Chapter 9.61 ADMINISTRATION OF ZONING

Authority and Procedure for Interpretations.

The Director of Community Development is hereby charged with the duty of providing interpretations of the Zoning Code.

The interpretations of the Director of Community Development are subject to the policy directives of the Planning Commission and City Council.

Any appeal of decisions by the Director of Community Development shall be made pursuant to Section 9.61.110, Appeal Procedures.

All interpretations of the Code made by the Director shall be recorded in writing. The record of interpretations made by the Director shall be kept on file in the Community Development Department and shall be available to the public upon request. These interpretations shall be incorporated into the Zoning Code pursuant to the provisions of Section 9.61.080, at such time as is deemed appropriate by the Director.

Planning Commission Administration of Code. The Planning Commission of the City of Dana Point is responsible for administering the Zoning Code, making recommendations to the City Council on matters governed by the Code, and initiating amendments to the Code when necessary to promote the public health, safety, or welfare.

Procedure for Enforcement. When any use or structure is found to be in violation of the provisions of this Code, the City Council may direct the City Attorney to commence appropriate civil, administrative, or criminal proceedings for the discontinuation or removal of the illegal use or structure in the manner prescribed by law.

§ 9.61.030 Penalty for Violation of the Code.

Investigation or Inspection of Property. Any duly authorized city official may enter any premises, building, or structure at any reasonable hour, after either obtaining the consent of the owner or other responsible individual or pursuant to an inspection warrant, for investigation or inspection of such premises, building, or structure to determine whether said building, premises, or structure is in violation of this Code. Every person who denies, prevents, obstructs or attempts to deny, prevent, or obstruct such access pursuant to an inspection warrant is guilty of a misdemeanor.

(Added by Ord. 93-16, 11/23/93)

Penalty for violation of the Code is described in Dana Point Municipal Code, Title 1, Section 1.01.200.

(Added by Ord. 93-16, 11/23/93)

§ 9.61.040 Procedures for Applications Requiring Discretionary Action.

Legislative and Judicial Actions. Legislative action, implemented by adoption of an Ordinance by the City Council, is required for General Plan Amendments, Local Coastal Program Amendments, Specific Plans, Zone Change Amendments, and Zone Text Amendments. General Plan Amendments and Specific Plan Amendments may only be initiated in accordance with Section 9.61.080(b). Judicial action, implemented by adoption of a Resolution by the Planning Commission, is required for Specific Plan Amendments, Conditional Use Permits, Variances, Site Development Permits, and Tentative Tract/Parcel Maps.

Initiation of an Application. Applications requiring discretionary or judicial action may be initiated by the City Council, Planning Commission, any person who is able to demonstrate an ownership interest in the proposed application and the subject property, or the authorized agent of any person with an ownership interest in the subject property.

Acceptance of Applications.

When a final action on any given application is a denial and conditions surrounding that application have not substantially changed, the Director of Community Development shall reject any new applications for any identical or substantially similar proposal for a period of 12 months from the final action date on the original application.

Upon submittal of a development application by an applicant, in accordance with the Permit Streamlining Act, Government Code Section 65920 et seq., the Director of Community Development shall have 30 days to review the development application to determine if the application is complete pursuant to subsection (d). Prior to the end of that 30 day period, the City shall notify the applicant in writing of any deficiencies in the application which make the application incomplete. This provision shall not apply to legislative actions by the City.

If an applicant is notified in writing that a development application is incomplete, the applicant shall have three months from the date of notification to revise and resubmit the application. If the applicant fails to revise and resubmit the application within the said three month period, the application shall be deemed withdrawn. Thereafter, a resubmittal of an application for the same site shall constitute a new development application subject to the payment of new fees and commencing a new timeline for City action on the project.

The Director of Community Development, upon written request by the applicant or by the exercise of appropriate discretion, may provide a one-time extension of the three-month timeline for the revision and resubmittal of an incomplete application. Such extension shall not exceed 60 days.

The Director of Community Development or designee may send a courtesy notice to the applicant that if an incomplete application is not rectified by the submittal of additional information necessary to make the application complete, that the application will be deemed to be withdrawn. However, this notice is strictly a courtesy to an applicant and failure by the City to send, or the applicant to receive such notice shall not operate to negate the effective withdrawal of the application.

The provisions of Government Code Section 65920 et seq., are applicable to City actions in processing development applications but are not applicable to legislative actions of the City.

Time Limit for Final Action on Development Project Applications.

