Ord 2024 - Amending Division 5 Article I of Chapter 29 of the Town of Los Gatos Town Code regarding nonconforming uses to allow remodeling of buildings in the Downtown commercial area between Andrews St and LG-Saratoga Rd by payment of a parking in-lieuORDINANCE 2024
ORDINANCE OF THE TOWN OF LOS GATOS AMENDING
DIVISION 5, ARTICLE I, OF CHAPTER 29 OF THE TOWN OF LOS GATOS
TOWN CODE REGARDING NONCONFORMING USES TO ALLOW REMODELING OF
BUILDINGS IN THE DOWNTOWN COMMERCIAL AREA BETWEEN
ANDREWS STREET AND LOS GATOS - SARATOGA ROAD BY PAYMENT OF A
PARKING IN -LIEU FEE, TO MAKE CLARIFYING CHANGES TO THE
NONCONFORMING USE PROVISIONS OF THE ZONING CODE, AND TO
CORRECTLY LIST RESIDENTIAL USES IN THE TOWN
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS
FOLLOWS:
SECTION I
Many of the commercial uses located in the Downtown between Andrews Street and
Los Gatos - Saratoga Road are currently limited in their ability to improve their properties
because they are nonconforming as to parking requirements. This means that the area will
deteriorate and remodeling of interiors and exteriors will not occur. This ordinance is
intended to provide a means of balancing the provision of parking through improvement of the
public parking lot located in the area by payment of in -lieu fees against allowing improvement
of the commercial buildings, while not allowing any expansion in floor area. ';The in -lieu fees
to be set by Council resolution should reflect the two aspects of capital improvement costs and
projected maintenance costs of public parking in the area.
SECTION II
Division 5 of Article I of Chapter 29 of the Town Code is amended to read as follows:
DIVISION 5. NONCONFORMING BUILDINGS, LOTS AND USES
Sec. 29.10.175. Scope.
This division regulates nonconforming buildings, lots and uses other than nonconforming
signs, which are regulated by section 29.10.140.
Sec. 29.10.180. Nonconforming status.
(a) A building becomes a nonconforming building, a use becomes a nonconforming use,
or a lot becomes a nonconforming lot under this chapter only because of:
(1) Annexation of territory to the Town.
(2) Amendment to this chapter, a previous zoning ordinance of the Town or the
subdivision ordinance.
(3) Rezoning.
(b) A use that was lawfully begun but which lacks a conditional use permit currently
required by this chapter is nonconforming and subject to the rules of this division.
(c) Regardless of the investment, expenditure, or work required pursuant to Town
approval of a permit affecting a nonconforming use or building, no such permit or effort by the
owner shall be construed in any way as an entitlement or permission to extend the time period in
which the nonconforming use must cease or the use or building made to conform the
requirements of the zone, or to not otherwise comply with the requirements of this division. Any
person using such an approval does so subject to any applicable requirement to cease the use or
conform the use or building to the requirements of the zone and to otherwise comply with this
division.
Sec. 29.10.185. When a building, lot or use is unlawful under the Zoning Code.
If a building, lot or use does not conform to the requirements of this chapter and is not
nonconforming as defined by this chapter, it is unlawful and a nuisance.
Sec. 29.10.190. Cessation of nonconforming uses.
If a nonconforming use does not involve occupancy of a building and is discontinued for
thirty (3 0) consecutive days, the use shall not be resumed. If a nonconforming use involves
occupancy of a building and is discontinued for one hundred eighty (180) consecutive days, the
use shall not be resumed, except as provided in section 29.10.210. Token use does not toll or
interrupt a period of discontinuance.
P)
Sec. 29.10.195. Termination of nonconforming use status.
(a) Unless this division is amended to provide otherwise, the following nonconforming
uses may continue interminably so long as they conform to the other requirements of this
division:
a. Nonconforming residential uses (except nonconforming secondary
dwelling units pursuant to section 29.10.320).
b. Schools.
C. Church uses.
d. Nonresidential uses in the downtown which would otherwise be
nonconforming due to zone changes and ordinance amendments which
occurred after July 1, 1982.
e. Residential care facilities for the elderly that existed as of January 1, 1988
and are nonconforming only as to parking.
f. Hotels /motels located in residential zones which were converted to
multiple - family dwelling units prior to March 22, 1986, if a conditional
use permit is obtained.
g. Commercial uses that are nonconforming as to parking if parking has been
provided on -site by July 1, 1992, or twenty (20) years from the date the use
became nonconforming, whichever is later.
