Title
Study Session Zoning Code Amendments - Non-Conforming Buildings And Uses, Lapse Of Uses And Permits - Study session to discuss proposed zoning code amendments to: 1) reinstate provisions relating to non-conforming lots that were inadvertently deleted during the most recent code update; 2) address other outdated sections relating to non-conforming uses and buildings; and 3) provide a process for formally lapsing unused permits and non-conforming uses. CEQA Determination: Exempt pursuant to CEQA Guidelines Section 15061(b)(3).
Body
To: Honorable President and Members of the Planning Board
EXECUTIVE SUMMARY
The Alameda Municipal Code (AMC) provides for the retention, modification and replacement of non-conforming buildings and uses. This is necessary because, as zoning regulations evolve, certain pre-existing buildings and uses, which were established under prior rules, become inconsistent with the new rules but may still be viable to maintain for an indefinite period of time. These uses and buildings may also need repair or expansion, or may change use over time, so the zoning code needs to provide rules for how those changes are considered in light of vested property rights and a general intent to gradually bring non-conforming uses and buildings into line with current expectations for development in the City. In addition, some permits are approved but never implemented or uses are abandoned, and a procedure is needed to declare these permits and uses lapsed. Staff has assembled a group of related provisions and proposes edits as shown in the attachment to this report.
BACKGROUND
General History. The City’s existing zoning code includes provisions regarding non-conforming uses and buildings. Adopted in the early 1900s, it has continued in substantially the same form ever since, though there were amendments made in 1940 and in 1958; the current zoning code reflects in large part the 1958 code. In fact, particular sections of the code still refer to a threshold date of 1958 as establishing non-conformities for lots with reduced area. Additional refinements to the sections were made in 1960 and 1987. The most recent code update was adopted with the 2022 Housing Element.
Principles of Non-Conforming Uses and Buildings. Zoning regulations are amended from time to time to reflect the evolving principles of land use planning and development, changes in state law, and community desires. As a result, situations can arise where a lot or use or building that was established under the pre-existing regulations is no longer consistent, through no fault of the owner or tenant. Zoning codes routinely provide a process to manage those situations.
For example, over a period of time, a typical storefront may be changed from retail to a restaurant to a bank and back to retail. Associated use permits may be attained, tenant improvements made, and so on, all within the basic framework of a typical commercial building’s evolution, and none of the uses or building features would be non-conforming. In contrast, an old industrial area along the waterfront might be seen as largely obsolete as economic forces change, environmental concerns arise, and desires and mandates may make other uses preferred for an area. Thus, if / when the City rezones the property to encourage this transition, the pre-existing uses would likely become non-conforming, i.e. the new zoning regulations may limit or even prohibit new industrial uses in the area, as well as expansions of the existing uses.
The question then becomes, what is the status of those pre-existing uses that may still be viable for some period of time, and are otherwise “left behind” as the area transitions to new uses? While the community may desire the new development, the City must also respect the vested rights of the owners and operators of those uses, that is, they have come to expect a return on their investments. In brief, a property owner potentially could bring a takings claim against the City claiming that the City, through rezoning, deprived the property owner of substantially all economically beneficial or productive use of the property, and could seek damages for damages and the loss in value of the property.
Some limited uses, such as old signs, can be regulated so that they are amortized out of existence by allowing a certain period of time during which whatever investments and leases have been entered into can be recouped, paid off, or terminated without great expense. Otherwise, it is often the case that rezoning must allow for the continuation of pre-existing uses and buildings.
Thus, the non-conforming provisions of a typical zoning ordinance provide for additions to buildings, replacement of damaged buildings, and changes of use that may not fit within the zoning code setbacks or height, coverage limitations, or design review requirements but are merely continuations of legal pre-existing conditions.
It should also be noted, the City’s recent adoption of new objective design review standards may result in additional cases of non-conformity, i.e. older projects that were built without consideration of the landscaping, materials, and other requirements now in place and may warrant flexible application of the new rules.