Applications Requiring an Environmental Impact Report. Those applications accepted as complete and requiring an Environmental Impact Report pursuant to the California Environmental Quality Act, (CEQA), the State Guidelines and the City of Dana Point CEQA Guidelines, shall be scheduled for a public hearing so that final action may be taken within one year of the acceptance of the compete application unless the applicant requests, or consents to, an extension of time.

All Other Applications. All other development applications accepted as complete by the Director of Community Development, shall be scheduled for public hearing so that final action may be taken within six months of the date the application was deemed complete, unless the applicant requests, or consents to, an extension of time.

Conflicts with Other Provisions. When the time limits established by other provisions of this Code (except for Chapter 9.69 "Coastal Development Permit" are in conflict with the time limits established by this Section, the provision with the shorter duration shall apply.

Requirements for Complete Applications.

Applications shall be made on a form prescribed by the Director of Community Development and shall contain the following information and other information as requested by the Director. The accuracy of all information, maps, and lists submitted shall be the responsibility of the applicant. The Director may reject any application that does not supply, at a minimum, the following information:

The name and address of the applicant and property owners.

Evidence that the applicant:

Is the owner of the premises involved; or

Has written permission of the owner or owners to make the application; or

Is or will be the plaintiff in an action of eminent domain to acquire the premises involved; or

Is a public agency negotiating to acquire a portion of the premises involved; and

Has paid the required application fees and deposits or is exempt from such fees and deposits.

The location of the subject property (address or vicinity).

The legal description of the subject property and two copies of a recent (within 6 months of the submittal date) preliminary title report for the subject property.

A detailed written description of the nature and specifics of the development proposal or requested action.

Two self-addressed, stamped envelopes to be used for notification of application completeness and final action on the application.

The following submittals are required for any application for a Conditional Use Permit, Variance, Site Development Permit, Coastal Development Permit, or other discretionary entitlements.

All required written information and colors/materials boards shall be submitted in eight and one-half (8½) inch by 11 inch format.

All required plans shall be submitted in a format no smaller than eight and one-half (8½) by 11 inches and no larger than 24 inches by 36 inches. Larger plans must be folded to eight and one-half (8½) inches by 11 inches. The 24 inch by 36 inch size plans are preferred.

Indicate in writing and with graphics the nature, situation, and development of existing uses, buildings, and structures within 100 feet of the subject property and the effect the proposed application may have on those uses, buildings, and structures.

Explain how the requested application will not cause negative impacts, endanger, or otherwise imperil the public health, safety, or general welfare, and will be compatible with and an enhancement to the subject site, surrounding properties and the City (one copy).

Provide a detailed site plan indicating the existing and proposed area and dimensions of a project site; all existing features (streets, alleys, driveways, buildings, vegetation) within 50 feet of the project boundary; the location, dimension, grades and descriptions of all existing and proposed uses, structures, yards, walls, fences, parking and loading facilities, landscaping, easements, utilities, dedications, and any other use and development features relevant to the application. All site plan drawings shall be drawn to an engineering scale between 1":10': and 1":40', or other scale appropriate to the project and acceptable to the Director of Community Development (12 sets).

All existing and proposed building and structural elevations, and the materials and colors of all existing and proposed structural and surface components. All architectural elevations shall be drawn to an architectural scale of either 1":8' or 1":4', or other scale appropriate to the project and acceptable to the Director of Community Development (12 sets).

(G)

Floor plans for each existing and proposed floor indicating the size (dimension and area) and use of each room or area. All floor plans shall be drawn to an architectural scale of either 1":8' or 1":4', or other scale appropriate to the project and acceptable to the Director of Community Development (12 sets).

(H)

The required site plan shall indicate the dimensions and state of improvement of the existing and proposed streets or easements providing access to the subject site. The plans shall include all access features on, and within 50 feet of the subject site. Applications which propose access from a Circulation Element roadway shall provide plans showing all access features within 150 feet of the subject site as determined by the Director of Public Works.

(I)

A written list and description of other existing or proposed permits or approvals for the subject site (one copy).

(J)

Such other information as the Director of Community Development or designee may request in writing to clearly identify the conformity of the application to the General Plan and/or the Dana Point Municipal Code.

(K)

Ownership information as follows:

Two copies of the most recent County Assessor map, drawn to scale, showing the location of all properties included in the application; the location of all highways, streets, and alleys; and the location and dimensions of all lots or parcels of land within a 500 foot radius of the exterior boundaries of the subject property. If the subject property is located in the Coastal Zone, a coastal development permit is required, and the map shall also illustrate all lots or parcels of land within a 100 foot radius of the exterior boundaries of the subject property.

