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HomeMy WebLinkAboutZCA 09-01; Nonconforming Buildings & Uses Ordinance Revision; Zone Code Amendment (ZCA)The City of Carlsbad Planning Department A REPORT TO THE PLANNING COMMISSION Item No. P.C. AGENDA OF: July 1, 2009 Application complete date: N/A Project Planner: Project Engineer: Gary Barberio, Chris DeCerbo and Barbara Kennedy N/A SUBJECT: ZCA 09-01/LCPA 09-01 - NONCQNFORMING 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 LCPA 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 Page 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 version 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 1 Title 21 ZONING Chapters:- 21.48 Nonconforming—Buildings—and—Uses Nonconforminq Lots. Structures and Uses Chapter 21.04 DEFINITIONS 21.04.027 Alter. "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 Nonconforminq 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 Nonconforminq 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 lawfully 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 which 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment 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. 21.04.35S 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". Chapter 21.44 PARKING 21.44.010 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 tho 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 \page 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 coverage 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 width 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) Chapter 21.48 NONCONFORMING LOTS. STRUCTURES AND USES 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 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 Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 4 21.48.010 Purpose and intent. A., The purpose and intent of this chapter is to: 1- Allow for the development of nonconforminq 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. At 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. Au 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 5 1L A nonconforminq residential structure and/or nonconforminq 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. 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. Ci Expansion. li 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(6). "L Where a single-family residential structure is nonconforminq only by reason of substandard yards, the provisions of this chapter requiring a nonconforminq 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. [X 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 Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 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(6). 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 reguired 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(6) prior to the date of the demolition. 21.48.060 Nonconforming non-residential structures. A^ Specific Provisions. li 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. IL Repair or Alteration. L 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. 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 reguired 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(6). D. 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 reguired 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(6). E Voluntary Demolition and Subseguent Replacement. L A nonconforming non-residential structure that is proposed to be voluntarily demolished may be replaced subject to issuance of all reguired Draft Nonconforming Lots, Structures and Uses Zone Code Amendment 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(6) prior to the date of the demolition. 21.48.070 Nonconforminq non-residential uses. Ai 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. 2i 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. B. Repair or Alteration. 1L 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. 1L 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. IL 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). B 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. li 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment 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. Mi Reestablishment of a Nonconforming Use in the Event of a Disaster. ;L A nonconforminq 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). L 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. !_. 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(6) of this chapter. IL Findings of Fact. ^ 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(AU3) of this chapter. a 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 Draft Nonconforming Lots, Structures and Uses Zone Code Amendment 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 nonconforminq 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. EL 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(6) of this chapter are found to exist. F. Announcement of Findings and Decision. 1L Not more than twenty days following the termination of the proceedings for a nonconforminq 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; and. 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. hi 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 10 conditionally approve or deny is final. L 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. SL 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 nonconforminq 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. ^ 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 Nonconforminq 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. Bj Public Hearing Notice. ;T 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 Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underllne Version \page 11 expansions; and/or the installation of major equipment designed into the structure prior to the date of nonconformity. D. Hearing Decision. 1i 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. §1 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. li 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. <L 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 12 Chapter 21.48 NONCONFORMING BUILDINGS AND USES 21.48.010 Limitation on other uses. 21.48.020 Removal of nonconforming buildings or change in status of nonconforming use. 21.48.030 Application of chapter. 21.48.040 Nonconforming land use when no structure involved. 21.48.050 Nonconforming use of a conforming building. 21.48.060 Removal 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 21.48.100 Public utility exemptions. 21.48.010 Limitation on other uses. While a nonconforming use exists on any lot, no additional uso may be established thereon, even though such use would be a conforming use. (Ord. 9060 §1700) 21.48.020 Removal of nonconforming buildings or change in status of nonconforming use. If any nonoonforming 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 vacates 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 nonoonforming, 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 when no structured 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 Nonconforming use of a conforming building. (a) IN R ZONES. All nonoonforming 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 owner from the planning commission, or not later than five years from the date the provisions of this ordinance becomes applicable to it. (te) IN C ZONES. Every 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. (e) 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 § 170^1) 21.48.060 Removal 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 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 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: (4) If property is occupied by structures of a type for which the existing building ordinance does not require a building permit-One year; (2) Type A or Type 5 buildings (light combustible frame and wood frame)-- Forty years; (3) Type 2 or Type 3 buildings (heavy timber construction and ordinary masonry): (A) Apartments, offices, hotels or residences having stores or offices below and apartments or offices above Thirty-five years, (B) Warehouses, stores, garages, lofts Thirty five years, Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 14 (G) Factories and industrial—Forty-five years; Type 1 Buildings (fire resistant): -{A) Offices and hotels Forty-five years, -{B) Theatres' Fifty years, -(G) Warehouses, lofts, stores, garages Forty five years, -(O) Industrial-Thirty five years; -(b) - IN OZONES. -{4} - 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 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 A Building" and "Type 5 Building" are employed as defined in the existing building ordinance: (A) - Where property is unimproved except for structures of a type for which the existing building ordinance does not require a building permit One year, (B) - Type A or Type 5 buildings (light combustible frame and wood frame) -Forty years, (G) - 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 Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21,48 - Strike-out/Underline Version \page 15 (tt) Warehouses, stores, garages, lofts Thirty five years (Wi) Factories and industrial- Forty-five years -(O) Type 1 buildings (fire resistant): Offices and hotels-Forty five years Theatres Fifty years Warehouses, lofts, stores, garages--Forty five years Industrial -Thirty five years. -(e) - IN "M" ZONES. -ft-) - 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 nonoonforming 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 -(2) - 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 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 loss 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 A building", and "Type 5 building" are employed as defined in the existing building ordinance: - (A) - Where property is unimproved except for structures of a type for which the existing building ordinance does not require a building permit- One year, - (B) - Type 4 or Type 5 buildings (light combustible frame and wood frame) Forty years, - (G) - Type 2 or Typo 3 buildings (heavy timber construction and Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 16 ordinary masonry): (0 - Apartments, offices, hotels or residences having stores or offices below and apartments or offices above Thirty-five Warehouses, stores, garages, lofts Thirty-five years. Factories and industrial Forty-five years, Type 1 buildings (fire resistant): 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 conditions of abatement. When 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 which the nonconforming building was established. It shall also be the responsibility of the planning Gommission 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 therewith 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 facts as boar 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 nonconforming uses. fa) 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 \page 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 timo 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. (e) 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) 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; (2) 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 nonoonforming 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: (4-) 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; (2) The proposed alteration, improvement, reconstruction, restoration, repair or extension is of a type of structure that is specifically designed to be easily removed; (3) 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 \page 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 showing of good cause. A conditional use permit or amendment shall be effective 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 when nonconforming by reason of inadequate 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: - (4) - That such nonconforming structure may be enlarged or extended to the same degree of nonconformity as may exist but in no event 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 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 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 \page 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. 