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HomeMy WebLinkAboutNonconforming StructuresAGENDA REPORT MEETING DATE: SEPTEMBER 13, 2011 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: NONCONFORMING STRUCTURES, USES, AND LOTS; RECOMMENDATION FOR DRAFT ORDINANCE NO. 1397 RECOMMENDATION: That the Planning Commission: Conduct a Workshop on ,the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots (see Attachment A). 2. Provide input and direction on draft Ordinance No. 1397 (Attachment B). Based upon input from the Commission, staff will prepare and return at the September 27, 2011 meeting with a Resolution for formal action by the Tustin Planning Commission. SUMMARY: At the request of the City Council, staff prepared draft Ordinance No. 1397 to provide clarity, provide consistency and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. The Tustin City Council has requested that the Planning Commission consider verbatim City Council minutes of March 15, 2011 (Attachment D) and draft Ordinance No. 1397 -Attachment B and provide a recommendation on the proposed ordinance to the Tustin City Council. BACKGROUND: On December 14, 2010, the Tustin Planning Commission considered an appeal of a Community Development Department code enforcement action involving potentially illegal alterations and additions to a single family residentially zoned property. The matter was appealed and heard by the Tustin City Council on March 1, 2011. City Council deliberations at that time focused largely upon understanding and interpreting Tustin City Code Section 9273, the City of Tustin's regulations for nonconforming structures and uses. At the conclusion of the matter, the City Council 784518.2 Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 2 directed staff to draft a code amendment to provide clarity, provide consistency, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code (TCC). As directed, draft Ordinance No. 1397 was presented to the City Council on March 15, 2011 (Agenda Item No. 17). Draft Ordinance No. 1397 proposes: - clarifying language wherever the term "nonconforming" was used in the Tustin City Code, including a new definition and clarifying that illegal structures or uses are a public nuisance that should be corrected in (Article 1 -Administration and Article 9 -Land Use); - clarifying that only lawfully established sexually oriented businesses are considered legal nonconforming (Article 3 -Business Regulations); - clarifying that only lawfully established newsracks are considered legal (Article 7 - Public Facilities); and, - clarifying that only lawfully established structures, uses, lots, wireless facilities, and signs are considered legal nonconforming (Article 9 -Land Use). Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. On March 15, the City Council passed Resolution No. 11-19 by a vote of 5-0, and directed that the Commission receive and consider draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on draft Ordinance No. 1397 (Agenda Item #17) so that the Commission would be aware of the City Council's concerns, and provide a recommendation on the proposed ordinance to the Tustin City Council. Planning Commission Workshop In preparation for consideration of Draft Ordinance No. 1397, staff prepared the document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots. Staff proposes a workshop on the matter prior to the Planning Commission's regular meeting on September 13, 2011, to present the information contained in this document and to answer specific questions that the Planning Commission might have regarding this matter. The document provides clarity regarding the application of nonconforming provisions and court precedence in California: Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 3 • That a legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning Code, the Zoning Map, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. Legal nonconforming is sometimes referred to with the term "grandfathered." A structure, use or lot that is out of conformance with the adopted code is not considered to be nonconforming when it was illegally established. An illegal structure, use, or lot is caused by the actions of a past or current owner, tenant or propert governmental action. Because the structure, use or established, it is ineligible for the privileges afforded to nonconforming structure, use, or lot. a Specifically, illegal structures, uses or lots may not remain in their current state indefinitely, but are required to be brought into immediate compliance with current code standards. Illegal nonconformities can pose life-safety concerns to the property owner, neighbors and to others, including safety personnel such as fire and police respondents. The following discussion further describes illegal structures, uses, and lots. '~,~ ~. • As a general rule, adopted codes presume that a legal nonconformity is detrimental to the public interest (health, safety, morals or welfare), and that the nonconformity needs to be brought into conformance with the current code at some point in time. For example, a community that finds that an existing code allows structures to be built too tall may adopt a code amendment to lower the height limit of new construction. The code looks to the future and assumes that y manager, and not a lot was not lawfully a lawfully established Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 4 existing, lawfully established nonconforming structures that exceed the new height limit may continue to exist but will be brought into conformance or eliminated over time. Any change in the premises which tends to give permanency to or expands the nonconformance would not be consistent with this purpose. Description of City Code Enforcement Efforts When Illegal Structures, Uses, or Lots are Discovered Illegal structures, uses and lots come to the attention of City staff in a number of ways. The most common method is when a property owner approaches staff to propose an alteration of or addition to an existing structure (this includes when an owner desires to rebuild a structure damaged in a disaster). Another is when a real estate professional, mortgage lender, or prospective buyer contacts the City and requests documentation that room additions, etc. have been added legally. Another is when a property owner is seeking Mills Act property tax relief for a historic property and invites staff to the site. Illegal structures, uses and lots also come to the attention of the City's Code enforcement staff through complaints. Except for proactive neighborhood improvement efforts conducted in cooperation with the Tustin Police Department, City code enforcement is nearly always performed on a complaint basis only. Potentially unauthorized structures, uses or lots are brought to the attention of code enforcement staff through complaints and referrals from the following sources: • Neighbor complaints • Orange County Fire Authority or other County agency staff • Tustin Police Department referral • City plan check or building inspectors • OC Health Department • City Business License staff • County fictitious business name clerk • Real estate professionals including requests by lending institutions • The property's owners • Tenants • Utility providers • Code Enforcement • Staff inspection following fires and other disasters • Others When a potentially unauthorized structure, use or lot is identified, staff will confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff will perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 5 when it was added to the site, and whether it was lawfully established. Staff often considers the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: • Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written histories/letters from current and prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • Request an independent licensed/qualified architect experienced to perform a site assessment. City staff will always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is legal. If, at the conclusion of staff review, the potentially unauthorized structure, use or lot is determined to have been lawfully established, pertinent information would be added to the City's records documenting that fact, and the matter would be closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner will be officially requested to correct the concern. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 6 When informed by staff that a structure, addition or alteration appears to be illegal, an owner will often pursue the matter further. Sometimes an owner will request another inspection of a potentially unauthorized structure by a City building inspector to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector would typically visit the site to observe major life/safety related discrepancies in the workmanship and materials used to determine whether the work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made (e.g. the addition did not have a foundation; electrical, water, sewer and gas installation was hazardous; required fire separation between units or floors was not installed, etc.). Note: a structure built consistent with the Building Code adopted at the time of construction is evidence, considered with the whole record, that a structure may have been lawfully established at the time. Compliance with the Building Code means that the structure was constructed in conformance with the Building Code using conventional building methods, not that the structure was built legally. (A structure may be built in compliance with the Building Code, for instance, but in violation of other codes, like fire codes, or Zoning Code requirements such as setbacks.) However, it is also possible that the opposite would occur, e.g. City inspection of a potentially unauthorized structure could result in the identification of tell-tale Building Code inconsistencies/violations that establish that the structure was illegally constructed. Based upon a staff survey of the 34 Orange County cities, it is standard practice to use such inspection/investigative routines. Current owners of the property may not have personally caused the illegal structure to be built. In fact, the owner may have purchased the property with an understanding that the property and structures were legal. While some owners may have bought the property unaware of an illegal structure or use, even an innocent current property owner bears the responsibility for ensuring that their structure, use or lot was lawfully established and is lawfully operated. In response to the City's request to correct an illegal structure, some owners work with staff to legalize it "after the fact." Others may work with staff to remove the illegal structure. Under California law, affected owners may have legal recourse against a prior owner, a professional property inspector, real estate agent, or a property title company for a failure to disclose the potentially illegal nature of a structure, use or lot. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 7 Planning Commission Determination of December 14, 2010, City Council Determination of March 1, 2011 and March 15, 2011 December 14, 2010 Planning Commission (Board of Appeals) Determination On December 14, 2010, the Tustin Planning Commission (acting as the Board of Appeals) considered an appeal of a Community Development Department code enforcement action. The appeal involved a staff determination that Tustin Zoning and Building Code violations existed at the site involving the illegal addition of two units to a single family residentially-zoned (R-1) property (that also contained a lawfully constructed single family residence and garage), along with other alterations and additions made in violation of the code. On the advice of City Attorney Holland, the Board of Appeals reversed the Community Development Director's zoning determination and ruled that the two units were nonconforming and could continue to exist on the site. In addition, the Board of Appeals directed the owner to comply with the requirements of a previously issued Notice and Order "to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The Planning Commission's (Board of Appeals') decision on matters involving the Building Code violations was final and not appealable. However, the Board of Appeals' determination on the zoning matter was appealed by a City Council member and heard by the Tustin City Council on March 1, 2011. March 1, 2011 City Council Determination City Council deliberations on March 1, 2011 were focused largely upon understanding and interpreting the City of Tustin's regulations for nonconforming structures and uses. The City's current nonconforming provisions (TCC 9273 and 9298) do not use the term "legal" or "lawfully established" with the term "nonconforming" (Attachment C). However, the current Tustin Code did not always refer to the term "nonconforming" without a qualifier. The City's first Zoning Code, .adopted in 1947 (Ordinance No. 47) introduced regulations for nonconforming uses and structures utilizing the term "lawfully nonconforming" and also identified and determined what land use designations would regulate the future built environment for the City of Tustin. Ordinance No. 157 was adopted in 1961, and modified the nonconforming code provisions by dropping the term "lawfully" to only use the term "nonconforming." That wording continues to this date. Although the 1961 nonconforming code did not include the word "lawfully" from the term "lawfully nonconforming", various provisions of the 1947, 1961, and the current Zoning Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 8 Code clearly requires the lawful establishment of uses and structures' and consider any use of land, structural alterations or modifications, etc., operated and/or maintained contrary to the Zoning Code to be considered public nuisances. Also, TCC Section 9298 was also amended by Ordinance No. 157. Section 9298 states that the Zoning Code as amended "shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving, alteration or enlargement of any building or improvement" except where "greater restrictions" applied. Section 9298f also states: "Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City which further clarifies that illegal structures, uses, and lots are prohibited. Thus, the 1961 deletion of the term "lawfully" arguably was not intended to alter the interpretation and application of nonconforming regulations to anything other than a legally established structure, use or lot. The nonconforming provisions were amended again in 1989 (Ordinance No. 1013) to state that any structure or use "which is legal" but made nonconforming by the adoption of amendments to the code, is considered legal nonconforming (TCC Section 9273(e)). The November 14, 1988 staff report requesting Planning Commission support of Ordinance No. 1013 stated: "Under the current provisions of the Tustin City Code related to Non- conforming Uses and Structures (Section 9273), a property which was at one time legal and conforming to all the development standards, but, for some reason no longer satisfies minimum zoning code requirements would be considered legal non-conforming." Taken in its entirety, Sections 9273 and 9298 can be construed to mean that only legal or lawfully established structures, uses and lots are legal nonconforming, whether established before or after 1961. Certainly, this has consistently been the interpretation through the years requiring illegal (often unsafe) building additions and alterations, illegal uses, and illegal lots to be brought into conformance with the Tustin Zoning and Building Code. However, it was Ordinance No. 157's omission of the term "lawfully" from the City's nonconforming regulations that provided the basis for City Attorney Holland's opinion at the Planning Commission's (Board of Appeals') appeal hearing on December 14, 2010. To summarize City Attorney Holland's opinion, the term "nonconforming" as previously used in the City's nonconforming regulations was modified by Ordinance No. 157 for those structures, uses or lots that existed when Ordinance 157 was adopted to no longer be limited to only legally established structures, uses or lots. Specifically, adoption of ' There appears to be no debate that the current ordinances require uses, structures or lots established since the adoption of Ordinance 157 in 1961 to have been lawfully established to be considered legal nonconforming. The issue that has arisen, and concerning which clarity may be added to the ordinance, is whether uses, buildings and structures established prior to 1961 must have been lawfully established to qualify for legal nonconforming status. