HomeMy WebLinkAbout1979-07-17; City Council; 5712-1; Expansion of Nonconforming usesCITY OF CARLSBAD
INITIAL
AGENDA BILL NO: 5712, Supplement No. 1 Dept. Hd.
.DATE: July 17, 1979 City Atty.
DEPARTMENT: Planning City Mgr.
SUBJECT:EXPANSION OF NONCONFOEMING USES
CASE NO: ZCA-105 APPLICANT: CITY OF CARLSBAD
STATEMENT OF THE MATTER:
Earlier this year the owner of Coast Waste Management explained to the City Council
his need to construct new buildings, but not being able to because of nonconforming
status of their use. Their use is industrial in the RD-M Zone in the Ponto Area.
The City Council was sympathetic to Coast Waste Management problem, however the
City Council was also concerned that improvements can impede the abatement
processing of such nonconforming uses.
The City Council therefore requested staff to review this matter by doing:
1) review the expiration requirements of nonconforming uses presently within
the Zone Code or General Plan; 2) review existing major nonconforming uses
presently in the City and; 3) draft a Zone Code Amendment permitting the
construction of new structures for a nonconforming use. All three of these-
directions have now been accommodated, answers for the first two requests are
contained in staff report revised dated March 30, '1979.
The Zone Code Amendment as recommended by the Planning Commission (Exhibit A
dated June 13, 1979) essentially meets the intent of the City Council. It
permits the expansion of a nonconforming use, and provides a means to accelerate
abatement. Nevertheless both the staff and Planning Commission believe if
abatement of nonconforming uses is the goal of the City a more effective means
is to develop an abatement program based on the present provisions of the
Zone Code.
EXHIBITS
Planning Commission Resolution No. 1531
Memorandum from James Hagaman dated June 28, 1979
Staff Report (Revised) dated March 30, 1979
RECOMMENDATION
The Planning Staff prepared the Ordinance Amendment and the Planning Commission
has recommended APPROVAL as per Exhibit "A" dated June 13, 1979. If the
City Council concurs you should direct the City Attorney to prepare documents
as per Planning Commission Resolution No. 1531.
FORM - PLANNING 79
AGENDA BILL NO. 5712, Supplement No. 1 Page 2
Council Action:
7-17-79 Council returned the matter to the Planning Commission with a
record of their discussion for re-evaluation with emphasis on
the abatement time, 50% vs. 25% aggregate value limitation,
and possible impact on other uses that might be expansion
candi dates.
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6 CASE: ZCA-105
APPLICANT: CITY OF CARLSBAD
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PLANNING COMMISSION RESOLUTION NO. 1531
A RESOLUTION OP THE PLANNING COMMISSION OF THE CITY
OF CARLSBAD, CALIFORNIA, RECOMMENDING APPROVAL OF
A ZONE CODE AMENDMENT TO TITLE 21, CHAPTERS 21.44
AND 21.48 OF THE CARLSBAD MUNICIPAL CODE BY THE
AMENDMENT OF SECTIONS 21.44.020 AND 21.48.080 TO
PROVIDE FOR ALTERATION AND EXPANSION OF NONCONFOR-
MING USES AND BUILDINGS.
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WHEREAS, at their January 2, 1979 meeting, the City Council
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of the City of Carlsbad directed.the Planning Department staff
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to review'.expiration requirements of nonconforming uses, review
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existing major nonconforming uses within the City, and draft an12;
ordinance amendment for Planning Commission consideration; and
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WHEREAS, an Environmental Impact Assessment has been conducted
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pursuant to the guidelines of the California Environmental
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! Quality Act and the Environmental Protection Ordinance of the
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: City of Carlsbad, and a Negative Declaration has been issued
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for the subject project for the following reasons:
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' 1. The project is administrative in nature and is only a minor
19 | change to the Zone Code.
20 ' 2. Any action regarding the intensification of a particular
non-conforming use would requrie a Conditional Use Permit
21 I and therefore require additional environmental review; and
22 | WHEREAS, pursuant to City Council direction, the Planning
23 Commission of the City of Carlsbad did hold a duly noticed, public
24 hearing on June 27, 1979, to consider the subject Zone Code
25 Amendment; and
26 WHEREAS, the Planning Commission received all testimony
27 and arguments, if any, of all persons who desired to be heard,
28 and upon hearing and considering all factors relating to Zone
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able to expand within certain limitations prior to abatement.
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2. The code provides means to insure that the expansion will be
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Code Amendment 105, found the following facts and reasons to exist:
1. It is an undue hardship for non-conforming uses not to be
abated within a reasonable time.
