact Incorporated Impact Impact
I. AESTHETICS -Would the project:
a) Have a substantial adverse effect on a scenic vista? □ □ □ ~
b) Substantially damage scenic resources, including but □ □ □ ~ not limited to, trees, rock outcroppings, and historic
buildings within a State scenic highway?
c) Substantially degrade the existing visual character or □ □ □ ~ quality of the site and its surroundings?
d) Create a new source of substantial light and glare, □ □ □ ~ which would adversely affect day or nighttime views
in the area?
No Impact -The proposed ordinance amendment does not include a proposal for physical development of any site,
and does not propose or affect any regulation that could: a) adversely affect a scenic vista; b) substantially damage
scenic resources; c) degrade the visual character of any site; or d) create substantial light or glare that would
adversely affect day or nighttime views. Any future development proposal that is subject to the amended
nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-specific
basis.
II. AGRICULTURAL RESOURCES -(In determining
whether impacts to agricultural resources are significant
environmental effects, lead agencies may refer to the
California Agricultural Land Evaluation and Site
Assessment Model-1997 prepared by the California
Department of Conservation as an optional model to use
in assessing impacts on agriculture and farmland.) Would
the project:
a) Convert Prime Farmland, Unique Farmland, or
Farmland of Statewide Importance (Farmland), as
shown on the maps prepared pursuant to the
Farmland Mapping and Monitoring Program of the
California Resources Agency, to non-agricultural
use?
b) Conflict with existing zoning for agricultural use, or
a Williamson Act contract?
c) Involve other changes in the existing environment,
which, due to their location or nature, could result in
conversion of Farmland to non-agricultural use?
6
Potentially
Significant
Impact
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
Less Than
Significant No
Impact Impact
□
□ ~
□ ~
Rev.11/17/08
No Impact -The proposed ordinance amendment does not include a proposal for physical development of any site,
and does not propose or affect any regulation that could: a) result in the conversion of farmland to a non-
agricultural use; b) conflict with any existing zoning for agricultural uses or a Williamson Act contract; or c) result
in changes to the existing city environment that would cause the conversion of farmland to a non-agricultural use.
Any future development proposal that is subject to the amended nonconforming regulations will be subject to
further environmental review pursuant to CEQA on a site-specific basis.
III. AIR QUALITY -(Where available, the significance
criteria established by the applicable air quality
management or air pollution control district may be relied
upon to make the following determinations.) Would the
project:
a) Conflict with or obstruct implementation of the
applicable air quality plan?
b) Violate any air quality standard or contribute
substantially to an existing or projected air quality
violation?
c) Result in a cumulatively considerable net increase of
any criteria pollutant for which the project region is
in non-attainment under an applicable federal or state
ambient air quality standard (including releasing
emissions which exceed quantitative thresholds for
ozone precursors)?
d) Expose sensitive receptors to substantial pollutant
concentrations?
e) Create objectionable odors affecting a substantial
number of people?
Potentially
Significant
Impact
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
No Impact (a) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that could conflict or obstruct implementation of the regional air
quality plan.
All properties within the city are located in the San Diego Air Basin, which is a federal and state non-attainment
area for ozone (03), and a state non-attainment area for particulate matter less than or equal to 10 microns in
diameter (PM10). The periodic violations of national Ambient Air Quality Standards (AAQS) in the San Diego Air
Basin (SDAB), particularly for ozone in inland foothill areas, requires that a plan be developed outlining the
pollution controls that will be undertaken to improve air quality. In San Diego County, this attainment planning
process is embodied in the Regional Air Quality Strategies (RAQS) developed jointly by the Air Pollution Control
District (APCD) and the San Diego Association of Governments (SANDAG).
A plan to meet the federal standard for ozone was developed in 1994 during the process of updating the 1991 state-
mandated plan. This local plan was combined with plans from all other California non-attainment areas having
serious ozone problems and used to create the California State Implementation Plan (SIP). The SIP was adopted
by the Air Resources Board (ARB) after public hearings on November 9th through 10th in 1994, and was
forwarded to the Environmental Protection Agency (EPA) for approval. After considerable analysis and debate,
particularly regarding airsheds with the worst smog problems, EPA approved the SIP in mid-1996.
7 Rev.11/17/08
The proposed project relates to the SIP and/or RAQS through the land use and growth assumptions that are
incorporated into the air quality planning document. These growth assumptions are based on each city's and the
County's general plan. If a proposed project is consistent with its applicable General Plan, then the project
presumably has been anticipated with the regional air quality planning process. Such consistency would ensure
that the project would not have an adverse regional air quality impact.
Section 15125(B) of the State of California Environment Quality Act (CEQA) Guidelines contains specific
reference to the need to evaluate any inconsistencies between the proposed project and the applicable air quality
management plan. Transportation Control Measures (TCMs) are part of the RAQS. The RAQS and TCM plan set
forth the steps needed to accomplish attainment of state and federal ambient air quality standards. The California
Air Resources Board provides criteria for determining whether a project conforms with the RAQS, which include
the following:
\
• Is a regional air quality plan being implerµented in the project area?
• Is the project consistent with the growth assumptions in the regional air quality plan?
The project area (citywide) is located in the San Diego Air Basin, and as such, is located in an area where a RAQS
is being implemented. As previously mentioned, the proposed amendments involve text amendments to the
Zoning Ordinance, and do not include a proposal for physical development of any property. Furthermore, the
project does not propose any change that would conflict with or obstruct implementation of an air quality plan.
Future development projects that are subject to the amended nonconforming regulations will be reviewed for
consistency with the growth assumptions of the City's General Plan and the RAQS. Therefore, the project is
consistent with the regional air quality plan and will in no way conflict or obstruct implementation of the regional
plan.
No Impact (b) -The closest air quality monitoring station to the project site is at Camp Pendleton. Data available
for this monitoring site from 2000 through December 2004 indicate that the most recent air quality violations
recorded were for the state one hour standard for ozone (a total of 10 days during the 5-year period). No other
violations of any air quality standards have been recorded during the 5-year time period. The proposed ordinance
amendment does not involve physical development of any site nor any changes to air quality planning/standards.
Any future development proposal that is subject to the amended nonconforming regulations will be subject to
further environmental review pursuant to CEQA on a site-specific basis
No Impact (c) -The air basin is currently in a state non-attainment zone for ozone and suspended fine particulates.
The proposed ordinance amendment does not include a proposal for physical development of any site, and does not
propose or affect any regulation that could result in a contribution to a cumulatively considerable potential net
increase in emissions throughout the air basin. Any future development proposal that is subject to the amended
nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-specific
basis.
No Im pact ( d) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in exposing sensitive receptors to pollutant
concentrations. Any future development proposal that is subject to the amended nonconforming regulations will
be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (e) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in an activity that could create objectionable
odors. Any future development proposal that is subject to the amended nonconforming regulations will be subject
to further environmental review pursuant to CEQA on a site-specific basis.
8 Rev. I 1/17 /08
IV. BIOLOGICAL RESOURCES -Would the project:
a) Have a substantial adverse effect, either directly or
through habitat modifications, on any species
identified as a candidate, sensitive, or special status
species in local or regional plans, policies, or
regulations, or by California Department of Fish and
Game or U.S. Fish and Wildlife Service?
b) Have a substantial adverse effect on any riparian,
aquatic or wetland habitat or other sensitive natural
community identified in local or regional plans,
policies, or regulations or by California Department
of Fish and Game orU.S. Fish and Wildlife Service?
c) Have a substantial adverse effect on federally
protected wetlands as defined by Section 404 of the
Clean Water Act (including but not limited to marsh,
vernal pool, coastal, etc.) through direct removal,
filing, hydrological interruption, or other means?
d) Interfere substantially with the movement of any
native resident or migratory fish or wildlife species
or with established native resident or migratory
wildlife corridors, or impede the use of native
wildlife nursery sites?
e) Conflict with any local policies or ordinances
protecting biological resources, such as a tree
preservation policy or ordinance?
t) Conflict with the provisions of an adopted Habitat
Conservation Plan, Natural Community Conservation
Plan, or other approved local, regional, or state
habitat conservation plan?
Potentially
Significant
Impact
□
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
□
No Impact (a, b, c & d) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in an adverse effect on any
sensitive habitat or species, or interference with any native or migratory wildlife corridor or native wildlife nursery
site. Any future development proposal that is subject to the amended nonconforming regulations will be subject to
further environmental review pursuant to CEQA on a site-specific basis
No Impact (e & t) -The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would result in a conflict with local policies and
ordinances that protect biological resources or the provisions of any habitat conservation plan. Any future
development proposal that is subject to the amended nonconforming regulations will be subject to further
environmental review pursuant to CEQA on a site-specific basis.
9 Rev. 11/17/08
V. CULTURAL RESOURCES -Would the project:
a) Cause a substantial adverse change in the
significance of a historical resource as defined in
§15064.5?
b) Cause a substantial adverse change in the signifi-
cance of an archeological resource pursuant to
§15064.5?
c) Directly or indirectly destroy a unique pale
ontological resource or site or unique geologic
feature?
d) Disturb any human remains, including those interred
outside of formal cemeteries?
Potentially
Significant
Impact
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□ C8J
No Impact (a, b, c & d) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in a disturbance of any
human remains or an adverse impact to any historical, archeological, or paleontological resource. Any future
development proposal that is subject to the amended nonconforming regulations will be subject to further
environmental review pursuant to CEQA on a site-specific basis, and will be subject to the City's Cultural
Resource Guidelines.
VI. GEOLOGY AND SOILS -Would the project:
a) Expose people or structures to potential substantial
adverse effects, including the risk of Joss, injury or
death involving:
i. Rupture of a known earthquake fault, as
delineated on the most recent Alquist-Priolo
Earthquake Fault Zoning Map issued by the
State Geologist for the area or based on other
substantial evidence of a known fault? Refer to
Division of Mines and Geology Special
Publication 42.
ii. Strong seismic ground shaking?
iii. Seismic-related ground failure, including
liquefaction?
iv. Landslides?
b) Result in substantial soil erosion or the loss of
topsoil?
10
Potentially
Significant
Impact
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
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□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
C8J
C8J
C8J
C8J
·Rev. 11/17/08
c) Be located on a geologic unit or soil that is unstable,
or that would become unstable as a result of the
project, and potentially result in on-or off-site
landslide, lateral spreading, subsidence, liquefaction,
or collapse?
d) Be located on expansive soils, as defined in Table 18
-1-B of the Uniform Building Code (1997), creating
substantial risks to life or property?
e) Have soils incapable of adequately supporting the
use of septic tanks or alternative wastewater disposal
systems where sewers are not available for the
disposal of wastewater?
Potentially
Significant
Impact
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
Less Than
Significant No
Impact Impact
□ ~
□
□
No Impact (a) -There are no Alquist-Priolo Earthquake Fault zones within the City of Carlsbad and there is no
other evidence of active or potentially active faults within the City. However, there are several active faults
throughout Southern California, and these potential earthquakes could affect Carlsbad. Landslides are also a
potential threat in parts of the City. All development proposals in Carlsbad are subject to requirements such as the
Uniform Building Code earthquake construction standards and soil remediation that when necessary ensure
potential adverse effects are not significant. The proposed ordinance amendment does not include a proposal for
physical development of any site, and does not propose or affect any regulation that would expose people or
structures to potential adverse effects from a known earthquake fault, ground shaking, seismic-related ground
failure or landslides. Any future development proposal that is subject to the amended nonconforming regulations
will be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (b) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in substantial soil erosion on any site. Any
future development proposal that is subject to the amended nonconforming regulations will be subject to further
environmental review pursuant to CEQA and the City's Engineering standards on a site-specific basis.
No Impact (c, d & e) -The proposed ordinance amendment does not include a proposal for physical development
of any site, and does not propose or affect any regulation that would result in impacts to unstable or expansive soil
conditions. Any future development proposal that is subject to the amended nonconforming regulations will be
subject to further environmental review pursuant to CEQA and the City's engineering standards on a site-specific
basis.
VII. HAZARDS AND HAZARDOUS MATERIALS -
Would the project:
a) Create a significant hazard to the public or the
environment through the routine transport, use, or
disposal of hazardous materials?
b) Create a significant hazard to the public or
environment through reasonably foreseeable upset
and accident conditions involving the release of
hazardous materials into the environment?
11
Potentially
Significant
Impact
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
Less Than
Significant No
Impact Impact
□
□
Rev.11/17/08
c) Emit hazardous emissions or handle hazardous or
acutely hazardous materials, substances, or waste
within one-quarter mile of an existing or proposed
school?
d) Be located on a site which is included on a list of
hazardous materials sites compiled pursuant to
Government Code Section 65962.5 and, as a result,
would it create a significant hazard to the public or
environment?
e) For a project within an airport land use plan, or
where such a plan has not been adopted, within two
miles of a public airport or public use airport, would
the project result in a safety hazard for people
residing or working in the project area?
f) For a project within the vicinity of a private airstrip,
would the project result in a safety hazard for people
residing or working in the project area?
g) Impair implementation of or physically interfere with
an adopted emergency response plan or emergency
evacuation plan?
h) Expose people or structures to a significant risk of
loss, injury or death involving wildland fires,
including where wildlands are adjacent to urbanized
areas or where residences are intermixed with
wildlands?
Potentially
Significant
Impact
□
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
□
Less Than
Significant
Impact
□
□
□
□
□
□
No
Impact
~
No Impact (a, b, c & d) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in hazards associated with
exposure to hazardous materials. Any future development proposal that is subject to the amended nonconforming
regulations will be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (e & t) -The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would result in exposing people to hazards associated
with an airport. Any future development proposal that is subject to the amended nonconforming regulations will
be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (g & h)-The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would interfere with the implementation of an adopted
emergency response or evacuation plan, or result in exposing people to risk from wildland fires. Any future
development proposal that is subject to the amended nonconforming regulations will be subject to further
environmental review pursuant to CEQA on a site-specific basis.
12 Rev. 11/17/08
VIII. HYDROLOGY AND WATER QUALITY -Would the
project:
a) Violate any water quality standards or waste
discharge requirements?
b) Substantially deplete groundwater supplies or
interfere substantially with ground water recharge
such that there would be a net deficit in aquifer
volume or a lowering of the local ground water table
level (i.e., the production rate of pre-existing nearby
wells would drop to a level which would not support .
existing land uses or planned uses for which permits
have been granted)?
c) Impacts to groundwater quality?
(See Discussion of Environmental Evaluation)
d) Substantially alter the existing drainage pattern of the
site or area, including through the alteration of the
course of a stream or river, or substantially increase
the flow rate or amount (volume) of surface runoff in
a manner, which would result in flooding on-or off-•
site?
e) Create or contribute runoff water, which would
exceed the capacity of existing or planned storm
water drainage systems or pr~vide substantial
additional sources of polluted runoff?
f) Otherwise substantially degrade water quality?
g) Place housing within a 100-year flood hazard area as
mapped on a Federal Flood Hazard Boundary or
Flood Insurance Rate Map or other flood delineation
map?
h) Place within 100-year flood hazard area structures,
which would impede or redirect flood flows?
i) Expose people or structures to a significant risk of
loss injury or death involving flooding, including
flooding as a result of the failure of a levee or dam?
j) Inundation by seiche, tsunami, or mudflow?