0060 §1709) Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strlke-out/Underline Version \page 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 Item No. P.C. AGENDA OF: June 17, 2009 Application complete date: N/A Project Planner: Project Engineer: Gary Barberio, Chris DeCerbo and Barbara Kennedy N/A 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 LCPA 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 Page 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 Page 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 Repair/Alteration Expansion Voluntary Demolition and Replacement Replacement after Destruction by Natural Disaster Nonconforming Residential Structure and/or Nonconforming Residential Use Req'd. Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits Nonconforming Non-Residential Structure Req'd. Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits NCP + Required Discretionary/ Bldg. Permits Nonconforming Non-Residential Use Req'd. Discretionary/ Bldg. Permits CUP + Required Discretionary/ Bldg. Permits CUP + Required Discretionary/ Bldg. Permits CUP + Required Discretionary/ Bldg. Permits ZCA 09-01/LCPA 09-01 - NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION June 17, 2009 Page 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 Page 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 Page 6 TABLE 2 - GENERAL PLAN COMPLIANCE ELEMENT GOAL, OBJECTIVE, POLICY OR PROGRAM ORDINANCE CONSISTENCY Land Use Introduce programs to revitalize all residential areas which are deteriorating or have a high potential of becoming deteriorated. The proposed ordinance amendment would encourage owners of a nonconforming structure to repair, replace, alter or expand the structure by eliminating the existing code restrictions that 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 Redevelopment Department (H&R Dept.) information on housing stock that is substandard and/or deteriorating. Identified structures will continue to be reported to the H&R Dept. for possible assistance under the City's rehabilitation and assistance programs. Nonconforming residential structures that are deteriorating may qualify for assistance under the City's existing programs for rehabilitation. The proposed ordinance amendment would provide the necessary flexibility to rehabilitate substandard and/or deteriorating residential structures. Housing Provide loans, rebates and other support to preserve the existing stock of low and moderate income rental housing. Priority will be given to housing identified by the Building Dept. as being sub-standard or deteriorating which houses families of lower income and in some cases moderate income. This program depends partially on outside funding from State and Federal sources. Many of the City's nonconforming residential structures and/or uses are located in areas of existing low and moderate income rental stock. The proposed ordinance amendment would preserve the existing housing stock by revising the current ordinance provisions that discourage the major renovation of a nonconforming residential structure and/or use. Property owners may be eligible for funds that would offset the costs of rehabilitation. ZCA 09-01/LCPA 09-01 - NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION June 17, 2009 Page 7 TABLE 2 - GENERAL PLAN COMPLIANCE CONTINUED ELEMENT GOAL, OBJECTIVE, POLICY OR PROGRAM ORDINANCE CONSISTENCY Housing Provide financial and processing incentives for the owners of lower income rental stock in need of rehabilitation and preservation. These incentives may include, but are not limited to: the deferral or subsidy of planning and building fees, priority processing and financial incentives such as low- interest rehabilitation and property acquisition loans. The proposed ordinance amendment would provide ministerial or administrative processes for the repair, alteration, expansion, or replacement of nonconforming residential structures or nonconforming residential uses as an incentive to encourage rehabilitation of lower income rental housing. However, any other required discretionary permits (i.e. Coastal Development Permit) would require approval by the Planning Commission. Housing Ensure that development and housing construction achieved through the use of modified codes and standards will reduce the cost of housing, and will retain quality design and architecture. The proposed ordinance requires an administrative Nonconforming Construction Permit for the expansion and/or replacement of a nonconforming residential structure, residential use, or non-residential structure; and a Conditional Use Permit for the expansion 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 Safety Enforce the Uniform Building Code and Fire Codes, adopted by the City, to provide fire protection standards for all existing and proposed structures. The proposed ordinance revisions require that any proposed repair, replacement, alteration, or expansion shall comply with all current fire protection and building codes contained in Title 17 and Title 18. 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 PageS 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-Defmitions, 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. LCPA 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 Page 9 any proposed modifications processed pursuant to the new provisions 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 PLANNING COMMISSION RESOLUTION NO. 6573 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING ADOPTION OF A NEGATIVE DECLARATION FOR A ZONE 4 CODE AMENDMENT AND LOCAL COASTAL PROGRAM 5 AMENDMENT TO: 1) REPEAL AND REPLACE THE NONCONFORMING BUILDINGS AND USES - CHAPTER 6 21.48 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04- 7 DEFINITIONS, 3) AMEND CHAPTER 21.46 -YARDS TO DELETE SECTION 21.46.210 AND 4) AMEND CHAPTER 8 21.44 - PARKING TO REVISE SECTION 21.44.010. 9 CASE NAME: NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION 10 CASE NO.: ZCA 09-01/LCPA 09-01 1! WHEREAS, the City of Carlsbad "Applicant," has filed a verified application 12 with the City of Carlsbad regarding property described as Citywide ("the Property"); and 13 WHEREAS, a Negative Declaration was prepared in conjunction with said 14 project; and 16 WHEREAS, the Planning Commission did on June 17, 2009, hold a duly noticed 17 public hearing as prescribed by law to consider said request; and 10 WHEREAS, at said public hearing, upon hearing and considering all testimony 19 and arguments, examining the initial study, analyzing the information submitted by staff, and 20 considering any written comments received, the Planning Commission considered all factors 21 relating to the Negative Declaration. 23 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning Commission as follows: 24 A) That the foregoing recitations are true and correct. 25 B) That based on the evidence presented at the public hearing, the Planning 26 Commission hereby RECOMMENDS ADOPTION of the Negative Declaration, Exhibit "ND," according to Exhibits "Notice of Intent (NOI)," and "Environmental Impact Assessment Form - Initial Study (EIA)," attached hereto 2g and made a part hereof, based on the following findings: Findings; 2 1. The Planning Commission of the City of Carlsbad does hereby find: 3 a. it has reviewed, analyzed, and considered the Negative Declaration for 4 NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION - 5 ZCA 09-01/LCPA 09-01, the environmental impacts therein identified for this project and any comments thereon prior to RECOMMENDING APPROVAL of 6 the project; and ' b. 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 9 c. it reflects the independent judgment of the Planning Commission of the City of 10 Carlsbad; and d. based on the EIA and comments thereon, there is no substantial evidence the project will have a significant effect on the environment. 13 PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning 14 Commission of the City of Carlsbad, California, held on June 17,2009, by the following vote, to wit: 16 AYES: 17 NOES:18 19 ABSENT: 20 ABSTAIN: 21 22 MARTELL B. MONTGOMERY, Chairperson 23 CARLSBAD PLANNING COMMISSION 24 n ATTEST:25 26 27 DON NEU Planning Director 28 PC RESO NO. 6573 -2- NOTICE OF INTENT TO ADOPT A NEGATIVE DECLARATION CASE NAME: Nonconforming Buildings and Uses Ordinance Revision CASE NO: ZCA 09-01/LCPA 09-01 PROJECT LOCATION: Citvwide 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 May 8. 2009 - June 7. 2009 PUBLISH DATE May 8. 2009 NEGATIVE DECLARATION CASE NAME: Nonconforming Buildings and Uses Ordinance Revision CASE NO: ZCA 09-01/LCPA 09-01 PROJECT LOCATION: Citvwide 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- Defmitions, 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: [X] The proposed project COULD NOT have a significant effect on the environment. I I 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). I | 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 to [CLICK HERE Administrative Approval, PC/CC Resolution No., or CC Ordinance No.] ATTEST: DON NEU Planning Director ENVIRONMENTAL IMPACT ASSESSMENT FORM - INITIAL STUDY (TO BE COMPLETED BY THE PLANNING DEPARTMENT) CASE NO: ZCA 09-01/LCPA 09-01 DATE: April 27. 