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Except as otherwise provided herein, this section establishes regulations for non-conformities, including, but not limited to site features, buildings, signs, uses, and lots that were legally established prior to the adoption of the current Zoning Code, but are prohibited, regulated, or restricted differently under the current Code. These regulations are intended to:
(A) Recognize that some non-conforming uses and structures may contribute in a positive manner to Eureka's unique sense of place and quality of life;
(B) Allow for the continued operation of non-conforming uses that are compatible with neighboring properties;
(C) Allow for the continued use of, and improvement to, some non-conforming structures;
(D) Require non-conforming site features to be brought into conformance with the Zoning Code when reasonable to do so; and
(E) Allow for the development and use of legal non-conforming lots.
(Ord. 885-C.S., passed 5-21-19; Am. Ord. 916-C.S., passed 7-6-21; Am. Ord. 951-C.S., passed 10-17-23)
(A) Legal non-conformities only. This section applies to legally established site features, buildings, uses, signs, and lots that do not conform to the regulations of the zoning district in which they are located.
(B) Not applicable to violations.
(1) This section does not apply to non-conformities established in violation of the Zoning Code, or the regulation in effect at the time the non-conformity was established.
(2) A non-conformity that was illegally established is considered a violation of the Zoning Code subject to § 155.428 (Enforcement and Penalties).
(C) Accessory dwelling units. An application for an accessory dwelling unit shall not be denied because of non-conforming conditions that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.
(D) Burden of proof.
(1) Any person asserting a right to a non-conformity has the burden of proof to demonstrate, to the satisfaction of the Director, that the non-conformity was legally established. The Director is not responsible to prove the absence of a legal non-conformity.
(2) The Director's decision on the legal status of a non-conformity may be appealed in accordance with § 155.416 (Appeals and Reviews).
(Ord. 885-C.S., passed 5-21-19; Am. Ord. 902-C.S., passed 8-18-20; Am. Ord. 916-C.S., passed 7-6-21; Am. Ord. 938-C.S., passed 11-1-22; Am. Ord. 951-C.S., passed 10-17-23)
(A) Applicability. This division applies to existing physical improvements on a developed lot that do not conform to the Zoning Code, excluding buildings and signs. See § 155.424.040 (Non-conforming Buildings) for rules that apply to houses, garages, and other buildings on a lot, and § 155.424.050 (Non-conforming Signs) for rules that apply to signs.
(B) Required compliance. Unless excluded by division (D) below (Exceptions), or the exemptions listed in each code section referenced below, if a development project requires a building permit where the total construction value is $55,000 or more, and/or requires a use permit, the following non-conforming site features must be brought into compliance with the Zoning Code:
(1) Landscaping. Landscaping required by § 155.328.040 (Required Landscape Areas) and § 155.328.050 (General Landscape Requirements);
(2) Parking lot landscaping. Parking lot landscaping required by § 155.324.080 (Parking Lot Landscaping) to the extent possible given the configuration of existing development and physical site constraints. For example, if the existing parking lot configuration and striping pattern can only accommodate a two-foot perimeter buffer instead of the required four-foot buffer, the two-foot buffer is allowed;
(3) Parking lot paving/striping. Parking lot paving and striping, as required by city specifications, when parking lot is not paved or striped;
(6) Vision clearance area. Any site feature that conflicts with § 155.308.040 (Vision Clearance Area);
(7) Waste storage. Solid waste/recyclable material storage areas required by § 155.308.070 (Solid Waste/Recyclable Material Storage);
(8) Screening. Screening for adjacent residential zoning districts required by § 155.308.060 (Screening for Residential Zoning Districts);
(9) Short-term bicycle parking. Short-term bicycle parking as required by § 155.324.070 (Bicycle Parking); and
(10) Non-conforming signs. Non-conforming signs as required by § 155.424.050 (Non-conforming Signs).
(C) Annual adjustment. The $55,000 project valuation threshold in division (B) above (Required Compliance) will be increased for inflation by 3% annually, using 2023 as the base year.
(D) Exceptions.
(1) Construction project exceptions. The following development projects are not subject to division (B) above (Required Compliance), and do not trigger the need to bring non-conforming site features into compliance:
(a) Accessory dwelling units. This section does not apply to applications for new construction, creation, or modification of an accessory dwelling unit.
(b) Reroof. This section does not apply to applications for residential or commercial reroof permits.
(c) Solar systems. This section does not apply to applications for solar systems.
(d) ADA accessibility. This section does not apply to applications for ADA accessibility additions or upgrades, when the project only consists of the accessibility additions or upgrades. For example, installation of an accessible ramp for a commercial office would not be subject to this section. A tenant improvement for a commercial office which includes the addition of an accessible ramp would be subject to this section.
(e) Electric vehicle charging stations. This section does not apply to applications for electric vehicle (EV) charging station permits, when the project only consists of the EV station addition or upgrade, and any associated striping of the lot. For example, installation of an EV charging station at a multi-family apartment would not be subject to this section. A remodel of an apartment building which includes the addition of an EV charging station would be subject to this section.
(2) Site feature exceptions. The following non-conforming site features may continue and are not subject to division (B) above (Required Compliance):
(a) Fences and walls (§ 155.320);
(b) Number of required on-site parking spaces (§ 155.324.030);
(c) Long term bicycle parking (§ 155.324.070);
(d) Parking design and development standards (§ 155.324.060); and
(e) Other site features not specifically identified in division (B) above (Required Compliance).