(See Discussion of Environmental Evaluation)
13
Potentially
Significant
Impact
□
□
□
□
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
□
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
□
□
□
□
□
Rev. 11/17/08
k) Increased erosion (sediment) into receiving surface
waters.
(See Discussion of Environmental Evaluation)
I) Increased pollutant discharges ( e.g., heavy metals,
pathogens, petroleum derivatives, synthetic organics,
nutrients, oxygen-demanding substances and trash)
into receiving surface waters or other alteration of
receiving surface water quality (e.g., temperature,
dissolved oxygen or turbidity)?
(See Discussion of Environmental Evaluation)
m) Changes to receiving water quality (marine, fresh or
wetland waters) during or following construction?
(See Discussion of Environmental Evaluation)
n) Increase in any pollutant to an already impaired
water body as listed on the Clean Water Act Section
303( d) list?
(See Discussion of Environmental Evaluation)
o) The exceedance of applicable surface or groundwater
receiving water quality objectives or degradation of
beneficial uses?
(See Discussion of Environmental Evaluation)
Potentially
Significant
Impact
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
Less Than
Significant
Impact
□
□
□
□
□
No
Impact
[2J
No Impact (a, b, c, d, e & t) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would conflict with any water quality
standards, impact groundwater supplies/quality, alter any drainage pattern, impact the capacity of existing or
planned storm water drainage systems, or result in the degradation of water quality. Any future development
proposal that is subject to the amended nonconforming regulations will be subject to further environmental review
pursuant to CEQA on a site-specific basis.
No Impact (g, h, i, j & k) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in placing housing or any
structures within a 100-year flood hazard area, or expose people or structures to flooding or inundation by seiche,
tsunami or mudflow. Any future development proposal that is subject to the amended nonconforming regulations
will be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (I, m, n & o ) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in increased erosion or
pollutant discharges into any surface waters, a change to receiving water quality, or an exceedance of receiving
water quality objectives. Any future development proposal that is subject to the amended nonconforming
regulations will be subject to further environmental review pursuant to CEQA on a site-specific basis.
14 Rev. I 1/17/08
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant No
Impact Incorporated Impact Impact
IX. LANDUSE AND PLANNING -Would the project:
a) Physically divide an established community? □ □ □ ~
b) Conflict with any applicable land use plan, policy, or □ □ □ ~ regulation of an agency with jurisdiction over the
project (including but not limited to the general plan,
specific plan, local coastal program, or zoning
ordinance) adopted for the purpose of avoiding or
mitigating an environmental effect?
c) Conflict with any applicable habitat conservation □ □ □ plan or natural community conservation plan?
No Impact (a) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in the division of an established community.
Any future development proposal that is subject to the amended nonconforming regulations will be subject to
further environmental review pursuant to CEQA on a site-specific basis.
No Impact (b)-The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would conflict with any land use plan, policy, or regulation
adopted for the purpose of avoiding or mitigating environmental effects. Any future development proposal that is
subject to the amended nonconforming regulations will be subject to further environmental review pursuant to
CEQA on a site-specific basis.
No Impact (c) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would conflict with any habitat conservation plan or natural
community conservation plan. Any future development proposal that is subject to the amended nonconforming
regulations will be subject to further environmental review pursuant to CEQA on a site-specific basis.
X. MINERAL RESOURCES -Would the project:
a) Result in the loss of availability of a known mineral
resource that would be of future value to the region
and the residents of the State?
b) Result in the loss of availability of a locally
important mineral resource recovery site delineated
on a local general plan, specific plan, or other land
use plan?
Potentially
Significant
Impact
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
Less Than
Significant No
Impact Impact
□
□
No Impact (a & b)-The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would result in the loss of availability of a mineral
resource. Any future development proposal that is subject to the amended nonconforming regulations will be
subject to further environmental review pursuant to CEQA on a site-specific basis.
15 Rev.11/17/08
Potentially
Significant
Potentially Unless Less Than
Significant Mitigation Significant No
Impact Incorporated Impact Impact
XI. NOISE -Would the project result in:
a) Exposure of persons to or generation of noise levels □ □ □ in excess of standards established in the local general
plan or noise ordinance or applicable standards of
other agencies?
b) Exposure of persons to or generation of excessive □ □ □ groundbourne vibration or groundbourne noise
levels?
c) A substantial permanent increase in ambient noise □ □ □ levels in the project vicinity above levels existing
without the project?
d) A substantial temporary or periodic increase in □ □ □ ambient noise levels in the project vicinity above
levels existing without the project?
e) For a project located within an airport land use plan □ □ □ or, where such a plan has not been adopted, within 2
miles of a public airport or public use airport, would
the project expose people residing or working in the
project area to excessive noise levels?
f) For a project within the vicinity of a private airstrip, □ □ □ would the project expose people residing or working
in the project area to excessive noise levels?
No Impact (a, b, c & d) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would result in exposing people to
excessive noise levels or groundbourne vibrations, or increase noise levels. Any future development proposal that
is subject to the amended nonconforming regulations will be subject to further environmental review pursuant to
CEQA on a site-specific basis.
No Impact (e & t) -The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would result in exposing people to excessive noise
levels associated with an airport. In addition, compliance with the McClellan-Palomar Airport Comprehensive
Land Use Plan will ensure that future development will not be exposed to excessive noise levels generated by the
airport. Also, any future development proposal that is subject to the amended nonconforming regulations will be
subject to further environmental review pursuant to CEQA on a site-specific basis.
16 Rev. 11/17/08
XII. POPULATION AND HOUSING -Would the project:
a) Induce substantial growth in an area either directly
(for example, by proposing new homes and
businesses) or indirectly (for example, through
extension ofroads or other infrastructure)?
b) Displace substantial numbers of existing housing,
necessitating the construction of replacement housing
elsewhere?
c) Displace substantial numbers of people, necessitating
the construction of replacement housing elsewhere?
Potentially
Significant
Impact
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
Less Than
Significant No
Impact Impact
□
□
□ [8J
No Impact (a, b, & c)-The proposed ordinance amendment does not include a proposal for physical development
of any site, and therefore will not directly induce any growth. In addition, any future development proposal that
is subject to the amended nonconforming regulations will be subject to further environmental review pursuant to
CEQA on a site-specific basis.
XIII. PUBLIC SERVICES
a) Would the project result m substantial adverse
physical impacts associated with the provision of
new or physically altered government facilities, a
need for new or physically altered government
facilities, the construction of which could cause
significant environmental impacts, in order to
maintain acceptable service ratios, response times, or
other performance objectives for any of the public
services:
i) Fire protection?
ii) Police protection?
iii) Schools?
iv) Parks?
v) Other public facilities?
Potentially
Significant
Impact
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
[8J
[8J
[8J
[8J
[8J
No Impact (a) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in adverse impacts to the maintenance of
acceptable service ratios, response times or other performance objectives for any public service (fire & police
protection, schools, parks and other public facilities). Any future development proposal that is subject to the
amended nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-
specific basis.
17 Rev.11/17/08
XIV. RECREATION
a) Would the project
neighborhood and
recreational facilities
deterioration of the
accelerated?
increase the use of existing
regional parks or other
such that substantial physical
facility would occur or be
b) Does the project include recreational facilities or
require the construction or expansion of recreational
facilities, which might have an adverse physical
effect on the environment?
Potentially
Significant
Impact
□
□
Potentially
Significant
Unless Less Than
Mitigation Significant No
Incorporated Impact Impact
□ □
□ □
No Impact (a & b)-The proposed ordinance amendment does not include a proposal for physical development of
any site. As part of the City's Growth Management Program, a performance standard for parks was adopted. Any
future residential development subject to the amended regulations will be required to comply with the performance
standards of the Growth Management Program, which will ensure that future residential development will not
adversely impact any park facilities. Also, any future development proposal that is subject to the amended
nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-specific
basis.
XV. TRANSPORTATION/TRAFFIC -Would the project:
a) Cause an increase in traffic, which is substantial in
relation to the existing traffic load and capacity of the
street system (i.e., result in a substantial increase in
either the number of vehicle trips, the volume to
capacity ratio on roads, or congestion at
intersections)?
b) Exceed, either individually or cumulatively, a level
of service standard established by the county
congestion management agency for designated roads
or highways?
c) Result in a change in air traffic patterns, including
either an increase in traffic levels or a change in
location that results in substantial safety risks?
d) Substantially increase hazards due to a design feature
(e.g., sharp curves or dangerous intersections) or
incompatible uses (e.g., farm equipment)?
e) Result in inadequate emergency access?
t) Result in insufficient parking capacity?
18
Potentially
Significant
Impact
□
□
□
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
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□
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Less Than
Significant No
Impact Impact
□
□
□
□
□
□
Rev.11/17/08
g) Conflict with adopted policies, plans, or programs
supporting alternative transportation (e.g., bus turn-
outs, bicycle racks)?
Potentially
Significant
Impact
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
Less Than
Significant
Impact
□
No
Impact
L8J
No Impact (a) -The proposed ordinance amendment does not include a proposal for physical development of any
site. A performance standard for traffic is part of the City's Growth Management Program. Future development
that is subject to the amended standards will be required to comply with this performance standard, which ensures
future development will not exceed the traffic load and capacity of the city's street system. In addition, future
development will be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (b) -SANDAG acting as the County Congestion Management Agency has designated three roads
(Rancho Santa Fe Rd., El Camino Real and Palomar Airport Rd.) and one highway segment in Carlsbad as part of
the regional circulation system. The existing LOS on these designated roads and highway in Carlsbad is:
Rancho Santa Fe Road
El Camino Real
Palomar Airport Road
SR 78
LOS
"A-D"
"A-D"
"A-D"
"F"
The Congestion Management Program's (CMP) acceptable Level of Service (LOS) standard is "E", or LOS "F" if
that was the LOS in the 1990 base year ( e.g., SR 78 in Carlsbad was LOS "F" in I 990). Accordingly, all
designated roads and highway 78 is currently operating at or better than the acceptable standard LOS.
Achievement of the CMP acceptable Level of Service (LOS) "E" standard assumes implementation of the adopted
CMP strategies. Based on the design capacity(ies) of the designated roads and highway and implementation of the
CMP strategies, they will function at acceptable level(s) of service in the short-term and at buildout.
No Impact (c) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would result in a change in air traffic patterns or result in
substantial safety risks.associated with air traffic patterns. Any future development proposal that is subject to the
amended nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-
specific basis.
No Impact (d) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would cause a future project to increase hazards due to a
design feature or incompatible use. Any future development proposal that is subject to the amended
nonconforming regulations will be subject to further environmental review pursuant to CEQA on a site-specific
basis.
No Impact (e, f & g) -The proposed ordinance amendment does not include a proposal for physical development
of any site, and does not propose or affect any regulation that would result in inadequate emergency access or
parking capacity, or affect any regulation that would conflict with adopted policies, plans or programs supporting
alternative transportation. Any future development proposal that is subject to the amended nonconforming
regulations will be subject to further environmental review pursuant to CEQA on a site-specific basis.
19 Rev. 11/17 /08
XVI. UTILITIES AND SERVICES SYSTEMS -Would the
project:
a) Exceed wastewater treatment requirements of the
applicable Regional Water Quality Control Board?
b) Require or result in the construction of new water or
wastewater treatment facilities or expansion of
existing facilities, the construction of which would
cause significant environmental effects?
c) Require or result in the construction of new storm
water drainage facilities or expansion of existing
facilities, the construction of which could cause
significant environmental effects?
d) Have sufficient water supplies available to serve the
project from existing entitlements and resources, or
are new or expanded entitlements needed?
e) Result m a determination by the wastewater
treatment provider, which serves or may serve the
project that it has adequate capacity to serve the
project's projected demand in addition to the
provider's existing commitments?
t) Be served by a landfill with sufficient permitted
capacity to accommodate the project's solid waste
disposal needs?
g) Comply with federal, state, and local statutes and
regulations related to solid waste?
Potentially
Significant
Impact
□
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□
Potentially
Significant
Unless
Mitigation
Incorporated
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□
□
□
□
□
□
Less Than
Significant No
Impact Impact
□
□
□
□
□
□
□
No Impact (a) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would cause future development to exceed any wastewater
treatment requirements. Any future development proposal that is subject to the amended nonconforming
regulations will be subject to the requirements of the Regional Water Quality Control Board, and further
environmental review pursuant to CEQA, on a site-specific basis.
No Impact (b, c, d & e) -The proposed ordinance amendment does not include a proposal for physical
development of any site, and does not propose or affect any regulation that would increase the need for, or conflict
with the current growth projections for water facilities, wastewater treatment or drainage facilities. All public
facilities, including water facilities, wastewater treatment facilities and drainage facilities, have been planned and
designed to accommodate the growth projections for the City at build-out. Any future development subject to the
amended nonconforming regulations will be subject to the City's Growth Management Program, and further
environmental review pursuant to CEQA on a site-specific basis.
No Impact (f & g) -The proposed ordinance amendment does not include a proposal for physical development of
any site, and does not propose or affect any regulation that would conflict with any regulations related to solid
waste, or impact the ability to accommodate solid waste disposal needs within the city. Any future development
subject to the amended nonconforming regulations will be subject to further environmental review pursuant to
CEQA on a site-specific basis.
20 Rev. 11/17/08
XVII. MANDATORY FINDINGS OF SIGNIFICANCE
a) Does the project have the potential to degrade the
quality of the environment, substantially reduce the
habitat of a fish or wildlife species, cause a fish or
wildlife population to drop below self-sustaining
levels, threaten to eliminate a plant or animal
community, reduce the number or restrict the range
of a rare or endangered plant or animal or eliminate
important examples of the major periods of
California history or prehistory?
b) Does the project have impacts that are individually
limited, but cumulatively considerable? ("Cumula-
tively considerable" means that the incremental
effects of a project are considerable when viewed in
connection with the effects of past projects, the
effects of other current projects, and the effects of
probable future projects?)
c) Does the project have environmental effects, which
will cause the substantial adverse effects on human
beings, either directly or indirectly?
Potentially
Significant
Impact
□
□
□
Potentially
Significant
Unless
Mitigation
Incorporated
□
□
□
Less Than
Significant No
Impact Impact
□ [8J
□
□
No Impact (a)-The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would have the potential to degrade the quality of the
environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to
drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict
the range of a rare or endangered plant or animal or eliminate important examples of the major periods of
California history or prehistory. Any future development subject to the amended nonconforming regulations will
be subject to further environmental review pursuant to CEQA on a site-specific basis.
No Impact (b) -San Diego Association of Governments (SANDAG) projects regional growth for the greater San
Diego area, and local general plan land use policies are incorporated into SANDAG projections. Based upon those
projections, region-wide standards, including storm water quality control, air quality standards, habitat
conservation, congestion management standards, etc, are established to reduce the cumulative impacts of
development in the region. All of the City's development standards and regulations are consistent with the region-
wide standards. The City's standards and regulations, including grading standards, water quality and drainage
standards, traffic standards, habitat and cultural resource protection regulations, and public facility standards,
ensure that development within the City will not result in a significant cumulatively considerable impact.
