Code Section: 181 (b)

Subject: Structural alterations

Effective Date: 5/96

Interpretation:

   This Subsection governs when, and to what degree a nonconforming use may be altered. One of its paragraphs allows ordinary maintenance which relies upon the definition below. Another paragraph allows other "structural alterations" within a value limit. This makes the definition of "structural alteration" important. A structural alteration is any work involving changes in or replacement of any supporting members, including foundations, studs, joists and similar items. Nonsupporting items such as siding, roofing and mechanical equipment are not included. Some items appear to fall between the two main categories but can more readily be assigned to one than to the other: new doors and windows, for instance, are structural and partitions are structural.

   Maintenance and minor repairs, even though structural, must be limited in scope and cannot amount to wholesale replacement of parts of a building. For comments on alterations required by law, see below.

   The exemption of alterations required by law per Paragraph 2 is intended to cover only relatively minor modifications, such as a retroactive requirement of fire exits. Such exempt alterations are not counted at all against the assessed value limitation of Paragraph 4.

   Extensive alterations (or work which is neither maintenance nor minor repairs) cannot be allowed, even though a public agency orders such work to be done. An order for extensive work on a nonconforming building that has been allowed to deteriorate should be regarded as an order to raze the building.

Code Section: 181 (b)(3)

Subject: Expansion of building containing nonconforming use

Effective Date: 10/79

Interpretation:

   This Paragraph states, "Alteration otherwise allowed by this Code shall be permitted for any portion of the structure that will not thereafter be occupied by the nonconforming use, provided the nonconforming use is not enlarged, intensified, extended, or moved to another location." Therefore, a building containing a nonconforming use may be expanded for a permitted use under the Planning Code by authority of a building permit application without a conditional use authorization provided there is no other reason for a conditional use and all Code requirements are met.

Code Section: 181 (c)

Subject: Expansion of Legal Nonconforming Dwelling Units

Effective Date: 3/21

Interpretation:

   This Section regulates properties that are legal nonconforming with respect to density. In a case where a building has a nonconforming number of dwelling units, and the expansion of a unit(s) is proposed:

   -   If the proposed unit expansion is contained within the existing building envelope, then the unit is expanding in a manner consistent with Section 181(c) for units nonconforming as to density, and no Notice of Special Restrictions (NSR) is required in order to designate the conforming and nonconforming units.

   -   If the proposed unit expansion goes beyond the existing building envelope, an NSR must be recorded on the property to designate the conforming and nonconforming units, which is consistent with long-standing Planning Department practice.

Code Sections: 181 (c)(2) and 207.3 (e)(2)

Subject: Expansion of Legalized Dwelling Units Over Permitted Density

Effective Date: 03/23

Interpretation:

   Section 181(c)(2) states that dwelling units that are nonconforming due to density may not be enlarged, altered, or reconstructed beyond the building envelope as it existed on January 1, 2013. Section 207.3 allows the legalization of dwelling units that meet certain criteria. Section 207.3(e)(2) states that one such dwelling unit on a lot is allowed to exceed the permitted density authorized for that zoning district provided that a residential use is principally permitted in that zoning district and that expansion of the additional dwelling unit within the building envelope shall be permitted as part of the legalization process. However, “building envelope” is not defined for this purpose.

   The following 1996 interpretation of Section 311 exempts certain “Fill-ins” from notice:

   “Fill-ins”: The filling in of the open area under a cantilevered room or room built on columns is exempt only if the height of the open area under the room does not exceed one story or 12 feet. The exemption does not apply to space immediately under a deck nor to space under a room known to be illegal.

   Therefore, dwelling units nonconforming as to density per Section 181(c) and dwelling units legalized per Section 207.3 may expand pursuant to the 1996 interpretation for “Fill-ins” and still be considered to be within the existing building envelope.

Code Section: 181 (d)

Subject: Reconstruction of nonconforming uses

Effective Date: 8/87

Interpretation:

   This Paragraph states that a nonconforming use cannot be voluntarily razed unless replaced by a conforming use. A three-unit dwelling is served by only a one-stall garage and no other parking. This situation does not make the one-stall garage a nonconforming structure. Rather, the situation makes the dwelling a noncomplying structure which Section 188 says may be altered as long as there is no increase in discrepancy. Therefore, the garage maybe voluntarily razed and replaced with a one-stall garage without having to make up the parking deficiency.

Code Section: 181 (d)

Subject: Restoration of illegal units

Effective Date: 3/90

Interpretation:

   This Section, as amended by Ordinance 75-90, allows illegal units in buildings which require "substantial repair" as a result of the October 17, 1989 earthquake to be legalized under certain conditions. The ordinance indicates that buildings that qualify as needing "substantial repair" will be identified by the Director of Building Inspection. This issue as well as procedures for implementing this subsection are answered by DCP Public Information Flyer 90.1 and by BBI Administrative Bulletin AB-51.

Code Section: 181 (d)

Subject: Reconstruction of an NCU

Effective Date: 5/90

Interpretation:

   This Section states that a nonconforming use destroyed by an act of God may be reconstructed according to its legal configuration and uses. This right of reconstruction is unaffected by any change in private ownership even though the ownership changed between the time of the building's destruction and its proposed rebuilding. The right rides with the land – not the owner. This principle applies as well to the right of reconstruction stated in Section 188(b).