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HomeMy WebLinkAbout03-ATTACHMENT FAttachment F To: Jeff Thompson Chuck Puckett Steve Kozak Ken Eckman Fred Moore From: Markus Brown Re: Proposed Ordinance No. 1397 Date: October 10, 2011 Thank for the time that you are investing into dealing with the nonconforming issues before you. I'd like to start by stating that I have no formal training in matters of city government and do not claim to bean expert on the matters at hand. Rather, I have done a lot of research on my own and am trying to find solutions to the problems as I see them based on the information I am able to gather. As I understand it, the current city government feels that the actions of the City Council in 1961 were too lenient. It seems that in the early 1960s, city government felt that there was no point in keeping "old" records and therefore destroyed everything prior to 1960 and passed the current nonconforming ordinance. This ordinance, often referred to as a "grandfather clause" in other cities, essentially gives "legal nonconforming" (aka "grandfathered") status to pre-1960 structures and uses, without respect to whether there is evidence that they were created legally or not. Yet, for various reasons current city government feels that the nonconforming code from 1961 needs to be changed. All together, there are six primary problems with the proposed ordinance: 1- It does not clearly distinguish between nonconforming structures and nonconforming uses. 2 - By not distinguishing between nonconforming structures and uses, it fails to allow for the plausibly legal multi-family uses that exist throughout Old Town Tustin. 3 - It does not distinguish between residential nonconformitiesand non-residential nonconformities. 4 - It does not provide exceptions for historic structures and uses. 5 -The "rebuild criteria" based on assessed value is unrealistic due to Proposition 13. 6 - It places the burden of "proving" that a structure or use was legally established on the homeowner who has no professional expertise in governmental matters. gorgeous historic detail and the new 5090 (rebuilt cheaply to comply with the 5090 rule) is just a boring shell. Old Town Tustin wouldn't be much a historic district with a few of those around, yet this is a realistic scenario if value criteria of any kind are included in the nonconforming ordinance for historic homes. The best solution to the historic home problem is to create an exception to the nonconforming ordinance for homes that are on the current historic survey and those that are eligible for historic status such as the historic homes north of First Street and the occasional outlying property such as the Blimp Hangars. Past comments from city council, as well as city staff presentations featuring hyperbolic examples of fires in converted garages, have implied that allowing the current nonconforming ordinance to remain would lead to the downfall of the city by allowing everyone to do whatever they want with their property as long as it is "old." The reality, however, is that there is a very big difference between protecting a 100 year old residential structure or use, and giving blanket amnesty to non-residential uses such as sex businesses and storage units. City staff showed pictures of a burning garage that had been converted to a bedroom to emphasize the need for this proposed ordinance, but this only shows that the City is confusing the issue. There is a big difference between obviously illegal uses (such as garage conversions) and plausibly legal uses (such as a guest house built for rental to Marines during WWII). Nobody in Old Town Tustin is asking to be allowed to legally collect rental income by putting a bed in a garage so there is no reason to draw that comparison. Rather, the goal should be to allow structures and uses that were plausible in the past to continue without restriction. In an effort to support some of the suggestions I am making to solve the six major issues outlines above, I spent some time reading the nonconforming and historic codes of other cities where the information is readily available online. These cities include Pasadena, Orange, Laguna Beach, Newport Beach, and Huntington Beach. The examples below all offer prior precedent that might aide the City in making this new ordinance more appropriate. Each of them offers simple language solutions to address the six primary problems outlined above. Current problem and proposed solutlons based on other clty's pollcles: 1- It does not clearly distinguish between nonconforming structures and nonconforming uses. Every code that I read from other cities has specific treatment for nonconforming structures and specific treatment for nonconforming uses. In other words, the two concepts are not linked together. 2 - By not distinguishing between nonconforming structures and uses, it fails to allow for the plausibly legal multi-family uses that exist throughout Old Town Tustin. Section 17.17.065 of the Orange code specifically states that multifamily uses within the R1 zone are a valued part of the heritage and historic development of the Old Town District and therefore must be protected. The only "rebuild criteria" are that they must preserve the historic character of the property. 