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HomeMy WebLinkAbout2009-08-18; City Council; 19948; Nonconforming Buildings and Uses RevisionsCITY OF CARLSBAD - AGENDA BILL 19,948AB# MTG. 08/18/09 DEPT. Clerk NONCONFORMING BUILDINGS AND USES ORDINANCE REVISIONS ZCA 09-01 DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: Adopt Ordinance No. CS-050, approving a zone code amendment to: 1) Repeal and replace the "Nonconforming Buildings and Uses" - Chapter 21.48; 2) Include new and amended associated definitions in Chapter 21.04 - "Definitions"; 3) Amend Chapter 21.46 - "Yards" to delete Section 21.46.210; 4) Amend Chapter21.44 -"Parking" to revise Section 21.44.010; and 5) Amend Chapter 21.45 to revise Section 21.45.090A. ITEM EXPLANATION: Ordinance No. CS-050 was introduced and first read at the City Council meeting held on August 11, 2009. The second reading allows the City Council to adopt the ordinance which will not become effective until approved by the Coastal Commission. The City Clerk will have the ordinance published within fifteen days, if adopted. FISCAL IMPACT: See Agenda Bill No. 19,934 on file in the Office of the City Clerk. EXHIBITS: 1. Ordinance No. CS-050. DEPARTMENT CONTACT: Karen R. Kundtz (760) 434-2808, karen.kundtz@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED ¥ D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES D D D D ORDINANCE NO. CS-050 AN ORDINANCE OF THE ClTY COUNCIL OF THE ClTY OF CARLSBAD, CALIFORNIA, APPROVING A ZONE CODE AMENDMENT TO: 1) REPEAL AND RE-ENACT 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) REPEAL SECTION 21.46.210 OF CHAPTER 21.46 - YARDS, 4) AMEND SECTION 21.44.010 OF CHAPTER 21.44 - PARKING AND, 5) AMEND SECTION 21.45.090A OF CHAPTER 21.45 - PLANNED DEVELOPMENTS. CASE NAME: NONCONFORMING BUILDINGS AND USES ORDINANCE REVISION CASE NO.: ZCA 09-0 1 ILCPA 09-0 1 The City Council of the City of Carlsbad, California, does ordain as follows: SECTION I: That the title of Chapter 21.48, as referenced in the list of Chapters contained in Title 21 of the Carlsbad Municipal Code, is amended to read as follows: 21.48 Nonconforming Lots, Structures and Uses SECTION 11: That Chapter 21.04 of the Carlsbad Municipal Code is amended by the addition of Sections 21.04.027, 21.04.140.1, 21.04.278, 21.04.281, 21.04.299.1, 21.04.299.2 and 21.04.354, and by the amendment of Sections 21.04.275, 21.04.280 and 21.04.355, which shall read as follows: 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 structure. "Nonconforming structure" means a structure, or portion thereof, which was lawfully erected or altered and maintained, but which, because of the application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it is located. 21.04.278 Nonconforming lot. "Nonconforming lot" means a lot which was legally created, but which, because of the application of this title to it, no longer conforms to the current requirements and development standards of the zone in which it is located. 21.04.280 Nonconforming non-residential use. "Nonconforming non-residential use" means a non-residential use which was lawfully established and maintained, but which, because of the application of this title to it, no longer conforms to the current use regulations of the zone in which it is located. 21.04.281 Nonconforming residential use. "Nonconforming residential use" means a residential use which was lawfully established and maintained, but which exceeds the Growth Management Control Point or the maximum density range of the underlying General Plan Land Use designation. 21.04.299.1 Repair. "Repair" means any improvements to correct deficiencies in a building or structure. 21.04.299.2 Replace. "Replace" means to construct a structure that is substantially equivalent in size, shape and location to a structure that has been destroyed or demolished. 21.04. 354 Structure. "Structure" means anything constructed or erected which requires location on the ground or attached to something having a location on the ground, but not including fences or walls used as fences six feet or less in height. All buildings are structures. 21.04.355 Substandard lot. See "Nonconforming lot". SECTION Ill: That Section 21.44.01 O.A of the Carlsbad Municipal Code is amended to read as follows: 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. 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. 3. Any change of use within an existing building. SECTION IV: That Section 21.45.090.A of the Carlsbad Municipal Code is amended to read 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. Additions to buildings that are legally nonconforming shall comply with the requirements of Chapter 21.48 of this code. SECTION V: That Section 21.46.210 of the Carlsbad Municipal Code is repealed. SECTION VI: That Chapter 21.48 of the Carlsbad Municipal Code is repealed in its entirety and reenacted as follows: Chapter 21.48 NONCONFORMING LOTS, STRUCTURES AND USES Sections: 21.48.01 0 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. 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 requirements of this chapter. 5. Permit the expansion or replacement of nonconforming uses subject to the requirements of this chapter. 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 .I 30) which do not comply with the current requirements and development standards of the zone in which they are located. 3. Legally established uses which do not conform to the current permitted use regulations of the zone in which they are located. 21.48.030 General provisions. A. It shall be the responsibility of the owner of a nonconforming lot, structure or use to prove to the planning director that such lot, structure or use was lawfully established, existed on the date of adoption or amendment of this chapter, and has existed continuously as defined herein. B. Nothing in this chapter shall be deemed to prevent the rehabilitation, repair, alteration, strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any city official charged with protecting the public safety, upon order of such official. Repairs and alterations may be made to restore a structure to the same condition that existed prior to damage or deterioration, provided that such repairs or structural alterations conform to the provisions of this chapter. 