Chapter 18.130 - Nonconforming Uses, Structures, and Parcels

Sections:

18.130.010 - Purpose of Chapter
18.130.020 - Definitions
18.130.030 - Restrictions on Nonconforming Uses and Structures
18.130.040 - Elimination of Nonconforming Uses (By Use)
18.130.050 - Single-Family Dwelling Unit Exemption
18.130.060 - Multi-Family Dwelling Unit Exemption
18.130.070 - Nonconforming Parcels
18.130.080 - Conformity of Uses Requiring Use Permits
18.130.090 - Extensions of Time for Discontinuance
18.130.100 - Unlawful Uses and Structures
18.130.110 - Nuisance Abatement

18.130.010 - Purpose of Chapter

A. This Chapter establishes uniform provisions for the regulation of legal nonconforming land uses, structures, and parcels.

B. Within the zoning districts established by this Development Code, there exist land uses, structures, and parcels that were lawful before the adoption, or amendment of this Development Code, but which would be prohibited, regulated, or restricted differently under the terms of this Development Code or future amendments.

C. It is the intent of this Development Code to discourage the long-term continuance of these nonconformities, providing for their eventual elimination, but to allow them to exist under the limited conditions outlined in this Chapter.

D. Generally, this Chapter is intended to be administered in a manner which encourages the eventual abatement of these nonconformities.

18.130.020 - Definitions

A. Discontinuance of a nonconformity. The following Subsections serve to define the concept of discontinuance. Discontinuance may still occur even with the situation identified in Subsection A.4, below.

1. Discontinuance is typically evidenced by:

a. The removal of equipment, furniture, improvements, inventory, machinery, structures, or other components so as to make the use inoperable; and/or

b. The lack of on-site pedestrian or vehicular activity (e.g., customers, deliveries, employees, etc.) on a daily basis, which was evident before the discontinuance.

2. Lack of business receipts/records. Where there are no business receipts/records available to provide evidence that the use is and has been in continual operation.

3. The discontinuance may be by:

a. Voluntary action of the owner/operator;

b. Involuntary discontinuance due to:

(1) Dilapidation of the site and/or structure(s);

(2) Failure of the owner/operator to abide by State and/or non-zoning local laws (e.g., required compliance with annual health inspections, payment of sales tax or Transient Occupancy Tax); or

c. Only a portion of the use, whether voluntary or involuntary. In this case the Director shall determine if the partial discontinuance is enough to make the use inoperable.

4. Structure(s) are unoccupied but still connected to services. The site and/or structure(s) appear to be unoccupied even though they are still connected to services (e.g., cable television, electricity, protection alarm, sewer, telephone, water, etc.), or the owner/operator is still paying the required bills (maintenance, mortgage, phone, rent, utilities), etc.

5. Termination of nonconforming rights. Application of the definitions above shall render the discontinuance complete and all rights to reestablish or continue the nonconforming use shall terminate.

B. Intensification of a nonconformity. A change in the use of a site, or structure, where the:

1. More parking required. New or modified use is required by Chapter 18.48 (Off-Street Parking and Loading) to provide more off-street parking spaces than the former use; or

2. Change in operational characteristics. Owner/operator implements a change in the operational characteristics of the use (e.g., increase in the number of days and/or hours of operation), which have the ability to generate more activity on the site.

C. Nonconforming parcels. A parcel of record that was legally created before the adoption of this Development Code and which does not comply with the access, area, or width requirements of this Development Code for the zoning district in which it is located.

D. Nonconforming signs. A sign of record (residence, business, or commercial/industrial center) that was legally created before the adoption of this Development Code and which does not comply with the sign standards and other applicable development standards of this Development Code.

E. Nonconforming structure. A structure that was legally constructed before the adoption of this Development Code and which does not comply with applicable development standards (e.g. maximum lot coverage, setbacks, etc.) of this Development Code.

F. Nonconforming use (of land). A use of land (no structures associated with the use) that was legally established and maintained before the adoption of this Development Code and which is not allowed in the subject zoning district.

G. Nonconforming use (by use). A use that was legally established and maintained before the adoption of this Development Code and which is not allowed in the subject zoning district.

H. Nonconforming use (by standard). A use that was legally established and maintained before the adoption of this Development Code and which is allowed in the subject zoning district. However, the use does not comply with applicable development standards (e.g. landscaping, parking, screening, etc.) of this Development Code.

I. Normal repair and maintenance. Normal site or structure repair and maintenance includes the following:

1. Site — Fix up or replace on-site:

a. Fences and/or walls;

b. Landscaping, including the planting of new ground cover, scrubs, and trees;

c. Paving or repaving, and stripping of parking and circulation areas; or

d. Service facilities (drainage, irrigation components, and utility service connections).

2. Structure — Fix up or replace:

a. Exterior doors, siding, or windows; or

b. Roof, service connections, or sewer/water system.