2009 BACKGROUND 1. CASE NAME: NONCONFORMING LOTS. STRUCTURES AND USES ORDINANCE AMENDMENT 2. LEAD AGENCY NAME AND ADDRESS: City of Carlsbad - 1635 Faraday Avenue. Carlsbad. CA 92008 3. CONTACT PERSON AND PHONE NUMBER: Barbara Kennedy. Associate Planner - (760) 602-4626 4. PROJECT LOCATION: Citvwide - Not site specific 5. PROJECT SPONSOR'S NAME AND ADDRESS: Same as Lead Agency, above 6. GENERAL PLAN DESIGNATION: N/A - not site-specific 7. ZONING: N/A - 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. Rev. 11/17/08 ENVIRONMENTAL 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. Aesthetics Agricultural Resources Air Quality Biological Resources I I Cultural Resources Geology/Soils Hazards/Hazardous Materials Hydrology/Water Quality Land Use and Planning Mineral Resources J Mandatory Findings of Significance Noise Population and Housing Public Services Recreation Transportation/Circulation Utilities & Service Systems Rev. 11/17/08' DETERMINATION. (To be completed by the Lead Agency) XJ I find that the proposed project COULD NOT have a significant effect on the environment, and NEGATIVE DECLARATION will be prepared. 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. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. 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. 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 Planning Director's Signature Date 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", if a 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 if there 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. 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 EIA-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. Rev. 11/17/08 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? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 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? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact Rev. 11/17/08 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated 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. Less Than Significant No Impact Impact 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? 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 (O3), 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. 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: s • Is a regional air quality plan being implemented 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 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 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. Rev. 11/17/08 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact D 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 or U.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? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? 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 & f) - 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. Rev. 11/17/08 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 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? 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 loss, 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? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 10 -Rev. 11/17/08 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant Impact No Impact 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? 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? Potentially Significant Potentially Unless Significant Mitigation Impact Incorporated Less Than Significant No Impact Impact 11 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? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant Impact No Impact D 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? 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 & f) - 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 provide 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) Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant Impact No Impact El El 13 Rev. 11/17/08 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact n IEI k) Increased erosion (sediment) into receiving surface waters. (See Discussion of Environmental Evaluation) 1) 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 I I receiving water quality objectives or degradation of beneficial uses? (See Discussion of Environmental Evaluation) No Impact (a, b, c, d, e & 0 - 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 (1, 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. 11/17/08 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? Potentially Significant Impact D 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 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 D D 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 Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact n m 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 & f) - 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 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 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 of roads 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? 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. Less Than Significant No Impact Impact XIII. PUBLIC SERVICES a) Would the project result in 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 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 increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? 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 Mitigation Incorporated Less Than Significant No Impact Impact D El 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? f) Result in insufficient parking capacity? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact 18 Rev. 11/17/08 Potentially Significant Potentially Unless Less Than Significant Mitigation Significant No Impact Incorporated Impact Impact g) Conflict with adopted policies, plans, or programs F~ supporting alternative transportation (e.g., bus turn- outs, bicycle racks)? 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: LOS Rancho Santa Fe Road "A-D" El Camino Real "A-D" Palomar Airport Road "A-D" SR78 "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 1990). 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 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact El 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 in a determination by the wastewater treatment p'rovider, 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? f) 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? 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 Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less Than Significant No Impact Impact D 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? 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. 1. Final Master Environmental Impact Report for the City of Carlsbad General Plan Update (MEIR 93-01). City of Carlsbad Planning Department. March 1994. 2. Airport Land Use Compatibility Plan for McClellan Palomar Airport. Carlsbad, California, San Diego County Regional Airport Authority, as amended October 4, 2004. 3. Carlsbad General Plan, City of Carlsbad Planning Department, dated March 1994. 4. City of Carlsbad Municipal Code. Title 21 Zoning, City of Carlsbad Planning Department, as updated. 5. Carlsbad Local Facilities Management Zones 6. 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 1 PLANNING COMMISSION RESOLUTION NO. 6574 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF A ZONE CODE AMENDMENT TO: 1) 4 REPEAL AND REPLACE THE NONCONFORMING 5 BUILDINGS AND USES - CHAPTER 21.48 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED 6 ASSOCIATED DEFINITIONS IN CHAPTER 21.04- DEFINITIONS 3) AMEND CHAPTER 21.46 -YARDS TO 7 DELETE SECTION 21.46.210 AND 4) AMEND CHAPTER 21.44 - PARKING TO REVISE SECTION 21.44.010. CASE NAME: NONCONFORMING BUILDINGS AND 9 USES ORDINANCE REVISION CASE NO.: ZCA 09-01 11 WHEREAS, the Planning Director has prepared a proposed Zone Code 12 Amendment pursuant to Section 21.52.020 of the Carlsbad Municipal Code to amend the 13 Nonconforming Buildings and Uses (CMC 21.48) Chapter of the Zoning Ordinance; and 14 WHEREAS, the proposed amendment is set forth in the draft City Council 15 Ordinance, Exhibit "X," dated, June 17, 2009, and attached hereto ZCA 09-01 - 16 NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION; and 18 WHEREAS, the Planning Commission did on the 17th day of June, 2009, hold a 19 duly noticed public hearing as prescribed by law to consider said request; and 20 WHEREAS, at said public hearing, upon hearing and considering all testimony 21 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors 22 relating to the Zone Code Amendment. 23 24 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 25 Commission as follows: 26 A) That the foregoing recitations are true and correct. 27 B) That based on the evidence presented at the public hearing, the Commission 28 RECOMMENDS APPROVAL of ZCA 09-01 - NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION, based on the following findings: 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Findings: 1. That the proposed Zone Code Amendment ZCA 09-01 is consistent with the General Plan in that it provides a mechanism to encourage which are deteriorating or have a high potential includes procedures to review the architecture ensuring the quality and integrity of design and each neighborhood. revitalization of becoming of buildings enhancement 2. That the proposed ZCA reflects sound principles of good planning internal consistency with the procedures and standards of the Zoning Ordinance that is not proposed for amendment, and policies and programs of the General Plan. in residential areas deteriorated, and it with the focus on of the character of in that it (a) ensures rest of the existing (b) implements the PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Carlsbad, held on June 17, 2009, AYES: NOES: ABSENT: ABSTAIN: MARTELL B. MONTGOMERY, Chairperson CARLSBAD PLANNING COMMISSION ATTEST: DON NEU Planning Director PC RESO NO. 6574 -2- by the following vote, to wit: Exhibit "X" June 17,2009 1 ORDINANCE NO. 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A ZONE CODE 3 AMENDMENT TO: 1) REPEAL AND REPLACE THE NONCONFORMING BUILDINGS AND USES - CHAPTER 21.48 4 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED ASSOCIATED DEFINITIONS IN CHAPTER 21.04- 5 DEFINITIONS, 3) AMEND CHAPTER 21.46 -YARDS TO DELETE SECTION 21.46.210 AND 4) AMEND CHAPTER 21.44 - 6 PARKING TO REVISE SECTION 21.44.010. CASE NAME: NONCONFORMING BUILDINGS AND 7 USES ORDINANCE REVISION CASE NO.: ZCA 09-01/LCPA 09-01 8 The City Council of the City of Carlsbad, California, does ordain as follows: 9 SECTION I: That Title 21 of the Carlsbad Municipal Code is amended to read 10 as follows:11 Title 2112 ZONING 13 Chapters:14 21.48 Nonconforming Lots, Structures and Uses SECTION II: That Chapter 21.04 of the Carlsbad Municipal Code is amended to16 read as follows: Chapter 21.0418 DEFINITIONS 21.04.027 Alter. -, "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. 