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 9 Ordinance No. 157 could be interpreted to mean that both legal and illegal structures, uses, and lots existing prior to 1961 should be granted the rights previously afforded only to legal nonconforming structures, uses, and lots; i.e. both nonconforming legal and illegal structures, uses or lots may continue indefinitely. At the conclusion of the appeal hearing on March 1, 2011, the Tustin City Council concurred with the City Attorney Holland's reasoning and conclusion and voted 4-1 to uphold the Board of Appeals' zoning determination that the two units were nonconforming and could continue to exist on the site. However, The City Council also emphasized that the owner must comply with the Board of Appeals direction that the owner comply with the requirements of a previously issued Notice and Order "to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The determination does not affect enforcement of the California Building and Safety Code, so even illegal "nonconforming" structures (established prior to 1961) would continue to be required to comply with the current Building Code to address life-safety issues. However, the City Council's March 1, 2011 determination has implications that go far beyond simply classifying two illegal units at 520 Pacific Street as nonconforming; if followed in other decisions, or if courts were to agree the existing Code has that meaning, it could have the effect of conferring nonconforming status to all legal and illegal structures, uses and lots in the City established prior to 1961. If established prior to 1961, owners of illegal structures, sexually-oriented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc. may argue that their facilities should be considered nonconforming and allowed to continue indefinitely, citing the determination of the appeal of 520 Pacific Street. Since the determination, several property owners that are the subject of active code enforcement for illegal construction have indicated that their additions occurred prior to 1961 and should be allowed to remain. Again, the implications are far-reaching. Of the 34 Orange County cities, only four cities have adopted ordinances that do not use the term "legally" or "lawfully" with the term "nonconforming" (Tustin, Dana Point, Santa Ana, La Habra). As the result of a survey, staff has determined that all Orange County cities pursue similar illegal zoning and building code violation code enforcement. If clarification of the matter does not occur, the code could be interpreted as allowing pre- 1961 illegal structures, uses and lots to continue to exist indefinitely within Tustin, subject to the limits placed on nonconforming structures. Members of the City Council discussed some of these implications at the March 1, 2011 meeting. The discussions concluded that the City's nonconforming provisions were confusing as written and should be reviewed for possible amendment to provide clarity in the matter. As previously noted, the Tustin City Council directed staff to prepare a code amendment for the City's nonconforming provisions that would clarify, provide consistency, .and to reduce ambiguity throughout the City to be brought before the City Council on March 15, 2011. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 10 March 15, 2011 City Council Determination As directed, draft Ordinance No. 1397 was presented to the Tustin City Council on March 15, 2011 (Agenda Item No. 17) to clarify, provide consistency, and to reduce ambiguity in the regulation of nonconforming structures, uses and lots. Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. Following discussion, the City Council passed Resolution No. 11-19 (Attachment E) by a vote of 5-0, directing that the Planning Commission receive and consider draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on draft Ordinance No. 1397 so that the Commission would be aware of the City Council's concerns in the matter, and provide a recommendation on the proposed ordinance to the Tustin City Council Draft Ordinance No. 1397 Draft Ordinance No. 1397 is intended to clarify the City's nonconforming provisions. The ordinance was drafted to clarify and reintroduce the term "Legal Nonconforming" in order to more clearly exclude illegal structures, uses and lots from being considered nonconforming, no matter when the structure, use or lot was established. Also, every reference in the Tustin City Code to the term "nonconforming" that does not clearly refer to a legal or lawfully established structure, use, or lot is proposed to be modified to include the words "legal" or "lawfully established" to ensure that the term is no longer ambiguous. In addition, the City Attorney has proposed additional modifications noted in the draft to provide additional clarity of interpretation and application. Adoption of the currently proposed Ordinance No. 1397 would clarify that the City's nonconforming responsibilities and privileges are intended to only apply to a lawfully established structure, use or lot anywhere in the City. If adopted, Ordinance No. 1397 would, as a practical matter, limit the effect of the City Council's March 1, 2011 determination to apply nonconforming status to only the two illegal units which were the subject of the appealed matter at 520 Pacific Street, as approved in City Council Resolution No. 11-18. If adopted, Ordinance No. 1397 would clarify that all other structures, uses, and lots in the City that were established or enlarged illegally are not legal nonconforming, and are not allowed to continue indefinitely. If adopted, only lawfully established structures, sexually oriented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc., would be legal nonconforming. The Tustin City Council adopted Resolution No. 11-19 directing that the Planning Commission consider Ordinance No. 1397 along with City Council input at that time Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 11 (see verbatim minutes provided as Attachment D, and that the Planning Commission provide the City Council with a recommendation on draft Ordinance No. 1397 (Attached to Resolution No. 11-19 as Attachment E). It should be noted that City Council did not have the benefit of much of the information contained in this report when considering and discussing the matter on March 15, 2011. California Preservation Foundation Input The City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). The Certified Local Government Program is a preservation partnership between local, state and national governments focused on promoting historic preservation at the grass roots level. Certification provides the City access to the expert technical advice of the State Office of Historic Preservation as well as the National Park Service's Advisory Council on Historic Preservation. Partnerships with the National Alliance of Preservation Commissions, Preserve America, the National Trust for Historic Preservation, and the National Main Street Center are also networks that CLGs have an opportunity to tap into. Following City Council action on March 15, 2011, a representative of the California Preservation Foundation (CPF) contacted Community Development Department staff and expressed an interest in reviewing and commenting on the City's draft Ordinance No. 1397. The CPF representative was provided a copy of draft Ordinance No. 1397 (Attachment B) for review and comment. On May 5, 2011, the CPF representative and City staff discussed the ordinance by conference call, and on August 25, 2011 City staff outreached and met with the CPF representative and discussed Ordinance No. 1397 with the goal of ensuring that the ordinance would not negatively impact historic resources. CPF concurred with staff's initial draft of Ordinance No. 1397 and the Community Development Department's methods for researching historic structures, uses, and .lots (discussed above), but suggested the following to strengthen the ordinance and approach. Formalize the City's investigative procedures through an adopted/approved policy to ensure implementation of a standardized approach by current and future staff and the affected public, including but not limited to a review of the following criteria: • Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 12 • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. City Response -Staff believes that this was an outstanding suggestion and addresses some of the concerns previously raised by the City Council. Because code enforcement investigative procedure is administered at the department level, a Community Development Department policy memo reflecting the above approach has been prepared for concurrence by the Planning Commission and City Council (Attachment F). Staff will also be developing a list of professional consultants that can be called upon (on a rotating basis) to assist in any site assessment that may be needed in the future. 2. Include language in the Ordinance that clarifies that staff has discretion to find that any one or a combination of the criteria described above provide sufficient proof that the potentially unauthorized use or structure is lawfully established. City Response -Proposed language was added by staff to draft Ordinance No. 1397 clarifying that staff (Community Development Director) would have the discretion to determine that a potentially unauthorized structure, use, or lot was lawfully established after consideration and review of the available record of information (the originally proposed code amendment, as considered by the City. Council on March 15, 2011, is shown in red underline/strikethrough; language to address recent CPF suggestions is shown in blue). Only if the Director makes a finding that the available evidence indicates the use and/or the structure, use or lot is or is not legal nonconforming would a potentially unauthorized structure, use or lot be determined illegal, declared a public nuisance, and be subject to enforcement action. Analysis This report discusses a broad number of issues related to the how nonconforming provisions apply to both legal and illegal structures, uses and lots. Staff believes that a careful analysis of the information provided supports the conclusion that there is an immediate need to amend the Tustin City Code to ensure the proper clarity separating Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 13 lawfully established nonconforming structures, uses, and lots from illegally established structures, uses and lots. The following points summarize the most critical reasons that the Planning Commission should consider supporting Ordinance No. 1397. Unlike legal nonconforming structures that were lawfully constructed for continuous use, or adaptive reuse where a nonconforming structure was lawfully altered to support the establishment of a conforming use, illegal conversions do not meet the code. As a result, illegal structures, uses and lots pose serious safety risks to the health, safety and welfare of inhabitants of the property, neighbors, and safety personnel. 2. Bootlegged structures are rarely constructed to meet code requirements. Left unresolved, illegal structures, uses, or lots threaten the public's health, safety and welfare. 3. Because illegal structures, uses or lots must be made safe, certain building upgrades and improvements are necessary. This is opposite the intent of nonconforming provisions, i.e. that the structure, use or lot may continue indefinitely. Staffs experience is that the owner's cost of hiring a professional architect, structural engineer, and licensed contractor to legalize a bootlegged structure or use, may exceed the value of keeping the illegal structure. Sometimes removal is the better option when faced with the expense of bringing a bootlegged building up to code. Staff believes that the current interpretation that an older illegal structure, use or lot is nonconforming presents aconfused/mixed message that the property is nonconforming but can't continue indefinitely as it currently exists. 4. Illegal structures, uses, and lots impact the quality of life in a neighborhood by creating unplanned impacts to the public infrastructure (i.e. increased school and park attendance [no fees paid], water and sewer impacts [sizing may not be adequate and no fees paid], increased on-street parking, etc.) and may cause housing overcrowding. Some uses can have deleterious effects on sensitive uses such as the elderly, children, etc. 5. Staff has encountered actual code enforcement cases (summarized in the document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots) where it appears that a property owner illegally constructed four additional Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 14 units at the rear of an older home within an R-1 (single family residential) zoned property following Planning Commission and City Council denial of a 1968 Zone Change application. Pursuant to the recent interpretation, if the four units were illegally constructed prior to 1961, staff would arguably lack the authority under the Zoning Code to treat the uses as illegal even though the Planning Commission and City Council had specifically denied that use of the properly. Enforcement of City Codes may be limited to enforcement of building and hazardous buildings codes. Illegal actions should not be rewarded by the passage of time. 6. City Code Enforcement staff have handled numerous cases in the past where owners or tenants have added illegal uses to a property in violation of State and local law including illegal auto repair, prostitution, conversion of a single family home to an apartment or boarding house (including bedroom use of the attic, basement, garage, etc.), commercial food preparation, industrial business (with hazardous materials stored on the site), illegal meat processing, motorcycle manufacturing and street testing, and intensification and upgrading of commercial and industrial buildings to accommodate assembly uses without meeting the code. If the illegal use has operated prior to 1961 and continuously since without illegal expansion, it could be entitled to remain at the site as nonconforming. The issue is made more complicated when one considers the number of potential uses that are prohibited by federal and state law that also may have operated at the site since before 1961. 7. 30 of 34 Orange County cities have adopted ordinances that use the term "legal" or "illegal" along with the term "nonconforming" to clarify the legal status of a structure, use, or lot. The cities of Tustin (until March 1, 2011), Santa Ana and La Habra have historically interpreted the code to apply only to legal or lawfully established structures, uses, or lots. This practice is consistent with the key terms and key concepts summarized in the document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots and consistent with the planning practice utilized in other Orange County cities. Tustin's March 1, 2011 approach makes it unique in allowing illegal structures, uses, and lots to remain indefinitely, subject only to the limits placed upon legal nonconforming structures, uses and lots. 8. The Tustin City Code continues to refer only to the term "nonconforming" and does not currently differentiate between legal or illegal structures, uses or lots. If an argument can successfully be made that a structure, use, or lot established before 1961 is nonconforming, what about those established in 1962 or 2001? The code is ambiguous and should be clarified. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 15 CONCLUSION On March 15, 2011, the City Council directed staff to revise the Tustin City Code as it relates to the term "nonconforming" to clarify, provide consistency, and to reduce ambiguity throughout the City Code and also directed that the Planning Commission consider the matter. As directed, the Planning Commission should consider the information presented in this report, the verbatim minutes of the City Council meeting on March 15, 2011, and proposed Ordinance No. 1397. At the conclusion of its deliberations, the Planning Commission should provide input and direction on draft Ordinance No. 1397. Based upon input received at the meeting, staff will prepare and return at a future meeting with a Resolution for formal action by the Tustin Planning Commission. Dana L. Ogdon, AICP Assistant Director ordinanceno1397.doc Attachments: Elizabeth A. Binsack Director of Community Development A. Document entitled: Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots B. Draft Ordinance No. 1397 (with modifications suggested by the California Preservation Foundation). C. Tustin City Code Section 9273 and 9298 D. Verbatim City Council minutes of March 15, 2011 E. City Council Resolution No. 11-19 F. Community Development Department Policy Memo formalizing the Department's code enforcement investigative procedures pertaining to potentially unauthorized structures, uses, and lots. ATTACHMENT A NONCONFORMING STRUCTURES, USES AND LOTS: A DISCUSSION OF THE INTENT, APPLICATION, AND PRACTICE OF CALIFORNIA LAND USE AND PLANNING LAW GOVERNING NONCONFORMING STRUCTURES, USES AND LOTS NONCONFORMING STRUCTURES, USES AND LOTS A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nancanfarming Structures, Uses and Lots. Nonconforming Structures, Uses and Lots Nonconforming Structures, Uses and lots A DISCUSSION OF THE INTENT AND PRACTICE OF CALIFORNIA LAND USE AND PLANNING LAW GOVERNING NONCONFORMING STRUCTURES, USES AND LOTS September 2011 City of Tustin Community Development Department Page 1 Nonconforming Structures. Uses and Lots Table of Contents PURPOSE ~ ...................................................................................................................... 3 INTRODUCTION ~ ............................................................................................................ 3 WHAT IS NONCONFORMING? ~ ....................................................................................... 4 WHAT IS NOT NONCONFORMING? ~ ................................................................................ 