There are two regional issues that development within the City of Carlsbad has the potential to have a cumulatively
considerable impact on. Those issues are air quality and regional circulation. Development of future projects
subject to the amended nonconforming regulations may represent a contribution to a cumulatively considerable
potential net increase in emissions throughout the air basin. However, emissions associated with a future
development would be minimal. Given that the ordinance revisions are related to either the continuation,
redevelopment, or expansion of certain existing developments, air quality would be essentially the same.
21 Rev.11/17/08
With regard to circulation, the County Congestion Management Agency (CMA) has designated three roads
(Rancho Santa Fe Rd., El Camino Real and Palomar Airport Rd.) and one highway segment in Carlsbad as part of
the regional circulation system. The CMA has determined, based on the City's growth projections in the General
Plan, that these designated roadways will function at acceptable levels of service in the short-term and at build-out.
The proposed ordinance amendment will not affect any policies or standards that would conflict with City or
region-wide standards. Also, the proposed amendment does not include a proposal for physical development of
any site; therefore, the project will not result in an individually or cumulatively considerable environmental impact.
Any future development subject to the amended nonconforming regulations will be subject to further
environmental review pursuant to CEQA on a site-specific basis.
No Impact (c) -The proposed ordinance amendment does not include a proposal for physical development of any
site, and does not propose or affect any regulation that would cause substantial adverse effects on human beings,
either directly or indirectly. Any future development subject to the amended nonconforming regulations will be
subject to further environmental review pursuant to CEQA on a site-specific basis.
XVIII. EARLIER ANALYSES
Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, one or
more effects have been adequately analyzed in an earlier EIR or negative declaration. Section
15063(c)(3)(D). In this case a discussion should identify the following on attached sheets:
a) Earlier analyses used. Identify earlier analyses and state where they are available for review.
b) Impacts adequately addressed. Identify which effects from the above checklist were within the
scope of and adequately analyzed in an earlier document pursuant to applicable legal standards,
and state whether such effects were addressed by mitigation measures based on the earlier
analysis.
c) Mitigation measures. For effects that are "Less Than Significant with Mitigation Incorporated,"
describe _the mitigation measures, which were incorporated or refined from the earlier document
and the extent to which they address site-specific conditions for the project.
22 Rev.11/17/08
EARLIER ANALYSIS USED AND SUPPORTING INFORMATION SOURCES
The following documents were used in the analysis of this project and are on file in the City of Carlsbad Planning
Department located at 1635 Faraday Avenue, Carlsbad, California, 92008.
I.
2.
3.
4.
5.
6.
Final Master Environmental Impact Report for the City of Carlsbad General Plan Update (MEIR 93-01).
City of Carlsbad Planning Department. March 1994.
Airport Land Use Compatibility Plan for McClellan Palomar Airport, Carlsbad, California, San Diego
County Regional Airport Authority, as amended October 4, 2004.
Carlsbad General Plan, City of Carlsbad Planning Department, dated March 1994.
City of Carlsbad Municipal Code, Title 21 Zoning, City of Carlsbad Planning Department, as updated.
Carlsbad Local Facilities Management Zones
Habitat Management Plan for Natural Communities in the City of Carlsbad, City of Carlsbad Planning
Department, final approval dated November 2004.
LIST OF MITIGATING MEASURES (IF APPLICABLE)
Not Applicable.
23 Rev. 11/17/08
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PLANNING COMMISSION RESOLUTION NO. 6574
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF A ZONE CODE AMENDMENT TO: 1)
REPEAL AND REPLACE THE NONCONFORMING
BUILDINGS AND USES -CHAPTER 21.48 OF THE ZONING
ORDINANCE, 2) INCLUDE NEW AND AMENDED
ASSOCIATED DEFINITIONS IN CHAPTER 21.04-
DEFINITIONS 3) AMEND CHAPTER 21.46 -YARDS TO
DELETE SECTION 21.46.210 AND 4) AMEND CHAPTER
21.44 -PARKING TO REVISE SECTION 21.44.010.
CASE NAME: NONCONFORMING BUILDINGS AND
USES ORDINANCE REVISION
CASE NO.: ZCA 09-01
WHEREAS, the Planning Director has prepared a proposed Zone Code
Amendment pursuant to Section 21.52.020 of the Carlsbad Municipal Code to amend the
Nonconforming Buildings and Uses (CMC 21.48) Chapter of the Zoning Ordinance; and
WHEREAS, the proposed amendment is set forth in the draft City Council
Ordinance, Exhibit "X," dated, June 17, 2009, and attached hereto ZCA 09-01 -
NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION; and
WHEREAS, the Planning Commission did on the 17th day of June, 2009, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all factors
relating to the Zone Code Amendment.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission as follows:
A)
B)
That the foregoing recitations are true and correct.
That based on the evidence presented at the public hearing, the Commission
RECOMMENDS APPROVAL of ZCA 09-01 -NONCONFORMING
BUILDINGS AND USES ORDINANCE REVISION, based on the following
findings:
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Findings:
1.
2.
That the proposed Zone Code Amendment ZCA 09-01 is consistent with the General
Plan in that it provides a mechanism to encourage revitalization in residential areas
which are deteriorating or have a high potential of becoming deteriorated, and it
includes procedures to review the architecture of buildings with the focus on
ensuring the quality and integrity of design and enhancement of the character of
each neighborhood.
That the proposed ZCA reflects sound principles of good planning in that it (a) ensures.
internal consistency with the procedures and standards of the rest of the existing
Zoning Ordinance that is not proposed for amendment, and (b) implements the
policies and programs of the General Plan.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning
Commission of the City of Carlsbad, held on June 17, 2009, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
MARTELL B. MONTGOMERY, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PC RESO NO. 6574 -2-
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ORDINANCE NO. __ _
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A ZONE CODE
AMENDMENT TO: 1) REPEAL AND REPLACE THE
NONCONFORMING BUILDINGS AND USES -CHAPTER 21 .48
OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND
AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04-
DEFINITIONS, 3) AMEND CHAPTER 21.46 -YARDS TO DELETE
SECTION 21.46.210 AND 4) AMEND CHAPTER 21.44 -
PARKING TO REVISE SECTION 21.44.010.
CASE NAME: NONCONFORMING BUILDINGS AND
USES ORDINANCE REVISION
CASE NO.: ZCA 09-01/LCPA 09-01
Exhibit "X"
June 17, 2009
The City Council of the City of Carlsbad, California, does ordain as follows:
SECTION I: That Title 21 of the Carlsbad Municipal Code is amended to read
as follows:
Chapters:
21.48
Title 21
ZONING
Nonconforming Lots, Structures and Uses
SECTION II: That Chapter 21.04 of the Carlsbad Municipal Code is amended to
read as follows:
21.04.027 Alter.
Chapter 21.04
DEFINITIONS
"Alter" means any change to the interior or exterior of a structure that does not result in
an increase to the gross floor area of the structure.
21.04.140.1 Expansion.
"Expansion" means to enlarge or increase the size of an existing structure or use
including the physical size of the property, building, parking and other improvements.
21.04.275 Nonconforming structure.
"Nonconforming structure" means a structure, or portion thereof, which was lawfully
erected or altered and maintained, but which, because of the application of this title to it, no
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longer conforms to the current requirements and development standards of the zone in which it
is located. (Ord. 9060 § 254)
21.04.278 Nonconforming lot.
"Nonconforming lot" means a lot which was legally created, but which, because of the
application of this title to it, no longer conforms to the current requirements and development
standards of the zone in which it is located.
21.04.280 Nonconforming non-residential use.
"Nonconforming non-residential use" means a non-residential use which was lawfully
established and maintained, but which, because of the application of this title to it, no longer
conforms to the current use regulations of the zone in which it is located.
21.04.281 Nonconforming residential use.
"Nonconforming residential use" means a residential use which was lawfully established
and maintained, but which exceeds the Growth Management Control Point or the maximum
density range of the underlying General Plan Land Use designation
21.04.299.1 Repair.
"Repair" means any improvements to correct deficiencies in a building or structure.
21.04.299.2 Replace.
"Replace" means to construct a structure that is substantially equivalent in size, shape
and location to a structure that has been destroyed or demolished.
21.04. 354 Structure.
"Structure" means anything constructed or erected which requires location on the ground
or attached to something having a location on the ground, but not including fences or walls used
as fences six feet or less in height. All buildings are structures.
(Ord. 9060 § 269)
21.04.355 Substandard lot.
See "Nonconforming lot".
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SECTION Ill: That Chapter 21.44 of the Carlsbad Municipal Code is amended to
read as follows:
Chapter 21.44
PARKING
21.44.01 o Required off-street parking.
A. Off-street parking, designed in accordance with the requirements of this chapter,
shall be provided for:
1. All newly constructed buildings;
2.
a.
3.
repealed.
Additions to existing buildings, except for:
An existing single family residence which does not meet the required parking
standard (i.e. a two car garage) may expand floor area if a minimum of two off-
street parking spaces are provided on-site in a location consistent with Section
21.44.060(4).
Any change of use within an existing building.
SECTION IV: That Section 21.46.210 of the Carlsbad Municipal Code is
SECTION V: That Chapter 21.48 of the Carlsbad Municipal Code is repealed in
its entirety and reenacted as follows:
Sections:
21.48.010
21.48.020
21.48.030
21.48.040
21.48.050
Chapter 21.48
NONCONFORMING LOTS, STRUCTURES AND USES
Purpose and intent.
Applicability.
General provisions.
Nonconforming lots.
Nonconforming residential structures and uses.
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21.48.060
21.48.070
21.48.080
21.48.090
21.48.010
A.
1.
2.
Nonconforming non-residential structures.
Nonconforming non-residential uses.
Nonconforming construction permit.
Abatement of nonconforming structures and uses.
Purpose and intent.
The purpose and intent of this chapter is to:
Allow for the development of nonconforming lots that were legally created.
Establish procedures for the abatement of structures and uses that do not
comply with all of the requirements and development standards of this title and which may be
adverse to the orderly development of the city and to the public health, safety, or welfare of
persons or property.
3. Permit the continuation of uses and continued occupancy and maintenance of
structures that were legally established but do not comply with all of the requirements and
development standards of this title, in a manner that is not adverse to the public health, safety or
welfare of persons or property.
4. Permit the repair, alteration, expansion or replacement of nonconforming
structures subject to the regulations herein.
5. Permit the expansion or replacement of nonconforming uses subject to the
regulations herein.
21.48.020 Applicability.
A. The provisions of this chapter apply to:
1. Legally created lots which do not conform to the current requirements and
development standards of the zone in which they are located.
2. Legally constructed structures and site development features ( except for
nonconforming signs which are addressed in Section 21.41.130) which do not comply with the
current requirements and development standards of the zone in which they are located.
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3. Legally established uses which do not conform to the current permitted use
regulations of the zone in which they are located.
21.48.030 General provisions.
A. It shall be the responsibility of the owner of a nonconforming lot, structure or use
to prove to the planning director that such lot, structure or use was lawfully established, existed
on the date of adoption or amendment of this chapter, and has existed continuously as defined
herein.
B. Nothing in this chapter shall be deemed to prevent the strengthening or restoring
to a safe condition of any structure or part thereof declared to be unsafe by any city offi_cial
charged with protecting the public safety, upon order of such official. Repairs and alterations
may be made to restore a structure to the same condition that existed prior to damage or
deterioration, provided that such repairs or structural alterations conform to the provisions of this
chapter.
21.48.040
A.
Nonconforming lots.
A nonconforming lot may be developed, provided that the development is
consistent with the General Plan and complies with all of the requirements and development
standards of the zone, master plan, or specific plan in which it is located.
21.48.050
A.
1.
Nonconforming residential structures and uses.
Specific Provisions.
A nonconforming residential structure and/or nonconforming residential use may
be continued and the structure and/or use repaired, altered, expanded or replaced in
accordance with the provisions of this chapter provided that the repair, alteration, expansion or
replacement does not:
a. Result in an additional structural nonconformity; and,
b. Increase the degree of the existing nonconformity of all or part of such structure
or use (i.e. the addition of a new dwelling unit to an existing over density
residential use); and,
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c. Reduce the number and size of any required existing parking spaces.
2. Any expansion of floor area or the addition of a new dwelling unit that results in
an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to
satisfy the increase in parking demand.
3. An existing single family residence which does not meet the required parking
standard (i.e. a two car garage) may expand floor area if a minimum of two off-street parking
spaces are provided on-site in a location consistent with Section 21.44.060(4).
8. Repair or Alteration.
1. A nonconforming residential structure and/or a structure which is occupied by a
nonconforming residential use may be repaired or altered subject to issuance of all required
discretionary and building permits, provided that the repair or alteration complies with all current
fire protection and building codes and regulations contained in Title 17 and Title 18.
C. Expansion.
1. A nonconforming residential structure and/or a nonconforming residential use
may be expanded, so as to occupy a greater area of land or more floor area subject to issuance
of all required discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted and the planning director approves the findings
of fact pursuant to Section 21.48.080(8).
D. Replacement in the Event of a Disaster.
1. A nonconforming residential structure and/or nonconforming residential use that
is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to
issuance of all required discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted within two years of the date of the disaster and
the planning director approves the findings of fact pursuant to Section 21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
1. A nonconforming residential structure and/or nonconforming residential use that
is proposed to be voluntarily demolished may be replaced subject to issuance of all required
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discretionary and building permits and provided that an application for a nonconforming
construction permit is submitted and the planning director approves the findings of fact pursuant
to Section 21.48.080(8) prior to the date of the demolition.
21.48.060 Nonconforming non-residential structures.
A. Specific Provisions.
1. A nonconforming non-residential structure may be continued and the structure
repaired, altered, expanded or replaced in accordance with the provisions of this chapter
provided that the repair, alteration, expansion or replacement does not:
a.
b.
Result in an additional structural nonconformity; and,
Increase the degree of the existing nonconformity of all or part of such structure;
and,
c. Reduce the number and size of any required existing parking spaces.
2. Any expansion of floor area that results in an increase in parking demand,
pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking
demand.
8.
1.
Repair or Alteration.
A nonconforming non-residential structure may be repaired or altered subject to
issuance of all required discretionary and building permits, provided that the repair or alteration
complies with all current fire protection and building codes and regulations contained in Title 17
and Title 18.
C.
1.
Expansion.
A nonconforming non-residential structure may be expanded, so as to occupy a
greater area of land or more floor area subject to issuance of all required discretionary and
building permits and provided that an application for a nonconforming construction permit is
submitted and the planning director approves the findings of fact pursuant to Section
21.48.080(8).
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D.
1.
Replacement in the Event of a Disaster.
A nonconforming non-residential structure that is destroyed by fire, explosion, or
other casualty or natural disaster, may be replaced subject to issuance of all required
discretionary and building permits and provided that an application for a nonconforming
construction permit is submitted within two years of the date of the disaster and the planning
director approves the findings of fact pursuant to Section 21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
1. A nonconforming non-residential structure that is proposed to be voluntarily
demolished may be replaced subject to issuance of all required discretionary and building
permits and provided that an application for a nonconforming construction permit is submitted
and the planning director approves the findings of fact pursuant to Section 21.48.080(8) prior to
the date of the demolition.