23 21.04.140.1 Expansion. 24 "Expansion" means to enlarge or increase the size of an existing structure or use 25 including the physical size of the property, building, parking and other improvements. 26 21.04.275 Nonconforming structure. 27 "Nonconforming structure" means a structure, or portion thereof, which was lawfully 2g erected or altered and maintained, but which, because of the application of this title to it, no 1 longer conforms to the current requirements and development standards of the zone in which it 2 is located. (Ord. 9060 § 254) 3 21.04.278 Nonconforming lot. 4 "Nonconforming lot" means a lot which was legally created, but which, because of the 5 application of this title to it, no longer conforms to the current requirements and development 6 standards of the zone in which it is located. 7 21.04.280 Nonconforming non-residential use. 8 "Nonconforming non-residential use" means a non-residential use which was lawfully 9 established and maintained, but which, because of the application of this title to it, no longer I 0 conforms to the current use regulations of the zone in which it is located. II 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 15 21.04.299.1 Repair. "Repair" means any improvements to correct deficiencies in a building or structure. 17 21.04.299.2 Replace. 1 8 "Replace" means to construct a structure that is substantially equivalent in size, shape 19 and location to a structure that has been destroyed or demolished. 21.04.354 Structure. 21 "Structure" means anything constructed or erected which requires location on the ground 99 or attached to something having a location on the ground, but not including fences or walls used 23 as fences six feet or less in height. All buildings are structures. 24 (Ord. 9060 § 269) 25 21.04.355 Substandard lot. See "Nonconforming lot". 27 //, 28 -2- 1 SECTION III: That Chapter 21.44 of the Carlsbad Municipal Code is amended to 2 read as follows: 3 Chapter 21.44 4 PARKING 5 21.44.010 Required off-street parking. 6 A. Off-street parking, designed in accordance with the requirements of this chapter, 7 shall be provided for: 8 1. All newly constructed buildings; 9 2. Additions to existing buildings, except for: 10 a. An existing single family residence which does not meet the required parking 11 standard (i.e. a two car garage) may expand floor area if a minimum of two off- 12 street parking spaces are provided on-site in a location consistent with Section 13 21.44.060(4). 14 3. Any change of use within an existing building. 15 SECTION IV: That Section 21.46.210 of the Carlsbad Municipal Code islo repealed. , 0 SECTION V: That Chapter 21.48 of the Carlsbad Municipal Code is repealed inlo 19 its entirety and reenacted as follows: 2Q Chapter 21.48 21 NONCONFORMING LOTS, STRUCTURES AND USES 22 Sections: 23 21.48.010 Purpose and intent. 24 21.48.020 Applicability. 25 21.48.030 General provisions. 25 21.48.040 Nonconforming lots. 27 21.48.050 Nonconforming residential structures and uses. 28 -3- 1 21.48.060 Nonconforming non-residential structures. 2 21.48.070 Nonconforming non-residential uses. 3 21.48.080 Nonconforming construction permit. 4 21.48.090 Abatement of nonconforming structures and uses. 5 21.48.010 Purpose and intent. 6 A. The purpose and intent of this chapter is to: 7 1. Allow for the development of nonconforming lots that were legally created. 8 2. Establish procedures for the abatement of structures and uses that do not 9 comply with all of the requirements and development standards of this title and which may be 10 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 14 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 1 structures subject to the regulations herein. 1 O 5. Permit the expansion or replacement of nonconforming uses subject to the 19 regulations herein. 20 21.48.020 Applicability. 21 A. The provisions of this chapter apply to: 22 1. Legally created lots which do not conform to the current requirements and 23 development standards of the zone in which they are located. 24 2. Legally constructed structures and site development features (except for 25 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. 27 /// 28 -4- 1 3. Legally established uses which do not conform to the current permitted use 2 regulations of the zone in which they are located. 3 21.48.030 General provisions. 4 A. It shall be the responsibility of the owner of a nonconforming lot, structure or use 5 to prove to the planning director that such lot, structure or use was lawfully established, existed 6 on the date of adoption or amendment of this chapter, and has existed continuously as defined 7 herein. 8 B. Nothing in this chapter shall be deemed to prevent the strengthening or restoring 9 to a safe condition of any structure or part thereof declared to be unsafe by any city official 10 charged with protecting the public safety, upon order of such official. Repairs and alterations 11 may be made to restore a structure to the same condition that existed prior to damage or 12 deterioration, provided that such repairs or structural alterations conform to the provisions of this 13 chapter. 14 21.48.040 Nonconforming lots. 15 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. 1 8 21.48.050 Nonconforming residential structures and uses. 1 Q A. Specific Provisions. 20 1. A nonconforming residential structure and/or nonconforming residential use may 21 be continued and the structure and/or use repaired, altered, expanded or replaced in 22 accordance with the provisions of this chapter provided that the repair, alteration, expansion or 23 replacement does not: 24 a. Result in an additional structural nonconformity; and, 25 b. Increase the degree of the existing nonconformity of all or part of such structure 26 or use (i.e. the addition of a new dwelling unit to an existing over density 27 residential use); and, 28 -5- 1 c. Reduce the number and size of any required existing parking spaces. 2 2. Any expansion of floor area or the addition of a new dwelling unit that results in 3 an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to 4 satisfy the increase in parking demand. 5 3. An existing single family residence which does not meet the required parking 6 standard (i.e. a two car garage) may expand floor area if a minimum of two off-street parking 7 spaces are provided on-site in a location consistent with Section 21.44.060(4). 8 B. Repairer Alteration. 9 1. A nonconforming residential structure and/or a structure which is occupied by a 10 nonconforming residential use may be repaired or altered subject to issuance of all required 11 discretionary and building permits, provided that the repair or alteration complies with all current 12 fire protection and building codes and regulations contained in Title 17 and Title 18. 13 C. Expansion. 14 1. A nonconforming residential structure and/or a nonconforming residential use 15 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 1 81 ° of fact pursuant to Section 21.48.080(6). 1 Q D. Replacement in the Event of a Disaster. 20 1. A nonconforming residential structure and/or nonconforming residential use that 21 is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to 22 issuance of all required discretionary and building permits and provided that an application for a 23 nonconforming construction permit is submitted within two years of the date of the disaster and 24 the planning director approves the findings of fact pursuant to Section 21.48.080(6). 25 E. Voluntary Demolition and Subsequent Replacement. 96 1. A nonconforming residential structure and/or nonconforming residential use that 27 is proposed to be voluntarily demolished may be replaced subject to issuance of all required 28 -6- 1 discretionary and building permits and provided that an application for a nonconforming 2 construction permit is submitted and the planning director approves the findings of fact pursuant 3 to Section 21.48.080(6) prior to the date of the demolition. 4 21.48.060 Nonconforming non-residential structures. 5 A. Specific Provisions. " 1. A nonconforming non-residential structure may be continued and the structure "I repaired, altered, expanded or replaced in accordance with the provisions of this chapter o provided that the repair, alteration, expansion or replacement does not: g a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure; 11 and, 12 c. Reduce the number and size of any required existing parking spaces. 13 2. Any expansion of floor area that results in an increase in parking demand, 14 pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking 15 demand. 16 B. Repair or Alteration. 17 1. A nonconforming non-residential structure may be repaired or altered subject to 18 issuance of all required discretionary and building permits, provided that the repair or alteration 19 complies with all current fire protection and building codes and regulations contained in Title 17 20 and Title 18. 21 C. Expansion. 22 1. A nonconforming non-residential structure may be expanded, so as to occupy a 23 greater area of land or more floor area subject to issuance of all required discretionary and 24 building permits and provided that an application for a nonconforming construction permit is 25 submitted and the planning director approves the findings of fact pursuant to Section 26 21.48.080(6). 27 28 -7- 1 D. Replacement in the Event of a Disaster. 2 1. A nonconforming non-residential structure that is destroyed by fire, explosion, or 3 other casualty or natural disaster, may be replaced subject to issuance of all required 4 discretionary and building permits and provided that an application for a nonconforming 5 construction permit is submitted within two years of the date of the disaster and the planning 6 director approves the findings of fact pursuant to Section 21.48.080(6). 7 E. Voluntary Demolition and Subsequent Replacement. 8 1. A nonconforming non-residential structure that is proposed to be voluntarily 9 demolished may be replaced subject to issuance of all required discretionary and building 10 permits and provided that an application for a nonconforming construction permit is submitted 1 1 and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to 19^ the date of the demolition. IT1J 21.48.070 Nonconforming non-residential uses. 14 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 18 the repair, alteration, expansion or replacement does not: 19 a. Increase the degree of the existing nonconformity of all or part of such structure 20 or use; and, 21 b. Reduce the number and size of any required existing parking spaces. 