HomeMy WebLinkAbout2017-06-05 RFD17-0002 Christina Slack Determination of Nonconforming Use Department of Development Services Tim Snellings, Director
Pete Calarco, Assistant Director
7 County Center Drive T: 530.538.7601
Oroville, California 95965 F: 530.538.7785 buttecounty.net/dds
June 05, 2017
Delbert & Christina Slack
4855 Seacrest Drive
Oroville, CA 95966
SUBJECT: RFD17-0002 (Delbert & Christina Slack)
Request for Determination of Non-Conforming Use - 4855 Seacrest
Drive, Oroville (APN 078-360-042)
Dear Mr. & Mrs. Slack,
This letter in response to your request for a determination regarding the nonconforming
status of keeping animals on the property at 4855 Seacrest Drive (property), in Oroville. A
nonconforming use is sometimes referred to as a 'grandfathered use' in that it was
established prior to zoning or other applicable requirements. In your May 2, 2017 letter, you
have asserted that you have been continuously keeping up to ten adult (over a year old)
swine on the subject property since 2004. You also indicated that these adult swine are
being actively bred to produce an unverified number of litter for the purpose of fattened and
commercial sale while they are less than one year of age.
Based on the information provided, I have determined that a valid non-conforming use exists
on your property where a maximum of ten adult animals in any combination of equine, bovine
and swine, may be kept at 4855 Seacrest Drive and may continue, subject to the
requirements in Article 22 of the Zoning Ordinance (see attached). However, the keeping of
swine for the purpose of sale or their products on a continuing basis is not considered a
nonconforming use.
BACKGROUND
A nonconforming use is a use of property that was allowed under the zoning regulations at
the time the use was established but which, because of subsequent changes in those
regulations, is no longer a permitted use.
Regulations regarding nonconforming uses and structures are listed in Article 22 of the Butte
County Zoning Ordinance:
RFD17-0002 Determination of Nonconforming Use for Christina Slack Page 5
A nonconforming use or structure may be continued if it was legally established in
compliance with all applicable regulations in effect at the time it was established (Butte
County Code (BCC) §24-121 (A)).
Any person asserting a right to a nonconforming use or structure has the burden of
proof to demonstrate the existence of the use prior to the establishment of the
applicable zone or regulation for which it is nonconforming (BCC §24-121 (C)).
A nonconforming use shall lose its legal nonconforming status if the use has been
discontinued for a period of 24 consecutive months (BCC §24-124 (A)(1)).
Current Zoning Requirements for Animal Keeping
Your property is currently zoned MDR (Medium Density Residential) which allows persons
to keep and maintain livestock consistent with the requirements of BCC §24-158 (copy
attached). §BCC 24-158(C)(1)(b) allows an animal density of no more than one (1) animal
unit/acre and maintaining “the normal health and Body Condition Score (BCS) that does not
violate any section of the State of California Penal Code or Chapter 4 of the Butte County
Code.” An animal unit is defined in §BCC 24-158(C)(1)(a)(1) as follows:
An animal unit (AU) is equal to one (1) mature horse, or one (1) mature cow, or three
(3) mature swine (lactating), or five (5) mature sheep, or five (5) mature goats, or five
(5) mature alpacas. Exotic animals, including, but not limited to, llamas and camels,
shall be equal to one (1) animal unit.
Immature animals (i.e. those under the age of being able to reproduce) are not subject to
the animal density requirements.
For your 2.5 acre property a total of two horses, or seven mature swine, are allowed under
the current MDR zoning.
Historic Zoning Regulation
In order to determine a nonconforming use, the date the use was established and the zoning
regulations in place at the time must be ascertained. Your letter states that you have resided
on your property since 2001. Butte County records show you purchased the property on
August 12, 2004. You have provided documentation, including letters from L.W. Wulf, DVM,
that adult swine have been maintained on your property since 2011.
Between the periods of January 17, 1967 and December 6, 2012, the subject property was
zoned A-R (Agricultural-Residential). In 2004, the date you attest that you had a total of ten
pigs on the property, the A-R zone was regulated under Butte County Ordinance No. 3176.
Ordinance No. 3176 permitted accessory uses, including the keeping of animals in the A-R
zone pursuant to Section 24-95(b)(4), subject to the animal maintenance of sections 24-
255.1 through 24-255.15.