3. Present code does not contain provisions of any type for
the regulation of non-conforming uses because of improper
zone.
WHEREAS, the Planning Commission, by the following vote,
APPROVED ZCA-105, as per Exhibit A, dated June 13, 1979,
attached hereto: -
AYES: L'Heureux, Rombotis, Schick, Marcus, Jose, Larson
NOES: None
ABSTAIN: None
ABSENT: Wrench
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NOW, THEREFORE, BE IT HEREBY RESOLVED that the foregoing
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recitations are true and correct.
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STEPHEN M. L'HEUREUX, Chairman
CARLSBAD PLANNING COMMISSION
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ATTEST:
JAMES C. HAGAMAN, Secretary
CARLSBAD PLANNING COMMISSION
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STATE OF CALIFORNIA )
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COUNTY OF SAN DIEGO )
CITY OF CARLSBAD ) ss
Ir JAMES C. HAGAMAN, Secretary to the Planning
Commission of the City of Carlsbad, California, do
hereby certify that the foregoing resolution was duly
introduced, approved and adopted by the Planning
Commission of the City of Carlsbad at a regular meeting
of said Commission held on the llth day of July, 1979
the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
JAMES C. HAGAMAN, Secretary
CARLSBAD PLANNING COMMISSION
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EXHIBIT A '
JUNE- 13, 1979
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF. CARLSBAD, CALIFORNIA. AMENDING
TITLE 21, CHAPTERS 21.44 AND 21.48 OF
THE CARLSBAD MUNICIPAL CODE BY THE .
AMENDMENT OF SECTIONS 21.4.4.020 AND
21.48.080 TO PROVIDE FOR ALTERATION
AND EXPANSION OF NONCONFORMING USES
AND BUILDINGS.
The City Council of the City of Carlsbad, California hereby
ordains as., follows: " • -
SECTION 1: That Title 21, Chapter 21.44 of'the Carlsbad
Municipal Code is amended by the amendment of Section 21.44.020
to substitute the word "Title" for the word "Chapter" in
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the first sentence of said section.
. SECTION 2: That Title 21, Chapter 21.48*of the Carlsbad -
Municipal Code is amended by the amendment of Section 21,48.080
to read as follows: * - ."•".."
•"21.48.080 Alteration, etc. of uses and buildings.
(a) Except as provided in this section,_ a nonconforming
use or building shall not be altered, improved, reconstructed,
restored, repaired or extended.
(b) A nonconforming building destroyed to the extent of
not more than twenty-five percent of its replacement value as
determined by the City Building Official at the time of its •
destruction by fire, explosion, or other casualty or act of
God, or public enemy, may be restored and the occupancy or
use of such building, or part thereof,, which exists at the
time of such partial destruction may continue subject to all
other provisions of this chapter. • .
Such restoration shall not extend the time of
abatement as established by this chapter.
(c) Incidental reconstruction, repair or rebulding
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 City Building Official.
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1 • 2. That such reconstruction, repair or rebuilding
complies with the provisions of Title 18 of this Code.
2 3. Such repairs, reconstruction or rebuilding
shall not extend th'e time of abatement established by this
3 chapter. • • *
(d) A nonconforming use or building may be altered, .
4 improved, reconstrxicted, restored, repaired or extended as
may be permitted by the Planning Commission upon granting of
5 the Conditional Use Permit processed according to the •
procedures established in Chapter 21.50 of this Code.
6 Before a Conditional Use Permit may be granted all provisions
of Chapter 21.50 shall be met and it shall be shown that:
7 1. The aggregate value of the proposed alteration,
improvement, reconstruction, restoration, repair or extension
8 shall not exceed twenty-five percent of the total replacement
at the time the Conditional Use Permit .is applied for as
9 determined by the City Building Official of all improvements
on the site unless the building or structure is changed to a
10 conforming use.
2. The proposed alteration, improvement, recon-
11 struction, restoration, repair or extension is of a type of
structure that is specifically designed to be easily removed.
12 3. The proposed alteration, improvement, recon-
struction, restoration, repair or extension meets all construction
13 setback, coverage, planning and all other applicable requirements
of this Code. .
14 In approving such Conditional Use Permit, the Planning
Commission shall establish a date by .which all nonconforming •
15 structures and uses shall be made conforming or removed-from
the site.- In no event shall the date for such removal or
16 compliance extend beyond the date set according to the pro-
visions of this Title for abatement of the existing nonconforming
17 use. Extensions of said date for abatement shall be permitted
only upon approval of amendment of the Conditional Use "Permit
18 and, then, only upon showing of good 'cause. A Conditional Use
Permit or amendment shall be effective only upon execution by
19 the applicant of written acceptance of the Conditional Use
Permit, or amendment. Such acceptance shall include an .