8 HOW ARE NONCONFORMING PROVISIONS APPLIED? ~ ...................................................18 HOW ILLEGAL STRUCTURES, USES AND LOTS ARE IDENTIFIED AND ADDRESSED ~ ............22 ACTUAL CASE EXAMPLE ~ ...............................................................................................24 CONCLUSION ~ ...............................................................................................................27 Page 2 ~. Nonconforming Structures, Uses and Lots Structures, Uses and Lots A DISCUSSION OF THE INTENT AND PRACTICE OF CALIFORNIA LAND USE AND PLANNING LA LV GOVERNING NONCONFORMING STRUCTURES, USES AND LOTS PURPOSE ~ On March 1, 2011, the Tustin City Council directed Community Development Department staff to draft a code amendment to provide clarity, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code (TCC). This document is intended to discuss the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses and lots. Issues discussed in this report include: • An analysis of the concept of nonconforming structures, uses, and lots. • What is considered nonconforming? • What is not considered nonconforming? • How are non-conforming regulations applied? • Enlargement, repair, and destruction of nonconformities. • How illegal structures, uses, and lots are identified and addressed. • Actual case example. • Conclusion. INTRODUCTION One interest of community zoning/planning is to establish and control land use. The legal basis for all land use regulation is the police power of a city to protect the public health, safety, and welfare of its citizens. The City of Tustin has adopted codes and land use regulations to confine buildings and land uses to certain locations to protect the health, safety, and welfare of its citizens, and to shape the physical layout and appearance of the community including site planning and urban design. The Building Code, Zoning Code and Subdivision Ordinance are the primary regulatory tools used to accomplish these goals. Staff takes great care when preparing new ordinances for Planning Commission and City Council consideration to minimize the creation of nonconformities. However, as the community's vision for its built environment continues to evolve and change, revision of the City's regulations (use requirements, setbacks, height limitations, etc.) will inevitably result in the creation of nonconforming structures, uses or lots. Page 3 Nonconforming Structures, Uses and Lots To ensure that a community's adopted vision and goals are fully accomplished over time, regulatory provisions are put in place to require nonconforming structures, uses, or lots to be made conforming or ensure their replacement over time. Any change in a structure, use, or lot that gives permanency to, or expands the nonconformity would not be consistent with this purpose and are typically prohibited. In most cases, nonconformities are allowed to continue unaltered (structures may be repaired within certain limits) until the end of their economic life when they would eventually be replaced with a conforming structure, use or lot. WHAT IS NONCONFORMING? ~ Nonconforming structures, uses and lots are relatively commonplace, but the concept may not be completely understood. One might picture a dusty, old brick-making business, surrounded by single family homes, that long predates its current residential zoning; or, an old church that appears to be too close to a street property line because the City widened the right-of-way some time in the past and eliminated a portion of the property's front yard. The Zoning Code identifies development limitations associated with various Districts identified on the City's Zoning Maps that establish uniform building setbacks, height limitations, parking requirements, minimum lot sizes, identify allowed uses, etc. Zoning rules change or are updated over time to guide, control and regulate future development. A legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning Code, the Zoning Map, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance, regulation, or map Nonconforming Structure, use, or lot - A nonconforming structure, use, or lot has been lawfully established in the past but no longer meets the current code requirements (i.e. setback, height, parking, use, lot size, etc.) revision, the property no longer conforms to the policies and standards of the code in which the property resides.1 Legal nonconforming is sometimes referred to with the term "grandfathered." Z As a general rule, nonconforming regulations presume that a nonconformity is detrimental to the public interest (health, safety, morals or welfare), and that the nonconformity needs to be brought into 1 Curtin's California Land Use and Planning Law, Cecily Talbert Barclay, Solano Press Books, 2011, Guide to California Planning, William Fulton and Paul Shigley, Solano Press Books, 2005, Eastman's California Land Use and Municipal Law, John Eastman, 2006, A Planner s Dictionary, Edited by Michael Davidson and Fay Dolnick, American Planning Association, 2005. a Note: Under the Building Code, a lawfully constructed building is not affected by subsequent Building Code updates that may occur in future years. However, when anaddition/alteration is proposed to a lawfully constructed older building, the addition/alteration would be required to meet current Building Code requirements and some existing building components (e.g. fire sprinklers, electrical panels, energy features, etc.) would be required to be upgraded at the time of permit issuance to current standards. Page 4 Nonconforming Structures, Uses and Lots conformance with the current code at some point in time. For example, a community that finds that an existing code allows structures to be built too tall may adopt a code amendment to lower the height limit of new construction. The code looks to the future and assumes that existing, lawfully established nonconforming buildings that exceed the new height limit may continue to exist but will be brought into conformance or eliminated over time. Nonconforming Structures - In regards to the built environment of a community, the Zoning Code implements the City's General Plan and translates the goals and principles of that Plan to parcel-specific regulations intended to guide or restrict development to the overall aesthetic vision of the community. To accomplish this vision, the Zoning Code identifies building limitations and design requirements that restrict the height, setback, design, parking, etc. to ensure that all buildings proposed within a particular Zoning District are similar in bulk, scale and purpose. A nonconforming structure is a lawful structure existing on the effective date of a new zoning restriction that has continued since that time without conformance to the ordinance. Again, a new zoning ordinance anticipates that a nonconforming structure will be eliminated over time and replaced with a conforming structure. Nonconforming Structure - In the example at right, the street setback was changed to require more open space adjacent to a street after the house was lawfully constructed. House X411 Frant Setback ---> ---------- -------- - 1927Front~ --------- Setback Nonconiormiry Street Nonconforming Structure - In the example at left, this garage was built to accommodate one car before the adoption of the current zoning requirement for a two car garage. Page 5 Nonconformina Uses -The Zoning Code identifies the types of land uses that a community desires to be permitted, conditionally permitted, or prohibited within certain Districts identified on the City's Zoning Map. A nonconforming use describes a lawful use existing on the effective date of a new zoning restriction that has continued since that time without conformance to the ordinance. Again, a new zoning ordinance anticipates that nonconforming uses will be eliminated over time and replaced with conforming uses. Nonconforming Use - In the example at right, a single family residential use is a use that is nonconforming to current downtown retail/office zoning. Nonconforming Structures, Uses and Lots oncon farming Lots - The Zoning Code and Subdivision Ordinance establishes minimum lot sizes for construction of a building. Some properties have developed prior to the establishment of these code restrictions. A nonconforming lot describes a lawful lot existing on the effective date of a new zoning or subdivision requirement that has continued since that time .without conformance to the ordinance. Again, a new ordinance anticipates that nonconforming lots will be eliminated over time (possibly combined with an adjacent lot) and eventually made conforming. Nonconforming Lot - In the example at left, a nonconforming lot has been developed into a single family use. Page 6 Nonconforming Structures, Uses and Lots Nonconforming use -Existing manufacturing uses (above) were made nonconforming through adoption of the Pacific Center East Specific Plan which supports development of hotels, retail, office and related uses such as the Hilton Garden Inn (R.D. Olson Agreement approved by City Council in July 2011). Example pictured at upper right was built in Florida). _-_ i - _. `...:,~~ w~ra~.nre~.nrownre aewnua wrwGentanx .. R.aBIS~M Page 7 Nonconforming Structures, Uses and Lots Nonconforming structures, uses, and lots are not always old. Sometimes nonconforming structures are new. There are recent examples of community actions aimed at correcting modern zoning situations. Specifically, when a community determines that the current code does not adequately protect the health, safety, morals and welfare of the community, the community may determine that the current code should be modified. Community's can occasionally change their minds about how a community should be developed. In the example at right, community concern after a tall residential building was approved could convince community leaders to enact a zoning code amendment limiting all future construction to 4-stories, the historic height limit of the existing neighborhood's built environment. Should this occur, the new, lawfully established high-rise building would be made nonconforming. WHAT IS NOT NONCONFORMING? ~ There are certain instances when an existing structure, use or lot is out of conformance with the adopted code but is not considered to be nonconforming. Public right-of-way takings, adaptive reuse of historic structures, illegal structures/alterations, illegal uses, and illegal lots are examples of these circumstances that are examined in more detail below. ~. .~..~....,.__._,..,,.. _ _. _ Right-of--Way Takings - Periodically, a community may take actions that widen or improve public right-of-ways. [Pictured at right, the "Nisson House" front yard was eliminated by the widening of Red Hill Avenue]. Staff attempts to ensure that such "takings" will have little impact upon a lawfully established structure, use, or lot. Although right-of-way takings occur through an action by a governmental agency similar to the adoption of a more restrictive zoning code regulation, the code mandates that structures or lots made nonconforming (e.g. Page 8 setback, lot size, parking, etc.) as a result of the acquisition of public right-of-way be considered conforming unless determined to be a nuisance or threat to health. Nonconforming Structures, Uses and Lots ~~---~- Although legal in status, lots left as remnant FI'~~W21j/ parcels by a right-of-way taking are often unbuildable pursuant to the Zoning Code due to ""~,, '`~, their small size, location or other constraints. '`~~, `'y Residential, commercial or industrial buildings .~ ``~ affected by a right-of-way taking that are hj~Wr ~?ffr±~~1~} s'",~ '- considered conforming may be altered or added to ~~ Remnant without restriction. Remnant (undersized or t Parcel inaccessible) parcels 'are sometimes problematic when acquired by misled or uninformed owners who erroneously believe a small remnant parcel to be developable. Adaptive Reuse of Historic Structures -The City of Tustin's codes allow some expansion/alteration of a nonconforming, qualified historic structure (discussed later in this article). The City also supports adaptive reuse of historic structures. Sometimes, a community's vision for the use of an area or the built environment can change. For example, a zone change from residential to commercial use may leave behind older buildings that may not appear to be consistent with the planned use of the area. Market pressures can result in many old buildings being torn down, altered, or replaced with buildings that are more supportive of the planned commercial use. Remember, the elimination of nonconforming buildings is a goal of the community's new vision for the neighborhood and a requirement of new zoning regulations. Adaptive reuse preserves the important physical ,attributes of a historic resource for future generations to appreciate by adapting it to purposes other than what the building was originally designed for (e.g., conversion of a historic sardine cannery into a museum, or a historic single family home into a teahouse use -such as the McCharles House shown at left). Generally, adaptive reuse converts a use (single family house) that is nonconforming because of its location (commercial zone) into a conforming use (restaurant). A lawfully established adaptive reuse may require an owner to make potential Building Code upgrades, and is considered conforming under the code. The McCharles Tea House (left) is an example of an adaptive reuse success story in Tustin. It was originally built as a single family house in 1899, and was converted to a commercial teahouse use in 1985. The owner and City staff were able to utilize the Page 9 Nonconforming Structures. Uses and Lots California Historic Building Code to grant certain allowances (the Teahouse does not fully comply with zoning and building code standards) to ensure that the architectural design of this important historic resource was preserved for future generations while at the same time extending its economic life as a commercial building. Structures Where Exceptions Have Been Granted -Variances and conditional use permits are methods by which a property owner may seek and obtain relief from the strict stipulations of a zoning code requirement. The allowances granted by a variance or use permit runs with the land, which means that subsequent owners may enjoy the benefits granted by the variance or conditional use permit as long as the stipulations or conditions of approval are met. Although variances may not be granted to authorize a use that is not otherwise allowed by the adopted zoning regulations, deviations from zoning regulations governing lot size, setback, height, parking, etc. may be granted, typically because the property experiences some hardship that prevents it from enjoying the same" rights as other similar properties. Similarly, conditional use permits are utilized to authorize special development regulations that apply to the property. Once granted, the variations in setback, parking, height, etc. are not considered to be nonconforming, but are recognized as conforming. Remember, a nonconforming structure, use, or lot lawfully existed prior to a change in a code. A structure developed utilizing a variance or conditional use permit differs from a nonconforming structure in that the variation occurred lawfully after the adoption of the code. Code Exceptions - In the example at right, a ~'4' railroad water tower was lawfully converted to a residence through discretionary r approvals such as a variance and/or conditional use permit, exempting the ; structure from various zoning regulations ?"~~~ (height, setback, etc.). (Adaptive reuse of ' historic buildings is discussed later in this report). Note: the structure is not considered nonconforming since the exceptions were lawfully established after the adoption of the code, not prior to. Page 10 Nonconforming Structures. Uses and Lots Structures Approved But Never Built -Approval of a project proposal prior to a code amendment does not guarantee legal nonconforming status. I~ Sometimes a code amendment is proposed while projects are "on the drawing board." Projects may be in plan check or be issued permits during .... ; ~. the time an amendment is proposed, adopted ~ ~ ~~ _ and made effective. In most cases, when a code ~° ~ `~ amendment is adopted, projects in plan check or ~'~~~`~ a!> ~.4 that have been issued a valid permit may ~'~. ~-~~ continue to be implemented consistent with the \'- " ~~., ;r previous code (some exceptions exist pertaining to urgency ordinances and urgent life-safety building code amendments).3 However, the right to execute a project using a prior code typically expires when projects are not built in a timely manner, and when permits or plan checks are allowed to expire. An adopted moratorium can prevent the issuance of additional building permits to ensure that future development is consistent with a new code. Again, a structure, use, or lot must be lawfully established (in place and given final City approval), and be later found to be inconsistent with a newer, adopted zoning regulation to be considered nonconforming. Illegal Structures, Uses, or lots - A structure, use or lot that is out of conformance with the adopted code is not considered to be nonconforming when it has been illegally established. An illegal structure, use, or lot is caused by the actions of a past or current owner, tenant or property manager, and not a •~ ~;~-~~~ "- • ;,. governmental action.4 Because the structure, "'` " use or lot was not lawfully established, it is e ineligible to utilize the responsibilities or - M privileges afforded to a lawfully established ~, ~~ ^L `t ~ 1M nonconforming structure, use, or lot. ~~4 ®~ Specifically, illegal structures, uses or lots may not remain in their current state indefinitely, but are required to be brought into immediate '" ~ ~ t compliance with current code standards. Illegal _ `"`~" nonconformities can pose life-safety concerns to the property owner, neighbors and to others, includin safet , "r,.F N. ,,.