Ordinance No. 3176, and the animal maintenance requirements therein, was adopted by
Butte County on January 24, 1995. This ordinance remained in effect until the adoption and
RFD17-0002 Determination of Nonconforming Use for Christina Slack Page 5
effective date of the current ordinance on December 6, 2012, when the subject property was
rezoned from A-R (Agricultural-Residential) to Medium Density Residential (MDR).
Following are applicable excerpts from Ordinance No. 3176:
Section 24-255.10(A) [Animal Maintenance Area Requirements]:
On all parcels of property which are five (5) acres or larger and are within zoning districts
that allow livestock there shall be no area requirements for animals. However, on all
parcels of property which are less than five (5) acres in size and are within zoning districts
that allow livestock, the following area, allotted exclusively to each type of animal, shall
be required for each animal kept on the premises:
1. Equine, Bovine and Swine Area Requirements. For each equine, bovine or swine
over one (1) year of age, ten thousand (10,000) square feet; provided, however, that
if there is a residential use established on the parcel, eight thousand one hundred
twenty five (8,125) square feet shall be required for such residential use and ten
thousand (10,000) additional square feet shall be required for each such animal.
Section 24-255.10(B) [Use Permits Required for More Intense or Commercial Uses]:
On all parcels of property within Zoning Districts that allow livestock and are less than
five (5) acres, a conditional Use Permit shall be required for:
1. The keeping of such animals (horses, cattle, swine, sheep, and goats) at greater
densities than allowed pursuant to subsections 1. And 2. Above.
2. The keeping of such animals, poultry and rabbits, for the purpose of sale of said
animal or their products on a continuing basis.
3. Feed yards and hog farms.
Section 24-255.15 [Health and Safety]:
Animals shall be kept in a clean and sanitary condition and in a manner that does not
become a public nuisance. Upon witnessing any violation of this Section, Butte County
Code Enforcement Officers shall coordinate with the appropriate responsible agency.
Section 24-305.150 [Commercial Animal Feed Yard]:
A fenced or enclosed area operated exclusively to fatten livestock for clients for a
consideration, by being fed a concentrated ration.
Section 24-305.180 [Hog Farm]:
Any premises used exclusively for the raising or keeping of three (3) or more hogs when
raised, fed or fattened for the purposes of sale and consumption by other than the owner
of the site. In an agricultural zone the term “hog farm” is not intended to otherwise
RFD17-0002 Determination of Nonconforming Use for Christina Slack Page 5
preclude the raising of hogs as part of a general farming operation or as an FFA, 4-H, or
other student project.
Property located in the A-R zone, and less than five acres in size, were allowed to maintain
one equine, bovine or swine over one year of age per 10,000 square feet.
To keep any equine, bovine or swine at greater densities then densities allowed above, or
to raise these animals for commercial purposes or as part of a hog farming operation, a
conditional use permit was required, pursuant to Section 24-255.10(B)(1) and (3). No
conditional use permit was obtained for commercial raising of animals or for a hog farming
operation.
A review of the subject property shows that the property is 2.5 acres or 108,900 square feet
in size. With the presence of a single-family residence on the property, 8,125 square feet is
dedicated to the residential use, bringing the total permissible area for animal maintenance
to 100,775 square feet. As a result, a total of ten equine, bovine or swine over one year of
age are permitted on the property, provided that the maximum permitted number of animals
was not reduced below ten, for a period of more than 24 consecutive months after December
6, 2012.
DETERMINATION
As the Zoning Administrator, and based on the information provided, I have determined that
a maximum of ten swine over one year of age may continue to be maintained on property
located at 4855 Seacrest Drive (APN: 078-360-042) as a valid nonconforming use, and may
continue subject to the requirements in Article 22 of the Zoning Ordinance. The keeping of
swine for the purpose of sale or their products on a continuing basis is not considered a
nonconforming use as this would have required approval of a conditional use permit at the
time the use was established. The keeping of more than ten mature swine requires approval
of a minor use permit.
If you wish to provide additional documentation to demonstrate the existence of the
nonconforming use of your property, this determination may be reevaluated in light of that
information.
APPEAL
If you or another interested party believes this determination is in error of its interpretation of
the Butte County Code, an appeal of my decision as Zoning Administrator may be filed with
the Butte County Planning Commission within ten calendar days of the date of this letter.
Any appeal of this determination must be in writing and accompanied by an appeal fee of
$400.00 (payable to “Butte County Treasurer”). If no appeal is filed within ten calendar days,
this determination shall be final.
