23.324.050 Conforming and Nonconforming Structures and Buildings

A. Maintenance and Repair. A lawful nonconforming structure or building may be maintained and repaired, as long as such maintenance or repair does not result in a change to the use of the structure or building.

B. Replacement. Replacing portions of a nonconforming structure or building is allowed if the removed portions were lawfully constructed and are replaced to the same size, height, extent, and configuration as previously existed.

1. A nonconforming portion of a nonconforming structure or building may be removed by right if such removal does not constitute demolition.

2. For a structure or building subject to the Landmarks Preservation Ordinance, the regulations under Municipal Code Section 3.24 (Landmarks Preservation Commission) apply.

1. General. An addition to or enlargements of a lawful nonconforming structure or building is allowed if:

(a) The addition or enlargement complies with all applicable laws;

(b) The existing use of the structure or building is conforming, except as provided below in Paragraph 4 (Property with Nonconforming Use); and

(c) The addition or enlargement obtains all permits required by this subsection.

(a) An AUP is required for an addition or enlargement that:

i. Vertically or horizontally extends a building wall projecting into a minimum required setback;

ii. Horizontally extends the portion of a building exceeding the height limit;

iii. Alters the portion of a building (including windows and other openings) projecting into a minimum required setback; or

iv. Alters the portion of a building exceeding the height limit.

(b) The Zoning Officer may approve the AUP only if:

i. The addition or enlargement does not increase or exacerbate any nonconforming setbacks; and

ii. The addition or enlargement does not exceed maximum or calculated height limits.

(a) A Use Permit is required for an addition to and/or enlargement of a structure or building that exceeds the maximum allowed lot coverage, floor area ratio, or residential density.

(b) The ZAB may approve the Use Permit only if the project does not:

i. Increase or exacerbate the nonconformity; or

ii. Exceed the height limit.

(a) A Use Permit is required for an addition to and/or enlargement of a lawful nonconforming structure or building on a property with a lawful nonconforming use.

(b) The Use Permit is required whether or not the nonconforming use occupies the subject structure or building.

1. The reconfiguration of non-residential tenant space in a nonconforming structure or building requires permits as follows:

(a) AUP for structures or buildings nonconforming to setback, height, or lot coverage standards.

(b) Use Permit for structures or buildings nonconforming to FAR standards.

2. The reconfiguration is allowed only if the existing use of the property is conforming.

1. Calculation of Appraisal Value. As used in this subsection, the "appraised value" of a structure or building is the higher of:

(a) The records of the Assessor of the County of Alameda for the fiscal year during which such destruction occurred; or

(b) An appraisal performed by a certified appraiser.

2. Damage Less than 50 Percent. If 50 percent or less of its appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the replacement of the damaged portions of the structure or building is allowed by right if the replaced portions are the same size, extent, and configuration as previously existed.

(a) Except as provided in Paragraph 4 (Residential Buildings with Four Units or Less) below, if more than 50 percent of the appraised value of a lawful nonconforming structure or building is damaged or destroyed for any reason, the structure or building shall either:

i. Be brought into full compliance with the requirements of the Zoning Ordinance; or

ii. Receive ZAB approval of a Use Permit for the structure or building to be rebuilt to the same size, extent, and configuration as previously existed. To approve the Use Permit, the ZAB must find that the previous use will be continued in a manner that meets the requirements of this chapter.

(a) A conforming or nonconforming residential-only structure or building with four residential units or less, including any accessory structures or buildings, that is involuntarily damaged or destroyed may be replaced or reconstructed with a Zoning Certificate.

(b) The Zoning Certificate may be approved only if all of the following conditions exist:

i. The structure or building, or any portion thereof, has been destroyed by any involuntary cause including fire, earthquake, or flood.

ii. The replacement structure or building or portion thereof is substantially similar in use, dimensions, floor area, square footage, envelope, lot coverage, footprint, and number of units to the destroyed structure or building or portion thereof that it is designed to replace.

iii. The replacement or repair complies with all currently applicable building codes and any other regulations including any ordinance or emergency regulation adopted by the City Council or the Director of Emergency Services to protect against serious safety problems at the site such as engineering conditions and soil stability.

(c) Where a structure or building to be replaced or rebuilt does not conform to Paragraph (b)(ii) above and is to be expanded or changed, the structure or building is subject to all otherwise applicable regulations governing such expansion or change.

(d) The Planning Director shall establish a process that allows an owner of a qualifying residential structure or building to apply for an advance determination that the proposed repair or replacement of a structure or building is substantially similar as required by Paragraph (b)(ii) above including the information required to document existing conditions.

(e) The Planning Director shall develop a description or building information for owners of qualifying residential structures or buildings required by the City to document existing characteristics of the building in case of future damage or destruction. (Ord. 7882-NS §§ 24, 25, 2023: Ord. 7787-NS § 2 (Exh. A), 2021)