(b) The following nonconforming uses shall cease at the end of the following time
periods:
(1) A junkyard shall cease ninety (90) days from the date it becomes nonconforming.
(2) Where there are improvements on land, but of a type for which no building permit
would currently be required, the nonconforming use shall cease three (3) years
from the date the use becomes nonconforming.
(3) Where the land is improved with one (1) or more structures of a type for which a
building permit would currently be required and the structure(s) are utilized in
connection with the nonconforming use, nonconforming use shall cease twenty
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(20) years from March 23, 1,966, or twenty (20) years from the date the use
became nonconforming, whichever is later.
(4) When a zoning amendment is adopted after 1981 that,causes a use to be
nonconforming solely by subjecting it to the requirement of obtaining a
conditional use permit, all uses affected by the amendment shall apply for a use
permit within sixty (60) days after the amendment becomes effective. Failure to
make such application within that time shall make the subject use immediately
unlawful.
(c) If any period of authorized duration is held by a court to be too short and therefore
unconstitutional or unlawful on its face or as applied, the period of duration shall be extended to
such time as the court determines is lawful.
Sec. 29.10.200. Duration of nonconforming building status.
(a) A nonconforming office, commercial or industrial building located in a residential
zone shall, by demolition, removal or alteration be made to conform with the rules of the zone
when the building is older than shown on the following schedule:
(1) UBC Type 4 or 5 buildings .... 25 years
(2) UBC Type 2 or 3 buildings .... 40 years
(3) UBC Type 1 buildings .... 50 years
(b) When any of the foregoing time periods have elapsed, the building in question no
longer has status as a nonconforming building. However, when a nonconforming building houses
a nonconforming use the building need not be made to conform until the nonconforming use
ceases as provided in section 29.10.190, or expires as provided in section 29.10.195, whichever
happens first. Buildings that become nonconforming only as a result of the adoption of floor area
ratio shall be exempt from the provisions of this section.
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Sec. 29.10.205. Record of nonconforming uses and buildings.
The Planning Director shall maintain a list of all nonconforming uses required to cease by
the provisions of section 29.10.190 and all nonconforming buildings required to be made to
conform by section 29.10.200. The list shall state the nature of the nonconformity, the date and
reason it became nonconforming, and the date the use must cease or the building must be made
to conform.
Sec. 29.10.207. Effect of nonconforming use as to parldng on commercial uses.
(a) Any commercial use that is nonconforming as to parking shall provide parking to the
maximum extent possible given existing physical constraints of the property on which the use is
located, such as building location and coverage, trees, and other physical barriers and features.
(b) Any commercial use that is nonconforming as to parking shall not intensify use or
improve the property other than as required for normal maintenance. Examples of changes that
would be permitted are painting (interior /exterior), normal maintenance to electrical, plumbing
and mechanical equipment, signage with required permits, and equivalent uses with applicable
use and occupancy permits.
(c) Notwithstanding subsection (b) above or section 29.10.215 below, a commercial use
located between Los Gatos - Saratoga Road and Andrews Street with lot frontage on North Santa
Cruz Avenue or the north side of Los Gatos - Saratoga Road and west of State Highway 17 that is
nonconforming as to parking may improve and remodel the interior or the exterior of an existing
building that is occupied by the nonconforming commercial use if:
(1) There is no increase in the floor area of the building;
(2) There is no reduction in the number of parking spaces provided for the use; and
(3) The parking in lieu fee established by Council resolution is paid to the Town.
However, the payment of the in lieu fee under this subsection shall make the use conforming as
to parking only for those improvements allowed under this subsection.
Sec. 29.10.210. Changing use of a nonconforming building.
A conditional use permit is required whenever the use in a building which is
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nonconforming as to type is changed regardless of whether the activity is otherwise proper under
this chapter. In no case shall intensification be deemed a change of use for purposes of this
section. If the new use would not be allowed under the rules of the zone, a conditional use permit
cannot be issued unless the requirements of section 29.10.235 are fulfilled.
Sec. 29.10.215. Modification of a nonconforming use.
After March 22, 1986, for hotels and motels located in residential zones that were
converted to multiple - family dwelling units, and after May 6, 1981, for all others, a use which is
nonconforming shall not be modified without obtaining a conditional use permit therefor. For
purposes of this section, a modification shall be defined as follows:
(1) Any change that is an intensification of use, including but not limited to:
a. Additions to seating capacity or gross floor area;
b. Increase in parking required, other than an increase imposed by an
ordinance amendment;
C. Use of additional land;
d. Commencement of a new use; and /or [cup or intensification]
e. Increase in the number of hours of operation or staying open later and such
change of hours imposes a new burden on the surrounding neighborhood;
or
(2) Any change that is a substantial departure from plans which were the basis of any
approved, existing use.