22 2. Any expansion of a non-residential use and/or structure which is occupied by a 23 nonconforming non-residential use that results in an increase in parking demand, pursuant to 24 chapter 21.44, shall provide additional parking to satisfy the increase in parking demand. 25 26 /// 27 /// 28 -8- 1 B. Repair or Alteration. 2 1. A structure which is occupied by a nonconforming non-residential use may be 3 repaired or altered subject to issuance of all required discretionary and building permits, 4 provided that he repair or alteration complies with all current fire protection and building codes 5 and regulations contained in Title 17 and Title 18. 6 C. Expansion of Use. ' 1. A nonconforming non-residential use may be expanded, so as to occupy a o0 greater area of land or more floor area within a structure, subject to issuance of all required Q 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 11 21.42.030(A). 12 D. Relocation. 13 1. A nonconforming non-residential use may be moved, in whole or in part, to any 14 other on-site structure, or to any other portion of the structure, lot or site within or upon which it 15 is located, subject to issuance of all required discretionary and building permits and provided 16 that an application for a conditional use permit is submitted and the planning commission 17 approves the findings of fact pursuant to Section 21.42.030(A). 18 E. Change of Use. 19 1. A nonconforming non-residential use may be changed to a use that is permitted 20 in the zone in which the subject property is located, or may be changed to a use that is more 21 conforming, subject to approval of the planning director and the issuance of a business license. 22 F. Replacement of Use. £ J 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 26 in any other manner increase the degree of nonconformity with the use regulations of this title. 27 III 28 -9- 1 G. Discontinuance. 2 1. If a structure or parcel of land which is occupied by a nonconforming non- 3 residential use is, or hereafter becomes vacant and remains unoccupied either temporarily or 4 permanently, whether with the intent to abandon the use or not, for a continuous period of one 5 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. o H. Reestablishment of a Nonconforming Use in the Event of a Disaster. 9 1. A nonconforming non-residential use that is destroyed by fire, explosion, other 10 casualty or natural disaster, may be reestablished subject to issuance of all required 11 discretionary and building permits and provided that an application for a conditional use permit 12 is submitted within two years of the date of the disaster, and the planning commission approves 13 the findings of fact pursuant to Section 21.42.030(A). 14 I. Voluntary Demolition and Subsequent Reconstruction. 15 1. A nonconforming non-residential use that is proposed to be voluntarily 16 demolished and subsequently reconstructed, may be reestablished subject to issuance of all 17 required discretionary and building permits and provided that an application for a conditional use 18 permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A) prior to the demolition. 20 21.48.080 Nonconforming construction permit. 21 A. Authority.22 1. The planning director or his designee may approve, conditionally approve or ?4 deny a nonconforming construction permit as prescribed in this chapter, upon making the 25 findings of fact listed in Section 21.42.080(6) of this chapter. 26 /// 27 /// 28 -10- 1 B. Findings of Fact. 2 1. A nonconforming construction permit shall be granted only if the following facts 3 are found to exist in regard thereto: 4 a. The expansion/replacement of the structure and/or use would not result in an 5 adverse impact to the health, safety and welfare of surrounding uses, persons or 6 property. 7 b. The area of expansion shall comply with all current requirements and 8 development standards of the zone in which it is located, except as provided in 9 Subsection 21.48.050(A)(3) of this chapter. 10 c. The expansion/replacement structure shall comply with all current fire protection *1 and building codes and regulations contained in Title 17 and Title 18. 1 9 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. 16 1. Application for a nonconforming construction permit may be made by the owner 17 of the property affected or the authorized agent of the owner. Application shall be made in 18 writing on a form provided by the planning department. The application shall state fully the 19 circumstances and conditions relied upon as grounds for the application and shall be 20 accompanied by adequate plans, a legal description of the property involved and all other 21 materials as specified by the planning department. 22 2. At the time of filing the application, the applicant shall pay a processing fee in an 23 amount as specified by city council resolution. 24 D. Notices. 25 1. Upon the filing of an application for a nonconforming construction permit, the26 planning director shall give written notice by mail or personal delivery to the project applicant, 28 -11- 1 the owner of the subject real property or the owner's duly authorized agent and to all property 2 owners as shown on the latest equalized assessment roll within three hundred feet of the 3 subject property at least fifteen days prior to a decision on the application. 4 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, 10 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. 12 The hearing is not a formal public hearing. b. An application for a nonconforming construction permit may be approved, 14 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 18 the findings of fact in Section 21.48.080(8) of this chapter are found to exist. 19 F. Announcement of Findings and Decision. 20 1. Not more than twenty days following the termination of the proceedings for a 21 nonconforming construction permit, the planning director shall announce his/her findings by 22 letter. The letter shall recite, among other things: 23 a. The facts and reasons which, in the opinion of the planning director, make the 24 granting or denial of the nonconforming construction permit necessary to carry 25 out the provisions and general purpose of this title; 26 b. That the nonconforming construction permit be granted or denied; and, 27 28 -12- 1 c. If the letter orders that the nonconforming construction permit be granted, it shall 2 also recite such conditions and limitations as the planning director may impose. 3 G. Mailing of Notice of Decision. -4 1. Not later than seven days following the announcement of a decision ordering that 5 a nonconforming construction permit be granted or denied, a copy of the letter shall be mailed to 6 the applicant at the address shown on the application filed with the planning director. 7 H. Appeals. o 1. In the case of nonconforming construction permits, the action of the planning 9 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. 12 1. Expiration of Permit if Not Exercised. a. Any nonconforming construction permit becomes null and void if not exercised 14 within twenty-four months of the date of approval. 2. Extension of Permit if Not Exercised. 16 a. Not more than ninety days or less than forty-five days prior to the expiration of a 17 nonconforming construction permit the permittee may apply to the planning 18 director for an extension of the permit. The planning director may extend the 19 time, without public notice, within which the right or privilege granted under a 20 nonconforming construction permit must be exercised for one additional year 21 upon receipt of a written request from the applicant prior to the expiration of such 22 nonconforming construction permit. In granting such extension the planning 23 director shall make a written finding that neighborhood conditions have not 24 substantially changed since the granting of such nonconforming construction 25 permit. 26 ///27 /// 28 -13- 1 J. Amendment. 2 1. Any approved nonconforming construction permit may be amended by following 3 the same procedure as for approval of a nonconforming construction permit and upon payment 4 of the application fee contained in the most recent fee schedule adopted by the city council. 5 21.48.090 Abatement of nonconforming structures and uses. A. If a nonconforming use and/or structure is determined by the planning director to 7 be adverse to the orderly development of the city and/or to the public health, safety, or welfare o of persons or property, the planning director shall schedule a public hearing by the planning o 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. 13 2. For all Non-Residential Uses. 14 a. Not less than one or more than ten years. 3. For all Nonconforming Structures. 16 a. Not less than three years or more than twenty-five years. 17 4. Nothing in these provisions shall preclude abatement of a nuisance pursuant to 18 Section 6.16.150 of the Carlsbad Municipal Code. 19 B. Public Hearing Notice. 20 1. Notice of said public hearing shall be given as required by Section 21.54.060. 21 C. Public Hearing Evidence. 22 1. The planning commission shall consider at the public hearing, all pertinent data 23 to enable it to arrive at an equitable abatement period which will protect the public health, safety 24 or welfare of persons or property, yet will allow the owner of record, or lessee if applicable, to 25 amortize their investment so that any loss will be minimized. 26 B. The owner or lessee shall be allowed to present any evidence related to the case. 27 28 -14- 1 C. When setting the abatement period, the planning commission shall take into 2 consideration the type of construction, age, condition, and extent of nonconformity of the 3 structure or use in question; any structural alterations or expansions; and/or the installation of 4 major equipment designed into the structure prior to the date of nonconformity. 5 D. Hearing Decision. 6 1. After the close of the public hearing, the planning commission shall determine 7 and establish by resolution the abatement period, and shall set forth in said resolution all 8 findings and facts upon which the date of such abatement period is based. 9 E. Notice of Decision to Owner. 10 1. The secretary of the planning commission shall formally notify the owner of the 11 property of the action of the planning commission by mailing a copy of the resolution, via 1 T certified return receipt mail, within ten days following the date of its adoption by the planning 13 • •commission. 