21.48.070 Nonconforming non-residential uses.
A. Specific Provisions.
1. A nonconforming non-residential use and/or structure which is occupied by a
nonconforming non-residential use may be continued and the structure and/or use repaired,
altered, expanded or replaced in accordance with the provisions of this chapter provided that
the repair, alteration, expansion or replacement does not:
a. Increase the degree of the existing nonconformity of all or part of such structure
or use; and,
b. Reduce the number and size of any required existing parking spaces.
2. Any expansion of a non-residential use and/or structure which is occupied by a
nonconforming non-residential use that results in an increase in parking demand, pursuant to
chapter 21.44, shall provide additional parking to satisfy the increase in parking demand.
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B.
1.
Repair or Alteration.
A structure which is occupied by a nonconforming non-residential use may be
repaired or altered subject to issuance of all required discretionary and building permits,
provided that he repair or alteration complies with all current fire protection and building codes
and regulations contained in Title 17 and Title 18.
C. Expansion of Use.
1. A nonconforming non-residential use may be expanded, so as to occupy a
greater area of land or more floor area within a structure, subject to issuance of all required
discretionary and building permits, provided that an application for a conditional use permit is
submitted and the planning commission approves the findings of fact pursuant to Section
21.42.030(A).
D. Relocation.
1. A nonconforming non-residential use may be moved, in whole or in part, to any
other on-site structure, or to any other portion of the structure, lot or site within or upon which it
is located, subject to issuance of all required discretionary and building permits and provided
that an application for a conditional use permit is submitted and the planning commission
approves the findings of fact pursuant to Section 21.42.030(A).
E. Change of Use.
1. A nonconforming non-residential use may be changed to a use that is permitted
in the zone in which the subject property is located, or may be changed to a use that is more
conforming, subject to approval of the planning director and the issuance of a business license.
F. Replacement of Use.
1. A nonconforming non-residential use may be replaced with the same or a similar
use, as determined by the planning director, so long as the replacement use does not expand or
in any other manner increase the degree of nonconformity with the use regulations of this title.
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G.
1.
Discontinuance.
If a structure or parcel of land which is occupied by a nonconforming non-
residential use is, or hereafter becomes vacant and remains unoccupied either temporarily or
permanently, whether with the intent to abandon the use or not, for a continuous period of one
year or more, the planning director shall determine and shall notify the owner of the property, via
certified return receipt mail, that the nonconforming use has been discontinued and the
nonconforming use may not be renewed or reestablished.
H. Reestablishment of a Nonconforming Use in the Event of a Disaster.
1. A nonconforming non-residential use that is destroyed by fire, explosion, other
casualty or natural disaster, may be reestablished subject to issuance of all required
discretionary and building permits and provided that an application for a conditional use permit
is submitted within two years of the date of the disaster, and the planning commission approves
the findings of fact pursuant to Section 21.42.030(A).
I. Voluntary Demolition and Subsequent Reconstruction.
1. A nonconforming non-residential use that is proposed to be voluntarily
demolished and subsequently reconstructed, may be reestablished subject to issuance of all
required discretionary and building permits and provided that an application for a conditional use
permit is submitted and the planning commission approves the findings of fact pursuant to
Section 21.42.030(A) prior to the demolition.
21.48.080 Nonconforming construction permit.
A.
1.
Authority.
The planning director or his designee may approve, conditionally approve or
deny a nonconforming construction permit as prescribed in this chapter, upon making the
findings of fact listed in Section 21.42.080(8) of this chapter.
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B. Findings of Fact.
1. A nonconforming construction permit shall be granted only if the following facts
are found to exist in regard thereto:
a. The expansion/replacement of the structure and/or use would not result in an
adverse impact to the health, safety and welfare of surrounding uses, persons or
property.
b.
C.
d.
C.
The area of expansion shall comply with all current requirements and
development standards of the zone in which it is located, except as provided in
Subsection 21.48.050(A)(3) of this chapter.
The expansion/replacement structure shall comply with all current fire protection
and building codes and regulations contained in Title 17 and Title 18.
The expansion/replacement would result in a structure that would be considered
an improvement to, or complementary to and/or consistent with the character of
the neighborhood in which it is located.
Application and Fees.
1. Application for a nonconforming construction permit may be made by the owner
of the property affected or the authorized agent of the owner. Application shall be made in
writing on a form provided by the planning department. The application shall state fully the
circumstances and conditions relied upon as grounds for the application and shall be
accompanied by adequate plans, a legal description of the property involved and all other
materials as specified by the planning department.
2. At the time of filing the application, the applicant shall pay a processing fee in an
amount as specified by city council resolution.
D. Notices.
1. Upon the filing of an application for a nonconforming construction permit, the
planning director shall give written notice by mail or personal delivery to the project applicant,
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the owner of the subject real property or the owner's duly authorized agent and to all property
owners as shown on the latest equalized assessment roll within three hundred feet of the
subject property at least fifteen days prior to a decision on the application.
E. Decision-Making Process.
1. Applications for nonconforming construction permits shall be acted upon in
accordance with the decision process identified below:
a. Any person so notified in accordance with Section 21.48.080(0) above may file
written objections or a written request to be heard within ten days after the
mailing or personal delivery of the notice. If a written request to be heard is filed,
the planning director shall schedule an informal hearing and provide written
notice to the applicant and the requester at least five days prior to the hearing.
The hearing is not a formal public hearing.
b.
C.
An application for a nonconforming construction permit may be approved,
conditionally approved or denied by the planning director based upon his/her
review of the facts as set forth in the application and review of the circumstances
of the particular case.
The planning director may approve the nonconforming construction permit if all of
the findings of fact in Section 21.48.080(8) of this chapter are found to exist.
F. Announcement of Findings and Decision.
1. Not more than twenty days following the termination of the proceedings for a
nonconforming construction permit, the planning director shall announce his/her findings by
letter. The letter shall recite, among other things:
a.
b.
The facts and reasons which, in the opinion of the planning director, make the
granting or denial of the nonconforming construction permit necessary to carry
out the provisions and general purpose of this title;
That the nonconforming construction permit be granted or denied; and,
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C.
G.
1.
If the letter orders that the nonconforming construction permit be granted, it shall
also recite such conditions and limitations as the planning director may impose.
Mailing of Notice of Decision.
Not later than seven days following the announcement of a decision ordering that
a nonconforming construction permit be granted or denied, a copy of the letter shall be mailed to
the applicant at the address shown on the application filed with the planning director.
H. Appeals.
1. In the case of nonconforming construction permits, the action of the planning
director may be appealed to the planning commission in accordance with Section 21.54.140 of
this title. The planning commission's action to approve, conditionally approve or deny is final.
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I.
1.
a.
2.
Expiration Period.
Expiration of Permit if Not Exercised.
Any nonconforming construction permit becomes null and void if not exercised
within twenty-four months of the date of approval.
Extension of Permit if Not Exercised.
a. Not more than ninety days or less than forty-five days prior to the expiration of a
nonconforming construction permit the permittee may apply to the planning
director for an extension of the permit. The planning director may extend the
time, without public notice, within which the right or privilege granted under a
nonconforming construction permit must be exercised for one additional year
upon receipt of a written request from the applicant prior to the expiration of such
nonconforming construction permit. In granting such extension the planning
director shall make a written finding that neighborhood conditions have not
substantially changed since the granting of such nonconforming construction
permit.
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J. Amendment.
1. Any approved nonconforming construction permit may be amended by following
the same procedure as for approval of a nonconforming construction permit and upon payment
of the application fee contained in the most recent fee schedule adopted by the city council.
21.48.090 Abatement of nonconforming structures and uses.
A. If a nonconforming use and/or structure is determined by the planning director to
be adverse to the orderly development of the city and/or to the public health, safety, or welfare
of persons or property, the planning director shall schedule a public hearing by the planning
commission to establish the conditions of abatement and the abatement period. The abatement
period shall start from the date of the applicable resolution and shall be:
1. For all Residential Uses.
a.
2.
a.
3.
a.
Not less than one or more than five years.
For all Non-Residential Uses.
Not less than one or more than ten years.
For all Nonconforming Structures.
Not less than three years or more than twenty-five years.
4. Nothing in these provisions shall preclude abatement of a nuisance pursuant to
Section 6.16.150 of the Carlsbad Municipal Code.
B. Public Hearing Notice.
1. Notice of said public hearing shall be given as required by Section 21.54.060.
C. Public Hearing Evidence.
1. The planning commission shall consider at the public hearing, all pertinent data
to enable it to arrive at an equitable abatement period which will protect the public health, safety
or welfare of persons or property, yet will allow the owner of record, or lessee if applicable, to
amortize their investment so that any loss will be minimized.
B. The owner or lessee shall be allowed to present any evidence related to the case.
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C. When setting the abatement period, the planning commission shall take into
consideration the type of construction, age, condition, and extent of nonconformity of the
structure or use in question; any structural alterations or expansions; and/or the installation of
major equipment designed into the structure prior to the date of nonconformity.
D.
1.
Hearing Decision.
After the close of the public hearing, the planning commission shall determine
and establish by resolution the abatement period, and shall set forth in said resolution all
findings and facts upon which the date of such abatement period is based.
E.
1.
Notice of Decision to Owner.
The secretary of the planning commission shall formally notify the owner of the
property of the action of the planning commission by mailing a copy of the resolution, via
certified return receipt mail, within ten days following the date of its adoption by the planning
commission.
F.
1.
Appeal.
The above action of the planning commission shall be final unless an appeal to
the city council is filed in accordance with the procedure provided in Section 21.54.150.
G. Recordation.
1. The secretary of the planning commission shall transmit a final signed copy of
the resolution of the planning commission or city council, whichever is final, to the County
Recorder of San Diego for recordation.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption, but not until approved by the California Coastal Commission and the City Clerk shall
certify to the adoption of this ordinance and cause it to be published at least once in a
publication of general circulation in the City of Carlsbad within fifteen days after its adoption.
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INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City
Council on the __ day of _____ 2009, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the __ day of _____ 2009, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED AS TO FORM AND LEGALITY
RONALD R. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST:
LORRAINE M. WOOD, City Clerk
(SEAL)
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PLANNING COMMISSION RESOLUTION NO. 6575
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING
APPROVAL OF AN AMENDMENT TO THE IMPLEMENTING
ORDINANCE OF THE CARLSBAD LOCAL COASTAL
PROGRAM (TITLE 21 -ZONING) TO: 1) REPEAL AND
REPLACE THE NONCONFORMING BUILDINGS AND USES
-CHAPTER 21.48 OF THE ZONING ORDINANCE, 2)
INCLUDE NEW AND AMENDED ASSOCIATED
DEFINITIONS IN CHAPTER 21.04-DEFINITIONS, 3) AMEND
CHAPTER 21.46 -YARDS TO DELETE SECTION 21.46.210
AND 4) AMEND CHAPTER 21.44 TO REVISE SECTION
21.44.010.
CASE NAME:
CASE NO:
NONCONFORMING BUILDINGS
USES ORDINANCE REVISION
LCPA 09-01
AND
WHEREAS, California State law requires that the Local Coastal Program,
General Plan, and Zoning designations for properties in the Coastal Zone be in conformance; and
WHEREAS, the City of Carlsbad, "Applicant," has filed a verified application
for an amendment to the Local Coastal Program implementing ordinance; and
WHEREAS, said verified application constitutes a request for a Local Coastal
Program Amendment as shown on Exhibit "X" dated June 17, 2009, attached to Planning
Commission Resolution No. 6574 and incorporated herein by reference, as provided in
Public Resources Code Section 30514 and Section 13551 of California Code of Regulations Title
14, Division 5.5; and
WHEREAS, the Planning Commission did on June 17, 2009, hold a duly noticed
public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all factors
relating to the Local Coastal Program Amendment; and
WHEREAS, State Coastal Guidelines requires a six-week public review period
for any amendment to the Local Coastal Program.
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NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission of the City of Carlsbad, as follows:
A)
B)
C)
That the foregoing recitations are true and correct.
At the end of the State-mandated six-week review period, starting on May 8,
2009 and ending on June 19, 2009, staff shall present to the City Council a
summary of the comments received.
That based on the evidence presented at the public hearing, the Commission
RECOMMENDS APPROVAL of NONCONFORMING BUILDINGS AND
USES ORDINANCE REVISIONS -LCPA 09-01 based on the following
findings, and subject to the following conditions:
Findings:
1.
2.
That the proposed Local Coastal Program Amendment meets the requirements of, and is
in conformity with, the policies of Chapter 3 of the Coastal Act and all applicable policies
of the Carlsbad Local Coastal Program, in that no development or construction is
proposed with this amendment and all future development projects located in the
coastal zone that are processed pursuant to these revised standards would be subject
to discretionary review and a Coastal Development permit to ensure consistency
with Local Coastal Program Policies.
That the proposed amendment to the implementing ordinances of the Carlsbad Local
Coastal Program is required to bring it into consistency with the City's Zoning
Ordinance.
PC RESO NO. 6575 -2-
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PASSED, APPROVED, AND ADOPTED at a regular meeting to the Planning
Commission of the City of Carlsbad, held on June 17, 2009, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
MARTY B. MONTGOMERY, Chairperson
CARLSBAD PLANNING COMMISSION
ATTEST:
DON NEU
Planning Director
PC RESO NO. 6575 -3-
1
SUMMARY OF AMENDMENTS
Table A
Summary of Amendments to Cha.e_ter 21.48 -Nonconforming Uses and Buildings
Rescind and replace with Chapter 21.48 -Nonconforming Lots, Uses and Structures
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
The current ordinance limits the percentage to which an over-density residential use can be repaired,
replaced, altered or expanded to a percentage(%) of the buildings replacement value*. The proposed
ordinance does not limit the value of repairs or alterations. However, no additional
nonconformities may be created.
A. The current ordinance (Section 21.48.080.c) allows nonconforming uses or buildings to be
reconstructed, repaired, or rebuilt if damaged due to ordinary wear provided that the aggregate
value of such repairs does not exceed more than 10% of its replacement value. The
proposed ordinance (Section 21.48.050.B) would allow for the repair or alteration of
nonconforming residential uses and/or nonconforming residential structures, without a
percentage of replacement value restriction, subject to approval of all required
discretionary and building permits.
B. The current ordinance (Section 21.48.080.b.) allows nonconforming uses or buildings to be
replaced only if destroyed to the extent of not more than 25% of its replacement value. The
Allow for the repair, alteration, expansion and proposed ordinance (Section 21.48.050.D and E) would allow for the replacement (due to
replacement of nonconforming (over densi!Y) damage or voluntary demolition) of nonconforming residential uses and/or
residential uses and structures. nonconforming residential structures subject to approval of a Nonconforming
Construction Permit and all required discretionary and building permits.