Sec. 29.10.220. Proceedings to determine that nonconforming use is no longer lawful.
(a) Failure to comply with any of the requirements of this division shall render an
otherwise valid, nonconforming use unlawful under section 29.10.185.
(b) Proceedings to determine whether a nonconforming use has become unlawful may be
initiated by the Planning Director, Planning Commission, or Town Council.
(c) Both the property owner and operator of the use should be informed that the result of
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the proceeding may be cessation of the modified use or a continuation of the modified use with a
conditional use permit.
Sec. 29.10.225. Grounds for determining that a nonconforming use is no longer lawful.
After the hearing, the deciding body may declare a nonconforming use unlawful if it finds
that one (1) or more of the following grounds exist:
(1) That the nonconforming use is being, or has been exercised contrary to the terms
or conditions of the original approval; or any conditional use permit issued under
section 29.10.215;
(2) That the nonconforming use is so exercised as to be detrimental to the public
health or safety, or to be a nuisance. In determining whether a nonconforming
restaurant or bar violates this subsection, the deciding body shall also apply the
enforcement analysis contained in the Alcoholic Beverage Policy;
(3) That a person has modified a nonconforming use without a use permit under
section 29.10.215, or has continued such modification after a permit therefore has
been denied.
Sec. 29.10.230. Remedies; conditional use permit.
(a) In proceedings to determine whether a nonconforming use has become unlawful, the
deciding body may allow the modification to continue under a conditional use permit or allow
the nonconforming use to continue without a conditional use permit if the use is restored to the
previous level. In no event shall the issuance of a conditional use permit under this section
extend the period during which such use may lawfully be continued.
(b) The deciding body may impose any conditions which are reasonably necessary to
protect the neighborhood or the general public welfare or to promote the policy of phasing out
nonconforming buildings and uses.
(c) The effective date of the conditional use permit will be delayed until all application
fees are paid. If the fees are not paid within the period specified by the deciding body, the use
will be deemed unlawful.
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Sec. 29.10.235. Use of nonconforming buildings.
(a) In a conditional use proceeding initiated under section 29.10.210, the deciding body
may allow the nonconforming building to be used for the following types of uses that are not
otherwise permitted in the zone:
(1) Uses that are clearly more consistent with permitted uses in the zone than the
most recent nonconforming use in the building if the owner of the nonconforming
building proves that the building is not suited for any use permitted in the zone
even if the building were reasonably modified; or
(2) Uses that are substantially identical to the most recent nonconforming use in the
building if the owner of the nonconforming building proves that the building is
not suited for any use that is more consistent with the permitted uses in the zone
even if the building were reasonably modified.
In no event may the building be used for any use that is less consistent with the uses permitted in
the zone than the most recent lawful activity in the building.
(b) The deciding body may consider the general availability of users for the building in
determining what uses a building is suited for, but the fact of a scarcity of buyers or tenants or
the capabilities or intentions of the owner or specific occupant or proposed occupant do not by
themselves justify a finding that a building is only suited to house use which is not allowed in the
zone.
Sec. 29.10.245. Expansion of nonconforming building.
(a) Except as specifically provided in subsection (d) below, expansion of the following
nonconforming buildings is prohibited:
(1) Commercial or industrial buildings located in residential zones as defined in
section 29.40.010.
(2) Multiple - family dwellings in RC, HR, R -1, R -D, and R -1D zones.
(3) Industrial buildings in an office or commercial zone as defined in section
29.60.010.
(b) Nonconforming one- or two - family dwellings and accessory structures on lots
with one- and two - family dwellings in any zone may be expanded with the approval of a
building permit with the consent of the Planning Director.
(c) Architecture and site approval is required for the expansion of any nonconforming
building allowed by this division except for expansion defined in subsection (b) above.
(d) When a law, ordinance or regulation concerning public safety or the safety of a
workplace requires an alteration to a nonconforming building in order to allow the continuation
of an otherwise lawful activity in the building, a conditional use permit may be issued for the
alteration. Recordable agreements may be required.
(e) The following requirements apply to any expansion of a nonconforming building
allowed under this section:
(1) When a building is too close to a property line or a street, any expansion or
reconstruction may not be nearer to a property line than the existing building is to
that property line. Reconstruction may only be allowed if the Building Official
determines that the portion of the building proposed to be demolished has
deteriorated to a point that reconstruction is necessary. The projections listed in
subsection 29.40.070(b) except chimneys and bay windows may project beyond
the wall of the expanded or reconstructed portion subject to the rules of subsection
29.40.070(b).