21.48.040 Nonconforming lots. A. A nonconforming lot may be developed, provided that the development is consistent with the General Plan and complies with all of the requirements and development standards of the zone, master plan, or specific plan in which it is located. 21.48.050 Nonconforming residential structures and uses. A. Specific Provisions. 1. A nonconforming residential structure and/or nonconforming residential use may be continued and the structure and/or use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure or use (i.e. the addition of a new dwelling unit to an existing over density residential use except as otherwise allowed by the General Plan); 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, in compliance with the parking requirements of Chapter 21.44. 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, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18. C. Expansion. 1. A nonconforming residential structure and/or a nonconforming residential use may be expanded, so as to occupy a greater area of land or more floor area subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6). 2. Where a single-family residential structure is nonconforming only by reason of substandard yards, the provisions of this chapter requiring a nonconforming construction permit for an expansion shall not apply provided that: a. The area of expansion is not more than 40% of the existing floor space prior to the enlargement or a maximum of 640 square feet, whichever is less; and b. The area of expansion, when combined with prior expansions of the nonconforming structure, does not exceed 40% of the floor space that existed prior to any expansions or 640 square feet, whichever is less; and c. The area of expansion shall comply with all current development standards including, but not limited to, setbacks, lot coverage and height limitations; and d. Expansions that exceed the limits of this exception shall require a nonconforming construction permit. D. Replacement in the Event of a Disaster. 1. A nonconforming residential structure and/or nonconforming residential use that is destroyed by fire, explosion, or other casualty or natural disaster, may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted within two years of the date of the disaster and the planning director approves the findings of fact pursuant to Section 21.48.080(6). The planning director may grant an extension to the above two-year application submittal limit upon demonstration of good cause by the applicant. 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 demolition. 21.48.060 Nonconforming non-residential structures. A. Specific Provisions. 1. A nonconforming non-residential structure may be continued and the structure repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: a. Result in an additional structural nonconformity; and, b. Increase the degree of the existing nonconformity of all or part of such structure; and c. Reduce the number and size of any required existing parking spaces. 2. Any expansion of floor area that results in an increase in parking demand, pursuant to chapter 21.44, shall provide additional parking to satisfy the increase in parking demand. B. Repair or Alteration. 1. A nonconforming non-residential structure may be repaired or altered subject to issuance of all required discretionary and building permits, provided that the repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 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 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(B). 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). E. Voluntary Demolition and Subsequent Replacement. 1. A nonconforming non-residential structure that is proposed to be voluntarily demolished may be replaced subject to issuance of all required discretionary and building permits and provided that an application for a nonconforming construction permit is submitted and the planning director approves the findings of fact pursuant to Section 21.48.080(6) prior to the date of the demolition. 21.48.070 Nonconforming non-residential uses. A. Specific Provisions. 1. A nonconforming non-residential use andlor structure which is occupied by a nonconforming non-residential use may be continued and the structure andlor use repaired, altered, expanded or replaced in accordance with the provisions of this chapter provided that the repair, alteration, expansion or replacement does not: a. Increase the degree of the existing nonconformity of all or part of such structure or use; and, b. Reduce the number and size of any required existing parking spaces. 2. Any expansion of a non-residential use andlor 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. 1. A structure which is occupied by a nonconforming non-residential use may be repaired or altered subject to issuance of all required discretionary and building permits, provided that he repair or alteration complies with all current fire protection and building codes and regulations contained in Titles 17 and 18. C. Expansion of Use. 1. A nonconforming non-residential use may be expanded, so as to occupy a greater area of land or more floor area within a structure, subject to issuance of all required discretionary and building permits, provided that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A). D. Relocation. 1. A nonconforming non-residential use may be moved, in whole or in part, to any other on-site structure, or to any other portion of the structure, lot or site within or upon which it is located, subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A). E. Change of Use. 1. A nonconforming non-residential use may be changed to a use that is permitted in the zone in which the subject property is located, or may be changed to a use that is more conforming, subject to approval of the planning director and the issuance of a business license. F. Replacement of Use. 1. A nonconforming non-residential use may be replaced with the same or a similar use, as determined by the planning director, so long as the replacement use does not expand or in any other manner increase the degree of nonconformity with the use regulations of this title. 