20 agreement by the applicant to remove all nonconforming uses
and buildings or structures, or make them conforming, oh
21 or before the date for removal established by the Conditional
Use Permit or amendment in exchange for permission to alter,
22 improve, reconstruct, restore, repair or extend.
The Planning Director shall cause each Conditional
23 Use Permit, complete with abatement date, or any amendment to
the Conditional Use Permit, extending an abatement date, to be
24 recorded"at the Office of the County Recorder within five
days after the issuance of the permit" or amendment. Any
25 alteration, improvement, reconstruction, restoration, repair
or extension undertaken pursuant to the Conditional Use Permit
26 shall be commenced within three months'after the issuance of
the permit unless an extension is granted by the Planning
27 Commission. • • .
(e) No nonconforming building, structure, or use shall
28 be changed to any other nonconforming use, building or structure."
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EFFECTIVE DATE: This ordinance shall be effective
thirty"days after its adoption, and the City Clerk shall
certify to the adoption of this ordinance and cause it to be
published at least once in the Carlsbad Journal within
fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the
[Carlsbad City Council held on the day of ,
1979 and thereafter
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PASSED AND ADOPTED at a regular meeting of said City
Council held-on the day of__ r '1979 by the
following vote, to wit: . .
AYES: . .-.-•" '
NOES: .' • •
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ABSENT:. • . _
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. RONALD. C. PACKARD, Mayor
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ATTEST: • ' . . ^
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ALETHA L. RAUTENKRANZ, City Clerk . , .
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(SEAL)
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MEMORANDUM
DATE: June 28, 1979
TO: Paul Bussey, City Manager
FROM: James Hagaman, Planning Director
SUBJECT: ZCA-105, EXPANSION OF NON-CONFORMING USES
We believe that the drafted ordinance amendment meets your
directive. The amendment provides for expansion of non-
conforming uses and establishes an accelerated abatement
period. Nevertheless staff believes that if it is the
intent of the City to abate nonconforming uses, a more
effective method is to initiate an abatement program based
on present code provisions.
The amendment as requested by the Council was to provide
a means to expand lawfully existing nonconforming uses but
not to provide for additional time on an abatement. In
doing this amendment several other related matters were
also incorporated into the zone code.
The amendments were added to an existing section 21.48.080
which is presently titled "Partially Destroyed Buildings".
The proposed amendment retains the present provision of
this section with slight modifications, and adds the
additional requirements as suggested by the City Council
and/or proposed by staff.
The proposed ordinance retitles the section to "Alteration,
etc., of Uses and Buildings". Subsection A introduces the
subsequent sections dealing with the rebuilding and expansion
of nonconforming uses.
Subsection B is basically the present requirements of
Section 21.48.080, with the exception that presently the
code allows up to 50% of a building that can be restored in
case of a fire, explosion, etc. The amendment reduces this
amount to 25%. The Planning Commission wished this reduction
to encourage abatement of nonconforming structures. The
Commission also added the last paragraph which states "such
restoration shall not extend the time of abatement as
established by this chapter". This makes clear that if
abatement is in process, the time running begins when the
building was first constructed.
Subsection C is a new section suggested by the Attorney's
Office that provides for incidental reconstruction repair,
etc., necessitated by ordinary wear and tear. This is
common language in most zone codes and for all practical
purposes we now allow this to occur anyway. Placing it in a
code gives proper guidelines to what is repair of normal
wear and tear and which would be considered expansion of the
use or building.
Subsection D is the provisions that the City Council originally
directed staff to prepare. It states that a nonconforming
use or building may be restored or expanded upon the granting
of a conditional use permit. There are however, specific
findings that must be met. One is the aggragant value of
the expansion shall not exceed 25% of the replacement at the
time of the conditional use permit. Second, the proposed
expansion can be easily removed, this will for the most part
be a subjective decision made by the Planning Commission at
the time of the CUP. The third finding is that the expansion
meet all requirements of the code.
In approving the conditional use permit an abatement period
will be established. This abatement will require an agreement
by the applicant to remove all nonconforming uses of buildings
or structures, or make them conforming upon a date determined
by the Conditional Use Permit. This abatement is then recorded
by the County Recorder, ensure that subsequent buyers of the
property will understand the abatement requirements.