•.. ,' g y personnel such as fire and police 3 Stubbiefieid Construction v. City of San Bernardino - 32 Cal. App. 4~` 687, 38 Cal. Rptr. 2d 413 (1995) -The California Court of Appeals determined that the City followed proper procedures in adopting a moratorium and revising the zoning requirements prior to an apartment developer obtaining the required permit approvals. a United States v. Monsanto Company - 858 F. 2d 160, 28 ERC 1177, 57 USLW 2170, 19 Envtl. (1988) -The case involved determining responsibility for environmental contamination left by a lessee of a property owned by the Monsanto Company. The United States Court of Appeal (4`i' Circuit) ruled that an owner is responsible for the actions of a tenant and stated it did "not sanction such willful or negligent blindness on the part of absentee owners." Page 11 _~ Nonconforming Structures, Uses and Lots respondents. The following discussion further describes illegal structures, uses, and lots. • Illegal Structure - An illegal structure, sometimes referred to as a "bootlegged structure," is a building constructed without permission of the City and without required plan check or building inspector oversight. Depending upon the expertise of the builder, an illegal structure may or may not meet the adopted code requirements (e.g. the Zoning Code, Building Code, etc.). Examples of illegal structures include room additions, converted garage apartments, signs erected without authorization, structural modification of the interior of an existing building without authorization, etc. PANEL REJECTS BID TO BOOTLEG DWELLINGS LEGALIZE SOME BF.COM[NG A FIXTURE IN GARAGE DWF.LL[NGS THE SOUTHLAND hley 28, 1997~I IU(;O MARTIN ~ LA. 'PIMtiS STAFF' M1tay 1 I, 1990 ~ SI IAWN I IUBLER~ L.A. "CIMF.S STAFF W'RIT'ER ' WKffHR ~ ' A Los Angeles City Council panel rejected a Dennis Cassity's beach house is a modest proposal "Tuesday to legalize some of the ~R place, really. OK, so it's a garage. But such a i~ city s 50,000 to 100,000 bootleg garage coz =ara e! Tiled bathroom, kitchenette -and Y b g dwellings, opting instead to crack down on all for about $100 a month less than the landlords who rent out the illegally converted cheapest apartment in town. living spaces. ;" "Of course, I knew it was illegal," the 40-year- ~` old computer repairman chuckled, recalling In response to eight deaths in three months " the day he found his Flermosa Beach from fires in converted >ara es, a oint ~" b g J apartment. "I was born and raised on the council committee proposed making it a beach. 1 know a bootleg (apartment) when I misdemeanor to rent out such see one." No matter. Cassity took the place accommodations. The penalty would be a anyway. $1,000 tine. ~a r When an illegal structure is constructed in noncompliance with the City's zoning requirements (i.e. setback, height, use, etc), the building is not considered nonconforming. When an illegal structure is discovered, an owner would be required by staff to submit plans showing that the building meets current Zoning and Building Code requirements, obtain a permit, and pass building inspections to legalize the illegal structure. Even a structure erected with aCity-issued permit could later be determined illegal if for instance a City official were to have mistakenly allowed the structure to be constructed in violation of the codes When discovered, false statements, errors and/or omissions made by the applicant, owner, architect, etc., can result in a structure, use, or lot being reclassified as illegal. Hypothetical example; an architect's plans approved by the City indicates that a proposed structure is legally set back from a property line. After a permit is issued and construction begun, a building inspector notes on the job site ' Hurwitz v. City of Los Angeles, No. B172053, 04 C.D.O.S. 11002 (2005) - an appellant court ordered the City of Los Angeles to revoke all building permits and the certificate of occupancy issued in error for building additions to a single family home. "Just as the city has no discretion to deny a building permit when an applicant has complied with all applicable ordinances, the city has no discretion to issue a permit in the absence of compliance." Page 12 Nonconforming Structures, Uses and Lots CRACKDOWN GOES BEYOND GARAGE CONVERSIONS flay 21, 2009 ~ I.hILONI f)li GRUY ~ LOS ANGELES WAVE SI;11 f WRI I1{R COMP"1'ON --Citing what officials call a zero-tolerance policy on safety code violations, code enforcement officers here are cracking down on illegal garage conversions. These conversions, in which areas for automobile storage are modified into living spaces, are "a major problem," said City Manager Charles I',vans. "Our problem is that many of our gauges are converted illegally and they don't meet the health and safety requirements. And they pose a danger and a safety hazard to the people who occupy them.'. "from the outside, a lot of these conversions look like they are garages but on the inside there is a wall," said Deputy Fire Chief Marcel Melanson. He said the lack of a proper exit endangers both residents and the fire fighters who might be called on to rescue them. "It definitely poses a danger to uur tire fighters when they are working in that type of environment." SISTERS KILLED BY FIRE MEMORIALIZED IN LONG BEACH ORDINANCE Deceioar~sr 1°+. zdalll ~ PAUL IiAKINS ~ LONG HI:ACII PRI:~tiS 119 I~iiR~~Rt S~I'AFP WRITER Tuesday's City Council meeting had an emotional moment, when three sisters who were killed in a tire in an illegally converted garage were remembered. Family and friends afthe sisters, Jasmine, Jocelyn and Stephanie Aviles, were at the meeting, where the council unanimously voted to name e section of Long Beach's municipal code that addresses illegal garage conversions after the girls. The ordinance will be known as "Aviles l.aw." Following the Dec. I ~, 2007, fire, the city cracked down on illegal conversions. Fire officials said Tuesday that since ?007 Long E3each has cited more than 550 illegal conversions with fines totaling almost $200,000. Page 13 Nonconforming Structures, Uses and Lots Single family home located in Commercial District. ~'k~ Trailer illegally F attached to a garage and converted to an illegal unit. In addition, illegal additions to a lawfully established nonconforming structure or use often results in the loss of a structure's nonconforming status. As noted previously, a nonconforming structure, use or lot may continue indefinitely but may not be enlarged, modified, etc. When a nonconforming structure or use is expanded illegally, it loses its right to continue indefinitely and must be brought into full Page 14 that the building is not set back as indicated on the approved plans. In fact, the structure is observed to project over the side property line into a neighbor's yard. Regardless of who is responsible for the error (e.g. the owner's architect, a City plan checker, etc.), and regardless of the fact that a building permit was issued, the building is illegally projecting over a property line and must be corrected immediately. Nonconforming Structures, Uses and Lots conformance with the code.6 In some cases, a legal nonconforming status can be reestablished if the illegal modification is removed. Self-imposed hardships are not a finding to support Plannint; Commission issuance of a Variance to allow an illegal structure to violate a Zoning Code requirement so it is typical for an owner of an illegally established structure to either modify it to meet the Zoning and Building Codes or have it removed. An agency can actually abuse its discretion by granting a building permit in an attempt to legitimize an illegal nonconformity' [see also Footnote 8, City and County of San Francisco v. Board of Permit Appeals, 207 Cal. App. 4t" 687, 38 Cal. Rptr. 2d 413 (1995)]. HOUSE FIRF, DISPLACES 8 Again, the purpose of nonconforming regulations is to eventually eliminate nonconformities. Selective enforcement can jeopardize the City's fair application of the code in the eyes of a court. July 25, 201 I~C~i~RY ASFIBY ~ NORWALK RGFLLC'TUK S~fAl~l~ WRI"I~LR A Main Street house fire has displaced eight people from their three apartments. The cause of the blaze, which started in the northwest corner ofthe basement, is an overloaded circuit. E3eck said the tenants had an air conditioning unit, TV and other things plugged into the same circuit. Displaced from Sunday's fire were one couple, three friends who lived together and a mother and her two young sons. The house, built in the early 1900s... What about illegal older Buildings? -One might think that because a particular structure or use has been around for a long period of time that it is obviously nonconforming or "grandfathered," or that because a structure is old that an owner should be allowed to continue to preserve it and use it "as is." This idea is not consistent with the concept of adaptive reuse, which presumes that the owner of the property has legally obtained the proper permits and that the building was adapted (upgraded to meet applicable Building Codes). It is also not consistent with the goal that nonconforming structures, uses and lots be eventually made to conform. Illegal additions (even old ones) may detract from the social, cultural or historical significance of an important historic 6 Goat Hill Tm~ern v. City of Costa Mesa, 6 Cal. App. 4a' 1519, 8 Cal. Rptr. 2d 385 (1992) -The California Court of Appeals found that the City of Costa Mesa could not require the abandonment of a tavern after the expiration of a conditional use permit authorizing a game room in the tavern. The court ruled that the City could have required elimination of the game room but not the termination of a business that had operated legally for 35 years. ~ Stolman v. City of Los Angeles, No. B 164169, 04 C.D.O.S. 30, 2004 DJDAR 22 (2004), an appellate court overturned the City of Los Angeles's approval of a variance that allowed the expansion of a nonconforming use. The court determined that a proposal to expand a gas station located in a residential zone did not meet the city's criteria for a variance; there was no evidence that imposing existing zoning requirements would create a hardship for the landowner or business owner - a requirement for a variance. Page 15 Nonconforming Structures, Uses and Lots resource. Most importantly, old structures or uses must be lawfully established to ensure that they do not pose a hazard to occupants or the community. What about older buildings where no permits can be found? -Many structures within the City of Tustin are old and permits may not be on file with the Community Development Department. An absence of proper legal documentation does not automatically result in a City determination that a structure, use or lot is legal or illegal. Tustin staff routinely works with affected property owners and various public agencies (Water Department, County Assessor, etc.) to review official and unofficial documentation to establish whether a structure, use or lot is legal or illegal prior to requesting a property owner to pursue any corrective action (see How Illegal Structures, Uses and Lots Are Identified and Addressed below). If an older structure is determined to be lawfully established, information would be added to City records documenting the fact in order to create a record for reference by future staff and property owners, and the matter would be closed. Based upon the whole record, if City staff concludes that a structure appears to be illegal, the property owner is requested to immediately correct the ILLEGAL UNI"I'S `ALL OVER' COSTA MESA February 28, 2011 ~ FRANK MICKAI)EI~T ~ ORANGE, P~ ~"° COUN'T'Y RI~GIS'I'F.R COLUMNIST' j How many so-called "granny flats" and "spare F` ~~;~ bedrooms" are actually converted garages like ;~~ the one in Costa Mesa where 17-year-old ~ Luke Upton died "Thursday morning? ~ "This is all over Costa Mesa." says Councilman Jim Righeirner, who went out to the scene with city tire and building offiicials on Saturday. "Staff is very good (about enforcing building codes) when they know about it, but you have so many people in the community turning a blind eye." E concern. In fact, many permits are issued where no permits exist for older structures when it is clear that the construction was conventional and sound construction practices were employed consistent with the Building Code adopted at the time. Illegal additions can be very damaging to historic structures since the original (and historically important) character and integrity of house can be lost or significantly harmed. Illegal improvements are often out of historical context, and are inappropriate for the style and period of the historic structure. Oftentimes, the historic integrity, character and context of the historic structure can only be restored through the removal of the illegal additions. • Illegal use -The regulation and enforcement of land use regulations is important in preventing potential life-safety conflicts between land uses and ensures the health, safety and welfare of the Page 16 community. Illegal uses occur when an owner, tenant, etc. illegally introduces a land use to a site that is not presently zoned for such a use.$ Examples of illegal uses include: • Residential garage converted to an apartment without permits. • Attic or basements converted to an apartment without permits. • Introduction of an auto repair business in a single family zone. • Creating a rooming house out of a single family home. • Asexually oriented business without permit • An industrial building used as a residence. • Occupancy of a structure that intensifies the use of the property without upgrades required by the Building Code to accommodate such intensification. TWO PEOPLE SHOT, KILLED AT BOOTLEG LIQUOR JOINT Sunday, Id Nov 2[110 - t3y Ken McCall and Marc Katz Stal7~ Writers DAY"TON --'two people were killed during a robbery at a Germantown Road residence early Sunday morning, according to police. "The residence was set up as a boot joint, which is an after-hours illegal liquor establishment..." Nonconforming Structures, Uses and Lots 3 ARRESTED IN CULTIVATING HASHISH AFTER GARAGE FIRE M:U2CH 29, 1011~i3Y SEAN I[MII~:R1' OIZ;WGI; COUN~IY RG(ilSll[R SANTA ANA -Two rnen and a woman suspected of cultivating hashish were arrested after ofticers responded to a suspicious tire at a home in Santa Ana Monday night, police said. Firefighters responding to a blaze in the garage of a residence ...suspected that the garage was being used as a methamphetamine lab but later realized that the men were using the equipment to extract hashish from marijuana... A lawfully established structure is constructed to support a specific intended use. Illegal uses pose serious safety risks to occupants and safety personnel by ignoring the requirement to install Building and Fire Code upgrades prior to such use. Illegal uses also can negatively impact community services (i.e. overcrowding and excessive street parking, classroom size, park use, water and sewer service, etc.), negatively impacting the overall quality of life of an affected neighborhood. The introduction of illegal uses can have a deleterious secondary effect upon sensitive uses and persons. a City and County of San Francisco v. Board of Permit Appeals, 207 Cal. App. 3d 1099, 255 Cal. Rptr. 307 (1989), The Board of Permit Appeals overruled a zoning administrator's denial of a permit to allow an owner to retain an existing, illegal unit on a property zoned for single-dwelling use. The unit appeared to have been added over a period of years spanning 1926 and 1938, with a resulting financial benefit accrued to several subsequent property owners. The Board of Appeals partially based its decision on verbal testimony offered by neighbors but no reliable physical evidence was presented. The Court of Appeals of California reversed the Board of Permit Appeals decision and upheld the City/County determination. that the unit was illegal. Page 17 Nonconforming Structures, Uses and Lots Once identified, property owners are required to eliminate the violation. While owners have the option of applying for a zone change, the Planning Commission and City Council would be required to consider the effect of introducing the new land use into the property's zoning designation throughout the City, since spot zoning (applying a zoning regulation to only one site) is specifically prohibited by State law. Illegal lot -Illegal lots occur when a property owner illegally deeds or otherwise conveys a portion of a legal lot to another party without complying with the State Subdivision Map Act and the City's Subdivision Code. Illegal lots occur infrequently, but modern examples do occur. There are recent cases where real estate agents, escrow agents and others conspired to sell apartment units to unsuspecting buyers as condominiums. Such unscrupulous behavior typically results in prison sentences for guilty sellers. ILLEGAL LOT SALE SPURS LAWSUIT J:~NI~aK~~ 2003: HY JOAN BJARKO NOR'I'II FOR"I~l' NE:WS A Colorado native with dreams of living simply on a piece of rural land is instead living in a nightmare of financial complications because Larimer County says he purchased an illegal lot. Very old lots established prior to the enactment of modern subdivision laws are also sometimes considered illegal.9 Very few options exist for property owners of an illegal lot, but City staff and the City Attorney would work with citizen-victims to resolve the matter if possible. HOW ARE NONCONFORMING PROVISIONS APPLIED? ~ Since most structures, uses and lots in a city conform to the code, the application of nonconforming regulations occur infrequently. For most cases, nonconformitiesaie allowed to continue until the end of their economic life when they are voluntarily replaced with a conforming structure, use or lot.10 Although the adoption of new regulations does not typically include a requirement for an immediate discontinuance 9 Gardner v. County of Sonoma, No. S102249, 03 C.D.O.S. 2003 DJDAR 1429 (2003) -The California Supreme Court clarified that maps recorded prior to 1893 do not create legal, developable lots for today's purposes. And the court at least hinted that maps recorded between 1893 and 1929 might not be valid unless a city or county somehow exercised discretion