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The purpose of this Section is to provide for the further continuance in NC Districts of nonconforming uses created by adoption of Ordinance No. 69-87, as herein described, and subsequent ordinances that change the uses allowed in NC Districts, which are beneficial to, or can be accommodated within the neighborhood commercial areas in which they are located.
It is hereby found and declared that certain uses which traditionally have been permitted to locate in neighborhood commercial areas can be beneficial to a neighborhood commercial area in small or limited numbers, but which if allowed to proliferate, can disrupt the balanced mix of neighborhood-serving retail stores and services. It is further found and declared that in order to prevent undesirable over concentrations of such uses, the establishment of additional such uses shall be prohibited pursuant to controls governing uses in NC Districts. At the same time, however, it is desirable to provide for the further continuance, expansion, enlargement, alteration, changes, discontinuance, and relocation of such existing uses, which are nonconforming as a result of zoning controls governing uses in NC Districts.
The following provisions shall govern with respect to nonconforming uses and features located in Neighborhood Commercial Districts to the extent that there is a conflict between the provisions of this Section and other Sections contained in this Article 1.7.
(a) Expansion. A nonconforming use may expand in floor area as provided in Subsection (b) below, but may not expand beyond the lot which it occupies, nor may the boundaries of such lot be expanded for purposes of expanding the use; nor may the use expand upward above the story or stories which it lawfully occupies, except as provided in Section 186.2 below.
(b) Enlargements or Alteration.
(1) A nonconforming use may not be significantly altered; enlarged or intensified, except upon approval of a Conditional Use application pursuant to the provisions of Section 303 of this Code, provided that the use not have or result in a greater height, bulk or floor area ratio, less required rear yard or open space, or less required off-street parking space or loading space than permissible under the limitations set forth in this Code for the district or districts in which such use is located.
(2) A nonconforming use may expand to include public sidewalk space provided that such space is only occupied with tables and chairs as permitted by this Municipal Code.
(3) No existing use or structure which fails to meet the requirements of this Code in any manner as described above in this subsection (b) shall be constructed, reconstructed, enlarged, altered or relocated so as to increase the discrepancy, or to create a new discrepancy, at any level of the structure, between existing conditions on the lot and the required standards for new construction set forth in this Code.
(c) Changes in Use. A nonconforming use may be changed to another use or feature as described below.
(1) A nonconforming use may be changed to a use listed in Article 7 of this Code as a Principal Use for the district in which the property is located, and the new use may thereafter be continued as a Principally Permitted Use.
(2) A nonconforming use may be changed to a use listed in Article 7 of this Code as a Conditional Use for the district in which the use is located, only upon approval of a Conditional Use application pursuant to the provisions of Article 3 of this Code, and the new use may thereafter be continued as a permitted Conditional Use, subject to the provisions of Section 178 of this Code.
(3) A nonconforming use may be changed to a use which is not permitted in that Neighborhood Commercial District as described below, only upon approval of a Conditional Use application, pursuant to the provisions of Article 3 of this Code:
(A) Any Bar, Limited Restaurant, or Restaurant use may change to another Bar, Limited Restaurant, or Restaurant use, even though such other use is not permitted in that Neighborhood Commercial District, unless such other use is located in an Alcohol Restricted Use Subdistrict and is prohibited by the provisions governing that Alcohol Restricted Use Subdistrict.
(B) Any Business Service, Health Service, Personal Service, or Retail Professional Service use may change to another such use, even though such other use is not permitted in that Neighborhood Commercial District.
(C) Any Automotive Repair, Automotive Service Station, or Gas Station use may be demolished and reconstructed as the same use or may change to another such use, even though such other use is not permitted in that Neighborhood Commercial District.
The new use shall still be classified as a nonconforming use.
The changes in use described in this subsection (c)(3) shall include remodeling activities involving the demolition and replacement of structures that result in a change of use.
(D) With regard to Formula Retail uses, a change of owner or operator of a Formula Retail establishment is determined to be an intensification of use and a new Conditional Use authorization shall be required as provided in Section 178(c) of this Code.
(4) In the North Beach Neighborhood Commercial District, any use that exceeds the use size provisions in the North Beach Zoning Control Table may be changed to a new use only upon the approval of a new Conditional Use application. The Commission's approval of such Conditional Use application shall explicitly address the use size findings of Section 303(c). In the North Beach Neighborhood Commercial District, a nonconforming use cannot be changed to any use that is not a permitted use under Section 722 (North Beach Controls).