14 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. 17 G. Recordation. 18 1. The secretary of the planning commission shall transmit a final signed copy of 19 the resolution of the planning commission or city council, whichever is final, to the County 20 Recorder of San Diego for recordation. 21 EFFECTIVE DATE: This ordinance shall be effective thirty days after its 22 adoption, but not until approved by the California Coastal Commission and the City Clerk shall 23 certify to the adoption of this ordinance and cause it to be published at least once in a 24 publication of general circulation in the City of Carlsbad within fifteen days after its adoption. 25 26 /// 27 III 28 -15- 1 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City 2 Council on the day of 2009, and thereafter. 3 PASSED AND ADOPTED at a regular meeting of the City Council of the City of 4 Carlsbad on the day of 2009, by the following vote, to wit: 5 AYES: 6 NOES: 7 ABSENT: 8 ABSTAIN: 9 10 APPROVED AS TO FORM AND LEGALITY 11 12 n RONALD R. BALL, City Attorney 14 15 CLAUDE A. LEWIS, Mayor 16 ATTEST: 18 19 LORRAINE M. WOOD, City Clerk 20 (SEAL) 21 22 23 24 25 26 27 28 -16- 1 PLANNING COMMISSION RESOLUTION NO. 6575 2 A RESOLUTION OF THE PLANNING COMMISSION OF THE 3 CITY OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF AN AMENDMENT TO THE IMPLEMENTING 4 ORDINANCE OF THE CARLSBAD LOCAL COASTAL - PROGRAM (TITLE 21 - ZONING) TO: 1) REPEAL AND REPLACE THE NONCONFORMING BUILDINGS AND USES 6 - CHAPTER 21.48 OF THE ZONING ORDINANCE, 2) INCLUDE NEW AND AMENDED ASSOCIATED 7 DEFINITIONS IN CHAPTER 21.04- DEFINITIONS, 3) AMEND CHAPTER 21.46 -YARDS TO DELETE SECTION 21.46.210 8 AND 4) AMEND CHAPTER 21.44 TO REVISE SECTION 9 21.44.010. CASE NAME: NONCONFORMING BUILDINGS AND 10 USES ORDINANCE REVISION CASE NO: LCPA 09-01 11 WHEREAS, California State law requires that the Local Coastal Program, 13 General Plan, and Zoning designations for properties in the Coastal Zone be in conformance; and 14 WHEREAS, the City of Carlsbad, "Applicant," has filed a verified application 15 for an amendment to the Local Coastal Program implementing ordinance; and WHEREAS, said verified application constitutes a request for a Local Coastal 17 Program Amendment as shown on Exhibit "X" dated June 17, 2009, attached to Planning 18 Commission Resolution No. 6574 and incorporated herein by reference, as provided in 2Q Public Resources Code Section 30514 and Section 13551 of California Code of Regulations Title 21 14, Division 5.5; and 22 WHEREAS, the Planning Commission did on June 17, 2009, hold a duly noticed 23 public hearing as prescribed by law to consider said request; and 24 WHEREAS, at said public hearing, upon hearing and considering all testimony 25 and arguments, if any, of all persons desiring to be heard, said Commission considered all factors26 27 relating to the Local Coastal Program Amendment; and 28 WHEREAS, State Coastal Guidelines requires a six-week public review period for any amendment to the Local Coastal Program. 1 NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 2 Commission of the City of Carlsbad, as follows: 3 A) That the foregoing recitations are true and correct. 4 <. B) 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. 7 C) That based on the evidence presented at the public hearing, the Commission RECOMMENDS APPROVAL of NONCONFORMING BUILDINGS AND 8 USES ORDINANCE REVISIONS - LCPA 09-01 based on the following findings, and subject to the following conditions: 10 Findings; 11 1. 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 14 to discretionary review and a Coastal Development permit to ensure consistency with Local Coastal Program Policies. 15 2. 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 , 7 Ordinance. 18 19 20 21 22 23 24 25 26 27 28 PC RESO NO. 6575 -2- 1 PASSED, APPROVED, AND ADOPTED at a regular meeting to the Planning 2 Commission of the City of Carlsbad, held on June 17,2009, by the following vote, to wit: 3 AYES: 4 5 NOES: 6 ABSENT: 7 ABSTAIN: 8 9 10 MARTY B. MONTGOMERY, Chairperson CARLSBAD PLANNING COMMISSION 12 13 ATTEST: 14 15 DON NEU Planning Director n" 18 19 20 21 22 23 24 25 26 27 28 PC RESO NO. 6575 -3- LU S Q ZLU O a:ngsng Uses and Bu| ou o SiJ2 T^re CMh~ i-aQ.re O O 0) re E3 (0 gO re O •D "5" w a, S wco • c °*CD OOJ 3 S!to -s =esidentia•S ™(0 «^ S? 3 §1 s « ni a = aisS-lf D5 = T30) ro •5 c re O J3 Q> ~, .E 0 _ S £ .C o> n 1*1111 "Iw g>X ?lg >I §O -0 «3c: a 2 CO i= fl><- «- a,o o re f^o o^!2 III-is 0 ^c y-5^2.2s&«l^ iisHii ! iii ll!ill l!N 3= » .E m Hiill E"OCD.C-CC m IPil! 0.c E c ~ g 0S re co ^ 0 0) -3 S|«|c o£c c " CO <= °0 7^ S c « g > Q. c a. -o HcoOc0>o2:Q. O 0 C O 0)'to "o co 0Q. >X O 0 —- a •M-+-» c ^§ '(0 °Q. c JU 'S 0 ^_t (/) QJ 1— "^ t: ll .P fll C! ^O0> co "o^ CL'W< P 0 o^ "if ! ! t 0 to0 0co i> CDI to CDQ. O)C:§ '3•Q CD £ CD CD £ •+-1CD I .8 •«w CD E&1 5 1 EoO CD£ £ •QCD JB .to CD JP CCD ICD o CO LU OL LU O Q CL O CO LU CO =) Q < CO =! o ID ^ OQ a, O O) _,, CO? Q. Oo eno <Q. O a>o < ON Table A (continued)o Chapter 21.48 - Nonconforming Uses and Buildings•4-1 tn£c0) E^jc 0> < 0 £•re E Z3(0 Existing Ordinance/Proposed Ordinance Comparison^o> E•oc0) < •o0>(/)oQ.2Q. O rent ordinance limits the percentage to which a nonconforming nonresidential use or buildingepaired or altered to a percentage (%) of the buildings replacement value*. The proposedce does not limit the value of repairs or alterations. However, no additionalformities may be created.The current ordinance (Section 21. 48. 080. c) allows nonconforming nonresidential uses orbuildings to be reconstructed, repaired, or rebuilt if damaged due to ordinary wear providedthat the aggregate value of such repairs does not exceed more than 10% of its replacementvalue. The proposed ordinance (Section 21.48.060.B and 21.48.070.B) would allow forthe repair or alteration of nonconforming non-residential structures and uses subject tapproval of all required discretionary and building permits.c »- c c=3 o> re o 0 J3 c 0 < CD c '-B c x: m £- oI- o 0 c DlC £ 8 0c *r </>O 0._ i— 1*2 1 CD Injfi (/> "co T3 •g m ro cS•— $a"CD CD *- '43 CD Cjz 0)•" T3 £'cS 5 7o c< i CN w •£ «? -^rent ordinance limits the percentage to which a nonconforming use can be expanded to aage (%) of the buildings replacement value*. The proposed ordinance does not limit thef the expansion. However, no additional nonconformities may be created.The current ordinance (Section 21.48.060) requires the abatement of nonconforming buildingThe abatement period varies depending on the zone and type of construction. The abatemerprovisions have rarely been invoked by the City. The proposed ordinance (Sections21.48.050.C and 21.48.060.C) would allow for the expansion of nonconformingstructures (residential and non-residential, respectively) subject to approval of aNonconforming Construction Permit and all required discretionary and building permitThe area of expansion would need to observe current setback requirements, and mustcomply with all other regulations (for example lot coverage, parking requirements, etc.^ 13 Q3 C °O CD 0> <• Q) y =-c CD reI- Q. > cro S3 CD CD „.- O)The current ordinance (Section 21.48.090) allows for the expansion of structures when theyare nonconforming due to inadequate setbacks (yards) by a ministerial building permit. Theregulations specify that the enlargement may not increase the floor area more than 40% of thexisting floor area (prior to the expansion) and that the structure can observe the same degreof nonconformity as may exist, so long as it is not closer than three feet to a side property line10 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 nonconforminstructures (residential and non-residential, respectively) subject to approval of anadministrative Nonconforming Construction Permit and all required discretionary andbuilding permits. The area of expansion would need to observe current setbackrequirements, and must comply with all other regulations (for example lot coverage,parking requirements, etc.).CD .»_; £ CDQ_ r—•o oc: •*=CD Oo ^x i=CD 0 (/) 23 -*— *O2 (0 V)do O D) ^£ *^— ^8 E £c 0 ^< cO CD>'•*-»2 to 'c E-^\JCO CO d by the Community Development Director at the time the building permit is applied for.^FORMING BUILDINGS AND USES ORDINANCE REVISIONPage 2 of 6CD 7ZC O P 05 z CD O•is >— ' •S z O ! (0 ,- S 93 O>15 o § <t± n^ LJ_ CD OS daS T—u 5CD '•-r C}S- °£ d* oN Table A (continued)to Chapter 21.48 - Nonconforming Uses and Buildingsj2c0) "Oc0> E <g^^t reEE3V)Existing Ordinance/Proposed Ordinance Comparison"c0> E•oc0) E ^f^^ •O0> OQ.2 0. •n"rrent ordinance limits the percentage to which a nonconforming use can be repaired, replace!or expanded to a percentage (%) of the buildings replacement value*. The proposednee does not limit the value of repairs or alterations. However, no additional13 T3 «0 0 C Q) Q) IQ H "TO O nformities may be created.oucoc £"TO The current ordinance (Section 21. 48. 080. c) allows nonconforming uses or buildings to bereconstructed, repaired, or rebuilt if damaged due to ordinary wear provided that the aggregvalue of such repairs does not exceed more than 10% of its replacement value. TheCO proposed ordinance (Section 21.48.070.B) would allow for the repair or alteration ofnonconforming non-residential uses subject to approval of all required discretionaryand building permits.The current ordinance (Section 21. 48. 080. b.) allows nonconforming uses or buildings to beO o replaced only if destroyed to the extent of not more than 25% of its replacement value. Theproposed ordinance (Section 21.48.070.H and I) would allow for the replacement (duedamage or voluntary demolition) of nonconforming non-residential uses subject toapproval of a Conditional Use Permit and all required discretionary and buildingpermits.c 03 r-ft The current ordinance (Section 21 .48.080(d)) allows a nonconforming use or building to bealtered, improved, reconstructed, repaired, or extended as may be permitted by the PlanninjCommission upon approval of a Conditional Use Permit (CUP) provided that such work shainot exceed more than 25% of its replacement value and the improvement is designed to beeasily removed. The aggregate value may be increased up to 50% of the total replacementvalue for uses which provide a public service traditionally provided by the City. (Section21.48.070.C) would allow for the expansion of nonconforming non-residential usessubject to approval of a Conditional Use Permit and all required discretionary andbuilding permits.D The proposed ordinance (Section 21.48.070) contains additional provisions fornonconforming non-residential uses that relate to non-structural changes includingrelocation, change of use, replacement of use, and discontinuance.UJ Q. ^NQ) 0 V)0)V) (U "c ;g CD iCoc O .