3 professionals to prove or disprove matters that are 60+ years old. I spoke with City Planners in several cities that have historic districts including Orange, Anaheim, and Fullerton and it became very clear that they do everything they can to support and help the owners of historic structures by implementing historic exceptions to the rules. In unique circumstances where the rules are ambiguous, those cities offer helpful strategies to the homeowner and even have systems in place to help the homeowner get a variance for the particular problem. Such supportive policies differ greatly from Tustin's approach as clearly demonstrated by the proposed ordinance. Tustin wants to be able to target a specific homeowner, without any proof, and force the homeowner to defend their property with historical evidence that we all know does not exist. That is the ultimate definition of "guilty until proven innocent." My suggestion is that the City must have roof that a given nonconforming structure or use is not legal before approaching a homeowner. The city should then be required to work with a homeowner to collectively seek out the necessary data and that there should be systems in place that allow for interpretation of that data. In other words, the city would help the homeowner support the property rather than spend its resources trying to destroy the property. For historic homes where the records are vague ornon-existent, the City's policy should be to support nonconforming structures and uses that could have been legal at the time and the city should be required to use the Historical Building Code, not the modern building code, when determining the legality of the structure. As you have read, Laguna Beach, Pasadena, Orange, Newport Beach, Huntington Beach, and certainly many others, all clearly support the continuation of residential nonconforming structures and uses and specifically have implemented measures to ensure the continuation of nonconforming structures and uses for their historic properties. It seems to me that the ultimate difference between the way Tustin treats its "old" properties compared to other cities is as follows: Tustin is trying to fit everything (old and new, residential and non-residential) into the same nonconforming ordinance where other cities recognize that different parts of the city (such as the historic district) have different needs and therefore should be subject to different rules. The residents of Old Town Tustin are only asking for the protection of nonconforming structures and uses within Old Town Tustin. By creating historic exceptions and distinguishing between residential and non-residential nonconformities, Tustin can show its support for its heritage while still accomplishing the goal of eliminating other nonconformities over time. Thank you for your time in reviewing this letter. ~~L~ Markus Brown 5 650 Town Center Drive ~ 4th Floor ~ Costa Mesa, CA 92626-1993 ~~ ~ ~ ~ _~ ~" ~~ ~ `'~ 714-513-5100 office ~ 714-513-5130 fax ~ wwwsheppardmullln.com it T 7~ R '~ L Y S F~ 3 E ,~, E 1 October 10, 2011 vIA E-MAIL AND FACSIMILE Chairperson Jeff Thompson Members of the Planning Commission City of Tustin 300 Centennial Way Tustin, CA 92780 Re: Dear Commissioners: Writer's Direct Line: 714-424-2821 drosenthal©sheppardmullin. com Our File Number: 27MW-161154 The Tustin Preservation Conservancy ("Conservancy") submitted proposed additions to Draft Ordinance No. 1397 at the Commission's September 27, 2011 meeting. The Conservancy's modifications clarified that the Draft Ordinance was not intended to impact historic resources in Old Town Tustin or to supersede the City's Cultural Resources Overlay District. After reviewing potential impacts on Old Town Tustin, which contains a large number ofnon-conforming historic uses, the Commission instructed Staff to incorporate proposed protections for historic structures and uses in the Draft Ordinance. A copy of our September 27, 2011 letter is attached. Unfortunately, as proposed, the Draft Ordinance remains in direct conflict with the intent of the Cultural Resources Overlay District, which is to preserve historic uses and structures as they existed during the period of significance from 1880 to 1950, and the requirements of the California Historic Building Code ("CHBC"). The Conservancy proposed to exempt eligible historic structures from (a) the limitation to 50 percent of assessed value for maintenance or repairs, (b) the affirmative burden of showing compliance with the building regulations in effect at the time of construction, and (c) the affirmative burden of showing continuous maintenance ofnon-conforming uses since 1947. Exempting historic structures and uses from these requirements will encourage maintenance of Old Town's historic character in accordance with the CHBC and the City's General Plan. Staff has objected to all of the Conservancy's proposed additions for the reasons set forth in its October 11, 2011 Planning Commission Report. As detailed below, all of the additions are necessary to comply with the CHBC and the intent of the Overlay District. SHEPPARD MIJLLIN RICHTER & HAMPTON LI.P City of Tustin Planning Commission October 10, 2011 Page 2 1. discussion, the Commission instructed Staff to allow repairs, maintenance and replacement up to 50 percent of a structure's fair market or replacement value. Staff objected that continuous maintenance should not cost over 50 percent of assessed valuation, regardless of the effect of Proposition 13. The example attached by