Subsection E is added to the code to clarify that nonconforming
buildings and uses cannot be changed to another nonconforming
use or building.
Staff and the Planning Commission believe that this ordinance
amendment will achieve the goals of the City Council in
providing the means to expand nonconforming uses but still
provide for a means for abatement. It should be noted
however, that even with this amendment expansion of nonconforming
uses will not be permitted unless sewer is determined to be
available. This would be consistent with the recent City
Council action on interpreting of the Sewer Moratorium
Ordinance.
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JCH/BP/ar
7/10/79
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JAMES C./fiAGAMAN
Planning Directory
MEMORANDUM
DATE: March 28, 1979
REVISED: March 30, 1979
TO: Planning Commission
FROM: Planning Staff
SUBJECT: ZCA-105, EXPANSION OF NONCONFORMING USES
Recommendation
It is recommended that the Planning Commission approve ZCA-105
as per Exhibit "A" dated February 15, 1979, for the following
reasons:
1) It is an undue hardship for nonconforming uses not
to be able to expand within certain limitations prior
to abatement.
2) The Code provides means to insure that the expansion
will be abated within a reasonable time.
3) Present Code does not contain provisions of any type
for the regulation of nonconforming uses because of
improper zone.
Introduction
On January 2, 1979, Mr. Arie de Jung, owner of Coast Waste
Management explained to the City Council that his company needs
a building to repair equipment in, but this building cannot be
built under the present nonconforming regulations. Waste
Management is an industrial use in Ponto, which is zoned RD-M
(a residential zone). The use is nonconforming because of zoning
and therefore building permits for expansion can't be applied for,
However, the waste management business has been growing rapidly
these last few years because of increased population in the area.
The owner recognizes that the use would have to be abated in
time and move to a more appropriate and larger site. In the
meantime, they must continue servicing their vehicles at the
present nonconforming site. To do this properly they wish to
construct a new building to house the vehicles being repaired.
The owner indicated they are building a removable structure that
can be rebuilt at a future site.
The City Council was sympathetic to Coast Waste Management's
problem. The City Council was also very concerned that improve-
ments can impede the abatement processing of such nonconforming
March 30, 1979
Page 2
uses. Therefore, if the Zone Code was to be amended, such
amendment needs to contain specific statements of when such
exceptions would be permitted and for how long a period. To
look into this matter further the City Council directed staff
to do three things and report back to the City Council as soon
as possible.
First, we were to review the expiration requirement of non-
conforming uses presently within the Zone Code and/or General
Plan. Two, review existing major nonconforming uses presently
in the City, and finally draft a Zone Code Amendment permitting
the construction of new structures for a nonconforming use.
Expiration Required for Nonconforming Uses
The Council recalled that there was discussion on amortization
of nonconforming uses in the past during General Plan amendment
hearings. Staff has reviewed the General Plan and did not find
specific reference to abatement processing within its text. How-
ever, there was some discussion of amortization during the general
plan amendment and zone change hearing of the Ponto area in late
1973 and early 1974. Staff at that time indicated that the
abatement period was 35-40 years, and may have implied that the
abatement period was starting with those actions. What was meant,
however, was that if the Planning Commission held abatement hear-
ings, the abatement period would be 35-40 years from the construc-
tion date of the building. Abatement hearings were not held,
therefore abatement is not in effect.
Existing Nonconforming Uses
There are many existing nonconforming uses in buildings in the
City of Carlsbad. Most are minor and are generally old structures
or uses that do not meet present zone code requirements such as
setbacks, coverage, parking requirements, etc. Another relatively
common nonconformity is residential uses in non-residential zones.
This is primarily in the downtown area where the zoning is C-2
or M.
None of the above nonconforming uses or buildings are generally
a problem. The nonconformity that can create a problem to a
city and/or the property owner is a non-residential use in a
residential zone. Carlsbad has some examples of this type of
non-conformity. These are the uses that would benefit from an
ordinance amendment that has been suggested to the Council. The
following is a list of these nonconforming non-residential uses
as best determined by staff.
March 30, 1978
Page 3
1) All the non-residential uses in the Ponto area, i.e.,
mini-warehouses, automobile wrecking yard, flower
distribution, dog kennel, cabinet maker and waste
management operation: The zone is RD-M and the
General Plan calls for medium high density.
2) Tree-trimming operation to the east of 670 Laguna
Drive in the R-3 zone: General Plan calls for high
density residential.
3) Storage building at 3304 Roosevelt Street in the R-P
Zone: General Plan calls for medium high density
residential.