If you have any questions regarding this determination, please contact Senior Planner
Rowland Hickel at (530) 538-7150 or rhickel@buttecounty.net, or me at (530) 538-6821 or
tsnellings@buttecounty.net.
RFD17-0002 Determination of Nonconforming Use for Christina Slack Page 5
Sincerely,
Tim Snellings, Director
Butte County Department of Development Services
Attachments: May 2, 2017 Letter from Christina Slack
Butte County Zoning Ordinance Article 22 Nonconforming Uses and Structures
Butte County Code Section 24-158 Animal Keeping
Cc: First District Supervisor Bill Connelly
NONCONFORMING USES AND STRUCTURES 24-119
157
NONCONFORMING USES AND STRUCTURES Article 22.
Sections:
24-119 – Purpose
24-120 – Applicability
24-121 – General Provisions
24-122 – Nonconforming Uses
24-123 – Nonconforming Structures
24-124 – Loss of Legal Status
24-125 – Findings
24-126 – Appeals
24-119 Purpose
This article establishes regulations for nonconforming uses and structures. In addition, this article is intended
to:
A. Ensure that nonconforming uses and structures do not adversely impact neighboring properties;
B. Provide for a process to allow for the minor expansion of nonconforming uses and structures;
C. Allow for repairs and maintenance to nonconforming structures; and
D. Provide for the elimination of nonconforming uses as appropriate due to abandonment, obsolescence,
and destruction.
24-120 Applicability
This article applies to existing uses and structures which do not conform to the regulations of the zone in
which they are located.
24-121 General Provisions
A. A nonconforming use or structure may be continued if it was legally established in compliance with all
applicable regulations in effect at the time it was established.
B. To be considered legally established, a legal nonconforming use or structure shall have been physically
constructed or in existence, not merely contemplated. Conditional Use Permits, Variances, Building
Permits, or other permits not exercised within the required time do not establish the right to a legal
nonconformity.
C. Any person asserting a right to a nonconforming use or structure has the burden of proof to
demonstrate the existence of the use prior to the establishment of the applicable zone or regulation for
which it is nonconforming.
24-122 NONCONFORMING USES AND STRUCTURES
158
D. When approving a Minor Use Permit or another permit associated with a nonconforming use or
structure, the review authority may at its own discretion establish a date for either the termination of
the use or review of the Minor Use Permit.
24-122 Nonconforming Uses
A. Change in Ownership, Tenancy, or Management. A change in ownership, tenancy, or
management of a nonconforming use shall not affect its legal nonconforming status provided that the
intensity of use does not increase.
B. Resuming a Nonconforming Use. A nonconforming use changed to a conforming use shall not
return to a nonconforming use.
C. Replacement of a Nonconforming Use. A nonconforming use may not be replaced by another
nonconforming use.
D. Intensification of Use.
The enlargement of a structure or site occupied by a nonconforming use, or the intensification in 1.
any way of the operation of a nonconforming use, shall require the approval of a Minor Use
Permit.
To approve a proposed intensification to a nonconforming use, the Zoning Administrator shall 2.
make all findings in Section 24-125 (Findings).
24-123 Nonconforming Structures
A. Enlargements to Nonconforming Structures.
The enlargement of a nonconforming structure shall require the approval of a Minor Use Permit. 1.
To approve a proposed enlargement, the Zoning Administrator shall make all the findings in 2.
Section 24-125 (Findings).
B. Reconstruction
Reconstruction of a legal nonconforming structure that has been demolished or destroyed shall 1.
begin within one-year and shall be completed within three-years.
The reconstructed structure shall not exceed the original structure in regards to maximum height, 2.
floor area, encroachment into setbacks and other property characteristics as determined by the
Zoning Administrator.
The Zoning Administrator may approve an extension of two additional years to complete 3.
reconstruction of the demolished structure.
If reconstruction is not completed by the specified time limit, the property shall be deemed 4.
abandoned.
NONCONFORMING USES AND STRUCTURES 24-124
159
24-124 Loss of Legal Status
A. A nonconforming use or structure shall lose its legal nonconforming status if:
A nonconforming use has been discontinued for a period of 24 consecutive months; or 1.
A nonconforming structure has been vacant for a period of 24 consecutive months. 2.