A list of the names and addresses of all persons who are shown on the most recent assessment roll of the County of Orange as owners of properties within a 500 foot radius of the exterior boundaries of the subject property. If the subject property is located in the Coastal Zone, the applicant shall also submit a second list of the addresses of all dwelling units within 100 feet of the exterior boundaries of the subject property.

Two complete sets of stamped (first class postage) No. 10 business envelopes which are addressed to the property owners on the above list. If the subject property is located in the Coastal Zone, a coastal development permit application is required, and the applicant shall also submit two complete sets of stamped envelopes which are addressed to the residents of dwelling units within 100 feet of the subject property.

Both sets of envelopes shall also include envelopes addressed to the property owner, the owner's agent, the project architect and project engineer.

Submittal requirements for General Plan Amendments, Zoning Text Amendments, Local Coastal Program Amendments shall be the same as in Sections 9.61.040(e)(1) and (2)(I), (J), and (K) above, and shall include a written statement describing how the proposed amendment will be consistent with the General Plan, beneficial to the surrounding neighborhood and the community as a whole and in keeping with the protection of the public health, safety, and general welfare.

Additional Specific Information.

An application for a Conditional Use Permit shall also include evidence to substantiate the basis for approval as provided in Section 9.65.040, Basis for Approval, Conditional Approval or Denial of a Conditional Use Permit.

An application for a Variance shall also include evidence proposed to substantiate the basis for approval as provided in Section 9.67.040, Basis for Approval, Conditional Approval or Denial of a Variance.

An application for a Coastal Development Permit shall also include evidence proposed to substantiate the basis for approval as provided in Section 9.69.060, Basis for Approval, Conditional Approval or Denial of a Conditional Use Permit.

An application for Site Development Permit shall also include evidence proposed to substantiate the basis for approval as provided in Section 9.71.040, Basis for Approval, Conditional Approval or Denial of a Site Development Permit.

(f)

Procedure for Applications Made Prior to Code Amendment. When an application is filed, and deemed complete, prior to the adoption of an amendment to the Code (or prior to effective certification of the Code amendment by the Coastal Commission for development in the Coastal Zone), processing of the application may continue exempt from the provisions of the pending amendment. Applications filed or deemed complete after a code amendment is adopted (or after effective certification of the Code amendment by the Coastal Commission for development in the Coastal Zone), shall proceed pursuant to the applicable provisions of the amended Code.

(g)

Recommendation by the Director of Community Development. The Director of Community Development shall review the application in accordance with the regulations and standards of this Code and relevant adopted plans and ordinances of the City and transmit a recommendation on the application to the Planning Commission.

(h)

Action by the Planning Commission.

A public hearing shall be scheduled before the Planning Commission and notice given pursuant to Section 9.61.040.

The Planning Commission may refer the application back to the Director of Community Development for further review. Such referral shall be accompanied with clear directives for recommended changes to the site plan or design features of the project.

If the application is not referred back to the Director of Community Development, the Planning Commission shall approve, conditionally approve, or deny an application for discretionary approval. Action on the application may be continued to a future meeting pursuant to the applicable provisions of Article 5, Chapter 4.5 of the California Government Code. If applicable, the decision approving or conditionally approving the application shall state the period of time for which the approval shall be valid.

The applicant or any interested party may file an appeal of the Planning Commission action pursuant to Section 9.61.110. The appeal hearing shall be noticed as provided in Section 9.61.050.

§ 9.61.050 Notice and Conduct of Public Hearings.

When a public hearing is required, notice of the hearing shall be given in accordance with the provisions of Section 9.61.050 of this Code.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-09, 5/24/94; Ord. 94-21, 12/13/94; Ord. 97-05, 9/9/97)

Notice of Hearings for Review of Applications. No less than 14 calendar days prior to the date of a public hearing on development applications, the Director of Community Development shall give notice including the time and the place at which the application will be heard, the identity of the hearing body or officer, nature of the application (including, but not limited to, the date of filing of the application, the name of the applicant, the file number assigned to the application, and a description of the development), a brief description of the general procedure of the City of Dana Point concerning the conduct of hearing and local actions, and the general location of the property under consideration. If the application is for a Coastal Development Permit which is appealable to the Coastal Commission, the notice shall indicate this fact and shall describe the process for local and Coastal Commission appeals, including any local fees required. (14 Cal. Code of Regulations/13565, 13568). The Director shall observe the following notice requirements:

The notice shall be posted in three places in the City of Dana Point designated by Resolution of the City Council.

The notice shall be advertised in a newspaper circulated within the City of Dana Point.