C. The current ordinance (Section 21.48.0S0(d)) allows a nonconforming use or building to be
altered, improved, reconstructed, repaired, or extended as may be permitted by the Planning
Commission upon approval of a Conditional Use Permit (CUP) provided that such work shall
not exceed more than 25% of its replacement value and the improvement is designed to be
easily removed. The aggregate value may be increased up to 50% of the total replacement
value for uses which provide a public service traditionally provided by the City. The proposed
ordinance (Section 21.40.050.C) would allow for the expansion of nonconforming
residential uses and/or structures subject to approval of a Nonconforming Construction
Permit and all required discretionary and building permits.
See row 3 .B for an analysis of the current provisions that allow for the expansion of structures
(residential and non-residential) when nonconforming due to inadequate yards.
*Replacement value is determined by the Community Development Director at the time the building permit is applied for.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
Page 1 of 6
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Table A (continued)
Summary of Amendments to Chapter 21.48 -Nonconforming Uses and Buildings
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
The current ordinance limits the percentage to which a nonconforming nonresidential use or building
can be repaired or altered to a percentage (%) of the buildings replacement value*. The proposed
ordinance does not limit the value of repairs or alterations. However, no additional
nonconformities may be created.
Allow for the repair and alteration of nonconforming A The current ordinance (Section 21.48.080.c) allows nonconforming nonresidential uses or non-residential uses and structures. buildings to be reconstructed, repaired, or rebuilt if damaged due to ordinary wear provided
that the aggregate value of such repairs does not exceed more than 10% of its replacement
value. The proposed ordinance (Section 21.48.060.B and 21.48.070.B) would allow for
the repair or alteration of nonconforming non-residential structures and uses subject to
approval of all required discretionary and building permits.
The current ordinance limits the percentage to which a nonconforming use can be expanded to a
percentage(%) of the buildings replacement value*. The proposed ordinance does not limit the
value of the expansion. However, no additional nonconformities may be created.
A The current ordinance (Section 21.48.060) requires the abatement of nonconforming buildings.
The abatement period varies depending on the zone and type of construction. The abatement
provisions have rarely been invoked by the City. The proposed ordinance (Sections
21.48.050.C and 21.48.060.C) would allow for the expansion of nonconforming
structures (residential and non-residential, respectively) subject to approval of a
Nonconforming Construction Permit and all required discretionary and building permits.
The area of expansion would need to observe current setback requirements, and must
Allow nonconforming structures to expand by an comply with all other regulations (for example lot coverage, parking requirements, etc.).
administrative Nonconforming Construction Permit. B. The current ordinance (Section 21.48.090) allows for the expansion of structures when they
are nonconforming due to inadequate setbacks (yards) by a ministerial building permit. The
regulations specify that the enlargement may not increase the floor area more than 40% of the
existing floor area (prior to the expansion) and that the structure can observe the same degree
of nonconformity as may exist, so long as it is not closer than three feet to a side property line,
1 O feet to a front property line, or five feet to a rear property line. The proposed ordinance
(Sections 21.48.050.C and 21.48.060.C) would allow for the expansion of nonconforming
structures (residential and non-residential, respectively) subject to approval of an
administrative Nonconforming Construction Permit and all required discretionary and
building permits. The area of expansion would need to observe current setback
requirements, and must comply with all other regulations (for example lot coverage,
parking requirements, etc.).
*Replacement value is determined by the Community Development Director at the time the building permit is applied for.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
Page 2 of 6
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Table A (continued)
Summary of Amendments to Cha_e_ter 21.48 -Nonconforming Uses and Buildings
~~
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
The current ordinance limits the percentage to which a nonconforming use can be repaired, replaced,
altered or expanded to a percentage(%) of the buildings replacement value*. The proposed
ordinance does not limit the value of repairs or alterations. However, no additional
nonconformities may be created.
. B. The current ordinance (Section 21.48.080.c) allows nonconforming uses or buildings to be
reconstructed, repaired, or rebuilt if damaged due to ordinary wear provided that the aggregate
value of such repairs does not exceed more than 10% of its replacement value. The
proposed ordinance (Section 21.48.070.8) would allow for the repair or alteration of
nonconforming non-residential uses subject to approval of all required discretionary
and building permits.
C. The current ordinance (Section 21.48.080.b.) allows nonconforming uses or buildings to be
replaced only if destroyed to the extent of not more than 25% of its replacement value. The
proposed ordinance (Section 21.48.070.H and I) would allow for the replacement (due to
Allow non-conforming non-residential uses to expand damage or voluntary demolition) of nonconforming non-residential uses subject to
by Conditional Use Permit. approval of a Conditional Use Permit and all required discretionary and building
permits.
D. The current ordinance (Section 21.48.0S0(d)) allows a nonconforming use or building to be
altered, improved, reconstructed, repaired, or extended as may be permitted by the Planning
Commission upon approval of a Conditional Use Permit (CUP) provided that such work shall
not exceed more than 25% of its replacement value and the improvement is designed to be
easily removed. The aggregate value may be increased up to 50% of the total replacement
value for uses which provide a public service traditionally provided by the City. (Section
21.48.070.C) would allow for the expansion of nonconforming non-residential uses
subject to approval of a Conditional Use Permit and all required discretionary and
building permits.
E. The proposed ordinance (Section 21.48.070) contains additional provisions for
nonconforming non-residential uses that relate to non-structural changes including
relocation, change of use, replacement of use, and discontinuance.
*Replacement value is determined by the Community Development Director at the time the building permit is applied for.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
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Table A (continued)
Summary of Amendments to Chapter 21.48 -Nonconforming Uses and Buildings
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
The current ordinance (Section 21.48.060) includes a complicated abatement process which is
variabl_e depending on the zone in which the use or building is located, the type of use being
Preserve the City's right to abate a legal non-abated, and the construction type of the building. The proposed ordinance (Section
conforming use or structure that is no longer 21.48.090.A) preserves the City's right to abate a legal nonconforming use or structure
desirable. and includes an abatement period of: not less than 1 or more than 5 years for all
residential uses; not less than 1 or more than 1 O years for all non-residential uses; and
not less than 3 or more than 25 years for all nonconforming structures.
The current ordinance (Section 21.48.070) allows the Planning Commission to determine the
conditions of abatement. The proposed ordinance (Section 21.48.090) provides a process
Include an abatement process. for abatement that is structured and formatted in a manner that is similar to the more
recently amended chapters of the Zoning Ordinance. The process itself is essentially the
same as the previous process in that the Planning Commission has the authority to
determine the conditions of abatement through a public hearing process.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
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Table B
Summary of Amendments to Chapter 21.46-Yards
Changes to Section 21.46.21 O
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
Amend provisions that/elate to nonconforming lots Relocating t~i_s section will result in the consolidation of all provisions relating to
and relocate those provisions from Section nonconform1t1es (lots, uses and structures) within one chapter of the Zoning Ordinance.
21.46.210 (Yards) to Section 21.48.040 The proposed amendment includes a definition for "Nonconforming lot" (Section
(Nonconforming Lots, Uses and Structures). 21.04.278) and defines the circumstances under which a nonconforming lot may be
developed (Section 21.48.040).
Table C
Summary of Amendments to Chapter 21.04 -Definitions
Changes to Chapter 21.04
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
A Deletes the following definition: 21.04.280 Nonconforming use and replaces it
with 21.04.280 Nonconforming non-residential use and 21.04.281 Nonconforming
residential use to clarify the distinction between residential vs. non-residential
uses.
8. Amends the following definitions: 21.04.275 Nonconforming structures
Include additional applicable definitions and (previously Nonconforming buildings) to replace the word "building" with the
amended definitions in CMG Chapter 21.04 for word "structure" in order to maintain consistency throughout the ordinance; and
clarity. renumbers section 21.040.355 Structure to 21.04.354.
C. Includes the following new definitions: 21.04.027 Alter; 21.04.140.1 Expansion;
21.04.278 Nonconforming lot; 21.04.280 Nonconforming non-residential use;
21.04.281 Nonconforming residential use; 21.04.299.1 Repair; 21.04.299.2
Replace; and 21.04.355 Substandard lot, to ensure that terms are clearly defined.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
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Table D
Summary of Amendments to Chapter 21.44 -Parking
Changes to Chapter 21.44
Proposed Amendment Existing Ordinance/Proposed Ordinance Comparison
The current ordinance (Section 21.44.010) restricts the expansion of a single family residence
Allow unlimited additions to existing single family which does not have a two-car garage to a maximum of 300 square feet of additional floor area.
The proposed ordinance (Sections 21.44.010 and 21.48.050(A)(3)) would allow for residences which do not have a required two car unlimited additions to a single family residence which does not have a two-car garage if garage. a minimum of two off-street parking spaces are provided on-site consistent with location
provisions of the Parking Ordin--nce.
ZCA 09-01/LCPA 09-01 -NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION
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Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
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Title 21
ZONING
Chapters:
21.48 Nonconforming Buildings and Uses Nonconforming Lots,
Structures and Uses
21.04.027 Alter.
Chapter 21.04
DEFINITIONS
"Alter" means any change to the interior or exterior of a structure that does
not result in an increase to the gross floor area of the structure.
21.04.140.1 Expansion.
"Expansion" means to enlarge or increase the size of an existing structure
or use including the physical size of the property, building, parking and other
improvements.
21.04.275 Nonconforming building structure.
"Nonconforming building structure" means a building structure, or portion
thereof, which was lawfully erected or altered and maintained, but which, because of the
application of this title to it, no longer conforms to the use, height or area regulations
current requirements and development standards of the zone in which it is located.
(Ord. 9060 § 254)
21.04.278 Nonconforming lot.
"Nonconforming lot" means a lot which was legally created, but which,
because of the application of this title to it, no longer conforms to the current
requirements and development standards of the zone in which it is located.
21.04.280 Nonconforming use.
21.04.280 "Nonconforming use" means a use which 111as lawfully established and
maintained but 111hich, because of the application of this title to it, no longer conforms to
the use regulations of the zone in 111hich it is located. A nonconforming building or
nonconforming portion of the building shall be deemed to constitute a nonconforming
use of the land upon which it is located.
(Ord. 9060 § 255)
21.04.280 Nonconforming non-residential use.
"Nonconforming non-residential use" means a non-residential use which
was lawfully established and maintained, but which, because of the application of
this title to it. no longer conforms to the current use regulations of the zone in
which it is located.
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21.04.281 Nonconforming residential use.
"Nonconforming residential use" means a residential use which was
lawfully established and maintained, but which exceeds the Growth Management
Control Point or the maximum density range of the underlying General Plan Land
Use designation.
21.04.299.1 Repair.
"Repair" means any improvements to correct deficiencies in a building or
structure.
21.04.299.2 Replace.
"Replace" means to construct a structure that is substantially equivalent in
size, shape and location to a structure that has been destroyed or demolished.
21.04.366 354Structure.
"Structure" means anything constructed or erected which requires location on the
ground or attached to something having a location on the ground, but not including
fences or walls used as fences less than six feet or less in height. All buildings are
structures.
(Ord. 9060 § 269)
21.04.355 Substandard lot.
See "Nonconforming lot".
21.44.010
Chapter 21.44
PARKING
Required off-street parking.
A. Off-street parking, designed in accordance with the requirements of this
chapter, shall be provided for:
1. All newly constructed buildings;
2. Additions to existing buildings, except for:
a. Additions or alterations to an existing one family dwelling when the
addition or alteration results in less than 300 square feet of cumulative additional floor
space (over the amount of the original d•.velling structure);
a. An existing single family residence which does not meet the
required parking standard (i.e. a two car garage) may expand floor area if a
minimum of two off-street parking spaces are provided on-site in a location
consistent with Section 21.44.060(4).
3. Any change of use within an existing building.
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21.46.210.
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Substandard Lots
Chapter 21.46
YARDS
VVhen a lot has less than the minimum required area or width as set forth in any
of the zones contained herein, or in a precise plan, and was of record on the effective
date of the ordinance codified in this title, such lot shall be deemed to have complied
with the minimum lot area or width as set forth in such zone or precise plan. The lot
area per dwelling unit shall, howe'1er, remain as specified in the applicable area district,
except that in no instance shall this provision prevent the erection of a single family
dwelling on any substandard lot.
(Ord. 9060 § 1620)
Sections:
21.48.010
21.48.020
21.48.030
21.48.040
21.48.050
21.48.060
21.48.070
21.48.080
21.48.090
21.48.010
A.
L created.
Chapter 21.48
NONCONFORMING LOTS, STRUCTURES AND USES
Purpose and intent.
Applicability.
General provisions.
Nonconforming lots.
Nonconforming residential structures and uses.
Nonconforming non-residential structures.
Nonconforming non-residential uses.
Nonconforming construction permit.
Abatement of nonconforming structures and uses.
Purpose and intent.
The purpose and intent of this chapter is to:
Allow for the development of nonconforming lots that were legally
2. Establish procedures for the abatement of structures and uses that
do not comply with all of the requirements and development standards of this title
and which may be adverse to the orderly development of the city and to the public
health. safety. or welfare of persons or property.
3. Permit the continuation of uses and continued occupancy and
maintenance of structures that were legally established but do not comply with all
of the requirements and development standards of this title, in a manner that is
not adverse to the public health. safety or welfare of persons or property.
4. Permit the repair, alteration. expansion or replacement of
nonconforming structures subject to the regulations herein.
5. Permit the expansion or replacement of nonconforming uses
subject to the regulations herein.
21.48.020 Applicability.
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A. The provisions of this chapter apply to:
1. Legally created lots which do not conform to the current
requirements and development standards of the zone in which they are located.
2. Legally constructed structures and site development features
(except for nonconforming signs which are addressed in Section 21.41.130) which
do not comply with the current requirements and development standards of the
zone in which they are located.
3. Legally established uses which do not conform to the current
permitted use regulations of the zone in which they are located.
21.48.030 General provisions.
A. It shall be the responsibility of the owner of a nonconforming lot.
structure or use to prove to the planning director that such lot. structure or use
was lawfully established. existed on the date of adoption or amendment of this
chapter. and has existed continuously as defined herein.
B. Nothing in this chapter shall be deemed to prevent the
strengthening or restoring to a safe condition of any structure or part thereof
declared to be unsafe by any city official charged with protecting the public
safety. upon order of such official. Repairs and alterations may be made to
restore a structure to the same condition that existed prior to damage or
deterioration. provided that such repairs or structural alterations conform to the
provisions of this chapter.
21.48.040 Nonconforming lots.
A. A nonconforming lot may be developed. provided that the
development is consistent with the General Plan and complies with all of the
requirements and development standards of the zone. master plan. or specific
plan in which it is located.
21.48.050 Nonconforming residential structures and uses.
A. Specific Provisions.
1. A nonconforming residential structure and/or nonconforming
residential use may be continued and the structure and/or use repaired. altered.
expanded or replaced in accordance with the provisions of this chapter provided
that the repair, alteration. expansion or replacement does not:
a. Result in an additional structural nonconformity; and,
b. Increase the degree of the existing nonconformity of all or part of
such structure or use (i.e. the addition of a new dwelling unit to an existing over
• density residential use); and,
c. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of floor area or the addition of a new dwelling unit that
results in an increase in parking demand, pursuant to chapter 21.44,
shall provide additional parking to satisfy the increase in parking
demand.