in approving the map. ro City of Los Angeles v. C'rage, 127 Cal. App. 2d 442, 453 (1954) - an appeals court ruled that it "is generally held that a zoning ordinance may not operate to immediately suppress or remove from a particular district an otherwise lawful business or use aheady established therein." The court also ruled that a City may establish shorter timeframes for the nonconformity to be removed. Page 18 Nonconforming Structures, Uses and Lots of an otherwise lawfully established structure, use or lot,11 a new zoning ordinance may compel the elimination of a nonconformity over a reasonable period of time through the establishment of an amortization period or "sunset clause" allowing the owner the opportunity to recoup some portion of his or her investment in the structure, use, or lot prior to the structure, use or lot being terminated.lZ For some communities, the quick elimination of a certain type of legal nonconformity is a high priority, and a shorter amortization period is established to facilitate quicker compliance (e.g. elimination of improperly zoned adult businesses, or removal of billboard signage, etc.),1a • Enlargement, Repair, and Destruction of Nonconformities -Any change in a nonconforming structure, use or lot that could extend the economic life, give permanency to, or expand the nonconformity would not be consistent with the community's overall purpose and goal of eventually eliminating all nonconformities.14 Nonconforming structures may not be enlarged or altered unless the alteration brings the property into conformance.ls Again, the point of the nonconforming provisions is to protect a property right of an existing structure while preventing an extension of the economic life of the nonconforming structure, so that it is eventually replaced with a conforming structure. Because the Zoning Code has changed over time, some older structures are nonconforming. If strictly applied, the City's nonconforming regulations would discourage the expansion or alteration of historic resources, indirectly influencing some owners to possibly seek their demolition and replacement. The City of Tustin has an ongoing interest in supporting the preservation of important historic resources. Consequently, the Tustin City Code provides an exception for recognized nonconforming historic structures (structures listed on the City's Cultural Resources Survey) to support the community's goal to extend the economic life of these important historic resources Allowing some modernization of historic structures encourages the preservation of the property to "City of Los Angeles v. Wolfe, 6 Cal. 3d 326, 337 (1971) -the State Supreme Court ruled that "enforced relinquishment is inequitable..." 12 National Advertising Con:parry v. County of Monterrey, -the State Supreme Court ruled that City-established amortization periods were an acceptable means of eliminating nonconfonnities within a "reasonable time." 13 Baby Tam v. City of Las Vegas, 247 F.3d 1003 (9`'' Cir. 2001) -The United States Court of Appeals determined that an adult bookstore was required to comply with the City of Las Vegas' zoning and licensing requirements even though the bookstore was established prior to the adoption of the City's requirements for the business. 14 Dienelt v. County of Monterrey, 113 Cal. App. 2d 128, 131 (1952) - an appeals court ruled that a City may restrict the extent of additions to a nonconforming structure. 15 County of San Diego v. McClurken, 37 Cal. 2d 128, 131. (1952) - an appeals court ruled that a City ordinance that did not permit the enlargement of nonconforming use was lawful and consistent with the intent to gradually eliminate nonconformities. Page 19 Nonconforming Structures, Uses and Lots be much more attractive, especially given the market trend for larger homes, businesses, etc. The current Code provisions/exceptions are as follows: • TCC Section 9264b of the Tustin City Code allows recognized historic residential properties to propose additions or alterations without being required to be brought fully into compliance with the requirement for atwo-car garage when it can be shown that insufficient space is available on the site. • TCC Section 9271p allows building additions to recognized historic residential structures to continue the same setback as the historic structure. fl ddi Rear setback Aclclitions to Rear setback T I ew a limi Ixoposed to area historic homes can area H/StOrIC yIJICa meetcmceirt be built at the noncon- zoning ~er,uiieme~K ' histoc is buildiog's ~ noncon- forming - 1 - _ _' ._ setback _ ' _. -- -- _-~ _ forming RoncoMorming k Ilonconforming I building sideymd side yard building addition setback setback addition Interior side m Interior side o setback area ~ n setback area '~ m '$ 3 c `o _ front Front setback area __. _ ._ ._. setback area _, __ _ ~,_ I aisd&waJk a^idesvaPik ~~3'=^aa'~~ 5tra?et • Nonconforming structures maybe repaired, but extensive repairs are typically not allowed - For example, a nonconforming structure would be required to be made conforming if it is ever accidentally destroyed by fire, earthquake, etc.16 Most nonconforming codes include a threshold that triggers the need for a nonconformity to become more conforming at the time of a proposed repair or destruction.17 For Tustin, a nonconforming structure may be repaired, or replaced as long as the improvements do not exceed 50% of the building's assessed valuation, as shown on the 16 Ricciardi v. County of Los Angeles, 115 Cal. App. 2d 569, 576-577 (1953) - an appeals court ruled that a City ordinance may restrict the extent of repairs to a nonconforming structure. I' Hansen Brothers Enterprises v. Nevada County, 12 Cal. 4`I' 533, 48 Cal. Rptr. 2d 778 (1996) -The California Court of Appeals determined that a mining company had a vested right to continue to engage in surface mining activity as a nonconforming use under a zoning ordinance. Page 20 Nonconforming Structures, Uses and Lots County Assessor tax roll.18 When it can be shown that the cost of repairing a nonconforming structure destroyed is more than 50% of its assessed value, the structure must be made conforming. However, California Government Code Section 65852.25(a) exempts multifamily residential dwellings destroyed by fire and Government Code Section 43007 partially compensates an owner for the destruction and subsequent removal of a nonconforming structure by allowing property tax relief to owners of a destroyed property that cannot be rebuilt because of zoning prohibitions. Again, the point of the requirement is to prevent an extension of the economic life of a nonconforming structure, until such time that it would eventually be replaced with a conforming structure. • A legal nonconforming use maybe replaced by the same or similar nonconforming use. When structural alterations are proposed to a building containing a nonconforming use, the nonconforming use must be replaced with a conforming use. If a nonconforming use is ever replaced with a conforming use, the nonconforming use may never be reestablished at the site, accomplishing the goal of gradual elimination of nonconformities. Again, the point of the requirement is to prevent an extension of the economic life of a nonconforming use, so that it is eventually replaced with a conforming use. Legal non-conforming uses maybe considered abandoned. Absent any specific amortization period, the courts have ruled a use that has been discontinued for seven years is evidence by itself of the owner's intent to abandon the use.19 However, the City's nonconforming regulations state that a 18 Manhatten Sepulveda v. City of Manhatten Beach, 22 Cal. App. 4't' 865 (1.994) -The California Court of Appeals determined that the 50% rule should be defined as the fair market value of the structure at the time of the fire, not 50% of the cost for replacement of the structure. '9 Stokes v. Board of Permit Appeals, 52 Cal. App. 4`'' 1348, 6l Cal. Rptr. 2d ] 81 (1997) -The California Court of Appeals determined that the owner of a business had voluntarily abandoned the use of a property and subsequently lost any vested right to the nonconformity. Page 21 Nonconforming Structures, Uses and Lots nonconforming use that ceases to operate for a period of one (1) year or more, or is changed to be a conforming use, is considered abandoned and may not be reestablished at the location. Vacant structures or lots are not restricted in this manner. HOW ILLEGAL STRUCTURES, USES AND LOTS ARE IDENTIFIED AND ADDRESSED ~ Illegal structures, uses and lots come to the attention of City staff in a number of ways. The most common method is when a property owner approaches staff to propose an alteration of or addition to an existing structure (this includes when an owner desires to rebuild a structure damaged in a disaster). Another is when a teat estate professional, mortgage lender, or prospective buyer contacts the City and requests documentation that room additions, etc. have been added legally. Another is when a property owner is seeking Mills Act property tax relief for a historic property and invites staff to the site. Illegal structures, uses and lots also come to the attention of the City's Code enforcement staff through complaints. Except for proactive neighborhood improvement efforts conducted in cooperation with the Tustin Police Department, City code enforcement is nearly always performed on a complaint basis only. Potentially unauthorized structures, uses or lots are brought to the attention of code enforcement staff through complaints and referrals from the following sources: • Neighbor complaints • Orange County Fire Authority or other County agency staff • Tustin Police Department referral • City plan check or building inspectors • OC Health Department • City Business License staff • County fictitious business name clerk • Real estate professionals including requests by lending institutions • The property's owners • Tenants • Utility providers • Code Enforcement • Staff inspection following fires and other disasters • Others When a potentially unauthorized structure, use or lot is identified, staff will confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff will perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine when it was added to the site, and whether it was lawfully established. Page 22 Nonconforming Structures, Uses and Lots Staff often considers the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: • Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. City staff will always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is legal. If, at the conclusion of staff review, the potentially unauthorized structure is determined to be lawfully established, pertinent information would be added to the City's records documenting that fact, and the matter would be closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be I~_.._ __ L_ .. """a 3 ~:~>. Nonconforming Structures, Uses and Lots permitted, has not been constructed using conventional construction methods, etc., the property owner will be officially requested to correct the concern. When informed by staff that anaddition/alteration appears to be illegal, an owner will often pursue the matter further. Sometimes an owner will request another inspection of a potentially unauthorized structure by a City building inspector to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector would typically visit the site to observe major life/safety related discrepancies in the workmanship and materials used to determine whether the work would have been incompliance with the Building Code requirements adopted at the time that the improvements were made (e.g. the addition did not have a foundation; electrical, water, sewer and gas installation was hazardous; required fire separation between units or floors was not installed, etc.). Note: a structure built consistent with the Building Code adopted at the time is evidence, considered with the whole record that a structure may have been lawfully established at the time. Again, compliance with the Building Code means that the person constructing the structure was knowledgeable of the Building Code, not that the structure was built legally. However, it is more likely that the opposite would occur, e.g. City inspection of a potentially unauthorized structure could result in the identification of tell-tale Building Code inconsistencies/violations that prove beyond a doubt that the structure was illegally constructed. Based upon a staff survey of the 34 Orange County cities, it is standard practice to use such inspection/investigative routines. Current owners of the property may not have personally caused the illegal structure to be built. In fact, the owner may have purchased the property with an understanding that the property was legal. However, the current property owner bears full responsibility for establishing that their structure, use or lot is lawfully established. In response to the City's request to correct an illegal structure, some owners work with staff to legalize it "after the fact." Others may work with staff to remove the illegal structure. Under California law, affected owners may have legal recourse against a prior owner, real estate agent, or property title company for a failure to disclose the potentially illegal nature of a structure or addition. ACTUAL CASE EXAMPLE ~ The following facts have been taken from current or past code enforcement cases to illustrate the research and records review methodology currently utilized by Community Development Department staff in order to determine the legality of potentially unauthorized structures, uses or lots. The information discussed below is true, but does not pertain to any one particular property in order to preserve the Planning Commission's objectivity in considering any future code enforcement case appeal. Page 24 Nonconforming Structures, Uses and Lots • Staff receives a complaint that an Illegal apartment is alleged to have been added to the rear of a single family home. • Permit records are researched by staff. Recent re-roof permit issued for single family house, inspected and given final approval. City inspector did not raise a concern at this time. • Sewer permit records researched. Connection authorized in 1962 for a single family residence. • Water billing records researched. Water billing is based upon the number of units requested identified on the site by the owner/applicant. Water bill indicates five units served on the site. • Planning records researched. Property owner applied for zone change in 1968 from R-1 to R-3 to allow five units on the property. Planning Commission denied the request; property owner appealed to City Council; City Council denied the appeal stating that the property should continue to be used as a single family residence. • Deed and property title researched. Property identified as single family residence. • Building identified on the City's 2003 Cultural Resources Survey as a significant Craftsman style residence built in 1922. Survey indicates single family home in front and garage at rear of property converted to living quarters. Note: the Cultural Resources Survey was prepared by a City consultant that performed the survey from the public sidewalk only. No physical on-site inspections were conducted at that time. • Business license records researched. Property owner does not hold a City Business License required for multifamily properties totaling four units or more. • Current property tax information reviewed. Property owner is paying property tax on improvements described as "multifamily" with three units. • Code enforcement performs a cursory inspection of the property with the permission of the property owner. Eight units exist at the site. Original single family house exists at the front of the property that is divided into four units. A detached garage is at the rear of the property that has been converted into two residential units. Two additional unit appears to be an illegally converted patio enclosure (the exterior walls Page 25 Nonconforming Structures, Uses and Lots are thin and light is visible from the interior rooms between the bottom of the walls and the concrete floor-the rooms appear to have no foundation). One of the units has a dirt floor. An additional shed-unit (unit #9) is currently being constructed (the source of the current complaint) at the rear of the converted patio enclosure unit that extends to the rear wall, illegally within the side and rear setback. Electricity is provided to the new unit via an orange electrical cord draped across the roof of the unit. Children are observed playing in the area. Two of the existing units have no toilet, shower facilities, or kitchen. No covered parking is provided anywhere on site -residents park on a dirt portion of the lot, or the public street. Laundry room has been illegally added to garage structure. • A building inspector inspects the structures to determine whether the buildings were built in compliance with the code adopted at the time of construction. Some units have bedrooms without windows, presenting Building Code light and ventilation concerns and fire safety violations since these rooms have no second means of exit during a fire emergency. The foundation and exterior walls appear to be failing. interior support beams may be clear inconsistencies inworkmanship, methods, materials, etc. are noted as clearly in violation of the State Building Code. City inspector determines that all additions to the original single family home were illegally added and that they are potentially unsafe to the occupants and surrounding properties. Original complainant is questioned by staff. Complainant indicates that five units have existed on the property since 1959, but that the owner was "a good neighbor" so