—E £"c8 coc _g ,*^c L_ 0 Q- U) =3 "roc.0 U-» T3 C00 ^5d by the Community Development Director at the time the building permit is applied for.MJ •5 ^.20}"^3 Q) § HNJ C0Eo0 •2Q. ffi jt- O CO&cc. LLJ O Q OL O COUJ COID Q Z < COO IscoCO D)roQ. a:O OOzOz 9O)O<0_O a>o N nd Buildingsnforming Uses aTable A (continued)hapter21.48 - NoncoOo*J "c 0> E ^3« 0) E ^ 0 ^reE E 3 V)iposed Ordinance Comparisong Ordinance/PrcExistin^ q>E co> ** 0>(0oaoi_a. .c °*-Q cCB icludes a complicated abatement process whuse or building is located, the type of use beijing. The proposed ordinance (Sectionabate a legal nonconforming use or structless than 1 or more than 5 years for all:han 10 years for all non-residential uses; ;all nonconforming structures.ill! 0 c i= >0 0 <£ f.c: ci 0)CO §? O (/) ^ ? 0 Q. Q) .g -fg ^_ I— > CD S ,c >-o cu |fl includes an abatemeilential uses; not lessess than 3 or more th"° w *' re S! c c c? "ro 5 CU O 03 w0 ~ "ro ^ 0 ^^ H.2* 2|- 1o, O y) 0 ^ *j ^0 ~£ §cu bw ><^0 ei 8 CD S CO^M0T3 •«, 0) (0 £ £ 9J 9>= _Hows the Planning Commission to determineinance (Section 21.48.090) provides a procatted in a manner that is similar to the moiOrdinance. The process itself is essentiaPlanning Commission has the authority torough a public hearing process.W-E E <Po>£o" o £.££*,° TJ -2 5 * c 0 «-Di8 « coo w c N •= E 2J5I2* ^lfS8«•5 9 % e 8 o current ordinance (Seclitions of abatement. Tlibatement that is struntly amended chaptee as the previous prormine the conditionsTD re o> c 0)co c i_ o c *- f SfiiSS • (/> 8o Q. •£ CO£ CD+->cojoco c CO o>-a~~l "o CD LU C£ 111 O Q LLI CO=> Q CO O ZQ£d o=> ^1-CQ 0 O O) Q. o:o oozOz 9 0>o<0- O (35O ON CO? CO 1 «0 2 CM Table BAmendments to Chaptei"o reEE3CO o CM to CM C_o "5 0> COo4-* OT0) D) re 0 CoCO reQ. O0 u>ucrec 1 O a>OToaQ Q- "3ucre ^3 O O)c'X5 'x HI 4-» Ca> ET3C I U woaoL.a. a>u 18 a>E ^ ill!— •- 52-5 * o = o>w N o .E C Q) ""• C0 X- CD £ !ffi 2! ~ £!&!§ _ 'Q.'C c "(5 re O 2 £ O o ° § « |i?l 5 •- «2 ^= £ c a>o > o -oOT S -j; c«•• ^^^ *^ "^owe3 o Q) **Z (/> ^=^8TT ^ B (0 • •H ^j *£ (/) a W-S E3 -o _3 3 " ™. E -5 ° ~ a) -g <u 2 Relocating this section vnonconformities (lots, u;The proposed amendme21 .04.278) and defines tldeveloped (Section 21.41.*-• D) C §^~^C COo o o> c o o ^ o co ° 2 ° E ^ coO ' -f-. 2 ^ CN cd) £ c ro t8 .1 o g 0) .$£ o co^i ^ ^ ~~j "m O CO £ Q-O J2 w <u ^^ o _§ "E ™•,/) i= ro .— i.|g| ? ^ CD " < 03 CN S- -Table Cents to Chapter 21.04 - Definitions£ •o 0> E •5 reE E 3 CO o 0) re O ^ U)cre O Co Existing Ordinance/Proposed Ordinance Comparis4-1 0 E•o 0) E •o0) 0a0ha. 4- OTa>ore a £ •o re 0)Deletes the following definition: 21.04.280 Nonconforming us< O)c p NonconforiT-00CM with 21.04.280 Nonconforming non-residential use and 21.04.re on-residentc CO residential use to clarify the distinction between residential vuses.ctures3 ll\Amends the following definitions: 21.04.275 Nonconforming :CD •oc«"ing" with the ordinance2 £ '5 £(previously Nonconforming buildings) to replace the word "bword "structure" in order to maintain consistency throughourenumbers section 21.040.355 Structure to 21.04.354.L_ g c o03 • "2 CNas'E Q- *• ^•D O _Q) O So "o-.ES- w 03 c "m O |1 ^ 0O £ .£ 0! 1- 05 O C O'OT reQ. XUJ o ?Includes the following new definitions: 21.04.027 Alter; 21.04.d Q)W 3 CM 0) TJ 2 °.'55 •«-0) CM 21.04.278 Nonconforming lot; 21.04.280 Nonconforming non-21.04.281 Nonconforming residential use; 21.04.299.1 Repair;. Jp C•§•o ~re "o 2 re Replace; and 21.04.355 Substandard lot, to ensure that termsco zo UJ UJO <z Q O COUJ CO COOz CD 0 fn D) ^ 03? CL ^o:o oo o o D. O o>o<ON O)Table DAmendments to Chapter 21.44 - Parkin"5 fcre EE3 (O 5 VCM i_ 2Q.re £O 2 (00> 0) re£ O c O.2*wma E 00 0)ocrec P O •oa></>oa.oL.a.Existing Ordinance/4^ C0) ET3 (DE<•o0)V)oa 2a. m .. C00 -.2o ;= o> *•c : ro 0) «(D i— IB O-o o 2 o55 o i_ re — $5= 0 0>£ ^ TH "- «- ."S>•= 5 S SE o o V*t 4= — o C45 T3 re 5 o> « «2$ »0)H- 3 ™ WC 0 O « C <7> *-• S * O10 0 > re oTO ,0 S5JC a.•s «a«S C m ^ C <P« ro tf *™ 'O 3 ^ m Cw cro S o C W g 0 Tjro o °. -o «9-0 co Z. -SX ff) ^ £ .Si0 *. Z .y >0 O ^ ^ O £ E^ 3 a w 2 c a> a>"o E « o !=•c •§ o c m w ro° « gm ^ O ^ Q)2 E x •- o^-~. m 3 S re3- ro ^ a> ™The current ordinance (Section 21.44.01which does not have a two-car garage toThe proposed ordinance (Sections 21,unlimited additions to a single family ia minimum of two off-street parking s|provisions of the Parking Ordinance.isro o75_0) ** m "OW Jj*.E 2 </> -.3 rn O"? 0.= c- . w roxa5 0 o ro*-• ^m *-•c oo t= '% °73 -a ^ro ^:o "S Z.-i 5 E m'•= 0 5 "S 0'|lro° — "> m—3 m TO< H: o) . a> g CO LU Dd LU O o COLUCOz> Q COo I? 13 CD 00 0)(•n O> ^ ro oo•z.o o>o <Q.O O)o<ON Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 1 Title 21 ZONING Chapters: 21.48 Nonconforming—Buildings—and—Uses Nonconforming Lots. Structures and Uses Chapter 21.04 DEFINITIONS 21.04.027 Alter. "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. "Nonconforminq 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 lawfully 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 which 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 2 21.04.281 Nonconforming residential use. "Nonconforminq 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. 21.04.355 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". Chapter 21.44 PARKING 21.44.010 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 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 \page 3 Chapter 21.46 YARDS 21./16.210. Substandard Lots When a lot has less than the minimum required area or width as set forth in any of tho 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 tho minimum lot area or width as set forth in such zone or precise plan.—The lot area por 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. 0060 § 1620) Chapter 21.48 NONCONFORMING LOTS. STRUCTURES AND USES Sections: 21.48.010 Purpose and intent. 21.48.020 Applicability. 21.48.030 General provisions. 21.48.040 Nonconforminq lots. 21.48.050 Nonconforminq residential structures and uses. 21.48.060 Nonconforming non-residential structures. 21.48.070 Nonconforming non-residential uses. 21.48.080 Nonconforminq construction permit. 21.48.090 Abatement of nonconforming structures and uses. 21.48.010 Purpose and intent. A. The purpose and intent of this chapter is to: 1. 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underllne Version \page 4 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 nonconforminq 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 nonconforminq 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). Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 5 6. 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. Ci Expansion. h A nonconforming residential structure and/or a nonconforminq 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(6). D. Replacement in the Event of a Disaster. L 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(6). 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(6) prior to the date of the demoiition. 21.48.060 Nonconforming non-residential structures. AI 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. 6. Repair or Alteration. 1^ A nonconforming non-residential structure may be repaired or altered subject to issuance of all reguired 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 6 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(6). 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(6). B 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(6) prior to the date of the demolition. 21.48.070 Nonconforming non-residential uses. AI Specific Provisions. ;L A nonconforminq 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. 6^ Repair or Alteration. 1. A structure which is occupied by a nonconforming non-residential use may be repaired or altered subject to issuance of alt 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 — Strike-out/Underline Version \page 7 1. A nonconforminq 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 nonconforminq 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 nonconforminq 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. Gi 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. hL 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. T. A nonconforminq 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(6) 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: Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 8 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 nonconforminq 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 nonconforminq 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(6) 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: Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21,48 - Strike-out/Underline Version \page 9 a. The facts and reasons whfch. 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 nonconforminq construction permit be granted or denied: and. 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 10 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. Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 11 Chapter 21.48 NONCONFORMING BUILDINGS AND USES 21.48.010 Limitation on other uses. 21.48.020 Removal of nonconforming buildings or change in status of nonconforming use. 21.48.030 Application of chapter. 21.48.040 Nonconforming land use when no structure involved. 21.48.050 Nonconforming use of a conforming building. 21.48.060 Removal 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 \iivr\&TQI vivf 21.48.100 Public utility exemptions. 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 nonconforming buildings or change in status of nonconforming use. If any nonoonforming 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 vacates 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 bo 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. 