(E) Repairs and modifications.
(1) If a non-conforming site feature identified in division (B) above (Required Compliance) is repaired or modified, the site feature must be brought into compliance with the Zoning Code.
(2) A non-conforming site feature identified in division (D)(2) above (Site Feature Exceptions) may be repaired or modified if the project does not increase or exacerbate the non-conforming aspect of the site feature. For example, a fence that exceeds the maximum height allowed by § 155.320 (Fences and Walls) may be repaired or replaced if the fence height is not increased.
(3) A project that increases or exacerbates the non-conforming aspect of any non-conforming site feature is subject to the permit requirements for variances and minor modifications in § 155.412 (Specific Permits and Approvals). For example, increasing the height of a nonconforming fence that exceeds the maximum height allowed by § 155.320 (Fences and Walls) requires a minor modification or variance. See § 155.412 (Specific Permits and Approvals); calculation of the percent deviation for purposes of qualifying for a minor modification is based on the proposed incremental increase in non-conformity.
(Ord. 885-C.S., passed 5-21-19; Am. Ord. 902-C.S., passed 8-18-20; Am. Ord. 916-C.S., passed 7-6-21; Am. Ord. 931-C.S., passed 2-15-22; Am. Ord. 938-C.S., passed 11-1-22; Am. Ord. 951-C.S., passed 10-17-23)
(A) Applicability. This division applies to non-conforming houses, garages, and other buildings as defined in § 155.508 (Defined Terms). See § 155.424.030 (Non-conforming Site Features) for rules that apply to other types of non-conforming structures.
(B) Permitted modifications.
(1) A non-conforming building may be repaired, modified, or enlarged if the project does not increase or exacerbate the non-conforming aspect of the building. For example, a remodel of a home that exceeds the height standard but that doesn't increase the home's height is allowed with a zoning clearance; no other department permits are required.
(2) Unless otherwise allowed by this section, a project that increases or exacerbates the non-conforming aspect of a building requires either a minor modification or variance depending on the nature of the modification. For example, a remodel that increases the height of a home exceeding the maximum building height standard requires a minor modification or variance. See § 155.412 (Specific Permits and Approvals); calculation of the percent deviation for purposes of qualifying for a minor modification is based on the proposed incremental increase in non-conformity. For example, if a maximum permitted height is 30 feet, and a non-conforming building is 35 feet tall, up to three additional feet (10% of 30 feet) may be allowed with a minor modification, allowing the building height to be increased to 38 feet.
(C) Expansions of use. An increase in floor area occupied by a permitted use in a non-conforming building is allowed subject to the limitations in division (B) above (Permitted Modifications).
(D) Established side setbacks for building additions. See § 155.204.030(G) (Established Side Setbacks for Building Additions).
(E) Demolition and reconstruction.
(1) Reconstruction defined. "Reconstructed" or "reconstruction" means rebuilding a damaged or destroyed building in a manner similar but not identical to the original structure. A reconstructed building generally recreates the original building footprint, mass, and height, but may deviate from design details such as architectural design and the arrangement of doors, windows, and rooflines.
(2) Demolition.
(a) If a non-conforming building, or a portion of a non-conforming building is demolished, whether as a result of involuntary damage or destruction, or voluntary demolition, the building may be reconstructed as shown in Table 424-1.
Linear Footage of the Interior and Exterior Building Walls Demolished or Removed | Permit Required |
Less than 50% | By-right |
50% or more | MUP |
Note: Removal of roof, foundation, or exterior sheathing is not included in demolition calculation. Interior wall coverings (such as sheet rock) are not considered walls. | |
(b) For reconstruction requiring a minor use permit, the Director may attach conditions of approval as necessary to protect public health, safety and welfare, including requirements to reduce or eliminate previously existing non-conformities.
(3) No new or increased non-conformities. Reconstruction of damaged, destroyed or voluntarily demolished buildings may not increase or exacerbate previously existing non-conformities or create new non-conformities.
(4) Design review. Design review is required for 50% or more reconstruction of a building under the same circumstances as is required for a new building pursuant to § 155.412.040(B) (When Required) and § 155.412.040(C) (Exemptions).
(5) Design standards. Reconstructed non-residential, mixed-use, and multi-family buildings must comply with the design standards in § 155.208.040 (Pedestrian-Focused Street Frontages), and § 155.312 (Design Standards), as applicable.
(6) Property line trespass. A reconstructed building may not trespass across a property line and may not extend over or be located within the public right-of-way.
(7) Timing of construction. The construction of the replacement building must begin within two years of the date the structure was damaged or destroyed.
(8) Buildings not reconstructed. If a damaged or destroyed non-conforming building is replaced with a new building that does not meet the definition of reconstruction, the new building must comply with all standards of the applicable zoning district or obtain a variance (§ 155.412.140) or minor modification (§ 155.412.070) depending on the nature of the deviations from applicable standards.
(F) Relocated buildings. A non-conforming building that is moved to a new location must conform to all standards of the applicable zoning district.
(Ord. 885-C.S., passed 5-21-19; Am. Ord. 902-C.S., passed 8-18-20; Am. Ord. 916-C.S., passed 7-6-21; Am. Ord. 938-C.S., passed 11-1-22; Am. Ord. 951-C.S., passed 10-17-23)
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