complainant didn't want to cause problems. Original owner sold property last year and retired out of state. Complainant heard new owner adding the additional unit #9 at the rear of the property so complaint was filed. Again, once the structure is determined to have been illegally established, and the construction methodology, materials or workmanship are not consistent with the requirements of the Building Code in effect at the time of construction, the owner would be required to correct the violation. Upgrades maybe determined necessary to support the safe use of an illegally established nonconforming structure. The owner would be required to submit plans and documentation to make the nonconforming structure safe for habitation or occupancy for the intended use. This documentation is typically in the form of reports or plans prepared and certified by a licensed building design professional (e.g. architect, structural engineer, etc.). Compliance with zoning requirements may also be required. Page 26 q The California Building Code mandates that health and safety issues associated with the illegal use of the structure be corrected. Left uncorrected, the violations could pose legal liabilities upon the City or more importantly would leave the building's occupants and surrounding residents or businesses at significant risk. Thus, the property owner must provide sufficient documentation as determined by the Director of Community Development and Building Official to determine that an illegal structure is safe for habitation or occupancy for the intended or modified use (as may be approved by the City) as previously described above. A similar approach is utilized in researching potentially unauthorized uses or lots. Along with the property owner, staff would perform significant research that can include business license and/or property tax information, business transaction receipts, utility statements, dated historic and aerial photographs, even historic telephone books can be used to establish a history of a use or lot. CONCLUSION ~ Nonconforming Structures, Uses and Lots All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. A structure, use or lot that is out of conformance with the adopted code is not considered to be nonconforming when it has been illegally established. The spirit of the City's nonconforming provisions is to allow nonconformities to continue to exist, but not increase. With the exception of qualified historic resources, intensification or expansion of~an existing nonconforming use is not permitted, and is even discouraged. The legal basis for all land use regulation is the police power of a city to protect the public health, safety, and welfare of its citizens. And, the legality of City enforcement of these provisions has been tested and proven in court. Zoning laws look to the future to ensure that all nonconformitiessre eventually brought into conformance or replaced. Any change in the premises which tends to give permanency to or expands the nonconformance would not be consistent with this purpose. Page 27 ATTACHMENT B DRAFT ORDINANCE NO. 1397 ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure that was lawfully established or built under previous regulations but does not meet existing standards. Illegal uses or structures, following a review and determination by the Director of Community Development pursuant to Section 9273, have no vested rights. Illegal uses or structures are a public nuisance that shall either be brought into legal conforming status or shall be removed. Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance. Nonconforming uses or structures that have not been lawfully established pursuant to Section 9273 of this Code are illegal and are declared a public nuisance, and shall be altered to conform with all applicable standards and regulations, and shall besubject to actions and penalties allowed by this Code. If any ambiguity or conflict arises concerning the legal or illegal status of a nonconforming use or structure within the Tustin City Code, the provisions of Section 9273 shall prevail. Section 3. Section 3914 of Chapter 9, Article 3 of the Tustin City Code is hereby amended as follows: 3914 REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES (a) Any lawfully established sexually oriented business lawfully operating on or before February 17, 1998, that is in violation of Sections 3912 and/or 3913, shall be deemed legal nonconforming uses. A legal nonconforming use will be permitted to continue for a period of one (1) year, with a possible extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the initial financial investment in the le~c alnonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such Iega1 nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which Ordinance 1397 Page 2 was first lawfully established and continually operating at the particular location is the conforming use and the later established business(es) is legal nonconforming. (b) A lawfully established sexually oriented business lawfully operating as a conforming use is not rendered a legal nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30) days of the effective date of such ordinance. Section 4. Section 7271e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is ih violation, the intent of the Director to (a) remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the legal. nonconforming newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack is one which has not been authorized by the Director and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack. Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (c) Any evio+-lawfully established and developed parcel which is legal and conforming or legally non-conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of-way by a public agency would result in densities exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shall not be considered legal nonconforming pursuant to Section 9227b2 and Section 9273 of the Zoning Code with regard to density only, provided that all other provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: Ordinance 1397 Page 3 9273 LEGAL NONCONFORMING STRUCTURES AND USES This section shall apply to all structures and uses that were lawfully established or constructed under previous regulations but that do not meet existing standards ("Legal Nonconforming"). Following a review by the Director of Community Development of the available record of information pertaining to the legal status of a potentially unauthorized nonconforming structure or use and, pursuant to Section 9273(b), if there is no substantial or reliable evidence that the nonconforming uses or structures have been lawfully established, such nonconforming uses or structures are illegal, declared a public nuisance, shall be altered to conform with all applicable standards and regulations, and shall be under this Code. If any ambiguity or conflict arises concerning the legal or illegal status of a nonconforming use or structure, either within this Chapter or elsewhere within the Tustin City Code, this Section shall prevail. (a) Except as otherwise provided in this Section, lawfully established uses of land, buildings, or structures e~tin^;,~~ t"° +-R~° ^f +ho „+^.,+,^., ^f +hic (`hon+oT may be continued, although the particular use, or the building or structure does not conform to the regulations specified by this Chapter for the district in which the particular building or structure is located or use is made; provided, however, no legal nonconforming structure or use of land may be extended to occupy a greater area of land, building or structure than is occupied at the time of the adoption of this Chapter. If any legal nonconforming use is discontinued or abandoned, any subsequent use of such land or building shall conform to the regulations specified for the district in which such land or building is located. If no structural alterations are made therein, a legal nonconforming use ef-a--+~e~er+f8f+~a+eg--b"'-may be changed to another use of the same or more restrictive. classification upon the securing of a use permit. If the legal nonconforming use is replaced by a more restrictive legal nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any legal nonconforming use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or building is located. (b) Any lawfully established building or structure-~isti^in9~+~he-Ua~e~f which is legal nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in compliance with the regulations set forth in this Chapter for the district in which such building or structure is located; provided, however, that any such legal nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. TheCepaFtf~aen-tCommunity Development Department of the City of Tustin may send, by certified mail, return receipt requested, to the current ewnef; -,„ ^., +ho ~,~+ o,.,,,~,~o,+ ~~~o~~r„o.,+ r^n ^f^wner of any nonconforming building or structure, or of any properly upon which any prior nonconforming use Ordinance 1397 Page 4 exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and providing substantial evidence that all structures on the premises were 1 } lawfully established; 2) continuously used and maintained in a manner conforming to the regulations specified for the district in which such land or building is located; 3) that no structural alterations or expansions, or changes in use were made without the prior authorization of the City, and that no alterations were made other than to implement general repairs or to make the use or structure more conforming with the rules and regulations of the Tustin City Code. Said statement shall be filed with the a~tm~Community Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. The burden of proof to establish the lawful and continuing existence of the structure and use at the time of the enactment of the ordinance and for all periods of time as required under this Section rests with the current owner. (c) A Iega1 nonconforming building, destroyed to the extent of more than fifty (50) percent of its reasonable value at the time of its destruction by fire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations existing in the district wherein it is located. (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become legal nonconforming due to any reclassification of districts under this Chapter; provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered legal nonconforming. (e) Any use of land, building, or structure which is legal-~--ssning~e-aia ~rsviaisns~f t"~~oniag-Ss " " made "non-conforming" either in design or arrangement due to acquisition of public right-of--way by the City, shall be exempt from a nnnrnnfnrminn c+^ti,c ^nrl +ho g-re~i-sieas-ef Sesti~n 923, ~~^nrnnfnrminn c+r„,.~, ~u;o~,_una_o_sasthe provision, unless it is established by the ~~m°~Community Development Department that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. Section 7. Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established wireless communication facilities for which applications for the modifications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to legal nonconforming wireless communication facilities that are Iega1 nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. Modifications to le al nonconforming wireless communication facilities shall not increase the nonconformities. Ordinance 1397 Page 5 Section 8. Section 9297 of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure that was lawfully established or built under previous regulations but does not meet existing standards. Illegal uses or structures, following a review and determination by the Director of Community Development pursuant to Section 9273, have no vested rights. Illegal uses or structures are a public nuisance that shall either be brought into legal conforming status or shall be removed. Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "L_egal Nonconforming s+g~--Sign " means a sign that was lawfully erected leg-qtly which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: c. Le al Nonconforming si~sS pns. A , legal nonconforming sign shall be made to conform to all provisions of this Chapter if the Director determines that any of the following events occur. 1. A legal nonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A legal nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety (90) days, it shall be presumed that such use has been abandoned in accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A legal nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, including destruction by an act of God. Section 11. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more Ordinance 1397 Page 6 sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this day of 2011. JERRY AMANTE, MAYOR PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1397 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1397 was duly and regularly introduced and read at the regular meeting of the City Council held on the _ day of _, 2011, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _ day of 2011, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Published: ATTACHMENT C TUSTIN CITY CODE SECTION 9273 AND 9298 9273 -NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this Section, uses of land, buildings, or structures existing at the time of the adoption of this Chapter may be continued, although the particular use, or the building or structure does not conform to the regulations specified by this Chapter for the district in which the particular building or structure is located or use is made; provided, however, no nonconforming structure or use of land may be extended to occupy a greater area of land, building or structure than is occupied at the time of the adoption of this Chapter. If any nonconforming use is discontinued or abandoned, any subsequent use of such land or building shall conform to the regulations specified for the district in which such land or building is located. If no structural alterations are made therein, a nonconforming use of a nonconforming building may be changed to another use of the same or more restrictive classification upon the securing of a use permit. If the nonconforming use is replaced by a more restrictive nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or building is located. (Ord. No. 157, Sec 6.1) (b) Any building or structure, existing at the date of adoption of this Chapter, which is nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in compliance with the regulations set forth in this Chapter for the district in which such building or structure is located; provided, however, that any such nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. The Planning Department of the City of Tustin may send, by certified mail, return receipt requested, to the owner, as shown on the last equalized assessment roll, of any nonconforming building or structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use. Said statement shall be filed with the Planning Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. (Ord. No. 310, Sec. 1) (c) A nonconforming building, destroyed to the extent of more than fifty (50) percent of its reasonable value at the time of its destruction by fire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations existing in the district wherein it is located. (Ord. No. 310, Sec. 2) (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become nonconforming due to any reclassification of districts under this Chapter; provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered nonconforming. (Ord. No. 319, Sec. 3) (e) Any use of land, building, or structure which is legal and conforming to all provisions of this Zoning Code, as of the date of adoption of this "ordinance," and made "non-conforming" either in design or arrangement due to acquisition of public right-of- way by the City, shall be exempt from a nonconforming status and the provisions of Section 9273, Nonconforming Structures and Uses, unless it is established by the Department of Community Development that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. (Ord. No. 1013, Sec. 2, 1-3-89) 9298 -INTERPRETATION AND ENFORCEMENT a Continuity of Law Except as specifically provided herein, this chapter shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving,. alteration or enlargement of any building or improvement; provided however, in any instances where this chapter imposes greater restrictions upon the erection, construction, establishment, moving, alteration or improvement of buildings or the use of any building or structure that is imposed or required by an existing law, ordinance or regulation, the provisions of this chapter shall control. (Ord. No. 157, Sec. 12.1) b Criteria for Determination Whenever the Director of Community Development, or Planning Commission of the City of Tustin is called upon to determine whether or not the use of land or any structure in any district is similar in character to the particular uses allowed in the district, the Director or Commission shall consider the following factors as criteria for their determination: (1) Effect upon the public health, safety and general welfare of the neighborhood involved and the City at large. (2) Effect upon traffic conditions. (3) Effect upon the orderly development of the area in question and the City at large, in regard to the general planning of the whole community. (Ord. No. 175, Sec. 10; Ord. No. 1366, Sec. 21, 11-17-09) c Responsibility of Enforcement It shall be the duty of the Director of Community Development or designee to enforce the provisions of this chapter pertaining to the use of land or buildings in the erection, construction, reconstruction, moving, alteration, or addition to any buildings or structures. Any permit or license of any type issued by any