(5) In the Castro Street Neighborhood Commercial District, any use in this District that exceeds the maximum Non-Residential Use Size limit of Section 121.2(b) may not be changed to a new use. The only method for changing a nonconforming use identified in this subsection (c) is to reduce the nonconforming use:
(A) to a conforming use size; or
(B) to a size specified in Subsection 121.2(a) pursuant to Conditional Use authorization.
Notwithstanding the above, any use in this District that exceeds the maximum Non-Residential Use Size limit of Section 121.2(b) and is General Retail Sales and Service use, as defined in Section 102, may change to another use category enumerated in the definition of General Retail Sales and Service as long as the use size is not increased and the Commission approves a Conditional Use application for such change. The Commission’s approval of such Conditional Use application shall explicitly address the use size findings of Section 303(c).
(d) Discontinuance. A nonconforming use that is discontinued for a period of three years, or otherwise abandoned or changed to another use that is listed in Article 7 of this Code as a Principal or Conditional Use for the district in which the use is located shall not be reestablished, except in the following instances:
(1) In the North Beach, Polk Street, Castro Street, and Haight Street Neighborhood Commercial Districts the period of non-use for a nonconforming use to be deemed discontinued shall be 18 months.
(2) In the Polk Street Neighborhood Commercial District, the period of non-use for a nonconforming Tobacco Paraphernalia Establishment use to be deemed discontinued shall be 18 months.
(3) For Formula Retail uses in any district that prohibits or requires Conditional Use authorization for Formula Retail uses, the period of non-use to be deemed discontinued is 18 months.
(e) Relocation. A nonconforming use in a Neighborhood Commercial District may be reestablished at another location within that Neighborhood Commercial District only upon approval of a new conditional use application pursuant to the provisions of Article 3 of this Code, provided that the following conditions are met:
(1) The original premises shall not be occupied by an establishment of the same type of use as the relocating use unless by another establishment that is relocating from within the district; and
(2) No final permits to operate the relocated use at the new premises are granted prior to the issuance of a certificate of final completion of any work to the original premises which is required as conditions attached to the approval of the conditional use application; and
(3) Deed restrictions are recorded for the original premises in the Official Records of the City and County of San Francisco, which restrictions prohibit for the duration of the Code sections prohibiting the use for the district in which the use is located, the establishment and operation of a new use of the same type of use as the relocated use, unless such new use is relocating from within the district.
(Added by Ord. 69-87, App. 3/13/87; amended by Ord. 445-87, App. 11/12/87; Ord. 229-99, File No.990991, App. 8/20/99; Ord. 312-99, File No. 991586, App. 12/3/99; Ord. 198-00, File No. 992321, App. 8/18/2000; Ord. 250-06, File No. 061069, App. 10/11/2006; Ord. 245-08, File No. 080696; Ord. 151-09, File No. 090141, App. 7/10/2009; Ord. 3-10, File No. 090962, App. 1/15/2010; Ord. 75-12 , File No. 120084, App. 4/23/2012, Eff. 5/23/2012; Ord. 235-14 , File No. 140844, App. 11/26/2014, Eff. 12/26/2014; Ord. 22-15, File No. 141253, App. 2/20/2015, Eff. 3/22/2015; Ord. 188-15 , File No. 150871, App. 11/4/2015, Eff. 12/4/2015; Ord. 129-17, File No. 170203, App. 6/30/2017, Eff. 7/30/2017; Ord. 205-17, File No. 170418, App. 11/3/2017, Eff. 12/3/2017; Ord. 202-18, File No. 180557, App. 8/10/2018, Eff. 9/10/2018)
Divisions (c)(3)(A) and (d) amended; Ord. 75-12 , Eff. 5/23/2012. Division (a) and undesignated material following division (c)(3)(C) amended; division (c)(3)(D) added; division (d) amended; Ord. 235-14 , Eff. 12/26/2014. Division (c)(4) amended; Ord. 22-15, Eff. 3/22/2015. Division (d) amended; divisions (d)(1)-(3) added; Ord. 188-15 , Eff. 12/4/2015. Division (d)(1) amended; Ord. 129-17, Eff. 7/30/2017. Divisions (d) and (d)(1) amended; Ord. 205-17, Eff. 12/3/2017. Divisions (b)(1), (b)(3), (c)(1), (c)(2), and (c)(3)(A)-(C), undesignated material following (c)(3)(C), division (c)(5), undesignated material following (c)(5)(B), and division (d)(2) amended; Ord. 202-18, Eff. 9/10/2018.