The notice shall be mailed via first class mail to the applicant(s); to the property owner(s) or the property owner's agent(s); to all persons listed as owners of property within 500 feet of the exterior boundary of the subject property on the notification list required in Section 9.61.040, and if the subject property is located in the Coastal Zone, to the office of the Coastal Commission having jurisdiction over the City of Dana Point and to all persons listed as occupants of dwelling units within 100 feet of the exterior boundary of the subject property on the notification list required in Section 9.61.040.

Notice shall also be provided to anyone filing a written request and paying the cost for notification and to such other persons whose property might, in the Director's judgment, be affected by the proposed application. For coastal development permit applications, the Director shall also provide notice by first class mail free of charge to all persons who have requested to be on the mailing list for that development project or the mailing list for all coastal decisions within the City of Dana Point.

For all non-residential projects requiring a public hearing, at least 14 calendar days prior to the date of public hearing, the applicant shall post at the project site three notices of public hearing in conspicuous places, with at least two of the notices located adjacent and facing the public right-of-way so that they may be visible to both pedestrians and vehicular traffic. The required public notices will be provided by the Planning Division to the applicant, and the applicant shall provide visual evidence and a signed affidavit of posting.

If the Director finds that the posting and mailing of notices prescribed in this Section may not give sufficient notice to the affected property owners, then additional notices may be posted at locations which are best suited to reach the attention of, and properly inform those persons who may be affected.

When the proposed entitlement affects more than 1,000 property owners, the required notice may be provided by placing a one-eighth (1/8) page display advertisement in a newspaper circulated within the City of Dana Point. Such notice shall be considered an acceptable substitute for the published notice required in subsection (a)(2) and the mailed notice required in subsection (a)(3). However, in the case of Coastal Development Permit applications, newspaper notice shall not substitute for the mailed notice required in subsection (a)(3) above.

(7)

The notice shall be sent to public officers, departments, bureaus, or agencies which, in the determination of the Director of Community Development, could be affected by the application or otherwise require noticing.

(8)

When a Negative Declaration is recommended for adoption pursuant to the California Environmental Quality Act (CEQA), notice of intent to adopt a Negative Declaration shall be published no less than 21 days prior to the hearing date, or 30 days prior to the hearing date for applications which require circulation of the Negative Declaration to the State Clearinghouse.

(9)

Notice for Timeshare Properties.

If a timeshare property falls within the 100 foot occupant-notification radius for Coastal Development Permits described in subsection (a)(9)(A) above, all shareholders shall be notified as described in subsection (a)(3) above.

If a timeshare property falls outside the 100 foot occupant-notification radius described in subsection (a)(9)(A) above, but within the 500 foot property owner-notification radius described in subsection (a)(3) above, notices shall be sent to the property manager/sales agent for the timeshare, the shareholders association for the timeshare where one exists, and one notice to each physical unit in the timeshare, addressed to "Occupant."

Notice for General Plan Amendments. Prior to any amendment to the General Plan, the Community Development Department shall forward the proposed action to the following entities:

Any City or County within or abutting the area covered by the proposal, and any special district which may be significantly affected by the proposed action.

Any elementary, high school, or unified school district within the area covered by the proposed action.

The Local Agency Formation Commission.

Any area-wide planning agency whose operations may be significantly affected by the proposed action.

Any Federal Agency if its operations or land within its jurisdiction may be significantly affected by the proposed action.

Notice of Public Hearings for Revocations. The Director of Community Development, in giving notice of a public hearing to revoke a Conditional Use Permit, Variance, or Site Development Permit, Coastal Development Permit, or other entitlement, shall observe the noticing requirements set forth as follows:

Notification shall be provided as prescribed in Section 9.61.050; and

The Director shall serve the owner of the premises involved written notice of such hearing, by registered or certified mail, return receipt requested and by posting a copy of said notice in a conspicuous location on the property.

Continuances. If, for any reason, testimony on a case cannot be heard or completed at the time set for such hearing, the Planning Commission may continue or extend the hearing to another time. Before adjournment or recess, the Planning Commission chairman shall publicly announce the time and place at which the hearing will be continued.

Failure to Receive Notice. The failure of any person or entity to receive notice required pursuant to this Section shall not constitute grounds to invalidate the proceedings or actions of the City in regards to the item for which the notice was given.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-21, 12/13/94; Ord. 97-05, 9/9/97; Ord. 21-05, 8/23/21)

§ 9.61.060 Fees and Deposits.