3. Replacement materials. The replacement materials identified in Subsections I.1 and I.2 above shall maintain the same visual appearance and characteristics of the original materials, ensuring compatibility of the replacement materials with the site or structure.

4. Exterior painting, stuccoing, or texture coating.

5. New construction not included. Normal site or structure repair and maintenance does not include the following examples:

a. New on-site construction;

b. Additions to existing structure(s); or

c. Grading and paving for a new or expanded parking area on previously vacant land.

J. Structural alterations. Any exterior or interior alteration(s) to the structure which requires a Town approved (e.g., discretionary or nondiscretionary) permit (e.g., Building Permit) before construction and/or operations on the site may be initiated.

K. Total costs for repair/maintenance and investment improvements. The expenditure of funds for both labor and materials to complete the repairs, maintenance, and investment improvements. The construction of new expansions or additions to a nonconforming structure, which comply with all applicable standards and guidelines of the Development Code, shall not count towards the costs of repair/maintenance and investment improvements. Once the expansion or addition is completed, the expansion or addition shall be considered part of the nonconforming structure, and any subsequent repair/mainteance and investment improvements to the expansion or addition shall be counted towards the costs for repair/maintenance and investment improvements allowed for a nonconforming structure. The values for labor and materials shall be verified by a licensed contractors estimate. If the work will be conducted by the owner, the owner shall provide an estimate of the labor hours to complete the work and an estimate of the typical labor costs for the Truckee region for such similar work.

18.130.030 - Restrictions on Nonconforming Uses and Structures

Nonconformities may be continued subject to the provisions identified in Table 6-1 (Nonconforming Uses and Structures) below.

TABLE 6-1

NONCONFORMING USES AND STRUCTURES

Notes:

Note 1: Change of use.

(a) The Director may issue a zoning clearance for a nonconforming use to be changed to an allowed use only if one of the following findings can be made. If there is a conflict between a finding required for issuance of a zoning clearance and one of the following findings, these findings shall control.

(1) All requirements of this Development Code are satisfied; or

(2) The change in use is clearly not of an increased intensity and would not have a greater adverse impact on the surrounding area than the existing or former nonconforming use.

If a nonconforming use is converted to an allowed use, no resumption of the nonconforming use shall occur.

(b) The nonconforming use may be changed to another nonconforming use of a similar or less intensive/more restricted nature (e.g., capacity, intensity, purpose, or size) while continuing to preserve the rights provided under the nonconforming status. The Director may issue a zoning clearance for the change in use only if the Director finds that the change in use is clearly not of an increased intensity and would not have a greater adverse impact on the surrounding area than the existing or former nonconforming use. If there is a conflict between a finding required for issuance of a zoning clearance and this finding, this finding shall control. The replacement use shall serve as the "new bench mark" in terms of establishing the acceptable level of nonconformance.

Note 2: The rights provided under the nonconforming status would terminate if the use is discontinued for a minimum period of 180 days. Thereafter, the subject parcel may only be used in full compliance with all applicable Development Code requirements.

Note 3: The rights provided under the nonconforming status would terminate if the use or structure is involuntarily damaged, demolished, or destroyed to the extent of 50 percent or more of its appraised market value except for single family dwellings and multi-family dwellings which are addressed in Sections 18.130.050 and 18.130.060.

Note 4: A nonconforming industrial use in the Downtown Study Area shown on the General Plan Land Use Diagram, may receive a one-time approval for an expansion of up to 25 percent of the floor area of the existing building area with an approved use permit. The use permit for such an expansion may be approved based upon the following findings:

(a) The addition to the structure complies with all applicable Development Code requirements.

(b) Substantial improvements have been made to the property as a whole such that the overall project is a substantial improvement relative to compliance with the Development Code standards and guidelines.

(c) If the non-conforming industrial use includes outdoor storage, the outdoor storage is brought into compliance with the Development Code standards and guidelines.

Note 5: Maximum allowable repair/maintenance and investment improvements (work that does not qualify under repair/maintenance) may only occur in the following manner:

(a) No structural alterations allowed, except those required for seismic retrofitting, Town Building Code compliance, or replacement.

(b) Normal repair/maintenance and investment improvements to the nonconforming use may be made only if the total costs for the repair/maintenance and investment improvements over a five year period would not exceed 50 percent of its appraised market value of the use. The appriased market value shall be verified by a valid appraisal by a credentialed real estate appraiser.

Note 6: The rights provided under the nonconforming status would terminate if the total costs for repair/ maintenance and investment improvements over a five year period would exceed 50 percent of its appraised market value.