4) Electrical contractor at 1826 Magnolia in the R-l
Zone: General Plan calls for low to medium density
residential.
5) Chinchilla raising at 3515 Highland Drive, in the
R-l-10,000 zone. General Plan calls for low-medium
density residential.
6) State Department of Transportation at 6050 Paseo del
Norte in the R-A Zone: General Plan calls for govern-
ment facilities. This particular problem can be
resolved by rezoning the property to appropriate zone
to meet the government facility land use of the General
Plan.
7) CMWD Office at 5950 El Camino Real in the R-l Zone:
General Plan calls for industrial use at this site.
Again, this problem can be resolved by rezoning the
property to appropriate zone to implement the industrial
land use of the General Plan.
None of thes uses are presently under City adopted abatement
process. However the automobile wrecking yard in Ponto was
allowed by a CUP, (CUP-64), which placed a 10 year limitation
(City Council Resolution No. 3053). This CUP will expire on
January 16, 1983. At that time the wrecking yard would have to
be removed or the City could grant an extension througn an
amendment to the CUP.
Zone Code Amendment
Carlsbad's nonconforming provisions do not contain a specific
statement of how to regulate nonconforming uses that are non-
conforming because of improper zoning. However, Section
21.44.020, "limitation of land use" states "Except as provided
March 30, 1979
Page 4
in this chapter no building shall be erected, reconstructed,
or structurally altered nor shall any building or land be used
for any purpose other than is specifically permitted in the
same zone in which such building or land is located." This is
the section that prohibits building permits for nonconforming
uses. A minor change of substituting "code" for "chapter" would
be helpful for clarity.
Staff reviewed nonconforming provisions from other cities; but
found little help, including the newer ordinances such as the
City of Cerritos and San Diego County. The City of San Diego
and the County both permit repair and alteration of nonconforming
buildings based on a percentage of the total value of the building,
The City Council in directing staff to prepare the report raised
some questions for consideration; they are:
1) What type of building or improvements could be
excepted from the prohibition of new construction?
2) Should the City require time limits on such new
construction and if so what should those limits be?
3) Should the City require such building to be removeable?
4) Should such structure be required to be removed within
a specified time?
Based on this research and consideration, staff drafted an
ordinance that permits construction of structures and the
expansions of nonconforming uses that are nonconforming because
of zoning. In summary the attached draft (Exhibit "A") does
the following:
1) Reconstruction if rendered necessary by ordinary
wear and tear, limited to 50% of replacement value.
See paragraph (c) of Section 21.48.080.
2) Expansions can be alterations, enlargements, new
structures, and increase in the site. See paragraph
(d) of Section 21.48.080.
3) Requires a Conditional Use Permit with final action
by the Planning Commission (Zone Code provides appeal
to the City Council). See paragraph (d) of Section
21.48.080.
4) Changes to an existing building are limited to 25% of
the value of all improvements on site. See paragraph
(d)-l of Section 21.48.080.
March 30, 1979
Page 5
5) Requires that approved expansion can be easily
removed. See paragraph (d)-2 of Section 21.48.080.
6) The expansion must meet all development requirements
for the Carlsbad Municipal Code. See paragraph (d)-3
of Section 21.48.080.
7) Expansion is permitted only if an abatement period is
established by the CUP that abates all nonconforming
uses and buildings from the site. See paragraph (d)
of Section 21.48.080.
8) Nonconforming buildings and uses can't be changed to
another type of nonconforming use or building.
9) In addition, Section 21.44.020 has been modified to
expand the scope of this section to include the "Title"
instead of the "Chapter". See Section 1 of Ordinance
amendment.
This ordinance amendment is basically a give and take proposition.
The City will be in a position to give a benefit to a nonconforming
use by allowing it to expand while at the same time establish
abatement proceedings for the use. In addition, the CUP permits
the requiring of measures to better assure compatibility between
the nonconforming use and the immediate area. For example, the
City could require buffering or shielding landscaping and walls,
improve public facilities such as street improvements, etc.
Staff drafted this amendment at the direction of the City Council.
We are not advocating its adoption, but we feel it will accomplish
in a reasonable manner what the City Council desires. Staff sees
limited use of this amendment under the present zoning and general
plan land use configuration in the City. However, it is possible
that some of the examples listed in this report could from time
to time request expansion.
The Code as drafted also reconstitutes the original Section
21.48.080 or paragraph (b) and adds paragraph (a) as an opening
statement. Neither of these two paragraphs add new regulations
to the Code.
BP: jd
4/2/79
Attachment: Exhibit "A", dated 2/15/79