3. An existing single family residence which does not meet the required
parking standard (i.e. a two car garage) may expand floor area if a minimum
of two off-street parking spaces are provided on-site in a location
consistent with Section 21.44.060(4).
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8. Repair or Alteration .
.b A nonconforming residential structure and/or a structure which is
occupied by a nonconforming residential use may be repaired or altered subject
to issuance of all required discretionary and building permits, provided that the
repair or alteration complies with all current fire protection and building codes
and regulations contained in Title 17 and Title 18.
C. Expansion .
.b A nonconforming residential structure and/or a nonconforming
residential use may be expanded, so as to occupy a greater area of land or more
floor area subject to issuance of all required discretionary and building permits
and provided that an application for a nonconforming construction permit is
submitted and the planning director approves the findings of fact pursuant to
Section 21.48.080(8).
D. Replacement in the Event of a Disaster.
!.: A nonconforming residential structure and/or nonconforming
residential use that is destroyed by fire, explosion, or other casualty or natural
disaster, may be replaced subject to issuance of all required discretionary and
building permits and provided that an application for a nonconforming
construction permit is submitted within two years of the date of the disaster and
the planning director approves the findings of fact pursuant to Section
21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
!.: A nonconforming residential structure and/or nonconforming
residential use that is proposed to be voluntarily demolished may be replaced
subject to issuance of all required discretionary and building permits and
provided that an application for a nonconforming construction permit is submitted
and the planning director approves the findings of fact pursuant to Section
21.48.080(8) prior to the date of the demolition.
21.48.060 Nonconforming non-residential structures.
A. Specific Provisions.
1. A nonconforming non-residential structure may be continued and
the structure repaired, altered, expanded or replaced in accordance with the
provisions of this chapter provided that the repair, alteration, expansion or
replacement does not:
.!!: Result in an additional structural nonconformity; and,
b. Increase the degree of the existing nonconformity of all or part of
such structure; and,
c. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of floor area that results in an increase in parking
demand, pursuant to chapter 21.44, shall provide additional parking to
satisfy the increase in parking demand.
8. Repair or Alteration.
1.:. A nonconforming non-residential structure may be repaired or
altered subject to issuance of all required discretionary and building permits,
provided that the repair or alteration complies with all current fire protection and
building codes and regulations contained in Title 17 and Title 18.
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C. Expansion.
1. A nonconforming non-residential structure may be expanded, so as
to occupy a greater area of land or more floor area subject to issuance of all
required discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted and the planning director
approves the findings of fact pursuant to Section 21.48.080(8).
D. Replacement in the Event of a Disaster.
1-: A nonconforming non-residential structure that is destroyed by fire,
explosion, or other casualty or natural disaster, may be replaced subject to
issuance of all required discretionary and building permits and provided that an
application for a nonconforming construction permit is submitted within two years
of the date of the disaster and the planning director approves the findings of fact
pursuant to Section 21.48.080(8).
E. Voluntary Demolition and Subsequent Replacement.
1-: A nonconforming non-residential structure that is proposed to be
voluntarily demolished may be replaced subject to issuance of all required
discretionary and building permits and provided that an application for a
nonconforming construction permit is submitted and the planning director
approves the findings of fact pursuant to Section 21.48.080(8) prior to the date of
the demolition.
21.48.070 Nonconforming non-residential uses.
A. Specific Provisions.
1. A nonconforming non-residential use and/or structure which is
occupied by a nonconforming non-residential use may be continued and the
structure and/or use repaired, altered, expanded or replaced in accordance with
the provisions of this chapter provided that the repair, alteration, expansion or
replacement shall not:
a. Increase the degree of the existing nonconformity of all or part of
such structure or use; and,
b. Reduce the number and size of any required existing parking
spaces.
2. Any expansion of a non-residential use and/or structure which is
occupied by a nonconforming non-residential use that results in an increase in
parking demand. pursuant to chapter 21.44. shall provide additional parking to
satisfy the increase in parking demand.
8. Repair or Alteration.
1. A structure which is occupied by a nonconforming non-residential
use may be repaired or altered subject to issuance of all required discretionary
and building permits, provided that he repair or alteration complies with all
current fire protection and building codes and regulations contained in Title 17
and Title 18.
C. Expansion of Use.
1. A nonconforming non-residential use may be expanded, so as to
occupy a greater area of land or more floor area within a structure, subject to
issuance of all required discretionary and building permits, provided that an
application for a conditional use permit is submitted and the planning commission
approves the findings of fact pursuant to Section 21.42.030(A).
D. Relocation.
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1. A nonconforming non-residential use may be moved, in whole or in
part to any other on-site structure, or to any other portion of the structure, lot or
site within or upon which it is located, subject to issuance of all required
discretionary and building permits and provided that an application for a
conditional use permit is submitted and the planning commission approves the
findings of fact pursuant to Section 21.42.030(A).
E. Change of Use. .
1. A nonconforming non-residential use may be changed to a use that
is permitted in the zone in which the subject property is located, or may be
changed to a use that is more conforming, subject to approval of the planning
director and the issuance of a business license.
F. Replacement of Use.
1. A nonconforming non-residential use may be replaced with the
same or a similar use, as determined by the planning director, so long as the
replacement use does not expand or in any other manner increase the degree of
nonconformity with the use regulations of this title.
G. Discontinuance.
1. If a structure. or parcel of land which is occupied by a
nonconforming non-residential use is, or hereafter becomes vacant and remains
unoccupied either temporarily or permanently, whether with the intent to abandon
the use or not for a continuous period of one year or more, the planning director
shall determine and shall notify the owner of the property, via certified return
receipt mail, that the nonconforming use has been discontinued and the
nonconforming use may not be renewed or reestablished.
H. Reestablishment of a Nonconforming Use in the Event of a Disaster.
1. A nonconforming non-residential use that is destroyed by fire,
explosion, other casualty or natural disaster, may be reestablished subject to
issuance of all required discretionary and building permits and provided that an
application for a conditional use permit is submitted within two years of the date
of the disaster, and the planning commission approves the findings of fact
pursuant to Section 21.42.030(A).
!:. Voluntary Demolition and Subsequent Reconstruction.
1. A nonconforming non-residential use that is proposed to be
voluntarily demolished and subsequently reconstructed, may be reestablished
subject to issuance of all required discretionary and building permits and
provided that an application for a conditional use permit is submitted and the
planning commission approves the findings of fact pursuant to Section
21.42.030(A) prior to the demolition.
21.48.080 Nonconforming construction permit.
A. Authority.
1. The planning director or his designee may approve, conditionally
approve or deny a nonconforming construction permit as prescribed in this
chapter, upon making the findings of fact listed in Section 21.42.080(8) of this
chapter.
B. Findings of Fact.
1. A nonconforming construction permit shall be granted only if the
following facts are found to exist in regard thereto:
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a. The expansion/replacement of the structure and/or use would not
result in an adverse impact to the health, safety and welfare of surrounding uses,
persons or property.
b. The area of expansion shall comply with all current requirements
and development standards of the zone in which it is located, except as provided
in Subsection 21.48.050(A)(3) of this chapter.
c. The expansion/replacement structure shall comply with all current
fire protection and building codes and regulations contained in Title 17 .and
Title 18.
d. The expansion/replacement would result in a structure that would be
considered an improvement to, or complementary to and/or consistent with the
character of the neighborhood in which it is located.
C. Application and Fees.
1. Application for a nonconforming construction permit may be made
by the owner of the property affected or the authorized agent of the owner.
Application shall be made in writing on a form provided by the planning
department. The application shall state fully the circumstances and conditions
relied upon as grounds for the application and shall be accompanied by adequate
plans, a legal description of the property involved and all other materials as
specified by the planning department.
2. At the time of filing the application, the applicant shall pay a
processing fee in an amount as specified by city council resolution.
D. Notices.
1. Upon the filing of an application for a nonconforming construction
permit, the planning director shall give written notice by mail or personal delivery
to the project applicant, the owner of the subject real property or the owner's duly
authorized agent and to all property owners as shown on the latest equalized
assessment roll within three hundred feet of the subject property at least fifteen
days prior to a decision on the application.
E. Decision-Making Process.
1. Applications for nonconforming construction permits shall be acted
upon in accordance with the decision process identified below:
a. Any person so notified in accordance with Section 21.48.0S0(D)
above may file written objections or a written request to be heard within ten days
after the mailing or personal delivery of the notice. If a written request to be heard
is filed, the planning director shall schedule an informal hearing and provide
written notice to the applicant and the requestor at least five days prior to the
hearing. The hearing is not a formal public hearing.
b. An application for a nonconforming construction permit may be
approved, conditionally approved or denied by the planning director based upon
his/her review of the facts as set forth in the application and review of the
circumstances of the particular case.
c. The planning director may approve the nonconforming construction
permit if all of the findings of fact in Section 21.48.0S0(B) of this chapter are found
to exist.
F. Announcement of Findings and Decision.
1. Not more than twenty days following the termination of the
proceedings for a nonconforming construction permit, the planning director shall
announce his/her findings by letter. The letter shall recite, among other things:
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a. The facts and reasons which, in the opinion of the planning director,
make the granting or denial of the nonconforming construction permit necessary
to carry out the provisions and general purpose of this title;
b. That the nonconforming construction permit be granted or denied;
c. If the letter orders that the nonconforming construction permit be
granted, it shall also recite such conditions and limitations as the planning
director may impose.
G. Mailing of Notice of Decision.
1. Not later than seven days following the announcement of a decision
ordering that a nonconforming construction permit be granted or denied, a copy
of the letter shall be mailed to the applicant at the address shown on the
application filed with the planning director.
H. Appeals.
1. In the case of nonconforming construction permits, the action of the
planning director may be appealed to the planning commission in accordance
with Section 21.54.140 of this title. The planning commission's action to approve,
conditionally approve or deny is final.
I. Expiration Period.
1. Expiration of Permit if Not Exercised.
a. Any nonconforming construction permit becomes null and void if
not exercised within twenty-four months of the date of approval.
2. Extension of Permit if Not Exercised.
a. The planning director may extend the time within which the right or
privilege granted under a nonconforming construction permit must be exercised
for one additional year upon receipt of a written request from the applicant prior to
the expiration of such nonconforming construction permit. In granting such
extension the planning director shall make a written finding that neighborhood
conditions have not substantially changed since the granting of such
nonconforming construction permit.
J. Amendment.
1. Any approved nonconforming construction permit may be amended
by following the same procedure as for approval of a nonconforming construction
permit and upon payment of the application fee contained in the most recent fee
schedule adopted by the city council.
21.48.090 Abatement of nonconforming structures and uses.
A. If a nonconforming use and/or structure is determined by the
planning director to be adverse to the orderly development of the city and/or to
the public health, safety, or welfare of persons or property, the planning director
shall schedule a public hearing by the planning commission to establish the
conditions of abatement and the abatement period. The abatement period shall
start from the date of the applicable resolution and shall be:
1. For all Residential Uses.
a. Not less than one or more than five years.
2. For all Non-Residential Uses.
a. Not less than one or more than ten years.
3. For all Nonconforming Structures.
a. Not less than three years or more than twenty-five years.
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4. Nothing in these provisions shall preclude abatement of a nuisance
pursuant to Section 6.16.150 of the Carlsbad Municipal Code.
B. Public Hearing Notice.
1. Notice of said public hearing shall be given as required by Section
21.54.060.
C. Public Hearing Evidence.
1. The planning commission shall consider at the public hearing, all
pertinent data to enable it to arrive at an equitable abatement period which will
protect the public health, safety or welfare of persons or property, yet will allow
the owner of record, or lessee if applicable, to amortize their investment so that
any loss will be minimized.
2. The owner or lessee shall be allowed to present any evidence
related to the case.
3. When setting the abatement period, the planning commission shall
take into consideration the type of construction, age, condition, and extent of
nonconformity of the structure or use in question; any structural alterations or
expansions; and/or the installation of major equipment designed into the structure
prior to the date of nonconformity.
D. Hearing Decision.
1. After the close of the public hearing, the planning commission shall
determine and establish by resolution the abatement period, and shall set forth in
said resolution all findings and facts upon which the date of such abatement
period is based.
E. Notice of Decision to Owner.
1. The secretary of the planning commission shall formally notify the
owner of the property of the action of the planning commission by mailing a copy
of the resolution, via certified return receipt mail, within ten days following the
date of its adoption by the planning commission. •
F. Appeal.
1. The above action of the planning commission shall be final unless
an appeal to the city council is filed in accordance with the procedure provided in
Section 21.54.150.
G. Recordation.
1. The secretary of the planning commission shall transmit a final
signed copy of the resolution of the planning commission or city council,
whichever is final, to the County Recorder of San Diego for recordation.
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Chapter 21.48
NONCONFORMING BUILDINGS AND USES
21.48.010 Limitation on other uses.
21.48.020 Remo•,al of nonconforming buildings or change in status of
nonconforming use.
21.48.030 Application of chapter.
21.48.040 Nonconforming land use •••-•hen no structure in¥ol¥ed.
21.48.050 Nonconforming use of a conforming building.
21.48.060 Remo•,al of nonconforming buildings.
21.48.070 Commission to determine conditions of abatement.
21.48.080 Alteration, repair or expansion of nonconforming uses.
21.48.090 Alteration of building when nonconforming by reason of inadequate
yards.
21.48.100 Public utility exemptions.
21.48.010 Limitation on other uses.
VVhile a nonconforming use exists on any lot, no additional use may be
established thereon, e11en though such use would be a conforming use.
(Ord. 9060 § 1700)
21.48.020 Remo•,al of nonconforming buildings or change in status of
nonconforming use.
If any nonconforming building is removed, every future use of the land on which
the building is located shall conform to the provisions of this title. If a nonconforming use
·,acates and is succeeded by another and more restrictive use, it is evidence that the
heavier nonconforming use was ended and thereupon immediately loses any vested
right as such. If the substitute use is itself nonconforming, the degree of nonconformity
may not subsequently be increased by changing to a less restricted use.
(Ord. 9060 § 1701)
21.48.030 Application of chapter.
The provisions of this chapter shall apply to buildings, lands and uses which
hereafter become nonconforming due to any reclassification of zones under this title.
(Ord. 9060 § 1702)
21.48.040 Nonconforming land use '..•:hen no structured involved.
In any zone the nonconforming use of land \~.'herein no structure is involved shall
be abated v.iithin one year from the date the ordinance codified in this title becomes
applicable, and any future use of such land shall conform to the provisions of this
ordinance. If the nonconforming use of land existing at the time this ordinance takes
effect is thereafter discontinued for six months or more, any future use of such land shall
conform to the provisions of this title.
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(Ord. 9060 § 1703)
21.48.050 Nonconforming use of a conforming building.
(a) IN R ZONES. All nonconforming uses of a conforming building in any of
the R zones shall be discontinued within three years from the date of formal notice to the
oi.vner from the planning commission, or not later than five years from the date the
provisions of this ordinance becomes applicable to it.
(b) INC ZONES. Ei.1ery nonconforming use of a conforming building in a C
zone which use is first permitted in a less restrictive zone shall be completely removed
before the expiration of a ten year period measured from the date the ordinance codified
in this title becomes applicable to it.
