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