department or officer of the City of Tustin issued in conflict with the provisions of this chapter is hereby declared to be null and void. (Ord. No. 175, Sec. 11; Ord. No. 1366, Sec. 22, 11-17-09) d Procedures Any building or structure erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this chapter and any use of land or buildings operated or maintained contrary to the provisions of this chapter are hereby declared to be public nuisances. The City Council may commence the necessary action or proceedings for the abatement, removal and enjoining thereof in the manner prescribed by law in the courts which may have jurisdiction to grant such relief as will accomplish such abatement and restraint. The remedies provided for in this section shall be in addition to any other remedy or remedies or penalties provided in this chapter or any other law or ordinance. (Ord. No. 157, Sec. 13.2) e Appeals Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. (Ord. No. 157, Sec. 13.3; Ord. No. 1366, Sec. 23, 11-17-09) f Consistency With All Laws Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. (Ord. No. 1322, Sec. 2, 12-4-06) ATTACHMENT D VERBATIM CITY COUNCIL MINUTES OF MARCH 15, 2011 Verbatim Minutes -~ City Council Meetinc March 15.2011 Agenda Item No. 17 Mayor Amante: What's the pleasure of the Council? Mayor Pro Tem Nteisen: May I ask a couple of clarifying questions? Mayor Amante: Mr. Mayor Pro Tern. Mayor Pro Tem Nielsen: Procedurally, Elizabeth, I guess would be the best here. Procedurally, whenever this passes and it's recommended or whatever format it's recommended, it goes back to the Planning Commission and comes back to us for final approval. Is that correct? Community Development Director Elizabe#h Binsack: That's correct. Mayor Pro Tem Nielsen: Okay, maybe I'm out of line here, but I just want to ask, procedurally, does it usually start at the Planning Commission and come to us? Or is this a city staff or cauncilmember related? Community Development Director Elizabeth Binsack: Through the Chair, the Tustin City Code allows the Council, when it desires, to have its laws amended. You can actually initiate an ordinance amendment. This is an example of an ordinance. it could be modified at the Planning Commission meeting after public hearing and input. Mayor Amante: Mr. Nielsen, remember that when we met last, among all the other arguments my colleagues made up here is "Well there's a better way for us to do this than to apply it to Mr. Fairbanks, who's been through so much". Well we could amend the law and clear it up that for eighty-three (83) years that non-conforming has meant non-conforming. That's what this ordinance does. it does what we requested. Staff brought you back an ordinance that clears it up. Mayor Pro Tem Nielsen: There's numerous ways in order to try to clear that up, just trying to get some clarification questions answered. So whatever the, if it passes, whatever we're doing goes back to the Planning Commission for their input on it and then it comes back to us. That's really ail 1 was trying. Community Development Director Elizabeth Binsack: They would be making a recommendation to the City Council Mayor Pro Tem Nielsen: Okay, thank you. Councilmember Gavello: To the Chair. Mayor Amante: Ms. Gavello. Page 1 of 9 Councilmember Gavello: I don't like the way it currently reads, the way it is. So I don't want to send it back to the Planning Commission cause it's nothing that I would approve when it came back to us. So we're going to be wasting a lot of staffs time and the Planning Commission's time because we're setting a direction. So, the way this is worded doesn't work for me at ail as far as what we're asking. It's going to drive staff absolutely crazy as far as the work load. It's going to drive our residents crazy. I can't see awin-win on this at all for anyone. What I would do is the way this is done right now is I would move to deny this the way it is cause it's nowhere close to what I would ever approve. So I don't want to go forward with this. It's demanding too much of the residents and is requiring a lot of the staff as far as work involved with all these homes. So that's what I would like to do and that's what I'm leaning on. So that would be my motion. Mayor Amante: Ms. Gavello, actually, well is there a second for Ms. Gavello's motion? Councilmember Gomez: Second. Mayar Amante: Now we have a second. Let me give you some discussion on it. What it's actually doing is putting into language in your code what's been the practice in the city for eighty-three (53) years. So if that's a huge burden on staff and a huge burden on the citizens, it has been on every citizen and every staff member since the city was incorporated. Mayor Pro Tem Nielsen: Okay, let me kind of say where I am on this. Legal non-conforming is okay and there"s a lot of language in here. What it does, it has, in my views, some over draconian language in some of this stuff. Let me kind of give you some specific examples here. In section one, it has the definition of legal non-conforming but it also has a language that if it's not brought into legal conforming status that it shall be removed. That seems a bit draconian. If it has no vested rights, it could be brought up to code. That's better. There's language here that basically puts the complete burden of proof on any sort of non-conforming basis completely on the home owner. Mayor Amante: Where should the burden be7 Mayor Pro Tem Nielsen: Well, in my view, if we're looking at this, either equal burden or being more specific on what that burden is going to be. Mayor Amante: So the citizens should prove that, in fact, that it's non-conforming and the burden should be on the taxpayers. Mayor Pro Tem Nielsen: That's not what I said. We're talking about proof. We're not talking about the City has in conjunction with homeowners can have a certain level of evidence that show that. 1 don't have a problem but t'm not convinced and don't agree with the fact that it should be completely on a homeowner that may have bought their home in 1950, 1960. A home that has been built in the 1920's and trying to buy permits and information. And trying to go through what Mr. Fairbanks has gone through seems to be a very, very limited way or a very, very inefficient way to go about it. Page 2 of 9 Mayor Amante: Well if the burden then is to be shared, let's say, for instance, the taxpayer finds some evidence that starts to support their burden. Should they have a right to a hearing on that evidence? Cause I did tonight. 1 found evidence presented to me by staff this afternoon and I brought it forward and said 'Gee, I think we ought to reopen. I have some evidence so I can meet my burden which you would like to shift to the taxpayers.' I didn't get the benefit of that. I'm trying to understand where you want the burden to be. Mayor Pro Tem Nielsen: Well, what we're talking about is evidentiary burden, okay. If a home owner, who wants to enjoy the peaceful, tranquil use of their property, and looks to either sell it, refinance it and going through that process has to prove has complete burden on them for proof of legal non-confom~ing. Where is that line drawn? Where is the burden of proof drawn? My point is that it shouldn't be entirely on the homeowner. It should be a shared burden. Mayor Amante: And if 1. Councilmember Gavello: Point of order, point of order to the Chair. Mayor Amante: Excuse me. Councilmember Gavello: No, point of order takes precedence. Mayor Amante: Excuse me a moment. I'm in. Councilmember Gavello: No, I know. Point of order is. Mayor Amante: What would you like Ms. Gavello? Councilmember Gavello: In a point of order, I can interrupt. The decorum states that each Councilmember is entitled to speak one time if they'd like to speak. If Councilmember Gomez would like to speak or Councilmember Murray would like to speak before another colleague gets more time to speak, that is allowed. That's my point of order. Mayor Amante: Alright, thank you. Well I'm having a discussion with the Mayor Pro Tem. Councilmember Gavello: But it's not a discussion. Point of order. Mayor Amante: Well. Councilmember Gavello: We can vote on it. Point of order. I make a motion that the other council members are entitled to speak before you get to speak again. Mayor Amante: Well I'm sorry. I have the floor. I'm having a conversation with my colleague. 1 don't think he's offended. Are you offended Mr. Mayor Pro Tem by my questions? I'm trying to understand, Ms. Gavello, what the Mayor Pro Tem is asserting. If he's asserting that the burden should be shared, which is not the way the law works, by the way, it places burdens on parties. But if, in fact, the burden should be shared, then my question is let's say the taxpayer, through one of its elected, provides evidence, should he be entitled to reopen a hearing and have his Page 3 of 9 evidence heard and weighed? Is that the way you would have it work? Cause if that's the case, then i would like a motion for reconsideration. Mayor Pro Tem Nielsen: Well, my point being is that there's no procedural issues that I see here. Other than, the only procedural seems to be placing the complete burden of proof on the homeowner, the complete burden of proof. And where, frankly, the City has been involved in eliminating that proof particularly with the 1959 permits, those have been destroyed. So it just seems to me that the more conservative approach is more of a joint effort to be able to have resources to get that proof to present as whether it's legal non-conforming or not legal non- conforming. Otherwise, the whole burden of proof falls upon the home owner and then it's, to me, it appears to be more like in the case of we'll say Mr. Fairbanks where he had, what he thought, was reasonable proof. Okay, so it has to be more, in my view, an equal sharing of that burden instead of placing the entire burden upon the homeowner. Mayor Amante: Now the taxpayer must prove that, in fact, it was non-conforming, illegally non- conforming. Mayor Pro Tem Nielsen: Well, hopefully it's a more positive thing to prove that it is legally conforming. Mayor Amante: Oh, I see, so it's the taxpayers burden to carry the burden of the applicant. I got it. Councilmember Murray: To the Chair. Councilmember Gomez: Mr. Mayor. Mayor Amante: Ms. Gomez. Councilmember Gomez: Okay, my problem with this ordinance is the fact that it seems like at any point of time, the City can send a letter to a resident and ask them to prove something. Okay, that to me I have a problem with. Okay. Secondly, again to Councilmember Nielsen's point about the bunien of proof, let me just give you a couple of examples. Okay. There's a major university in Southern California that shall go nameless whose records were all destroyed. Okay. That major university basically told their graduating students come back and tell us what degree you got and we'll give you a diploma. I am not kidding. Okay. Another example, there is a warehouse, a federal warehouse, that burnt down. That had most of the records of our World War II veterans. Our World War II veterans are dying at the rate of 800 to 1000 per day. Now, in order for them to get their benefits, it takes the federal government anywhere from eight to fourteen months because they have to piece together these records from several other sources because that one warehouse burnt down. Now my father did not get his benefits. He died while he was waiting for his benefits. My godfather was in the same situation. Luckily, because he was wounded, he got a letter from President Roosevelt. He kept that letter and he sent that letter with his benefit package. When the federal government saw the letter from Roosevelt, they approved his benefits without doing the research. Okay. This is what happens to people when records are destroyed. it's a very unfortunate situation for many, Page 4 of 9 many of our veterans and it has made me very angry over the course of the last several years. But this is what happens. And so now you're putting the burden of proof, we put the burden of proof on our veterans who did not get their benefits because the federal government destroyed or records were destroyed. I wan°t say the federal govemment did it but it was a result of. Okay. This is a problem for me so I have a challenge here. Okay. I think we need to figure out a better way to do this than putting the burden of proof on the citizens. There has to be some balance. 1 don't know what the balance is but we got to figure it out. In respect for our citizens, in respect for our ordinances and our laws, we want to uphold the laws but it's got to be something reasonable. Thank you. Councilmemb®r Murray: To the Chair. Mayor Amante: Mr. Murray. Councilmember Murray: It's quite obvious with all of us here today, quite obvious with the council, that this matter has taken on a very sensitive tone, a very important tone and it's definitely something that we need to address. But you know, maybe I'm losing, I don't see the big picture ar something but I don't see the urgency or exigency in trying to make this happen so expeditiously that we're not thoughtful about it. And we're not taking everything that we need to into consideration. I'm sure there are best practices out there and other policies in other locations that have gone through similar kinds of challenges that we have been facing regarding this topic and non-conforming. Why don't we just take a step back and look at what we have here drafted, send it back to staff, let them take a look at it and try and refine this a little bit, with some of the input from the community, from same of the input from other practitioners. I mean it's important to do this right. It's been hanging around a long time. Let's be thoughtful about it and try and address it the right way. I just don't see the need to get everything done tonight. Mayor Amante: Well the recommendation of the staff in your agenda is that the Council adopt a resolution to initiate a code amendment to provide clarity, to provide consistency with prior practice for eighty-three years and reduce the ambiguity of the term "non-conforming" throughout the code and to, here's the action part, direct the Planning Commission to consider said code amendment for recommendation to the City Council. That means you're sending it down to the Commission. You're asking them to scrub it, look at it, weigh what's before you, hear testimony from members of the public, hear lawyers present their arguments, hear people talk about where the burdens ought to be and who ought to be charged with the object of proving or disproving a fact. And then they'll make a recommendation, after all the hearings, back to Council and we'll have, again, another full hearing on this issue and the opportunity for the public to address it and for all the council members to weigh in. So 1 think what you're trying to get to, Mr. Murray, and what Council are asking for in order to weigh and evaluate it is exactly what staff is recommending. You have to send them something to work from. You can't just give them no assignment. You're sending them an assignment and asking them to have hearings and to scrub it. Maybe they'll come back and agree with the Mayor Pro Tem. Maybe they'll agree with me that the burden not be shared but that it be on the applicant because that's where the burden generally is. Maybe they'll come up with some hybrid as councilwoman Gavello suggests but until you send it to the Commission to consider, you'll never know. Page5of9 Councilmember Gavello: To the Chair. Mayor Amante: Ms. Gavello. Councilmember Gavello: There's a motion and a second. Can we vote on it? And then we can see if we come to an agreement. Then i can decide if I want to do a substitute motion. So can we try that? Mayor Amante: I don't know. Is there a motion? Councilmember Gavello: I did. Yes, there's a motion and a second. I did move it probably about twenty minutes ago. I moved to deny it. Mayor Amante: Ms. Gavello, whoa, let me ask, is there a motion? Councilmember Gavello: I still have the Chair. Mayor Amante: Does anyone remember? Where's the motion? Councilmember Gavello: To the Chair. I made a motion that we deny this the way its read cause it's so far out. Mayor Amante: That failed to get a second. Councilmember Gavello: No, it did get a second. Mr. Mayor, it did get a second. Mayor Amante: Who seconded it? Councilmember Gomez: I did. Mayor Amante: I'm sorry. I didn't hear Ms. Gomez's second. So there's a motion and a second to deny the staff recommendation. Any further discussion on it? Mayor Pro Tem Nielsen: Okay, let's clarify this a little bit for procedural points. if this is denied, then nothing goes to the Planning Commission. Mayor Amante: That's right. You put it in the crib. That's the motion and there's a second. Any further discussion? All those in favor. Councilmember Gavello: I. Councilmember Gomez: I. Mayor Amante: Oppose. Councilmember Nielsen: No. Councilmember Murray: No. Mayor Amante: No. Page6of9 Councilmember Gavello: To the Chair, I have a substitute motion. Mayor Amante: No, that motion already died. Do you have another motion? Councilmember Gavello: Yeah, I'll make a substitute motion. Mayor Amante: It's not a substitute. The motion is dead. Councilmember Gavello: It's a new motion, sorry. I'll make a new motion. I say we continue the item. 1 don't want to, I really don't want to send this back the way it is to the Planning Commission because it's so far away from what I heard from my colleagues what we want. This is so far away. I don't even want them to start with this. So 1"m either going to say that we send it to them but not using this as the basis because it's very far away from what I'd want to do. We can send it to the Planning Commission to start reviewing and looking at