Staff as Attachment D estimated that repairs to a structure purchased in 1995 would be approximately 20% of its Prop 13 value for the first decade of ownership. By totaling all repairs over time, Staffs proposal would effectively set an upper limit on maintenance of all non-conforming structures, even those in the historic district. Using Staffs projections, normal repairs and upgrades to the home in Attachment D would exceed 50% of assessed value in 25 years, at which time demolition could be required. Even minimal maintenance costs for anon-conforming historic structure purchased in 1980 has probably already exceeded 50% of assessed value. While this approach may allow the City to sunset non- conforming structures, it is directly contrary to goal of on-going historic preservation in Old Town Tustin and penalizes those who own their properties for the longest time. It is also directly inconsistent with CHBC § 8-303.7, which provides: "The amount of alterations and repairs is not limited, provided there is no nonhistorical increase in floor area, volume or size of the building or property." In other words, the CHBC prohibits the City from "limiting" alterations and repairs to qualified historic buildings solely on the basis of cost. The CHBC is designed to allow any and all repairs and maintenance necessary to extend the life of an historic structures, while the Draft Ordinance is intended to bring about the demolition ofnon-conforming structures. As a mandatory state law, the CHBC must be enforced by the City. Aside from impacts to the longest-owned historic structures, the City's proposal is also out of step with other Orange County communities, many of which allow ordinary repairs up to the full assessed value of the structure and catastrophic damage up to 75 percent of replacement cost. The bottom line is that the combination of a low assessed value and a cumulative total of repairs makes it very unlikely that any non-conforming structures in Old Town will survive in the long term. By exempting historic structures from this requirement under the CHBC, or setting a more reasonable standard of valuation, the City can meet both its preservation and zoning goals. 2. Exemption from burden of showing original building permits and continuous use for historic structures (Section 9273(g~Under the Draft Ordinance as proposed, an historic building owner could lose the right to maintain an original setback or use if he cannot affirmatively demonstrate to the satisfaction of Staff that the structure qualified for building permits when built, even though the City discarded its permits in 1959. Under threat of a notice to vacate and criminal charges, City Staff can demand that the owner of a 75-year old historic rental unit show that it met all building permit requirements when constructed and that it has SHEPPARD MULLIN RICHTER & HAMPTON LLP City of Tustin Planning Conunission October 10, 201 I Page 3 been continuously rented since 1947. Although the City is required to assist, the owner must bear the full cost of hiring historic researchers, architects, engineers and building specialists to reconstruct information that was never previously required. These costs can easily exceed $10,000, none of which can be recovered from the City. If the owner cannot prove continuous occupancy or building code compliance, or simply cannot afford to collect the evidence, the City can force the building to be vacated, abandoned or demolished. Again, this approach may be appropriate for non-historic buildings whose use or existence the City wants to terminate. But it is wholly inappropriate for eligible historic buildings that the City wants to preserve. In fact, it removes the City's discretion to maintain historic setbacks and uses if the owner cannot show building permits for the entire structure. For this reason, the Conservancy proposed to grandfather in the use and non- conformingstatus of all eligible historic structures as of the date of this Ordinance, provided that the use was allowed under the applicable zoning when established and no changes are made without a Certificate of Appropriateness. This avoids the need for historic owners to prove continuous usage, or to spend scarce resources showing building permits for historic buildings that are already designated for preservation in their current condition under the Overlay District. To ensure that safety issues were properly addressed, the Conservancy proposed to clarify that allowing an historic use or structure to continue does not exempt them from other, non-zoning requirements. The CHBC specifically encourages continued use of historic buildings, even if non-conforming. CHBC § 8-302.1 provides: "The use or character of occupancy of a qualified historical building or property, or portion thereof, shall be permitted to continue in use regardless of any period of time in which it may have remained unoccupied or in other uses, provided such building or property otherwise conforms to all applicable requirements of the CHBC." Section 8-302.2 provides: "The use or character of the occupancy of a qualified historical building or property may be changed from or returned to its historical use or character, provided the qualified historical building or property conforms to the requirements applicable to the new use or character of occupancy as set forth in the CHBC. Such change in occupancy shall not