(a) Conversion of Retail and Retail-Like Uses Prohibited.
(1) Any ground floor Retail or Retail-Like use permitted or operating as of March 2, 2015 may be replaced only by another Retail or Retail-Like use, as permitted in the applicable district.
(A) A ground floor Retail or Retail-Like use in the RT-35 district on properties with frontage on Alma Street between Channing Avenue and Lincoln Avenue may additionally be replaced by a Private Educational Facility use, provided that such use shall not be thereafter replaced by an Office use.
(2) The phrase 'use permitted or operating' as used in this section means:
(A) A lawfully established use conducting business, including legal non-conforming uses.
(B) An established use conducting business without required city approvals, but is a permitted or conditionally permitted use in district.
(C) For parcels vacant on March 2, 2015, the last use that was lawfully established, or established without required permits, and permitted or conditionally permitted in the district.
(b) Non-conforming Uses.
(1) The requirements imposed by subsection (a) shall not apply to Retail or Retail-like uses that are no longer permitted or conditionally permitted in the applicable district.
(2) Nothing in this section shall modify the provisions of Chapter 18.70 regarding the expansion, change, discontinuance, or termination of a non-conforming use.
(c) Waivers and Adjustments; and Exemptions.
(1) Grounds. The following shall be grounds for a request for waiver or adjustment of the requirements contained in this section:
(A) Economic Hardship. An applicant may request that the requirements of this section be adjusted or waived based on a showing that applying the requirements of this section would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property; or
(B) Alternative Viable Active Use. Except in the GF or R combining districts, an applicant may request that the requirements of this Section 18.40.160 be adjusted or waived based on a showing that: the permitted retail or retail-like use is not viable; the proposed use will support the purposes of the zoning district and Comprehensive Plan land use designation; and the proposed use will encourage active pedestrian-oriented activity and connections.
(2) Documentation. The applicant shall bear the burden of presenting substantial evidence to support a waiver or modification request under this Section and shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation. Evidence in support of a waiver under subsection (c)(1)(B) must demonstrate the viability of existing and future uses on the site, based on both the site characteristics and the surrounding uses; specifically whether a substitute use could be designed and/or conditioned to contribute to the goals and purposes of the zoning district. Examples of such evidence include:
(A) A 10-year history of the site's occupancy and reasons for respective tenants vacating the site;
(B) A map that indicates all the existing surrounding uses, both residential and non-residential, within one City-block; include the corresponding zone district on the map;
(3) Any request under this section shall be submitted to the Director together with supporting documentation. The Director, in his or her sole discretion, may act on a request for waiver or refer the matter to the City Council.
(A) A decision by the Director shall be placed on the City Council's consent calendar within 45 days.
(B) Removal of the recommendation from the consent calendar shall require three votes, and shall result in a new public hearing before the City Council, following which the City Council shall take action on the waiver request.
(C) The decision of the Council is final.
(4) Exemptions. The following uses shall be exempt or partially exempt from the provisions of this Section 18.40.180, as provided below:
(A) A 100% affordable housing project not within the Ground Floor (GF) and/or Retail (R) combining districts or on a site abutting El Camino Real. A "100% affordable housing project" as used herein means a multiple-family housing project consisting entirely of affordable units, as defined in Section 16.65.020 of this code, available only to households with income levels at or below 120% of the area median income, as defined in Chapter 16.65, except for a building manager's unit.
(B) A 100% affordable housing project on a site abutting El Camino Real in the CN and CS zone districts outside the Retail (R) combining district. A "100% affordable housing project" as used herein means a multiple-family housing project consisting entirely of affordable units, as defined in Section 16.65.020 of this code, available only to households with income levels at or below 120% of the area median income, as defined in Chapter 16.65, and where the average household income does not exceed 80% of the area median income level, except for a building manager's unit.
(C) A high-density residential or mixed-use project in the CS zone district, but not within the Ground Floor (GF) or Retail (R) combining districts, shall be required to replace only 1,500 square feet of an existing retail or retail-like use. For the purposes of this partial exemption, high-density shall mean 30 or more dwelling units per acre.
(d) Reconstruction.
Any ground floor Retail use existing on or after March 2, 2015 may be demolished and rebuilt provided that the portion of square footage used as Retail use on or after March 2, 2015 is not reduced except that Retail square footage may be reduced by the minimum amount needed to provide access to any new upper floor and/or lower level.
(e) Applicability to Current Requirements.
Nothing in this section shall alter requirements of site-specific Planned Community zoning ordinances or adopted conditions of approval. Nothing in the section shall be construed to waive the requirement for a conditional use permit or other entitlement where such requirements currently exist.
(Ord. 5512 § 5, 2020: Ord. 5460 § 9, 2019: Ord. 5407 § 6, 2017)