(c) IN M ZONES. The nonconforming use of a conforming building which is
devoted to any residential purpose, hospital (except emergency hospitals), hotel,
institution or home for the treatment of convalescent persons, alcoholics, the wounded or
mentally infirm, lodginghouses, schools, trailers used for human habitation, or trailer
parks, shall be completely removed before the expiration of a ten year period measured
from the date the ordinance codified in this title becomes applicable to it.
(Ord. 9060 § 1704)
21.48.060 Remo¥al of nonconforming buildings.
(a) IN R ZONES. Every nonconforming building in any of the R zones, except
residential buildings, churches and schools, which nonconforming building was designed
or intended for a use not permitted in the R zone in •1,1hich it is located, shall be
completely removed or altered to structurally conform to the uses permitted in the zone
in which it is located within the herein specified times upon notice from the planning
commission, which time is measured from the date of construction. In no case shall this
period of time be less than five years from the date of notification by the planning
commission. As used in this section the designations "Type 1 Building", "Type 2
Building", "Type 3 Building", "Type 4 Building" and "Type 5 Building", are employed as
defined in the existing building ordinance:
(1)
(2)
(3)
If property is occupied by structures of a type for which the existing
building ordinance does not require a building permit One year;
Type 4 or Type 5 buildings (light combustible frame and wood frame)
Forty years;
Type 2 or Type 3 buildings (heavy timber construction and ordinary
masonry):
(A)
(B)
Apartments, offices, hotels or residences having stores or offices
below and apartments or offices above Thirty five years,
'Narehouses, stores, garages, lofts Thirty five years,
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(4)
(b)
(1)
(2)
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(C) Factories and industrial Forty fi11e years;
Type 1 Buildings (fire resistant):
(A)
(B)
(C)
(D)
Offices and hotels Forty fi11e years,
Theatres Fifty years,
Warehouses, lofts, stores, garages Forty fi11e years,
Industrial Thirty five years;
INC ZONES.
Residential structures in a "C" zone existing on the effective date of the
ordinance codified in this title shall be considered as nonconforming uses
and as such, shall be subject to those provisions of this ordinance which
provide that a nonconforming building remo11ed or destroyed may not be
replaced by other than a conforming building. Structural alterations or
enlargements may be made; provided, that the degree of nonconformity
may not be increased by changing to a less restricted residential use or
by reducing yard widths less than the prescribed minimum required in R 3
~
Every nonconforming building in a C zone which is designed for a use
first permitted in an M zone shall be completely removed or altered to
conform to those uses permitted in the C zone in which such building is
located within the herein specified times, upon notice from the planning
commission, which times are measured from the date of construction
except that in no case shall this period of time be less than five years
from date of such notice by the planning commission. As used in this
section, the designations "Type 1 Building", "Type 2 Building", "Type 3
Building", "Type 4 Building" and "Type 5 Building" are employed as
defined in the existing building ordinance:
(A)
(B)
(C)
V\lhere property is unimproved except for structures of a type for
which the existing building ordinance does not require a building
permit One year, •
Type 4 or Type 5 buildings (light combustible frame and wood
frame) Forty years,
Type 2 or Type 3 buildings (heavy timber construction and
ordinary masonry):
(i) Apartments, offices, hotels or residences having stores or
offices below and apartments or offices above Thirty five
YeafS
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
(c)
(1)
(2)
(D)
Chapter 21.48-Strike-out/Underline Version 1,Jage 14
(ii)
(iii)
Warehouses, stores, garages, lofts Thirty five years
Factories and industrial Forty five years
Type 1 buildings (fire resistant):
(i)
(ii)
(iii)
(iv)
Offices and hotels Forty five years
Theatres Fifty years
Warehouses, lofts, stores, garages Forty five years
Industrial Thirty five years.
IN "M" ZONES.
Residential structures in an "M" zone existing on the effective date of the
ordinance codified in this title shall be considered as nonconforming uses
and as such, shall be subject to those provisions of this ordinance •.vhich
provide that a nonconforming building removed or destroyed may not be
replaced by other than a conforming building. Structural alterations or
enlargements may be made; provided, that the degree of nonconformity
may not be increased by changing to a less restricted residential use or
by reducing yard 1.vidths less than the prescribed minimum required in R 3
ZGRe:-
Every nonconforming building in the "M" zone which is used for, or
devoted to, any hospital (except emergency hospitals), hotel, institution or
home for the treatment of convalescent persons, alcoholics, the wounded
or mentally infirm, lodginghouses, schools, trailers used for human
habitation, or trailer parks, and which nonconforming building was
designed or intended for a use not permitted in the "M" zone in which it is
located, shall be completely removed or altered to structurally conform to
the uses permitted in the zone in which it is located •.vithin the herein
specified times upon notice from the planning commission, which times
are measured from the date of construction, except that in no case shall
this period of time be less than five years from the date of such notice. As
used in this section the designations "Type 1 building", "Type 2 building",
"Type 3 building", "Type 4 building", and "Type 5 building" are employed
as defined in the existing building ordinance:
(A)
(B)
(C)
Where property is unimpro1.ied except for structures of a type for
which the existing building ordinance does not require a building
permit One year,
Type 4 or Type 5 buildings (light combustible frame and wood
frame) Forty years,
Type 2 or Type 3 buildings (heavy timber construction and
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
(D)
Chapter 21.48 -Strike-out/Underline Version IJ,age 15
ordinary masonry):
(i)
(ii)
(iii)
Apartments, offices, hotels or residences having stores or
offices below and apartments or offices above Thirty five
yeafS
'Narehouses, stores, garages, lofts Thirty five years.
Factories and industrial Forty five years,
Type 1 buildings (fire resistant):
(i)
(ii)
(iii)
Offices and hotels Forty five years
Theatres Fifty years
Warehouses, lofts, stores, garages Forty five years
(iv) Industrial Thirty five years.
(Ord. 9088 §§ 1, 2; Ord. 9060 § 1705)
21.48.070 Commission to determine sonditions of abatement.
VVhen any nonconforming condition exists in any zone, other than the
nonconforming use of land v.ihen no structure is involved, it shall be the responsibility of
the planning commission, on its own initiative, to fix a date upon which the
nonconforming building ·.vas established. It shall also be the responsibility of the planning
commission to determine whether, by reason of structural alterations or enlargements, or
the installation of major equipment designed into the building prior to the date the
ordinance codified in this title becomes applicable thereto, it is deemed necessary to
establish a later date for abatement than that prescribed herein for the building itself in
order to assure that the investment represented by such structural alterations,
enlargements or equipment installations may be amortized. In performing this function
the commission shall consider all pertinent data in connection therei.vith to provide the
opportunity for the owner of record, or lessee if there be such, to present such evidence
as they may possess and which properly relate to such case. When the date of
abatement has been determined, the commission by resolution, shall establish such
date and shall set forth such fasts as bear upon the case upon which the determination
of such date of abatement is based, and shall formally notify the owner of such
nonconforming property of the action of the commission by mailing to such owner a copy
of the formally adopted resolution not later than ten days following the date of subject
action by the planning commission.
(Ord. 9060 § 1706)
21.48.080 Alteration, repair or expansion of nonsonforming uses.
(a) Except as provided in this section, a nonconforming use or building shall
not be altered, improved, reconstructed, restored, repaired, intensified, expanded or
extended.
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version IJ,age 16
(b) A nonconforming building destroyed to the e~ent of not more than
t1A<enty five percent of its replacement value as determined by the community
development director at the time of its destruction by fire, explosion, or other casualty or
act of God, or public enemy, may be restored and the occupancy or use of such building,
or part thereof, which exists at the time of such partial destruction may continue subject
to all other provisions of this chapter. Such restoration shall not extend the time of
abatement as established by this chapter.
(c) Incidental reconstruction, repair or rebuilding of a nonconforming building
rendered necessary by ordinary wear and tear and which does not increase the degree
of nonconformity of a nonconforming building, nor increase the degree or size of a
nonconforming use may be made, provided that:
(1)
(2)
The aggregate value of such repairs or alterations shall not exceed ten
percent of the building's replacement value at the time the building permit
is applied for as determined by the community development director;
That such reconstruction, repair or rebuilding complies 1,vith the provisions
of Title 18 of this code;
(3) Such repairs, reconstruction or rebuilding shall not extend the time of
abatement established by this chapter.
(d) A nonconforming use or building may be altered, improved,
reconstructed, restored, repaired or extended as may be permitted by the planning
commission upon granting of the conditional use permit processed according to the
procedures established in Chapter 21.50 of this code. Before a conditional use permit
may be granted all provisions of Chapter 21.50 shall be met and it shall be shown that:
(1)
(2)
(3)
The aggregate value of the proposed alteration, improvement,
reconstruction, restoration, repair or extension shall not exceed twenty
fr.ie percent of the total replacement at the time the conditional use permit
is applied for as determined by the community development director of all
improvements on the site unless the building or structure is changed to a
conforming use. Such aggregate value may be increased up to fifty
percent of total replacement for those uses which provide a public service
traditionally provided by the city;
The proposed alteration, improvement, reconstruction, restoration, repair
or extension is of a type of structure that is specifically designed to be
easily removed;
The proposed alteration, improvement, reconstruction, restoration, repair
or extension meets all construction setback, co1.ierage, planning and all
other applicable requirements of this code.
In approving such conditional use permit, the planning commission shall
establish a date by which all nonconforming structures and uses shall be made
conforming or removed from the site. In no event shall the date for such removal or
compliance extend beyond the date set according to the provisions of this title for
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version !Page 17
abatement of the existing nonconforming use. Extensions of said date for abatement
shall be permitted only upon approval of amendment of the conditional use permit and,
then, only upon showing of good cause. A conditional use permit or amendment shall be
effective only upon execution by the applicant of 'Nritten acceptance of the conditional
use permit, or amendment. Such acceptance shall include an agreement by the
applicant to remove all nonconforming uses and buildings or structures, or make them
conforming, on or before the date for removal established by the conditional use permit
or amendment in exchange for permission to alter, impro11e, reconstruct, restore, repair
or extend.
The planning director shall cause such conditional use permit, complete with
abatement date, or any amendment to the conditional use permit, extending an
abatement date, to be recorded at the office of the county recorder '.vithin fii.ie days after
the issuance of the permit or amendment. Any alteration, improvement, reconstruction,
restoration, repair or extension undertaken pursuant to the conditional use permit shall
be commenced within three months after the issuance of the permit unless an extension
is granted by the planning commission.
(e) No nonconforming building, structure, or use shall be changed to any
other nonconforming use, building or structure.
(Ord. NS 675 §§ 76 (part), 79 (part), 2003; Ord.1261 § 50, 1983; Ord.1256 § 7 (part),
1982; Ord. 9538 § 2, 1979: Ord. 9060 § 1707)
21.48.090 Alteration of building when nonconforming by reason of inadequate
yards.
Where a building or buildings, and customary accessory buildings are
nonconforming only by reason of substandard yards or open spaces, the provisions of
this title prohibiting structural alterations or enlargements shall not apply; provided, that
any structural alterations or enlargements of an existing building shall conform to the
following:
(1) That such nonconforming structure may be enlarged or extended to the
same degree of nonconformity as may exist but in no event shall suet:\
addition or enlargement encroach closer than three feet to any side yard
lot line, ten feet to any front line or five feet to any rear lot line;
(2) That any such enlargement shall not increase the floor space more than
forty percent of that existing prior to such enlargement.
(Ord. 9060 § 1708)
21.48.100 Public utility exemptions.
The foregoing provisions of this chapter concerning the required removal of
nonconforming buildings and uses and the reconstruction of nonconforming buildings
partially destroyed, shall not apply to public utility buildings and structures when such
buildings and structures pertain directly to the rendering of the service or distribution
such as po'11er generating plants and electrical distribution substations; water wells and
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version jpage 18
pumps; gas storage, metering and valve sontrol stations. Nor shall anything in this artisle
be sonstrued or applied so as to prevent the expansion, modernization or replasement of
sush publis utility buildings, strustures, equipment and features as are used direstly for
the delivery of, or distribution of, the servise; provided the provisions of this sestion shall
not exempt from the provisions severing nonsonformity of sush buildings, strustures, or
uses as do not immediately relate to the direst servise by sonsumers, sush as
warehouses, storage yards and the like.
(Ord. 9060 § 1709)
Draft Nonconforming Lots, Structures and Uses Zone Code Amendment
Chapter 21.48 -Strike-out/Underline Version jpage 19
(Existing definitions are for reference)
Chapter 21.04 -DEFINITIONS
21.04.050 Building.
"Building" means any structure having a roof, including all forms of inhabitable
vehicles even though immobilized. Where this title requires, or where special authority
granted pursuant to this title requires that a use shall be enclosed within a building, this
definition shall be qualified by adding "and enclosed on all sides."
(Ord. 9060 § 211)
21.42.210 Lot.
"Lot" means a parcel of record legally created by subdivision map, adjustment
plat, certificate of compliance or a parcel legally in existence prior to incorporation of the
lot into the jurisdiction of the city. Any parcel created prior to May 1, 1956, shall be
presumed to be lawfully created if the parcel resulted from a division of land in which
fewer than five parcels were created. A lot shall have frontage that allows usable access
on a dedicated public street accepted by the city. This street or easement shall have a
minimum right-of-way width of forty-two feet. Special lot and street configurations for
affordable housing projects may be allowed subject to the provisions of Section
21.53.120.
(Ord. NS-602 § 1, 2001: Ord. 207 § 7, 1992: Ord. 9605 § 1, 1981: Ord. 9459 § 1 (part),
1976: Ord. 9060 § 241)
City of Carlsbad
liiEi,il••li·■•J§•tiiii,i§ii ■
June 9, 2009
Felicia C. Brechtel
3676 Monroe Street
Carlsbad, CA 92008
RE: Nonconforming Use Regulations
Dear Ms Brechtel:
Thank you for your e-mail dated June 8, 2009. In your correspondence, you raised two
concerns related to the proposed ordinance revisions to Chapter 21.48 -Nonconforming
Buildings and Uses. The first issue is in regard to additions to single-family residences that are
nonconforming due to inadequate yards. As you point out, the current ordinance (Section
21.48.090) allows an expansion of up to 40% of the original square footage by right
(ministerial/building permit), but the proposed ordinance would require approval of an
administrative Nonconforming Construction Permit (NCP). The second concern that you raise is
in regard to abatement of residential structures and under what circumstances the City would
proceed with abatement. You suggest that the determination to be made by the Planning
Director as to a property or use being "adverse to the orderly development of the City and/or the
public health, safety, or welfare of persons or property" may be too vague or subjective.
Although it may seem that the process has been complicated by requiring an administrative
permit for additions, as a trade off, the proposed ordinance would provide additional flexibility by
eliminating the 40% limitation for additions while also allowing additions to over-density
residential structures and uses which are nonconforming for other reasons (i.e. building height,
parking). Additionally, the proposed ordinance would provide an opportunity for public input to
ensure that nonconforming uses or structures continue to be compatible with the surrounding
properties. Specifically, in regards to additions to nonconforming single-family residences, the
proposed ordinance would result in the following changes:
• Remove the limitation that additions to nonconforming residences may not exceed 40%
of the existing square footage of the structure.