Note 7: The conforming use, together with its nonconforming development standards, may be changed to another use of a similar or less intensive/more restricted nature (e.g., capacity, intensity, purpose, or size), while continuing to preserve the rights provided under the nonconforming status. The Director may issue a zoning clearance for the change in use only if the Director finds that the change in use is clearly not of an increased intensity and would not have a greater adverse impact on the surrounding area than the existing or former nonconforming use. If there is a conflict between a finding required for issuance of a zoning clearance and this finding, this finding shall control. The replacement use shall serve as the "new bench mark" in terms of establishing the acceptable level of nonconformance.

Note 8: The review authority may issue a land use permit for an expansion to a nonconforming use (by standard) only if all of the following findings can be made:

(a) The expansion of the use, that would intensify the nonconforming development standards, complies with all applicable standards of this Development Code; and

(b) The existing use complies with all previous approvals for the use and complies with as many Development Code standards and guidelines, as is reasonable and practicable, that address and improve the existing nonconformities.

If there is a conflict between a finding required for approval of the land use permit and the above findings, the above findings shall control.

Note 9: The review authority may issue a land use permit for an intensification to a nonconforming use (by standard) only if all of the following findings can be made:

(a) The change of the use, that would intensify the nonconforming standards, complies with all applicable standards of this Development Code; and

(b) The existing use complies with all previous approvals for the use and complies with as many Development Code standards and guidelines, as is reasonable and practicable, that address and improve the existing nonconformities.

If there is a conflict between a finding required for approval of the land use permit and the above findings, the above findings shall control.

Note 10: Repairs and maintenance shall be allowed without limitation, except for those identified under the columns titled "Expansion" and "Intensification" of this chart.

Note 11: Any addition or expansion to a nonconforming structure devoted to a conforming use shall comply with all applicable standards and guidelines of this Development Code.

Note 12: Any intensification to a nonconforming structure devoted to a conforming use shall comply with all applicable standards and guidelines of this Development Code.

Note 13: Maximum allowable repair/maintenance and investment improvements (work that does not qualify under repair/maintenance) may only occur in the following manner:

(a) No structural alterations allowed, except for those required for seismic retrofitting, Town Building Code compliance, and replacement.

(b) Normal repair/maintenance and investment improvements to the nonconforming structure may be made only if the total costs for the repair/maintenance and investment improvements over a five year period would not exceed 50 percent of its appraised market value of the structure. The appriased market value of the structure shall be verified by a valid appraisal by a credentialed real estate appraiser.

Note 14: The amortization period shall begin on the date of mailing the first written notice issued by the Director to the sign owner, that the sign is nonconforming. The nonconforming sign may be changed to or replaced with another nonconforming sign of a less intensive/more restricted nature while continuing to preserve the rights provided under the nonconforming status. The change or replacement may occur only if the Director finds that the change or replacement addresses and substantially improves the existing nonconformities, does not create new nonconformities, and brings the sign into greater conformance with the sign development standards and design guidelines. However, the changed or replacement sign shall serve as the "new bench mark" in terms of establishing the acceptable level of nonconformance. The date of the beginning of the amortization period for the changed or replacement sign shall be the same date as the previous nonconforming sign.

Note 15: The rights provided under the nonconforming status would terminate if the sign is involuntarily damaged, demolished, or destroyed to the extent of more than 50 percent of its appraised market value, the damage or destruction is other than facial copy replacement, and the sign cannot be repaired within 30 days of the date of its damage or destruction. The appraised market value of the sign shall be verified by a valid appraisal by a credentialed real estate appraiser.

Note 16: The rights provided under the nonconforming status would terminate if the sign whose owner, outside of a change of copy, requests permission to remodel and remodels the sign, or expand or enlarge the building or land use upon which the sign is located, and the sign is affected by the construction, enlargement, or remodeling, or the cost of construction, enlargement, or remodeling of the sign exceeds 50% of the cost of reconstruction of the building.

18.130.040 - Elimination of Nonconforming Uses (By Use)

A. Replace with a conforming use. The Director, or the appropriate review authority if other than the Director, may grant one or more of the incentives listed in Subsection B as an inducement for the owner/operator of an existing nonconforming use (by use) to replace the use with a conforming use identified in Article II (Zoning Districts and Allowable Land Uses).

B. Incentives allowed. The incentives for conversion of a nonconforming use to an allowed use may include decreased landscaping, parking, screening, and setback requirements, and increased density, FAR, or intensity provisions.

18.130.050 - Single Family Dwelling Unit Exemption

A. Allowable reconstruction. Nonconforming single family residential dwelling units including secondary residential units, involuntarily damaged or destroyed due to a catastrophic event, may be reconstructed or replaced with a new structure(s) using the same development standards applied to the damaged or destroyed structure(s) (e.g. building envelope, density, and footprint standards).

B. Time limits. The building permit(s) for the reconstruction or replacement of the nonconforming structure(s) with a new structure(s) shall be obtained within one year from the date of the catastrophic event and construction shall be completed within two years from the date of issuance of the building permit(s).