mandate conformance with new construction requirements as set forth in the regular code." Under state law, therefore, the City is required to allow uses to change without regard to the applicable zoning, or intervening uses, provided that the structures comply with the CHBC. In recognition of the CHBC, the Conservancy proposes that the Draft Ordinance be amended as proposed in our September 27, 2011 letter, but that the reference to a Certificate of Appropriateness be replaced with the following language: "provided that the use or character is consistent with or allowed under the California Historic Building Code." StTEPPARD MULLIN R]CHTER & HAMPTON LLP City of Tustin Planning Commission October 10, 2011 Page 4 3. Definition of "Leal Nonconforming" to include Eligible Historic Uses (Section 9297,x. The definition of "Legal Nonconforming" in the Draft Ordinance excludes all structures that cannot demonstrate compliance with building codes and continuous use, even if they fully complied with zoning when built. The Conservancy believes that all eligible historic structures in the City of Tustin should be defined as "legal non-conforming" under the Draft Ordinance. When the City adopted the Cultural Resources Overlay District and prepared the 1990 and 2001 surveys, it determined that the historic structures should be preserved as a tangible demonstration of the community's history. In some cases, the historic uses are not consistent with current zoning, but they are nonetheless important reminders of the past. The structures themselves may not be built to current codes, and may have been modified over the years, but they tell the story of Tustin's development. As survivors from our rich and diverse past, they all deserve to be deemed "legal" under the zoning ordinance. The Conservancy also has a few comments on the Staff Report that may assist the Commission in evaluating the Draft Ordinance. First, the Conservancy agrees that uses or structures established in violation of zoning regulations since 1961 are not "legal nonconforming." Therefore, the examples of non-conforming or harmful uses established after 1961 or involving non-historic buildings would not be affected by the Conservancy's proposals. The City would also remain able to enforce health and safety requirements under the proposed exemption for historic structures, regardless of the significance of the building. The Staff Report claims that Old Town Tustin was developed as single-family residential neighborhoods with associated agricultural uses. Staff proposes the Draft Ordinance as a way to combat "commercialization and a transformation of the neighborhood into a higher density residential district." It uses a 1982 Conditional Use Permit as an example. This example has nothing to do with preservation of Old Town's historic character, which was established between 1880 and 1950. The City currently has authority to enforce CUP requirements, and a use established in 1982 is not historic. However, historic uses in Old Town Tustin are not limited to architecturally- significant single-family units. Second and third units established prior to 1950 are an important part of the District's historic character, including the higher density they brought to many of the lots. The District would lose part of its historic vitality and many important examples of mid- century housing accommodations if they were terminated. They have played a part in Tustin's history for more than 60 years, and are in no way a new occurrence. The City did not adopt its first zoning ordinance until 1947, so second and third rental units established before 1947 were "legal" by definition. When it amended its zoning ordinance in 1961, the City provided that all uses in existence in 1961, including all uses established before 1947, were "legally:' allowed to continue. To the extent that Staff has presented examples of uses established in violation of zoning since 1961, i.e. within the last 50 SHEPPARD MULLIN RICIiTER & HAMPTON I.I.P City of Tustin Planning Commission October 10, 2011 Page 5 years, there is no disagreement about their illegality under the City's current code. However, uses established more than 50 years ago have been permitted to exist without causing any problems in the intervening years, and there is no reason to challenge the wisdom of the City Council in allowing them to continue in 1961. The Conservancy and Staff also agree that the Zoning and Building Codes are separate and distinct_ Staff is correct that zoning clearance has been necessary prior to issuance of building permits since adoption of the first zoning ordinance. However, that is not the issue under the Draft Ordinance. In fact, the Draft Ordinance reverses the normal order, by requiring the owner to demonstrate that building permits were issued before obtaining zoning clearance under the non-conforming use provisions of the City Code. Finally, the Conservancy continues to believe the Draft Ordinance is not eligible for a Negative Declaration under the California Environmental Quality Act ("CEQA"). CEQA requires environmental review whenever a public action may have an adverse effect on the existing environment. The purpose of the Draft Ordinance is to give the City additional authority to require termination of existing uses and demolition or modification of existing structures, including historic buildings. By