Code Section: 183

Subject: Nonconforming use, three-year period of discontinuance

Effective Date: 7/67

Interpretation:

   This Section says that once a nonconforming use has been abandoned or discontinued for a continuous period of three years, it shall not be reestablished. The following determinations deal with this principle.

   A nonconforming use will not be considered terminated if, before the three-year period of discontinuance has passed, remodeling of the nonconforming space is initiated, and if this work is diligently prosecuted to completion.

   A token use, or mere expression of intent, is not enough to make a period not continuous.

   A conversion to any illegal use constitutes abandonment.

Code Section: 183

Subject: Abandonment of an NCU

Effective Date: 4/89

Interpretation:

   This Section states that an NCU which has been abandoned for a continuous period of three or more years shall have lost its nonconforming use status. Such period needs to have occurred during the time that the use was a nonconforming use. Any period of abandonment prior to the effective date of the Code amendment which made the use nonconforming will not count in this period.

Code Section: 183 and 121.1

Subject: Nonconforming Uses: Discontinuance and abandonment as they relate to use size

Interpretation: 

   This Interpretation memorializes a long-standing Department practice.

   Section 183 restricts the re-establishment of a use that has been changed to a conforming use, or discontinued for a continuous period of three years, or whenever there is otherwise evident a clear intent on the part of the owner to abandon a nonconforming use and the use of the property thereafter shall be in conformity with the use limitations of the Planning Code for the district in which the property is located.

   The intent of this Section relates solely to the discontinuance and abandonment of the nonconforming use or "activity" not the size. Pursuant to Section 180, a "nonconforming use" is defined as a use which existed lawfully at the effective date of this Code or of amendments thereto and which fails to conform to one or more of the use limitations under Articles 2, 6, 7, and 8 of this Code. Use size is regulated in Article 1.2, and is more analogous to a noncomplying structure, pursuant to Section 180(a)(2). Noncomplying structures are not deemed abandoned and forced to become Code-complying if they are left vacant for more than three years, but only when they are removed. Therefore, a nonconforming use size that is discontinued and abandoned for a period three years and has not been reduced in size by a new tenant may be reoccupied by a new use at its original size, without seeking a new Conditional Use authorization.

   This interpretation does not supersede any provisions for a replacement use that requires conditional use authorization for the district in which the property is located, nor does it supersede Sections 186.1(4) for the North Beach NCD and 186.1(5) for the Castro Street NCD, where the Code specifically restricts any changes of use to occupy a space that does not conform to the use size restrictions without a new conditional use regardless of discontinuance and abandonment.

Code Section: 185 (a)

Subject: Termination date of NCU

Effective Date: 12/90

Interpretation:

   This Paragraph prescribes a 20-year amortization period for NCUs or a longer period depending upon the age of the building. This longer period varies according to the building type under the Building Code. It was clarified that the amortization period is at least 20 years as measured from the time the use became nonconforming due to a change in zoning but could be a longer period measured from the date the building was built. For example, a Type 4 building (which has a 30-year amortization period) built in 1970 and made nonconforming in 1978 would amortize, not in 1998 but in 2000.

Code Section: 185 (e)

Subject: Extension of nonconforming use termination

Effective Date: 5/82

Interpretation:

   This Subsection allows the termination date of a nonconforming use (NCU) to be extended through a conditional use authorization applied for before the termination date. An NCU that has received an extension under this Section for a specific number of years may apply again before the new termination date to extend the time.

   If a conditional use authorization to extend a termination date was conditioned upon a specific use, the NCU may not be changed to another commercial use except by a conditional use authorization. In the absence of such condition, however, a change in use is subject to the provisions of Section 182 – not Section 178, because the use remains an NCU. Alternatively the NCU could be changed to a Limited Commercial Use by conforming to Section 186 use or converted to a permitted use.

Code Section: 185 (e)

Subject: LCU, limitations

Effective Date: 7/93

Interpretation:

   This Section states that any nonconforming use may be changed to a conditional use (CU), ". . . upon application filed at any time during the period of permitted continuance specified above." The period specified above, in this case, does not include the exemption from termination provided for "limited commercial uses" by Section 186 which is found below Section 185. Further, Subsection 185(a) specifically states that the Section shall not apply to "exempt limited commercial and industrial uses meeting the requirements of Section 186." Section 186 defines "limited commercial uses" (LCUs) as nonconforming uses (NCUs) which are not subject to termination if they meet certain conditions. Subsection 186(c) states that, "Any use affected by this Section which does not comply with all of the conditions herein specified shall be subject to termination . . . but shall be considered as a conditional use under Section 185(e)." This wording means uses that do not conform to Section 186 conditions shall not be considered LCUs in the first place and therefore are subject to Section 185 rather than Section 186. It does not mean that a use that existed as an LCU (i.e., it did not terminate at the date it would normally have terminated because it conformed to the conditions of Section 186) and later ceased to conform to the Section 186 conditions, can be considered for CU status. Rather, once a use extends beyond its former termination date per Section 186, it must either continue under that Section's conditions or lose its nonconforming status. This is supported by the remaining language of Subsection 186(c) which states that a use which complies with Section 186 conditions at its termination date but later fails to so comply, shall be subject to termination when it ceases to comply. Further, LCUs may not have Section 186 conditions modified through the conditional use procedure. These conditions are what make LCUs compatible with residential districts and the Code's intent is to eliminate incompatibility.

Code Section: 186

Subject: Limited commercial use, consolidation

Effective Date: 7/86

Interpretation:

   This Section regulates limited commercial uses (LCUs) which are a form of nonconforming use (NCU) subject to the general provisions that apply to other nonconforming uses. Sections 181 and 182 prohibit the alteration or change in use that would intensify an NCU. Therefore, two adjacent LCUs on separate lots could not be joined with a communicating property-line door to consolidate the two establishments into one establishment as this would constitute an intensification.