City Council approval of Resolution No. 3897, approving conditional use permit application 19-02 with conditions to reestablish the legal non-conforming status of the structure located at 358 E. Polk Street.
On April 2, 2019 the Community Development Department received a conditional use permit application requesting the reestablishment of a structure’s legal non-conforming status at 358 E. Polk Street.
In accordance with Section 9-6.210 of the Planning and Zoning Code no nonconforming use may be resumed, reestablished, reopened or replaced by any other nonconforming use after it has been abandoned or vacated for a period of six (6) months, except as provided for in this section. The nonconforming use of a legally established structure may be reestablished if the City Council approves a Conditional Use Permit with applicable findings.
Staff was able to review the code and as mentioned above, there is a remedy to reestablish the structure legal non-conforming status and then permit the rebuilding of the existing structure. Therefore, the applicant is seeking approval from the City Council to reestablish the structures legal-nonconforming status in order to demolish and rebuild the residence that currently exists on the property in accordance with Section 9-6.210.
The structure located at 358 E. Polk Street was damaged beyond repair several years ago due to ground movement such as an earthquake and has been unoccupied for several years. As a result, the property was posted by the Building Official as unsafe to occupy and it would either need to be repaired or demolished and/or rebuilt. When originally constructed, the structure was legally establishment prior to the re-zoning of the property from Residential (1994 General Plan Update) to Mixed Use Commercial (2025 General Plan). Recently, the property owner submitted an application for a building permit to demolish and rebuild the residence that is currently on this parcel. Unfortunately, staff was unable to issue a permit to demo and rebuild the structure do to the fact that it had lost it’s legal non-conforming status since it has been vacated for more than six (6) months, therefore the property must be developed in accordance with the (MX) Mixed Use zoning designation.
Staff has reviewed the application and what possible impacts it would have to reestablish the legal non-conforming status of this property and it has been determined that it would not have a substantial impact to the surround properties.
When determining whether a legal non-confirming status shall be reinstated, the following three (3) findings shall be considered:
1. The structure cannot be used for any conforming use because of its original design or because of legal structural changes made for a previous nonconforming use;
The existing structure is currently in disrepair and cannot be occupied. Demolishing the structure would create another vacant lot in the City that has limited interest for commercial development in addition to the fact that the properties to the north are currently occupied as residential uses. This location also lacks off-site improvements and has considerable access issues since Dorothy Street has never been improved to City standards and currently facilitates access to adjacent properties. Demolishing and rebuilding the residence would reduce future blight as well as provide additional housing where housing is limited in the City.
2. The structure can be reasonably expected to remain in active use for a period of twenty (20) years without requiring repairs or maintenance in excess of fifty (50) percent of the replacement cost of the structure, as defined in this chapter, within any five (5) year period; and
Rebuilding a new residence would establish a structure that would reasonable remain in active use for a period of twenty (20) years without requiring major repair except for the typical maintenance a residence would see such as painting, HVAC, roof, ect.
3. The continuation of the use or structure will not be incompatible with or detrimental to surrounding conforming uses.
Demolishing and rebuilding a new home at 358 E. Polk Street would reduce the existing blight as well as provide a compatible use based on the surrounding properties. The east, south properties are currently residential uses and commercial uses to the north and west which is not uncommon for residential uses to be adjacent to commercial uses considering the appropriate transitional standards are applied.
Should the City Council choose to reestablish the legal non-conforming status of the existing structure, staff would advise the applicant to proceed with the submission of a building permit application to rebuild the home that currently exists in accordance with Section 9-6.208 related to the restoration of damaged non-conforming structures. Staff feels that the exception for residential structures would apply in this situation allowing the rebuilding of the structure.
Section 9-6.208(b) Restoration when damage exceeds seventy-five (75) percent of value. (1) If any nonconforming structure or a structure containing a nonconforming use is destroyed by fire, explosion or other casualty or involuntary destruction to an extent of seventy-five (75) percent or greater of the replacement cost, as determined by the Building Official, then the structure may be restored and used only in compliance with the applicable regulations for the district where it is located, except as provided below.
(2) Exceptions for residential structures. Any nonconforming residential use may be reconstructed, restored, or rebuilt up to the size and number of dwelling units prior to the damage and the nonconforming use, if any, may be resumed unless the City finds that:
(a.) The reconstruction, restoration, or rebuilding will be detrimental or injurious to the health, safety, or general welfare of persons residing or working in the neighborhood or will be detrimental or injurious to property and improvements in the neighborhood.
(b.) The existing nonconforming use of the building or structure can be more appropriately moved to a zoning district in which the use is permitted, or that there no longer exists a district in which the existing nonconforming use is permitted.
(c.) Any reconstruction, restoration, or rebuilding undertaken pursuant to this section shall conform to all applicable Building Code requirements.
(d.) A building permit shall be obtained within two (2) years after the date of the damage or destruction.
When adopting resolution number 3897 staff has included conditions of approval in order to facilitate the appropriate demolition and reconstruction of the legal non-confirming structure. In addition to ensuring compliance with the standards for legal non-conforming structures and uses, staff has included conditions to facilitate compliance with property maintenance concerns that currently exist on the property such as stored trailers, and sea train containers. All of the conditions have been included as an attachment to the resolution.
The proposed project has been reviewed for its conformance with the California Environmental Quality Act (CEQA) and determined that this project is to be categorically exempt pursuant to Section 15302 related to the replacement or reconstruction of existing structures and/or facilities.
Public hearing notices were sent to all property owners within 300 feet of the site as required by Local and State law.
The city Council may choose not to approve Resolution No. 3897 and deny the Conditional Use Permit application.
V. FISCAL IMPACT:
None determined at this time.