Title
PLN24-0166 - Zoning Ordinance Amendment Regarding Non-Conforming Lots, Buildings and Uses - Citywide. A proposed amendment to the Alameda Municipal Code 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relating to non-conforming lots that were inadvertently deleted during the most recent code update; 2) address other outdated sections relating to nonconforming uses and buildings in Alameda Municipal Code Section 30-2 Definitions, Section 30-5 General Provisions and Exceptions, and 30-20 Nonconforming Buildings and Uses, to implement the 2023-2031 Housing Element, to conform to State law, and to reflect current practice; and make a recommendation to City Council. The proposal is categorically exempt from the California Environmental Quality Act 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.
Body
To: Honorable President and Members of the Planning Board
From: Steven Buckley, Planning Services Manager and Secretary to the Board
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. Staff has assembled a group of related provisions and proposed edits as shown in the attachments to this report. During the regularly scheduled Planning Board meeting of September 11, 2023, staff presented a study session item to discuss the proposed amendments to the Zoning Code. Board members identified areas of concern during the discussion and, with this direction, staff has revised the proposed amendments to address the issues raised during the study session and to reinstate a section that was inadvertently deleted during a prior code amendment process.
BACKGROUND
General History. The City’s existing zoning code includes a section 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 or when the City rezones the property to encourage this transition, the pre-existing uses would likely become non-conforming, and therefore the new zoning regulations may limit or even prohibit new industrial uses in the area, as well as expansion 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 and the city could be liable for a taking of property through an unreasonable diminution of value if regulations do not allow a financial return on 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 and, preferably, a higher overall value after the rezoning.
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.
ANALYSIS
Housing, Economic and Historic Analysis. The City’s recently adopted Housing Element included the requirement to make many zoning code amendments, for example, to increase density, streamline development review, and make related changes to ensure consistency with State law. A key principle of the Housing 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 may be deed-restricted and managed specifically for that purpose, or may 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 barrier to housing is the constraints placed on renovating older, non-conforming housing. Whether it be smaller lot size, smaller setbacks, increased height, or increased density of units, non-conforming uses need to be accommodated so that existing housing may be renovated and replaced, if necessary, up to certain limits, or even expanded with a use permit.
The same may 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, to ensure that residential units are not lost to conversion necessitated by their legal non-conforming status.
Additionally, allowing the retention, expansion and replacement of certain non-conforming buildings and uses may facilitate the preservation of historic features of the community.
A study session regarding these proposed amendments was held on September 11, 2023, before the Planning Board, during which two areas of concern were identified by Board members. The first was a concern regarding the addition of subsection 30-20.6, which centered around the need to distinguish between planning entitlements and building permits and identified the term “substantial construction” as too ambiguous. The revision to the proposed amendments distinguishes between planning entitlements and building permits and has established a new milestone in lieu of “substantial construction”. The proposed term is “issuance of permits”, which is intended to be a better defined point in time to distinguish between projects with vested entitlements and those projects whose entitlements could lapse.
The other concern identified by Board members was subsection 30-20.4(a), which establishes a threshold to determine whether changes to or restoration of a nonconforming building is permitted. The concern centered around whether the existing process used to determine if a proposed improvement met the threshold captures all types of improvements (including those not requiring a building permit) and how this information is tracked. The impetus behind this concern was the prospect of staff needing to demonstrate to an applicant that the threshold had been met (or not) in order to approve or deny a change to a nonconforming building.
The originally proposed amendment edited portions of the subsection to remove language regarding nonconforming uses, such that this subsection only applied to nonconforming buildings, in order to ensure nonconforming residential uses would be governed exclusively by the existing subsection 30-20.5, which aligns with State law. It also added language to identify the Building Official as responsible for making the determination of applicability and authorized the Building Official to require verification by a certified appraiser, selected by the City and conducted at the property owner’s expense. Based on the direction of the Planning Board, the language regarding the Building Official and the existing threshold was removed in favor of setting a new threshold that would not require an appraisal and would not need to be tracked over time. The new proposed threshold would prohibit changes to and restoration of nonconforming buildings unless (i) the changes are permissible under a different provision of the chapter, or (ii) the value of the proposed changes does not exceed 20% of the building’s assessed valuation provided by the latest County Assessor’s secured property tax roll.
Finally, a few additional edits to the proposed ordinance amendment have been implemented since the Planning Board study session. Specifically, the new section creating a procedure for lapse of permits has been omitted, as well as the criteria for discontinuation of use. The remaining cases in which a nonconforming use may lose its nonconforming status are the involuntary destruction or voluntary demolition of a use. The edits have also been placed in context by including the entirety of the sections proposed for revisions to help clarify the parts of the code being amended.
Proposed Amendments. Two zoning code sections in particular address non-conforming uses and buildings: AMC Sections 30-5 and 30-20. 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 revised so that it only refers to nonconforming buildings, with separate sections for residential buildings and for other uses. The amendment also changes the threshold for determining when a change to or restoration of a nonconforming building is permitted, as a function of the value of the proposed improvements. (AMC section 30-20.4)
• The amendments remove a reference to an obsolete code section which dealt with the prohibition on multifamily development. By removing the reference, the section allows rebuilding of a destroyed or damaged structure with three or more dwelling units to the existing density. (AMC section 30-20.5)
• A section is added to ensure that projects that are issued planning entitlements or building permits prior to the effective date associated with a zoning amendment that would make the entitlement or permit non-conforming are considered legal non-conforming uses or buildings and are therefore allowed to complete the work associated with the issued entitlement or permit without needing to achieve conformity. (AMC section 30-20.6)
• New sections are proposed to be added to address when established uses and buildings may lose their non-conforming status. This includes complete destruction and voluntary demolition. (AMC section 30-20.8)
CEQA Analysis. 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 Public Hearing to consider the recommended amendments to the Alameda Municipal Code, Section 30-2, 30-5 and 30-20 related to non-conforming buildings and uses and adopt the draft Resolution recommending to City Council that it approve the amendments.
Respectfully Submitted,
Steven Buckley, Planning Services Manager
Exhibits:
1. Draft Resolution
2. Draft Amendments - Clean
3. Draft Amendments - Redline