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.

Code Section: 186 (a)(2), 249.5 , 781.8 , 782

Subject: Alcohol RUSDs and NCU/LCUs

Effective Date: 07/09

Interpretation:

   Section 186(a)(2) states that a nonconforming use in an RH or RM District which is located within ¼ mile from any Individual Area Neighborhood Commercial District or restricted use subdistrict is exempt from the termination provisions of Section 185 if they meet all of the requirements and restrictions of the nearest Neighborhood Commercial District or restricted use subdistrict. Since 1985 there have been 6 alcohol restricted use areas put in place. A question has arisen about whether a nonconforming use within ¼ mile from one of these alcohol restricted use areas must adhere to the restrictions of that district. The three most recent alcohol restricted use areas have boundaries which closely track the Neighborhood Commercial Boundaries. The earlier alcohol restricted use areas have much broader boundaries, incorporating not only Neighborhood Commercial Districts, but Residential and Industrially-zoned Districts. The Zoning Administrator has determined that if the alcohol restricted use district is coterminous with the underlying Neighborhood Commercial zoning then all nonconforming uses within ¼ mile must meet the restrictions of that alcohol restricted use district. However, if the boundaries of the alcohol restricted use district are broader than underlying Neighborhood Commercial zoning and the designating Ordinance does not state any ¼ mile requirement, then nonconforming uses do not have to adhere to that alcohol restricted use district. Therefore, there is no ¼ mile buffer around the North of Market Residential Special Use District (Section 249.5), Mission Alcoholic Beverage Special Use District (Section 781.8), or with the Third Street Alcohol Restricted Use District (Section 782).

Code Section: 186.1 (b)

Subject: Nonconforming use, "significant" defined

Effective Date: 12/88, 5/98 (Revised 3/21)

Interpretation:

   This Section states that a nonconforming use in a Neighborhood Commercial District cannot be significantly altered, enlarged, or intensified, except upon approval of a conditional use. Subsection 178(c) places the same limitation on conditional uses. The term “significantly” is not defined in the Code and is therefore subject to the Zoning Administrator’s interpretation. The list below provides examples of those proposals which are significant and therefore require a conditional use authorization and those which are not significant.

Enlargements that are significant:

   -   Expansion of an existing establishment into an adjacent storefront that had been occupied by a nonconforming use in a different use category.

   -   Expansion of more than 25% of the floor area or more than 500 square feet, whichever is less.

   -   Expansion of an extraordinarily large development of more than 500 square feet, regardless of the percentage of the floor area.

   -   Expansion of floor area in kitchens shall be considered on a case-by-case basis.

Intensifications that are significant:

   -   Exchange of a No. 47 ABC license (on-sale full bar with food service mandatory and minors permitted) for a No. 48 ABC license (on-sale full bar with food service optional and minors not permitted).

Enlargements that are NOT significant:

   -   Expansion up to 25% of the floor area or 500 square feet, whichever is less.

   -   Expansion of an extraordinarily large development up to 500 square feet, regardless of the percentage of the floor area.

   -   Expansion of floor area in kitchens shall be considered on a case-by-case basis.

Intensifications that are NOT significant:

   -   An addition of kitchen equipment and/or menu items to an existing restaurant.

   -   Exchange of a No. 42 ABC license (on-sale beer and wine bar) for a No. 48 ABC license (on sale full bar with food service optional and minors not permitted).

Code Section: 186.1 (c)

Subject: Change in use of an NCU in NCDs

Effective Date: 7/88

Interpretation:

   This Subsection regulates changes in use for nonconforming uses in Neighborhood Commercial Districts (NCDs) but is unclear about which changes require a conditional use. A nonconforming use in an NCD may change to a permitted use or a conditional use without requiring a conditional use authorization. It would need a conditional use authorization only to convert to those not otherwise permitted uses which are listed in Subparagraphs (A) through (C) under Paragraph (3).

Code Section: 186.1 (c)(3)(B)

Subject: Changes in Use for NCU

Effective Date: 11/06

Interpretation:

   This Section says that nonconforming medical services (790.114), personal services (790.116) and professional services (790.108) may change to another of those same three uses through Conditional Use authorization. When Ordinance No. 69-87 was implemented, strict controls were established to curtail the proliferation of financial institutions/banks (790.110) in Neighborhood Commercial Districts, and the financial institution/bank use was eliminated from earlier drafts of this Section to prevent one of the three alternative uses from becoming a financial institution/bank. This created a situation where nonconforming often multi-story buildings occupied by financial institutions/banks had exceptionally few options in terms of changes of use. In order to promote the productive re-use of such structures, a change of use from a financial institution/bank to a medical service, personal service or professional service shall be permitted only upon approval of a Conditional Use application, pursuant to Article 3 of the Code. The CU requirement shall not apply to uses permitted as-of-right in any portion of a building.

Code Section: 186.1 (c)(3)(B)

Subject: Changes in Use for NCU

Effective Date: 12/06

Interpretation:

   This Section says that nonconforming medical services (790.114), personal services (790.116) and professional services (790.108) may change to another of those same three uses through Conditional Use authorization. When Ordinance No. 69-87 was implemented, strict controls were established to curtail the proliferation of financial institutions/banks (790.110) in Neighborhood Commercial Districts, and the financial institution/bank use was eliminated from earlier drafts of this Section to prevent one of the three alternative uses from becoming a financial institution/bank. This created a situation where nonconforming often multi-story buildings occupied by financial institutions/banks had exceptionally few options in terms of changes of use. In order to promote the productive re-use of such structures, a change of use from a financial institution/bank to a medical service, personal service or professional service shall be permitted only upon approval of a Conditional Use application, pursuant to Article 3 of the Code. The CU requirement shall not apply to uses permitted as-of-right in any portion of a building.