(2) When a building is too high, the expansion must be within the current height
limitations in the zone.
(3) When a building covers too much land no expansion is allowed which would
increase the coverage. However, second floor additions are allowed as long as the
area of the second floor does not exceed the area allowed to be covered by the
rules of the zone.
(4) Approval can be denied if the expansion would in any way cause a safety problem
or be detrimental to the public welfare.
(5) The expansion must take place either on the zoning plot as it existed on the date
the building became nonconforming or on the existing zoning plot, whichever is
smaller.
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(6) The expansion must not impede the orderly development or redevelopment of
neighboring property in a manner which will conform to both the general plan and
the current zoning.
(7) Approval of the expansion may not be inconsistent with the general policy of
phasing out nonconforming uses.
(8) No nonconforming building described in section 29.10.200 shall be enlarged,
extended, reconstructed or structurally altered, unless such building is altered to
comply with the regulations of the zone where it is located. Work involving
ordinary structural alterations or replacement of walls, fixtures or plumbing shall
be authorized on such buildings when the cost of the work in any twelve -month
period does not exceed fifty (50) percent of the building's value. Value is the
estimated cost to replace the building in kind, and is determined by the Building
Official.
(f) For purposes of this section, "expansion" means addition of floor area, increase in
volume of structures, or movement of the exterior walls of structures. However, movement of
exterior walls that results in greater conformity with the zone does not constitute expansion under
this section.
Sec. 29.10.260. Rebuilding nonconforming buildings.
(a) Notwithstanding any other provision of this division:
(1) If a nonconforming single- or two - family dwelling, school or church located in
any zone is destroyed, it may be rebuilt on the same foundation in substantially the same manner
as it existed before its destruction;
(2) If a nonconforming multiple - family dwelling located in any zone is destroyed, it
may be rebuilt on the same foundation, with the same number of units, in substantially the same
manner as it existed before its destruction; and
(b) If any other nonconforming building is destroyed to the extent of more than fifty
(50) percent of its value, then, without further action by the Town, such building and the land on
which such building was located shall from and after the date of such destruction be subject to
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the regulations specified by ordinance for the zone where such land and building are located.
Value is to be determined by the Building Official.
Sec. 29.10.263. Additional conditions of approval for a conditional use permit for a
nonconforming use or building.
(a) In addition to the conditions that may be imposed pursuant to this division and this
chapter for issuance of a conditional permit for a nonconforming use or building, the deciding
body may impose conditions to promote the phasing out of the nonconforming building or use,
and should designate the time in which specific conditions have to be met.
(b) In a conditional use permit proceeding, the deciding body shall not waive or modify
the time in which a nonconforming use has to cease, or a nonconforming building has to be
demolished or altered, or otherwise conform to the requirements of the zone when that time
period is established by ordinance. Such a modification shall only occur through adoption of an
ordinance.
Sec. 29.10.265. Nonconforming lots.
The following provisions apply to nonconforming lots:
(1) If the lot is in a residential zone and recognized by the Town as a lawful, separate
nonmerged lot pursuant to section 29.10.0701 a single- family dwelling may be
erected if architecture and site approval is obtained.
(2) If the lot is in other than a residential zone, it may be used for any purpose
allowed in the zone.
(3) Any rule of the zone including front, side and rear yard requirements may be
modified by the terms of the architecture and site approval so that the building
and its use will be compatible with the neighborhood.
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SECTION III
Section 29.40.010 is amended to read as follows:
Sec. 29.40.010. Residential Zones Established.
Residential zones of the Town are the RC, HR, R -1, RD, R -M, RMH, and R -1D zones.
SECTION IV
This ordinance was introduced at a regular meeting of the Town Council of the Town
of Los Gatos on the 18th day of November, 1996 and adopted by the following vote as an
ordinance of the Town of Los Gatos at a regular meeting of the Town Council of the Town of
Los Gatos on the 2nd day of December, 1996. This ordinance takes effect 30 days after it is
adopted.
COUNCIL MEMBERS:
AYES: Randy Attaway, Steven Blanton, Linda Lubeck, Mayor Joanne Bennjamin
NAYS:
ABSENT: Patrick O'Laughlin
ABSTAIN:
SIGNED:
AYOR OF THE TOW F LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST: J 1
CLERK OF THE TOWN O OS GATOS
LOS GATOS, CALIFORNIA
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