definition, therefore, the Draft Ordinance will cause a change in the existing environment. Even if the City believes that most of the environmental changes will be beneficial, as Staff suggests, the potential impacts of the Ordinance on historic structures in the Overlay District, affordable housing and the General Plan must be evaluated under CEQA. This has not been done. The Conservancy is a nonprofit organization dedicated to advocating for the preservation of Old Town Tustin ("Old Town"), facilitating a better quality of life for the residents thereof, and educating the community about the importance ofpreserving and maintaining this rare and unique area. The Conservancy remains- concerned about the implications of the Tustin Planning Commission Resolution 4183 and strongly urges the Commission to require amendment of the proposed language in the Draft Ordinance with regard to nonconforming historic uses and structures. 'nce y, ~~. De orah M. Rosenthal for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attachment W02-W EST:3DMR 1440404245.1 4th Floor ~ 650 Town Center Drive ~ Costa Mesa, CA 92626-1993 714-513-5100 once ~ 714-513-5130 fax ~ www.sheppardmullin.com September 27, 2011 Chairperson Steve Thompson and Members of the Planning Commission City of Tustin 300 Centennial Way Tustin, CA 92780 Re: Dear Commissioners: Writers Direct Line: 714-424-2821 drosentha I@sheppardmul lin.com Our File Number: 27MW-161154 On behalf of the Tustin Preservation Conservancy ("Conservancy"), we appreciate the opportunity to submit comments on the above referenced agenda item. The Conservancy is a nonprofit organization dedicated to advocating for the preservation of Old Town Tustin ("Old Town"), facilitating a better quality of life for the residents thereof, and educating the community about the importance of preserving and maintaining this rare and unique area. The Conservancy is concerned about the implications of the Tustin Planning Commission Resolution 4183 to recommend amendment of the current language of the Tustin City Code (the "City Code") with regard to nonconforming uses and structures. We respectfully request addition of the following provisions to ensure that Ordinance 1397 will not have adverse impacts on the Old Town Cultural Overlay District. SECTION 9273 LEGAL NONCONFORMING STRUCTURES AND USES INSERT THE FOLLOWING UNDERLINED TEXT (b) Any lawfully established structure, 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 structure is located; provided however, that any such legal nonconforming 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 structure's assessed valuation as shown on the last equalized ,in~a~i~.~izn ~tri.~.i~ III('flTlil{ ~l• 11,1111''f(11 ~.i.i~ City of Tustin Planning Commission September 27, 2011 Page 2 roll of the 1t was establlstlea. The Conservancy appreciates this opportunity to comment on the Planning Commission's Proposed Resolution 4183 regarding Code Amendment 11-002 (Draft Ordinance No. 1397). The Conservancy requests the Planning Commission consider the Conservancy's concerns and include the above provisions in any recommendation to the City Council. To this regard and for the future, the Conservancy looks forward to the SECTION 9297 DEFINITION INSERT THE FOLLOWING UNDERLINED TEXT "Legal Nonconforming" shall mean a use or structure, whenever established, that was lawfully established and continuously used or occupied under previous regulations but that does not meet existing standards. •ur~~i~.~~tu ~tri.i.i` il~l~rrria~ ~t IL•1111''P(1\ I,LI' City of Tustin Planning Commission September 27, 2011 Page 3 opportunity to work with the Planning Commission to preserve the spirit and character of Old Town, Sincerely, /s/ Whitney A. Hodges for Deborah M. Rosenthal, AICP for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP W02-WEST:3DMR 1404006842.1 From: Jennifer Gates [jgates@californiapreservation.org] Sent: Tuesday, September 27, 2011 4:23 PM To: DiLeva, Adrienne; Ogdon, Dana; Thomas, Amy Subject: Comments on Ordinance 1397- Nonconforming Attachments: Tustin.pdf Please forward this letter to the Planning Commission. Thank you. Dear Commissioners, Please find the attached comments on Ordinance 1397. Please contact me if you have any questions or comments. Sincerely, Jennifer Jennifer M. Gates, AICP Field Services Director ~ California Preservation Foundation in partnership with the National Trust for Historic Preservation 5 Third Street, Suite 424 ~ San Francisco, Ca 94103 T: 415-495-0349 ext. 204 ~ C: 415-503-7966 ~ F: 415-495-0265 Email: iaatesC~californiapreservation ore Join California Preservation Foundation Today! www.californiagreservation ore On FacebookZ Become a fan of California Preservation Foundation! 'Alone we can do so little; together we can do so much." ~ Helen Keller i ~ . C A L I F _ O R ] N ~ I A P R E S E R V A T I O N F O U N D A T I O N September 27, 201 1 53go STREET, SUITE 424 SAN FRANCISCO. CALIFORNIA 94103-3205 Submitted Electronically 415 495A3 . 