DISCUSSION
Housing, Economic and Historic Analysis. The City’s recently-adopted Housing Element included many zoning code amendments to increase density, streamline development review, and make related changes to ensure consistency with State law. A key principle of the Element is the removal of governmental barriers to housing development of all kinds, as well as the preservation of existing housing, particularly affordable housing.
Affordable housing can be deed-restricted and managed specifically for that purpose, or can occur through the economic forces of location, size, density, age, amenities and so forth. In essence, some older housing stock is more affordable and should be preserved even if it is inconsistent with current standards, so long as it is safe.
One kind of barrier to housing is the constraints placed on renovating older, non-conforming housing. Whether it be smaller lot size, lesser setbacks, taller height, or density of units, non-conformities need to be accommodated so that existing housing can be renovated and replaced if necessary, up to certain limits, and even expanded with a Use Permit.
The same can be said of economic development and provisions for commercial and industrial uses, buildings, and sites to the degree they do not cause adverse effects on the larger community. Therefore, the proposed edits do not generally distinguish among uses. However, there is a specific code section for retaining non-conforming residential density even if destroyed in part or in whole.
Finally, allowing the retention, expansion and replacement of certain non-conforming buildings and uses can facilitate the preservation of historic features of the community.
Proposed Amendments. Two zoning code sections in particular address non-conforming uses and buildings: AMC Sections 30-5 (General Provisions and Exceptions) and 30-20 (Nonconforming Buildings and Uses). The following summarizes the proposed amendments, as shown in Exhibit 1.
• Definitions currently refer to some unspecified effective dates and amendments to prior codes. The proposed amendments clarify that a non-conforming use or building is one that was legally established according to whatever codes were in effect at that time and no longer conforms due to subsequent amendments. (AMC section 30-2)
• Some edits made during the Housing Element adoption and zoning code amendment process inadvertently deleted a section related to non-conforming lots and the allowable reduction in yards. The proposed amendments add those sections back into the code. (AMC section 30-5.6)
• Clarifications are proposed to the section referring to accessory buildings, additions within non-conforming yards, and additions that exceed allowable height. (AMC section 30-5.7)
• Definitions are added to the general provisions section to establish that some non-conforming buildings and uses may have been established without permits and therefore are not legal and are not eligible for the provisions of these sections. (AMC section 30-20.1)
• Clarification is provided to state that a Use Permit may be granted to modify or expand a non-conforming use where it is deemed acceptable, perhaps as a result of inadvertently excluding that use from a rezoning action or other reason. (AMC section 30-20.2)
• A section related to non-conforming uses and buildings is proposed to be edited so that it only refers to non-residential buildings, with separate sections for residential buildings and for other uses. (AMC section 30-20.4)
• New sections are proposed to be added to address when established uses and buildings can lose their non-conforming status. This includes abandonment, complete destruction, and voluntary demolition. (AMC section 30-20.7)
• Finally, a new section is proposed to describe a process for the City to revoke a use permit, variance, or other permit when a permit has not been exercised or a use has been discontinued for a certain period. This would provide a notice and hearing for the owner/operator to present reasons why the permit / use should not be revoked, and a chance for others to weigh in on whether the use or building serves a public purpose or is consistent with the intent of the zoning. (AMC section 30-21.13)
ENVIRONMENTAL REVIEW
The proposed amendments are exempt from CEQA pursuant to section 15061(b)(3), the common sense exemption where it can be seen with certainty that the proposed zoning text amendments have no possibility of having a significant effect on the environment because they relate to legally existing uses and buildings, and a use permit would be required for expansions at which time specific impacts would be considered. It would otherwise be too speculative to consider citywide impacts of the types of effects of these text amendments.
RECOMMENDATION
Conduct a study session to discuss the recommended amendments to the Alameda Municipal Code, Sections 30-2, 30-5 and 30-20 related to non-conforming buildings and uses, and the lapse of use permits and non-conforming uses, and give direction to staff for edits to bring back to the Planning Board for a public hearing and recommendation to City Council at a later date.
Respectfully Submitted,
Allen Tai, Acting Director of Planning, Building and Transportation
By,
Steven Buckley, Planning Services Manager
Exhibit:
1. Draft Ordinance Amendments