0060 §1702) 21.48.040 Nonconforming land use when no structured 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 12 (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 owner from the planning commission, or not later than five years from the date the provisions of this ordinance becomes applicable to it. (te) IN C ZONES. Every 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. (e) 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 §170-1) 21.48.060 Removal 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 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 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: (4^ If property is occupied by structures of a type for which the existing building ordinance does not require a building permit-One year; (2) Type 4 or Type 5 buildings (light combustible frame and wood frame) Forty years; (3) Type 2 or Type 3 buildings (heavy timber construction and ordinary masonry): (A) Apartments, offices, hotels or residences having stores or offices below and apartments or offices above Thirty-five years, (B) Warehouses, stores, garages, lofts-Thirty-five years, Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 13 (G) Factories and industrial-Forty-five years; -(4) Type 1 Buildings (fire resistant): (A) Offices and hotels--Forty-five years, (B) Theatres-Fifty years, (G) Warehouses, lofts, stores, garages-Forty-five years, (O) Industrial-Thirty five years; -(b) - IN OZONES. -ty - 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 -(2) - 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) - Where property is unimproved except for structures of a type for which the existing building ordinance does not require a building permit-One year, - (B) - Type 4 or Type 5 buildings (light combustible frame and wood frame)--Forty years, - (G) - 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 \ /f*<a re*y v^v-*i w Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 — Strike-out/Underline Version \page 14 (H) Warehouses, stores, garages, lofts-Thirty-five years (ti+) Factories and industrial-Forty-five years -(O) Type 1 buildings (fire resistant): Offices and hotels Forty-five years Theatres-Fifty years Warehouses, lofts, stores, garages Forty-five years -(iv) Industrial-Thirty five years. -(e) - IN "M" ZONES. -(4) - Residential structures in an "M" zone existing on the effective date of tho ordinance codified in this title shall be considered as nonoonforming 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 -(2) - 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 noncoriforming 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 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) - Where property is unimproved except for structures of a type for which the existing building ordinance does not require a building permit One year, - (B) - Type A or Type 5 buildings (light combustible frame and wood frame) Forty years, - (G) - Type 2 or Type 3 buildings (heavy timber construction and Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 15 ordinary masonry): (i) - Apartments, offices, hotels or residences having stores or offices below and apartments or offices above Thirty-five Warehouses, stores, garages, lofts Thirty five years. Factories and industrial-Forty-five years, Type 1 buildings (fire resistant): Offices and hotels-Forty-five years Theatres- Fifty years Warehouses, lofts, stores, garages Forty five years -(iv) Industrial- Thirty five years. (Ord. 0088 §§1,2; Ord. 9060 § 1705) 21.48.070 Commission to determine conditions of abatement. When any nonoonforming 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 which the nonoonforming 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 such structural alterations, enlargements or equipment installations may be amortized. In performing this function the commission shall consider all pertinent data in connection therewith to provide the opportunity for the owner of record, or lessee if there be such, to present such evidence as thoy may possess and which properly relate to such case. When the date of abatomont has been determined, the commission by resolution, shall establish such dato and shall set forth such facts 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 tho 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 usos. (a) Except as provided in this section, a nonconforming use or building shall not bo altered, improved, reconstructed, restored, repaired, intensified, expanded or extended: Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strlke-out/Underline Version \page 16 -(b) A nonoonforming 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, 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. (e) 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: (4) 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; (2) That such reconstruction, repair or rebuilding complies with the provisions of Title 18 of this codo; (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: (4) 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; (2) The proposed alteration, improvement, reconstruction, restoration, repair or extension is of a type of structure that is specifically designed to be easily removed; (3) 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 \page 17 abatomont of the existing nonconforming use. Extensions of said date for abatement shall bo pormitted 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 written acceptance of the conditional use permit, or amendment. Such acceptance shall include an agreement by the applicant to remove all nonoonforming 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 abatomont date, or any amendment to the conditional use permit,- extending an abatomont 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 when nonconforming by reason of inadequate v jirri*rJf Ul VIO. 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: (4} That such nonconforming structure may be enlarged or extended to the same degree of nonconformity as may exist but in no event 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. (Qfd. 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 buildingo 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 \page 18 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. 0060 §1709) Draft Nonconforming Lots, Structures and Uses Zone Code Amendment Chapter 21.48 - Strike-out/Underline Version \page 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 Planning Department 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 (NCR). 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 <> Carlsbad, CA 92008-7314 « (760) 602-4600 • FAX (760) 602-8559 « www.ci.carlsbad.ca.us The NCR process is proposed as an administrative permit process, similar to an Administrative Variance. The NCR 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 NCR 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 NCR 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.kennedv@carlsbadca.qov. Sincerely, BARBARA KENNEDY, AICP Associate Planner Gary Barberio, Assistant Planning Director Chris DeCerbo, Principal Planner file Barbara Kennedy From: Felicia Brechtel [felicia@wordenwilliams.com] Sent: Saturday, June 06, 2009 10:29 AM To: • Barbara Kennedy Subject: Questions Regarding Non-conforming Use Regulations Follow Up Flag: Follow up Flag Status: Flagged Ms. Kennedy 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 hard 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 HowesWeiler&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 WILLIAMS APC NO, 3159 ORDEN WILLIAMS, APC 462 STEVENS AVENUE, SUITE 102, SOLANA BEACH, CALIFORNIA 92075 PHONE: (858) 755-6604 E-Matt; info@wordenwiUiams.com FAX: (858) 755-5198 Web Site: www.wordenwiiams.com FACSIMILE TRANSMISSION Date: June 11,2009 Total Sheets:, (Including Cover Sheet) TO: Gary Barberio, Chris DeCerbo and Barbara-Kennedy 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 the Planning Commission members. Thank you. Original Mailed: Yes x No FOR OFFICE USE ONLY CLIENT CODE CLIENT NAME MATTER NAME; CONFIDENTIALITY NOTICE The documents accompanying this FACSIMILE tensmiseion may contain confidenfiel information which is legally prtvllaged. The information is intended only for the use of the individual or entity named above, if you ore not the Intended recipient, or the person responsible for delivering it to the Intended recipient, you are hereby notified that any disclosure, copying, •distribution or use of any of the information contained In this transmission is strictly PROHIBITED. If you have received mis transmission In error, please immediately notify us by telephone and moil the original transmission to us. Thanh you, 2009 4:07PM WORDEN WILLIAMS APC 3.3159 Wayne and Felicia Brcchtcl 3676 Monroe Street Carlsbad, California 92008 June 11, 2009 Planning Commission City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 Re: Proposed Changes to Nonconforming 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., 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 rear of our house. The laundry 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 our small laundry room. The new regulations would add an entirely new discretionary permit 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 permit 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 permit process is 2009 4;07PM mm WILLIAMS APC NO. 3159 P. 3 Planning Commission City of Carlsbad June 11,2009 Page 2 required for any "expansion" of a nonconforming residential structure, even the smallest, most modest projects. There is no exception. We submit that the increased cost and uncertainty of the discretionary permit 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 carry 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 improvements without the time, expense and uncertainty of a discretionary permit approval process. We appreciate your consideration of these comments. Very truly yours, Wayne and Felicia Brechtel ERRATA SHEET FOR ITEM #2 July 1,2009 TO: PLANNING COMMISSIONERS FROM: Chris DeCerbo, Principal Planner SUBJECT: ZCA 09-01/LCPA-09-01 - NON-CONFORMING BUILDINGS AND USES ORDINANCE Staff recommends that ZCA 09-01/LCPA 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 pormittod, 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 coverage requirements of this chapter. Barbara Kennedy From: Wayne Brechtel [wayne@wordenwilliams.com] ~ fnt: Tuesday, June 30, 2009 3:53 PM Barbara Kennedy Cc: Felicia Brechtel Subject: RE: Nonconforming Ordinance Revisions Attachments: 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. Fee! free to use them or not as you deem appropriate. Thanks again for all of your help. HO € D. Wayne Brechtel, Attorney at Law Worden Williams, APC 462 Stevens Avenue, Suite 102 plana Beach, CA 92075 one: 858-755-6604 : 858-755-5198 e-mail: dwbtcb.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 licia C. Brechtel, Land Use Paralegal orden Williams, APC 462 Stevens Avenue, Suite 102 Solana Beach, CA 92075 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.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 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. fee. The area of expansion shall comply with all current development standards including, but not limited to, setbacks, lot coverage and height limitationsr; and ed. Expansions that exceed the limits of this exception shall require a nonconforming construction permit.The provisions of this exception shall not result in art expansion or multiple expansions that exceed the maximum area of enlargement permiUed-by this exemption.