B. Based on Subsection A above, the Zoning Administrator may determine that a nonconforming use or
structure has lost its legal status and shall mail a notice to the property owner and occupant.
C. The property owner or occupant may appeal the determination of the Zoning Administrator to the
Planning Commission within 15 days of the mailing of the notice. The appeal shall be filed and heard
as provided in Article 37 (Appeals and Calls for Review).
24-125 Findings
The Zoning Administrator may approve a Minor Use Permit for a nonconforming use or structure if all of
the following findings can be made in addition to the findings in Article 31 (Conditional Use and Minor Use
Permits):
A. Available evidence indicates that the nonconforming use or structure was legally established.
B. The nonconforming use or structure has not resulted in a notable negative impact or nuisance to the
surrounding area.
C. The nonconforming use or structure is compatible with the general character of the surrounding area.
D. The proposed action is compatible with the purpose and intent of the applicable zone.
24-126 Appeals
Any decision on a requested modification to a nonconforming use or structure may be appealed as allowed by
Article 37 (Appeals and Calls for Review).
BUTTE COUNTY CODE SECTION 24-158
Page 1
24-158 - Animal keeping.
A. Purpose. It is the intent of the following regulations to allow persons to keep and maintain livestock on
their private property in a manner that will protect the health, safety, and welfare of nearby residents, and to protect the health, safety, and welfare of animals.
B. Applicability.
1. The standards in this section apply to the Foothill Residential (FR), Foothill Country Residential
(FCR), Rural Residential (RR), Rural Country Residential (RCR), Very Low Density Residential (VLDR), Very Low Density Country Residential (VLDCR), Low Density Residential (LDR),
Medium Density Residential (MDR), Medium High Density Residential (MHDR), High Density Residential (HDR), Very High Density Residential (VHDR), General Commercial (GC),
Neighborhood Commercial (NC), Community Commercial (CC), Recreation Commercial (REC), Sports and Entertainment (SE) Mixed Use (MU), Light Industrial (LI), General Industrial (GI) and
Heavy Industrial (HI) zones. These standards do not apply to the keeping of animals in the Agriculture (AG), Timber Mountain (TM), or Timber Production (TPZ) zones.
2. The standards in this section do not apply to the keeping of household pets. Refer to Butte County Code Section 24-165 (Kennels) for personal and commercial kennels and Butte County Code
Chapter 4 (Animals) for the keeping of cats and dogs.
C. Animal Density.
1. For parcels located within the Rural Residential (RR), Rural Country Residential (RCR),Foothill Residential (FR) Foothill Country Residential (FCR), Very Low Density Residential (VLDR), Very
Low Density Country Residential (VLDCR) Low Density Residential (LDR), Medium Density Residential (MDR), Medium High Density Residential (MHDR), High Density Residential (HDR),
Very High Density (VHDR), General Commercial (GC), Neighborhood Commercial (NC), Community Commercial (CC), Recreation Commercial (REC), Sports and Entertainment (SE)
Mixed Use (MU) ), Light Industrial (LI), General Industrial (GI) and Heavy Industrial (HI) zones, the following area requirements shall be allotted to each animal unit, and shall be required for
each animal unit kept on the premises:
a. Animal Unit Defined.
1. An animal unit (AU) is equal to one (1) mature horse, or one (1) mature cow, or three (3) mature swine (lactating), or five (5) mature sheep, or five (5) mature goats, or five
(5) mature alpacas. Exotic animals, including, but not limited to, llamas and camels, shall be equal to one (1) animal unit.
2. Immature animals are not subject to the animal density requirements under this section.
b. Mature Animal Defined. Table 24-158-1 (Mature Animals by Weight) provides a guide for
defining a mature animal by weight.
TABLE 24-158-1 MATURE ANIMALS BY WEIGHT
Animal Weight Range (lbs)
Cows 1,000 to 1,400
Ewes/Sheep 110 to 198
Swine (lactating) 320 to 410
BUTTE COUNTY CODE SECTION 24-158
Page 2
Horses 880 to 1,980
Alpaca 150 to 352
Goats 22 to 110
Source: National Research Council.
a. [c.] Companion Animal Allowance. If the parcel size permits only one (1) animal, an additional one (1) animal shall be allowed.
b. [d.] Animal Units Allowed by Parcel Size.