49 PHONE 415.495.0265 FAX Planning Commission CPF®CALIFORNIAPRESERVATION.ORG City of Tustin W W W.GALIFORNIAPRESERVATION nor -- 300 Centennial Way Tustin, CA 92780 RE: COMMENTS ON DRAFT ORDINANCE N0.1397 BOARDOFTRUSrBEs Dear Chair Thompson and Fellow Commissioners PRESIDENT , Chrtsllne Fssdukowskl, Pasadena On behalf of California Preservation Foundation (CPF), thank you for the VICE-PRESIDENT, PROGRAMS Charles Chase,AlA,SanFronclsco opportunity to comment on the Draft Ordinance No. 1397 for VICE-PRESIDENT, DEVELOPMENT Thomas Newry, San/a Monica nonconforming structures and uses. CPF is the onl statewide non rofit y p TREASURER organization dedicated to the preservation of California's diverse cultural DaWd Wilkinson, Woodland and architectural heritage. Established in 1977, CPF works with its extensive SECRETARY Sarah Sykes, Son Carlos network to provide statewide leadership, advocacy and education to ensure the protection of California's diverse cultural heritage and historic Ray Adamyk, Pomona Robert Chaflel, AIA, Sherman Oaks places. Robert Imber, Palm Springs Diane Kane, PhD, La Jolla As stated in the staff report, CPF requested to review the draft ordinance a Lydia Kramer, Palm Springs V ey raga h few months ago and has met with staff regarding the document. While we GIIMahew Gross ~ cn Ihehln-McLeod, AIA, Long concur with the need for clarification we are still concerned with the J li P potential unintended impacts to historic resources in Tustin Many u anne olanco, San Francisco Richard Sucre. Son Francisco . nonconforming ordinances separate uses from structures, this ordinance does not. Each historic resource is unique and will have its own level of EXECUTIVE DIRECTOR significance and integrity that could unintentionally be impacted by ClndyL.Haltunan "correcting" nonconformities that have been determined "illegal". The California Historical Building Code (CHBC) is the prevailing code for qualified historical buildings and is applicable for all issues regarding building code compliance for qualified historical buildings. All enforcing agencies are required to use the alternative standards in the CHBC to allow the continued use of historical buildings and meet life-safety mandates. The code recognizes that changes to a building occur over time and does not mandate compliance with new building and zoning regulations when a building changes use or occupancy. A number of resources should be examined in order to determine whether or not the structures and uses contribute to the historic character of the site. In many cases building, electrical, and plumbing permits have long since been lost or destroyed. In some instances there may have not been a need for a building permit but now one would be required. The policy we suggested, and provided in the staff report, contains some of the many resources to help determine whether the structure or use existed historically, and at what point it was altered. I recommend that an additional bullet point be added to read: Page 2 If the site is listed as a historic resource or identified on a survey, an independent qualified professional experienced to perform a site assessment should determine the age of any improvements and the period(s) of significance. A "qualified professional" must meet the Secretary of Interior's Professional Qualification Standards. This will help to determine if the improvements contribute to the significance of the site. In many cases, there are only simple DPR or register forms that have been prepared for each historic property. These were completed during "windshield surveys" which are intended to gather a lot of cursory information, not to complete exhaustive research on each building. While these forms provide good information, the individual completing these initial assessments does not have access to the site or structure(s). In many cases there may be garages or rear accessory buildings/units that contribute to the site that were not identified. Also we believe it is important for individuals to understand what options they have to remedy "illegal" nonconformities. Can properties apply for conditional use permits to continue existing nonconforming setbacks Can they apply for variances Some communities provide a process in their code to allow for the continuation of historic uses and structures that are considered nonconforming. Here is an example from San Clemente: 17.72.100 -Nonconforming Historic Resources and uses. A. A nonconforming designated national, state or local historic structure or use may be exempted from the provisions of this chapter through the approval of a Conditional Use Permit in accordance with Section 17.16.060, Conditional Use Permits, of this title. B. Approval of a Conditional Use Permit shall regulate the property to assure that the historic resource is maintained, preserved, and/or restored and that the resource as preserved and restored will be a positive contribution to the community. C. Historic uses which are nonconforming and which are located in historic buildings may be re-established in accordance with state law. Historic resources are important to every community's sense of place as is the health and safety of its citizens. Serious life safety concerns can and should be rectified through the use of the CHBC without impacting the historic resources, but the historic resource must be understood first. CPF requests that you take careful consideration to prevent negative unintended consequences. Thank you again for the opportunity to comment. If you have any questions or comments, please contact me at iaatesC~californiapreservation ora or by phone at 415-495-0349 x 204. Sincerely, ~~~- Jennifer M. Gates, AICP Field Services Director In Partnership with the National Trust for Historic Preservation CC: Tustin Preservation Conservancy