things. That I would make a motion for to start but I'd rather have them do it fresh. Mayor Pro Tem Nielsen: Mr. Mayor, if I could clarify a tittle bit. Mayor Amante: Are you clarifying her motion? Mayor Pro Tem Nielsen: No, I'm asking staff something. Mayor Amante: Well let me see if her motion has a second. Is there a second for Ms. Gavello's motion to send this down for general discussion to the Planning Commission with no direction and no language to work from? That dies for a lack of second. Mr. Mayor Pro Tem. Mayor Pro Tem Nielsen: Ms. Binsack, if I could ask you a couple of questions. if we could add this, this is staff recommendation, correct? Community Development Director Elizabeth Binsack: Correct. Mayor Pro Tem Nielsen: Okay, if we could do that with comments that have been made by city council members on direction they would like to see this go and they're going to have a public hearing at the Planning Commission level. is that something that's workable? Community Development Director Elizabeth Binsack: We can do that. We can ask the clerk to provide verbatim minutes and include that with a presentation to the Planning Commission. Mayor Pro Tem Nielsen: With verbatim minutes? Okay. I've got no problem with that. Mayor Amante: On this item? Councilmember Murray: On this item? Community Development Director Elizabeth Binsack: Correct. Mayor Pro Tem Nielsen: Yes. Mayor Amante: Is that a motion? Page 7 of 9 Mayor Pro Tem Nielsen: Yes, that's a motion. Councilmember Murray: Second. Mayor Amante: Alright, we have a motion. Is that a second, Mr. Murray? Councilmember Murray: Yes. Councilmember Gavello: Can 1 hear the motion? Sorry. Mayor Amant®: Yes, I'm going to try to repeat it to the best of my ability and Mr. Nielsen will correct me where I misspeak. The motion by the Mayor Pro Tem and seconded by Councilmember Mun•ay is that we send the staff recommendation down to the Planning Commission so they can begin their discussion with a verbatim transcript of the discussion of Council on this item only. Councilmember Gavello: To the Chair. Mayor Amante: Yes. Councilmemb®r Gavello: Can I ask Councilmember Nielsen a question? Mayor Amante: Absolutely. Councilmember Gavello: Are we in agreement that this is not the basis for it? Mayor Pro Tem Nielsen: Well what will happen, as I understand it, Mr. Mayor, is that, and Councilmember Gavello, is that staff recommendation, like with any Planning Commission pack, will go down as is. But what will happen is you'll have in that pack the discussion that we've had and the points that we've made on this particular item. So they'll have not only the staff recommendation but they'll have what we have discussed and the input that we have as well. Mayor Amante: In essence what you're doing is, you're not burdening them with having to go and review our meeting to see this. They have a transcript of what our comments were so they get the benefit or the burden, depending on how you look at it, of whatever our thinking is. Mayor Pro Tem Nielsen: And it's verbatim minutes, exactly what we said. Councilmember Gavello: Like we used to get from them. Got it. Mayor Pro Tem Nielsen: Okay. Mayor Amante: Okay, any further questions or discussion? Co~nclimember Gomez: And they will get a red lined copy? Is that what you're saying? As we were presented with? Mayor Amante: They will get what you've been presented and they will get our commentary. Councilmember Gomez: Okay. Page 8 of 9 Mayor Amante: ThaYs a motion and a second. Further discussion? All those in favor? All Councilmembers: I. Mayor Amante: Okay, that passes 5-0. Page 9 of 9 ATTACHMENT E CITY COUNCIL RESOLUTION NO. 11-19 RESOLUTION NO. 11-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ~``~~ TUSTIN, INITIATING A CODE AMENDMENT (DRAFT ORDINANCE NO. 1397) TO AMEND THE TERM "NONCONFORMING" AS SET FORTH IN THE TUSTIN CITY CODE TO CLARIFY, PROVIDE CONSISTENCY, AND REDUCE AMBIGUITY THROUGHOUT THE CODE; AND DIRECTING THE PLANNING COMMISSION TO CONSIDER SAID CODE AMENDMENT FOR RECOMMENDATION TO CITY COUNCIL. The City Council does hereby resolve as follows: The City Council finds and determines as follows: A. That, pursuant to Tustin City Code Section 9295c the City Council may initiate a code amendment of the Tustin City Code by filing a resolution of the City Council's intention with the Planning Commission; B. That on March 1, 2011, the City Council held a noticed de novo ~~~ public hearing on an appeal of the Planning Commission's '~ December 14, 2010, determination regarding the property located at 520 Pacific Street; C. That at said public hearing, the City Council directed staff to draft a code amendment to amend the term "nonconforming" as set forth in the Tustin City Code (TCC) and. other Zoning Documents to clarify; provide consistency with prior practice; and reduce ambiguity throughout the Code. II. The City Council hereby initiates a code amendment for Draft Ordinance No. 1397, attached hereto in Exhibit A, to amend the term "nonconforming" as set forth in the Tustin City Code to mean structures and uses which were legally erected, established, and which have been lawfully and continuously maintained, but which no longer conform to the regulations and requirements of the zoning district; and directs the Planning Commission to consider said code amendment for recommendation to City Council. :;,. ~_~. ~; Resolu#ion 11-19 Page 1 of 9 PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on the 15~h day of March, 2011. ATTEST: ~. PAMELA STOK , City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) r I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 11-19 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 15~h day of March, 2011, by the following vote: COUNCILMEMBER AYES: Amante, Nielsen, Gavello, Gomez, Murray (5) COUNCILMEMBER NOES: None (0) COUNCILMEMBER ABSTAINED: None (~) COUNCILMEMBER ABSENT: None (~) ,,,.., r , Y` ' PA ELA STOKE , City Clerk Resolution 11-19 Page 2 of 9 EXHIBIT A ~;~- "~ ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure that was lawfully structures are a public nuisance that shall either be brought into legal conforming status or shall be removed. Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance. Nonconforming uses or structures that have not been lawfully established pursuant to Section 9273 of this Code are illegal and are declared a public nuisance and shall be altered to conform with all applicable standards and regulations and shall be subject to actions and penalties allowed by this Code. If any ambiguity or conflict arises concerning the legal or illegal status of a nonconforming use or structure within the Tustin City Code the provisions of Section 9273 shall prevail. Section 3. Section 3914 of Chapter 9, Article 3 of the Tustin City Code is hereby amended as follows: 3914 REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES (a) Any lawfuliy established sexually oriented business lawfully operating on or before February 17, 1998, that is in violation of Sections 3912 and/or 3913, shall be deemed legal nonconforming uses. A legal nonconfarming use will be permitted to continue for a period of one (1) year, with a possible Resolution 11-19 Page 3 of 9 extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the initial financial investment in the legal nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such legal nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at the particular location is the conforming use and the later established business(es) is legal nonconforming. (b) A lawfully established sexually oriented business lawfully operating as a conforming use is not rendered a legal nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30) days of the effective date of such ordinance. Section 4. Section 7271 e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the Director to (a) remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the le al nonconforming newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack is one which has not been authorized by the Director and ownership is not known, nor apparent after inspection, a notice complying with this section ~Y ~. shall be affixed to the newsrack. M~ Resolution 11-19 Page 4 of 9 Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is ~; y hereby amended as follows: (c) Any ~~i-lawfully established and developed parcel which is legal and confarming or legally non-conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of--way by a public agency would result in densities exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shall not be considered legal nonconforming pursuant to Section 9227b2 and Section 9273 of the Zoning Code with regard to density only, provided that all other provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this Section, lawfully established uses of land, buildings, or structures e~risti3ag-~t--thy---~r-ne~f--t~eo~t~an-o~-s ~f=t~:~ may be continued, although the particular use, or the building or structure does not conform to the regulations specified by this Chapter for the district in which the particular building or structure is located or use is made; provided, however, no legal nonconforming structure or use of land may be extended to occupy a greater area of land, building or structure than is occupied at the time of the adoption of this Chapter. If any legal nonconforming use is discontinued or abandoned, any subsequent use of such land or building shall conform to the regulations specified far the district in which such land or building is located. If no structural alterations are made therein, a legal nonconforming use o~fer-r=~n+,. may be changed to another use of the same or more restrictive Resolution 11-19 Page 5 of 9 This section shall apply to all structures and uses that were lawfully established or constructed under previous regulations but that do not meet afforded under this Code. If any ambiguity or conflict arises concerning the classification upon the securing of a use permit. If the legal nonconforming use is replaced by a more restrictive legal nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any legal i' nonconforming use is wholly discontinued for any reason except pursuant to ~`'"°`` a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land~or building is located. (b) Any lawfully established building or structure, ea~ieG=~~ ^~ k~°° ~'~*° ^f a iv-t~~~t ,which is legal nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in compliance with the regulations set forth in this Chapter for the district in which such building or structure is located; provided, however, that any such legal nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. The f?laa~ai~g-~-~-~t-Community Development Department of the City of Tustin may send, by certified mail, return receipt requested, to the current ~~f~,-s.;.~~°~ua.~~d Mssesri.~~r,~~j~f owner of any nonconforming building or structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and providing substantial evidence that all structures on the premises were 1) lawfully located• 3) that no structural alterations or expansions, or changes in use were made without the prior authorization of the City and that no alterations were made other than to implement general repairs or to make the use or structure more conforming with the rules and regulations of the Tustin Citv Code. Said statement shall be filed with the €g ~tCommunity Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. The burden of proof to establish the lawful and the ordinance and for all periods of time as reauired under this Section rests with the current owner. ~~. Resolution 11-19 Page 6 of 9 (c) A Iega1 nonconforming building, destroyed to the extent of more than fifty (50) percent of its reasonable value at the time of its destruction by fre, ~~` explosion or other casualty or act of God, may be restored or used only in ~`' compliance with the. regulations existing in the district wherein it is located. (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become legal nonconforming due to any reclassification of districts under this Chapter; provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered ~~ ~ nonconforming. (e) Any use of land, building, or structure which is •s~~r7~ ttYt#`cL "+W'rc~-a~-"`Z~""''~-r_n rt r ~" '"^'-c1~a+rG1tt°._jai-Y.Fk~k'}~}['rQ'f-th'Y'~i'J' '_ `~. t r+`m~~'^~°' ~r a~r---made "non-conforming" either in design or arrangement due to acquisition of public right-of-way by the City, shall be exempt from e n'f~t' stun.-~-T~~~°-suers-sf-Seeti~n-X27-"~; -orrfe the provision, unless it is established by the rtr-t ~-Community Development Department that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. Section 7: Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established wireless communication facilities for which applications for the modifications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to legal nonconforming wireless communication facilities that are le al nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. Modifications to legal nonconforming wireless communication facilities shall not increase the nonconformities. Section 8.Section 9297 of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure that was lawfully established or built under previous regulations but does not meet existing standards. Illegal uses or structures have no vested rights. Illegal uses or structures are a public nuisance that shall either be brought into legal ~'„`~~ conforming status or shall be removed. Resolution 11-19 Page 7 of 9 Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: ~- ~~,. "Legal Nonconforming s~-Sian " means a sign that was lawfully erected '~~~' e --which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: c. Legal Nonconforming eig~Signs. , .rem-,-~,.,~~~-~a,~ ,~-~3 ;;~~~legal nonconforming, sign shall be made to conform to all provisions of this Chapter if the Director determines that any of the following events occur. 1. A legal nonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A legal nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety (90) days, it shall be presumed that such use has been abandoned in accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A legal nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, including destruction by an act of God. Section 11. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Resolution 11-19 Page 8 of 9 PASSED AND ADOPTED at a special meeting of the City Council of the City of Tustin held on the day of 2011. JERRY AMANTE, Mayor ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Gouncil of the City. of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1397 was duly passed and adopted at a special meeting of the Tustin City Council, held on the day of 2011, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER, City Clerk Resolution 11-19 Page 9 of 9 ATTACHMENT F COMMUNITY DEVELOPMENT DEPARTMENT POLICY MEMO FORMALIZING THE DEPARTMENT'S CODE ENFORCEMENT INVESTIGATIVE PROCEDURES PERTAINING TO POTENTIALLY UNAUTHORIZED STRUCTURES, USES, AND LOTS TUSTIN Inter-Com DATE: AUGUST 30, 2011 TO: DISTRIBUTION $UILDING OUR FUTURE HONORING OUR PAST FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: INVESTIGATIVE PROCEDURES PERTAINING TO POTENTIALLY UNAUTHORIZED STRUCTURES, USES AND LOTS The purpose of this memorandum is to formalize the Department's investigative procedures pertaining to potentially unauthorized structures, uses, and lots, to ensure implementation of a standardized approach by current and future staff and the affected public.. A "potentially unauthorized" structure, lot and/or use is one in which an existing structure, building, sign, development, lot, or use may not conform to one or more of the regulations currently applicable to the district in which the structure, building, sign, development, lot, or use is located. When a potentially unauthorized structure, use or lot is identified, staff shall confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff shall perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine when it was added, enlarged, extended, modified or altered at the site, and whether it was lawfully established. Staff shall consider the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: • Building permits, Occupancy Permit, Variance, Conditional Use Permit, or other official records • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps Code Enforcement Investigative Procedures Page 2 of 2 • Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Zoning Map and Zoning Code • City Council/Planning Commission minutes, Resolutions, Ordinances and/or policies • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below) • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. An inspection of a potentially unauthorized structure by a City Planner and Building Inspector should also be accomplished to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector's visit should observe major life/safety related discrepancies in the workmanship and materials that could be used to determine whether the potentially unauthorized work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made. City staff shall always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is not legal. If, at the conclusion of staff review, the potentially unauthorized structure is determined to be lawfully established, pertinent information shall be added to the City's records documenting that fact, and the matter officially closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner shall be officially requested to correct the concern. We appreciate your effort in complying with this new procedure. If you have any questions, please contact Dana Ogdon or Justina Willkom. DISTRIBUTION: Planners All Building Personnel Code Enforcement Officers 5;\Cdd\POLICIES\code enPorcement proudures.doc