1. No animal keeping shall be allowed on parcels less than one (1) acre in size.
2. Parcels one (1) to Less than twenty (20) Acres in Size. Density shall be no more than one (1) animal unit/acre. Supplemental feed will be required during specific times of the
year to maintain the normal health and Body Condition Score (BCS) that does not violate any section of the State of California Penal Code or Chapter 4 of the Butte
County Code. The total acreage of two (2) or more adjacent parcels managed as a single agricultural operation shall be used to calculate the number of permitted animal
units.
3. Parcels twenty (20) Acres or More in Size. An animal unit/acre density measurement is
not imposed. Supplemental feed may be required during specific times of the year to maintain the normal health and BCS that does not violate any section of the State of
California Penal Code or Chapter 4 of the Butte County Code. Two (2) or more adjacent parcels that are less than 20 acres in size but collectively exceed twenty (20) acres or
more in size, managed as a single agricultural operation shall be subject to the twenty (20)s acres or more standard set forth under this table.
D. Exceptions.
1. Educational Project Exemption.
a. Temporary education projects, including, but not limited to FFA, 4-H, and school projects, conducted by students through the twelfth grade and under the direct supervision of a
qualified, responsible adult advisor or instructor, shall be exempt from the requirements of subsection (C) above. The current animal husbandry standards for keeping animals must be
followed.
b. The animal units shall be maintained in a healthy and sanitary manner that does not violate
any section of the State of California Penal Code or Chapter 4 of the Butte County Code.
2. Rotational Grazing.
a. Area requirements do not apply to rotationally-grazed parcels of twenty (20) acres or more in size so long as the animal units are maintained in a healthy and sanitary manner that does
not violate any section of the State of California Penal Code or Chapter 4 of the Butte County Code.
E. Minor Use Permits Required. On all parcels of property less than 20 acres in size, a Minor Use Permit shall be required for:
1. The keeping of such animals (horses, cattle, swine, sheep, goats, and alpacas) at greater densities than allowed pursuant to subsection (C) above.
BUTTE COUNTY CODE SECTION 24-158
Page 3
2. The keeping of poultry and rabbits for the purpose of sale of said animals or their products on a continuing basis.
Minor Use Permits approved pursuant to this section shall specify that animals are maintained in a healthy and sanitary manner that does not violate any section of the State of California Penal Code or Chapter 4 of
the Butte County Code.
F. Penalties. Violations of this section may be charged as either an infraction or misdemeanor.
G. Setbacks. The following setbacks are established for corrals and other animal containment structures:
1. In the Foothill Residential (FR), Foothill Country Residential (FCR), Rural Residential (RR), Rural
Country Residential (RCR), Very Low Density Residential (VLDR), and Very Low Density Country Residential (VLDCR) zones the minimum setback shall be twenty-five (25) feet from any dwelling
either on- or off-site.
2. In the Low Density Residential (LDR), Medium Density Residential (MDR), Medium High Density
Residential (MHDR) High Density Residential (HDR) General Commercial (GC), Neighborhood Commercial (NC), Community Commercial (CC), Recreation Commercial (REC), Sports and
Entertainment (SE), Mixed Use (MU), Light Industrial (LI), General Industrial (GI) and Heavy Industrial (HI) zones the minimum setback shall be fifty (50) feet from any dwelling either on- or
off-site.
H. Keeping of Hens and Roosters. This section only applies to the Very Low Density Residential (VLDR),
Very Low Density Country Residential (VLDCR), Low Density Residential (LDR), Medium Density Residential (MDR), Medium High Density Residential (MHDR) High Density Residential (HDR), and
Mixed Use (MU) zones notwithstanding Section 24-158.B (Applicability). These standards do not apply to the keeping of animals in the Agriculture (AG), Timber Mountain (TM), Timber Production (TPZ),
Foothill Residential (FR), Foothill Country Residential (FCR) or Rural Residential (RR) Rural Country Residential (RCR) zones. The following standards are applicable to the keeping of hens and roosters:
1. Roosters shall not be permitted on any parcel less than five (5) acres in size.
2. Hens are limited to fifteen (15) maximum per five thousand (5,000) square feet of fenced yard
area or pen not covered by buildings. This limit may be calculated on a pro rata basis.
3. Setbacks for structures related to the keeping of hens and roosters shall be pursuant to Section
24-156, Accessory Uses and Structures.
(Ord. No. 4062, § 1, 9-10-13; Ord. No. 4091, § 1, 1-27-15; Ord. No. 4105, § 1, 1-12-16 )