• Require that additions meet the current setback requirements rather than extend the
same degree of nonconformity.
• Remove the 300 square foot limitation for additions to single-family residences that do
not have a two-car garage, provided that two off-street parking spaces are provided.
• Require processing of an administrative Nonconforming Construction Permit.
• Require notification of property owners within a 300 foot radius.
1635 Faraday Avenue o Carlsbad, CA 92008-7314 • (760) 602-4600" FAX (760) 602-8559 ° www.ci.carlsbad.ca.us @
The NCP process is proposed as an administrative permit process, similar to an Administrative
Variance. The NCP would ensure that the nonconformity is documented as a legally
constructed building or a legally established use. Although the process for minor additions (less
than 40%) would no longer be ministerial (building permit), the current restrictions that limit
additions to only 40% of the size of the existing structure would be eliminated. Removing the
square footage limitation eliminates the problems of tracking the cumulative square footage that
is associated with residences that have had numerous additions that occur over time. Requiring
a NCP for all additions (< or > 40%) ensures a consistent review of all properties. In addition,
the new ordinance would require that all additions observe the current setback requirements
instead of allowing an existing nonconforming setback to be continued. In the case where a
property owner would desire to continue the nonconforming setback, there would still be the
opportunity to request a variance from the current development standards.
Abatement of nonconforming residential structures has been rarely (if ever) implemented by the
City in the past, and it is not likely that proactive abatement of structures will occur in the future
except in instances where the nonconforming structure or use is "adverse to the orderly
development of the City and/or the public health, safety, or welfare of persons or property". I
can understand your concern that the NCP public notice may provide an opportunity to open up
the discussion for abatement of nonconforming structures. However,. the intention is to ensure
that nonconforming residential structures and residential uses maintain compatibility with
adjacent uses and structures by providing the public with an opportunity to comment on any
proposed expansions.
At this time, staff is not proposing any revisions to the draft ordinance in response to your e-
mail. However, your e-mail and staff's response will be included as an attachment to the staff
report to the Planning Commission. I encourage you to express your comments at the public
hearing for this item which will be held on Wednesday, June 17, 2009 at 6:00 pm in the City of
Carlsbad City Council Chambers, 1200 Carlsbad Village Drive.
Again, I thank you for your comments. If you have any additional questions, please contact me
at 760.602.4626 or via e-mail at Barbara.kennedy@carlsbadca.gov.
Sincerely,
~~
BARBARA KENNEDY, AICP
Associate Planner
c: Gary Barberio, Assistant Planning Director
Chris DeCerbo, Principal Planner
file
Barbara Kennedy
From:
Sent:
To:
Subject:
Follow Up Flag:
Flag Status:
Ms. Kennedy
Felicia Brechtel [felicia@wordenwilliams.com]
Saturday, June 06, 2009 10:29 AM
Barbara Kennedy
Questions Regarding Non-conforming Use Regulations
Follow up
Flagged
I have reviewed the regulations briefly and have some comments and questions.
While I support providing more flexibility for non-conforming structures to expand, it seems like the proposed ordinance
removes all ministerial rights with regard to non-conforming structures and uses. The current ordinance allows expansion
of up to 40% of the existing square footage by right, but this ordinance does not allow any expansion by right. As a result,
it could be argued that it is more restrictive, rather than less restrictive. Is it the city's intent to remove all
ministerial expansion rights? In fact, the proposed regulations require notice to the neighbors within 300 feet for any level
of expansion, and allow for an appeal by the neighbors to the Planning Commission. Again, this seems more restrictive,
rather than less restrictive. Most residential homes can expand through a ministerial process, without an appeal process
for the neighbors. It seems to me that this creates extra burdens for non-conforming structures to do minor expansions,
instead of making it easier for them. For example, our home is non-conforming due to the fact that our north side yard is
smaller than currently required, but only by about 2 feet. Our home was built in 1926, and is a charming old farmhouse,
but it is very small. If I am reading the regulations correctly, it seems that there is no building permit that we could obtain
for even a minor addition, without triggering a discretionary review process, and the risk of an appeal by our neighbors. Is·
that correct?
Shouldn't there be a stepped approach? For example, continue to allow up to 40% of the square footage as a ministerial
right, but provide for a discretionary decision when the proposed expansion exceeds 40% of the square footage? If 40%
is too much, perhaps 20%?
I am also concerned about the abatement of residential uses that the Planning Directory determines is "adverse to the
orderly development of the City and/or the public health, safety, or welfare of persons or property." (Section 21.48.090)
The section is vague about the reasons that the City would no longer want a residential use to continue and it seems to be
a somewhat subjective standard. It is also not clear when such a determination would be triggered. Does this apply to
residential uses on residentially zoned lots, or residential uses on commercially zoned lots? Our lot is about a third of an
acre, and we have a second home on our lot, which was built in 1928. It is a little cottage of only 400 square feet. We are
counting on renovating this structure and having my parents, who are retired, move in within the next 3-5 years. Since our
homes have been in the neighborhood long before the homes around us, it is hqrd to imagine that they pose any problem
to the community. Is this the kind of residential use that will .be subject to abatement in the future? Does this mean that
rather than approve or deny a non-conforming construction permit, the Planning Director can instead order abatement
within 5 years of the residential use? Wouldn't this provision have the unintended consequence of discouraging people
from seeking a building permit to make a minor addition to their structure, for fear that it could lead to the abatement?
Felicia C. Brechtel
3676 Monroe Street
Carlsbad, CA 92008
1
Howes Weiler ~ &Associates~~~
/ LAND USE PLANNING AND CONSULTATION"'· ~
/ '
June 9, 2009
Carlsbad Planning Commission
1200 Carlsbad Village Drive
Carlsbad, CA 92008
ZCA 09-01/LCPA 09-01 -Non-Conforming Ordinance
Dear Commissioners:
I have reviewed the proposed revisions to the Non-Conforming Ordinace and found them to be a
significant improvement over the existing Non-Conforming ordinance. Dealing with non-
conforming land uses and structures is always difficult. I believe that the proposed revisions
serve to clarify confusing sections of the existing code. The development community does
appreciate the opportunity staff provided us to give our input on this proposed Zone Code
Amendment.
Mike Howes AICP
CC DonNeu
Gary Barberio
Barbara Kennedy
JUN.11.2009 4:07PM WORDEN WlLLIAMS APC NO. 3159 P. 1
IAI (§-~
If If ORDEN WILLIAMS, APC
462 STEVENS AVENUE, SUITE 102, SOLANA BEACH, CALIFORNIA 92075
PHONE: (858) 755-6604
FAX: (858) 755-5198
E-Mail: info@wordenwilliams.com
Web Site: www .wordenwilliams.corn
FACSIMILE TRANSMISSION
Date: June 11, 2009 Total Sheets: 3
(Including Cover Sheet)
TO; Gary Barberio, Chris DeCerbo and Barbara-Kenneqy
City of Carlsbad '
Fax No.: (760) 602-8559
Phone No.: (760) 602-4600
FROM: D. Wayne Brechtel
Re: June 17, 2009 Planning Commission Hearing
Item: Letter dated June 11, 2009
Comments: Please provide a copy of the letter to th~ Planning Commission members. Thank
you.
Original Mailed: Yes __.x....___ No __ _
FOR OFFICE USE ONLY
CUENTCODI:: CUENTNAM.e: MATIER NAM!e~
CONFIDENTIALITY NOTICE
Toe documents aeeompanying tllis fACS!Mll.E lmlsmismon may contain confidentlel infonnation which is legally privileged, The infonnetlon is inlsnded 0nl\l for tha
use of the: indlvldulll or enilly ~med 11bove. lf yo11 axe not the Intended recipient or thB patrol\ respomi"ble for deliveril'IO it to the Intended recipient you am hereby no11fied that
any disd=a, copying, disalbuUon or use of 11m, of 1he infonnailon contained ln this 1ran,misslon iS strictly PROHISITED. If you have rec8iwd this 1ransmission In e1TOr, please
immediately notify \IS by telephone and mail the ortginlll lrllll5mlsslon to u.. Thank you,
JUN. 11. 2009 4: 07PM WORDEN WILLIAMS APC
June 11, 2009
Planning Commission
City of Carlsbad
1635 Faraday Avenue
Car1sbad, California 92008
Wayne and Felicia Brechtel
36 76 Monroe Street
Carlsbad, California 92008
NO. 3159 P. 2
Re: Proposed Changes to Nonconfonning Regulations for Buildings and Uses
Dear Members of the Commission:
We are the owners of a home on Monroe Street that was built in 1926. We love our old house,
but it qualifies as a nonconforming structure because it encroaches slightly into a side yard
setback. For this reason, our home falls within the residential, nonconforming structure category
that would be subject to the proposed regulations. We appreciate staffs effort to develop
regulations that "would encourage property owners to repair, update or replace nonconforming
residential structures .... ,, (Staff Report, p. 3.) However we feel the proposed regulations
would have the opposite affect Our focus is on the provisions that would apply to
nonconforming residential structures.
Current zoning regulations, allow limited expansion of homes, provided the structural
nonconformity is not increased. For example, Section 21.48.090 of the Zoning Ordinance,
provides that where the only nonconformity is a substandard yard (i.e,1 setback) the home can
be enlarged by up to 40%, provided such work does not increase the nonconformity. Some
years back, we relied upon this provision to build a small laundry room at the reQr of our house.
The laundi:y room did not violate any zoning regulations, was nowhere near the side yard
setback and was approved by way of a ministerial building process.
The proposed regulations would dramatically change the permit process for cur small laundry
room. The new regulations would add an entirely new discretionaxy pennit process that
includes: (1) additional fees, (2) written notice to all neighbors within 300 feet, and (3) a
planning director decision that includes a right of appeal to the Planning Commission. The
discretionary pennit process described above is an addition to the building permit and plan
review process that still exists for all home improvements.
Further, the current regulations are extraordinarily broad. The discretionary pennit process is
JUN.11.2009 4:07PM WORDEN WILLIAMS APC NO.3159 P. 3
Planning Commission
City of Carlsbad •
June 11, 2009
Page2
required for any ''expansion" of a nonconforming residential structure1 even the smallest, most
modest projects. There is no exception. We submit that the increased cost and uncertainty of
the discretionary pennit process would serve as a significant disincentive to small improvement
projects that help maintain the quality of Carlsbad's older neighborhoods.
We ask that the Planning Commission take a hard look at the proposed regulations to assess
whether they truly cany out their stated intent. Expanding options that encourage improvement
of older homes in Carlsbad is a worthy goal. However, it should not be done at the expense
of existing regulations that allow for modest improvement; without the time, expense and
uncertainty of a discretionary permit approval process.
We appreciate your consideration of these comments.
Very truly yours,
v~"~~
Wayne and Felicia Brechtel
ERRATA SHEET FOR ITEM #2
July 1, 2009
TO: PLANNING COMMISSIONERS
FROM: Chris DeCerbo, Principal Planner
SUBJECT: ZCA 09-01/LCP A-09-01 -NON-CONFORMING BUILDINGS AND
USES ORDINANCE
Staff recommends that ZCA 09-01/LCP A 09-01 be revised to include an amendment to
Section 21.45.090.A.2 (Planned Development Chapter -Residential additions and
accessory uses). Section 21.45 .090.A.2 currently specifies that buildings, which are part
of a Planned Development and are non-conforming due to inadequate setbacks, may -be
expanded by no more than 40%. This provision is consistent with existing Section
21.48.090 of the Non-Conforming Uses and Buildings chapter, which is proposed to be
amended and replaced with proposed Section 21.48.050. To ensure that the Planned
Development regulations remain consistent with the Non-Conforming Uses and
Buildings regulations, Section 21.45.090A.2 should be amended as proposed on the
attached "Exhibit A to Errata for Item #2."
Exhibit A to Errata for Item #2
Amend Zoning Ordinance Section 21.45.090A, as follows:
21.45.090 Residential additions and accessory uses.
A. General.
1. Additions and accessory uses shall be subject to all applicable development
standards of this chapter, unless otherwise specified in this section.
2. Enlargement of Additions to buildings that are legally non-conforming shall
comply with the requirements of chapter 21.48 of this code. by reason of inadequate
setbacks is permitted, provided that such enlargement does not increase the floor space more
than 40% of that existing prior to such enlargement, and that the new addition complies ,.~.,ith the
setbacks and lot coverage requirements of this chapter.
Barbara Kennedy
From:
-~t:
Wayne Brechtel [wayne@wordenwilliams.com]
Tuesday, June 30, 2009 3:53 PM
Barbara Kennedy
Cc: Felicia Brechtel
Subject:
Attachments:
RE: Nonconforming Ordinance Revisions
Section 21.48.050.C.2.doc
Good afternoon Barbara,
Thank you for e-mailing the revised language for review. We very much appreciate you assistance and willingness to
carry out the requested change. A redline document with some suggested changes is attached.
The only substantive change involves the phrase "may be waived" in the first paragraph. This phrase adds uncertainty
and begs the question of when something will or will not be waived. We suggest using the "shall not apply" language
used in existing Section 21.48.090. Please let us know if this change is acceptable.
The other changes are to help clarify that multiple small expansions cannot be used to get around the nonconforming
construction permit requirement. Feel free to use them or not as you deem appropriate.
Thanks again for all of your help.
D. Wayne Brechtel, Attorney at Law
Worden Williams, APC
462 Stevens Avenue, Suite 102
olana Beach, CA 92075
one: 858-755-6604
ax: 858-755-5198
e-mail: dwb@wordenwilliams.com
web site: www.wordenwilliams.com
************************************
Please Note: The information in this E-mail message is legally privileged and confidential information intended only for the
use of the individual(s) named above. If you, the reader of this message, are not the intended recipient, you are hereby
notified that you should not further disseminate, distribute, copy, or forward this E-mail message. If you have received this
E-mail in error, please notify the sender and delete the E mail from your records. Thank you.
*************************************
From: Felicia Brechtel
Sent: Tuesday, June 30, 2009 3:21 PM
To: Wayne Brechtel
Subject: FW: Nonconforming Ordinance Revisions
•
icia C. Brechtel, Land Use Paralegal
orden Williams, APC
462 Stevens A venue, Suite 102
Solana Beach, CA 92075
1
•
•
•
2. Where a single-family residential structure is nonconforming only by reason of
substandard yards, the provisions of this chapter requiring a nonconforming construction permit
for an expansion shall not applv.may be waived provided that:
a. The area of expansion is not more than 40% of the existing floor space
prior to the enlargement or a maximum of 640 square feet, whichever is less; and
b. The area of expansion. when combined ,:vith prior expansions of the
nonconforming structure. does not exceed 40% of the floor space that existed prior to anv
expansions or 640 square feet whichever is less.
hf. The area of expansion shall comply with all current development
standards including, but not limited to, setbacks, lot coverage and height limitations-:: and
eg. Expansions that exceed the limits of this exception shall require a
nonconforming construction permit.The provisions of thi:; exception shall not re:;ult in m1
expanuion or multiple expansions that exceed the maximum area of enlargement permitted by
lhfr; exemption .