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 for a continuous period of one year or more, the planning director shall determine and shall notify the owner of the property, in writing, that the nonconforming use has been discontinued and the nonconforming use may not be renewed or reestablished. H. Reestablishment of a Nonconforming Use in the Event of a Disaster. 1. A nonconforming non-residential use that is destroyed by fire, explosion, other casualty or natural disaster, may be reestablished subject to issuance of all required discretionary and building, permits and provided that an application for a conditional use permit is submitted within two years of the date of the disaster, and the planning commission approves the findings of fact pursuant to Section 21.42.030(A). I. Voluntary Demolition and Subsequent Reconstruction. 1. A nonconforming non-residential use that is proposed to be voluntarily demolished and subsequently reconstructed, may be reestablished subject to issuance of all required discretionary and building permits and provided that an application for a conditional use permit is submitted and the planning commission approves the findings of fact pursuant to Section 21.42.030(A) prior to the demolition. 21.48.080 Nonconforming construction permit. A. 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 21.48.080(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: 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 Titles 17 and 18. d. The expansion/replacement would result in a structure that would be considered an improvement to, or complementary to and/or consistent with the character of the neighborhood in which it is located. C. Application and Fees. 1. Application for a nonconforming construction permit may be made by the owner of the property affected or the authorized agent of the owner. Application shall be made in writing on a form provided by the planning department. The application shall state fully the circumstances and conditions relied upon as grounds for the application and shall be accompanied by adequate plans, a legal description of the property involved and all other materials as specified by the planning department. 2. At the time of filing the application, the applicant shall pay a processing fee in an amount as specified by city council resolution. D. Notices. 1. Upon the filing of an application for a nonconforming construction permit, the planning director shall give written notice by mail or personal delivery to the project applicant, the owner of the subject real property or the owner's duly authorized agent and to all property owners as shown on the latest equalized assessment roll within three hundred feet of the subject property at least fifteen days prior to a decision on the application. E. Decision-Making Process. 1. Applications for nonconforming construction permits shall be acted upon in accordance with the decision process identified below: a. Any person so notified in accordance with Section 21.48.080(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 hislher review of the facts as set forth in the application and review of the circumstances of the particular case, and the planning director may only approve, or conditionally 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 hislher 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. 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. Not more than ninety days or less than forty-five days prior to the expiration of a nonconforming construction permit the permittee may apply to the planning director for an extension of the permit. The planning director may extend the time, without public notice, within which the right or privilege granted under a nonconforming construction permit must be exercised for one additional year upon receipt of a written request from the applicant prior to the expiration of such nonconforming construction permit. In granting such extension the planning director shall make a written finding that neighborhood conditions have not substantially changed since the granting of such nonconforming construction permit. 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 andlor structure is determined by the planning director to be adverse to the orderly development of the city andlor to the public health, safety, or welfare of persons or property, the planning director shall schedule a public hearing before 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. 4. Nothing in these provisions shall preclude abatement of a nuisance pursuant to Section 6.16.1 50 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, sufficient time to amortize their investment. B. The owner or lessee shall be allowed to present any evidence related to the case. C. When setting the abatement period, the planning commission shall take into consideration the type of construction, age, condition, and extent of nonconformity of the structure or use in question; any structural alterations or expansions; and/or the installation of major equipment designed into the structure prior to the date of nonconformity. D. 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. EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, but not until approved by the California Coastal Commission and the City Clerk shall certify to the adoption of this ordinance and cause it to be published at least once in a publication of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 1 lth day of August, 2009, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 18'~ day of August, 2009, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard, Blackburn NOES: None ABSENT: None APPROVED AS TO FORM AND LEGALITY ATTEST: ~0k64l ~~+&U?hoD$ity Clerk