C. Flood and avalanche hazards. The reconstruction or replacement of the nonconforming structure(s) with a new structure(s) in the 100-year floodplain and/or an avalanche hazard zone shall be in compliance with all applicable requirements of Chapter 18.34 (Flood Plain Management) and Section 18.20.060 (Snow Avalanche Overlay District).

18.130.060 - Multi-Family Dwelling Unit Exemption

A. Allowable reconstruction. Nonconforming multi-family residential dwelling units, involuntarily damaged or destroyed due to a catastrophic event, may be reconstructed or replaced with a new structure(s) of an equivalent number of dwelling units and size in compliance with State law (Government Code Sec. 65852.25) and the standards of this Section.

B. Multi-family units defined. Multi-family is defined as two or more dwelling units on a single parcel for the purposes of this Section.

C. Time limits. The building permit(s) for the reconstruction or replacement of the nonconforming structure(s) with a new structure(s) shall be obtained within two years from the date of the catastrophic event and construction shall be completed within two years from the date of issuance of the building permit(s).

D. Compliance with Development Code. The multi-family reconstruction shall be in compliance with all applicable Development Code requirements provided that the predamaged size and number of dwelling units shall be allowed. The Director may waive or reduce requirements if compliance with such requirements would result in the size and/or number of dwelling units being less than that in existence prior to damage or destruction.

18.130.070 - Nonconforming Parcels

A nonconforming parcel of record that does not comply with the access, area, or width requirements of this Development Code for the zoning district in which it is located, shall be considered to be a legal building site if it meets at least one of the five criteria specified by Subsection A.

A. Criteria for nonconforming status. It shall be the responsibility of the applicant to produce sufficient evidence to establish the applicability of one or more of the following, which shall determine that a parcel is a legal building site for purposes of development and new land uses:

1. The parcel was created through an approved subdivision;

2. The parcel is under one ownership and of record, and was legally created by a recorded deed in accordance with County or Town subdivision regulations in effect at the time of its creation and before the effective date of the zoning amendment that made the parcel nonconforming;

3. The parcel was approved through a Variance in compliance with Chapter 18.82 (Variances and Historic Variances) or resulted from a lot line adjustment as provided in Chapter 18.86 (Lot Line Adjustments);

4. A Certificate of Compliance was issued for the parcel; and/or

5. The parcel was created in compliance with the provisions of this Development Code, but was made nonconforming when a portion of the parcel was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing any public right-of-way was decreased not more than 50 percent.

B. Limitation on subsequent subdivision. Where structures have been erected on a nonconforming parcel, the area where structures are located shall not be later divided so as to reduce the building site area and/or frontage below the requirements of the applicable zoning district or other applicable provisions of this Development Code, or in any way that makes the use of the parcel more nonconforming.

18.130.080 - Conformity of Uses Requiring Use Permits

A. Uses allowed with Use Permit approval. Any use existing at the time of adoption of this Development Code in a zoning district that allows the use subject to Use Permit approval, shall be deemed a conforming use, but only to the extent that it previously existed (e.g., maintaining the same site area boundaries, hours of operation, etc.).

B. Uses no longer allowed with Use Permit approval. Any use in existence by virtue of a Use Permit issued in compliance with the regulations in effect at the time of application for any land use activity which, under the new regulations is not allowable by Use Permit, may continue, but only in compliance with the provisions and terms of the original Use Permit. If the Use Permit specified a termination date, then the use shall terminate in compliance with the original permit.

18.130.090 - Extensions of Time for Discontinuance

1. Upon the filing of a request for extension by the applicant, the Director may extend the time limits for the rights provided under the nonconforming status if the use is discontinued. The applicant shall file a written request for an extension of time with the Director in advance of the expiration date, together with the filing fee required by the Council’s Fee Resolution.

2. In considering the extension, the Director shall determine whether the property owner has made a good faith effort to re-establish the nonconforming use. If the Director determines that the owner has proceeded in good faith and has excercised due diligence in seeking to re-establish the nonconforming use, the Director may grant an extension of the period for discontinuance of a nonconforming use for up to a total of 180 days.

18.130.100 - Unlawful Uses and Structures

Uses and structures that did not comply with the applicable provisions of this Development Code or other planning and zoning regulations that applied to the use when it was established, are violations of this Development Code and are subject to the provisions of Chapter 18.200 (Enforcement). No right to continue occupancy of property containing an illegal use or structure is granted by this Chapter. The activity shall not be lawfully allowed to continue unless/until all land use permits required by this Development Code are first obtained.

18.130.110 - Nuisance Abatement

In the event that a legal nonconforming use or structure is found to constitute a public nuisance, nothing in this Chapter shall be construed to permit the retention of the nonconformity. The Town Attorney may, with the consent of the Council, commence an action or preceding for the abatement and removal of the nonconformity.