Filing Fees and Deposits. Each applicant for an Amendment, Zone Changes, Conditional Use Permit, Variance, Site Development Permit, Coastal Development Permit or other entitlement or relief provided for in this Code shall pay the fees and costs established by Resolution of the City Council upon the filing of an application such entitlement or relief. Said Resolution may be periodically amended by resolution to reflect the cost of processing such applications.

Waiver of Fees. For special circumstances, the City Council may provide for the waiver or reduction of filing fees or deposits that have been established by Resolution of the City Council. The special circumstances may include, but not be limited to, cases of excessive hardship, projects that provide exceptional benefits to the public, projects sponsored by a non-profit applicant, or projects that provide very low, low, or moderate income housing.

Deficiencies and Refunds. The following provisions apply when full payment has not been made for an application or when an application is withdrawn:

If any application is withdrawn, as provided in Section 9.61.070, within 30 days from the date the application is filed, but prior to the publication of the notice of hearing, the City shall refund 50% of the fees paid.

If any application is withdrawn, as provided in Section 9.61.070 after 30 days from the date the application is filed, but prior to the publication of the notice of hearing, the City shall refund 25% of the fees paid.

No refund shall be made after the notice of hearing has been published.

§ 9.61.070 Procedure for Withdrawal of an Application.

If the application fee is a deposit based on an hourly rate, the refund will be the difference between the time expended by the City and the amount of the deposit.

(Added by Ord. 93-16, 11/23/93)

Any application for Amendment, Zone Change, Conditional Use Permit, Variance, Site Development Permit, Coastal Development Permit, Appeal or other application for permit, entitlement, or relief provided for in this Code may be withdrawn at any time prior to a public hearing by filing with the Director of Community Development a written request for withdrawal. The request for withdrawal shall be signed by all persons who signed the original application or their designated agents or successors. Any such application or petition may be withdrawn after commencement of a public hearing thereon, with consent of the hearing body. The Director of Community Development shall provide to the Coastal Commission written notice of the withdrawal of a coastal development permit application.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 97-05, 9/9/97)

§ 9.61.075 Amendment and Modifications to Discretionary Permits.

An approved discretionary permit, variance or other entitlement may be amended or modified as long as the amendment is found to further the purposes of the Zoning Ordinance. An amendment request shall be filed prior to the expiration date of the previously approved permit. The Director of Community Development shall make one of the following determinations regarding the request:

Minor Amendments. If requested amendments are found to be minor in nature by the Director of Community Development, the amendments may be approved administratively.

Major Amendments. If the Director of Community Development determines that the requested amendments are significant enough to require a discretionary review, then the amendments shall be referred to the original decision making authority. If the original application for the project required a public hearing, then the original decision making authority's review of amendments shall require a public hearing in accordance with Section 9.61.050, Notice and Conduct of Public Hearings.

(Added by Ord. 08-06, 6/3/08)

§ 9.61.080 Amendments.

Scope of Amendments. Amendments may be proposed to change zoning districts, modify district boundaries or to revise the provisions of Title 9 to add, remove, or modify regulations pursuant to the provisions of the Government Code. Amendments may be filed to add, remove, or modify the goals and policies of the General Plan or to change the land use designations therein. Amendments to Title 9 and to the Land Use Element, Urban Design Element, and Conservation/Open Space Element of the General Plan shall not be effective in the coastal zone for local coastal program purposes unless and until effectively certified by the Coastal Commission as an amendment to the Local Coastal Program. An amendment to the Local Coastal Program shall be processed pursuant to the provisions of Section 9.61.080(e) below.

Amendment Initiation. The City Council, the Planning Commission, or staff may initiate an amendment to the text of the Zoning Code. Amendments involving a change in zoning district boundaries or a rezoning of property may only be initiated by the City Council, the Planning Commission, or the owner of the subject property. Only the City Council may initiate General Plan Amendments. Initiation of an amendment by the City Council or the Planning Commission may be directed at a regular meeting of either body. Following initiation of the amendment, the procedural steps identified in Sections 9.61.080(g) and 9.61.050 will be followed.

General Plan Amendments.

Frequency of Amendments. No mandatory Element of the General Plan shall be amended more frequently than four times during any calendar year. This limitation on frequency does not apply to amendments to the General Plan requested and necessary for a single development of residential units, at least 25% of which will be occupied or available to persons or families of low or moderate income.

Planning Commission Recommendation. The Planning Commission shall hold at least one public hearing and make a written recommendation on the adoption of an amendment to the General Plan. The Planning Commission shall forward its recommendation to the City Council.

Public Hearing. A General Plan Amendment requires a public hearing before the City Council. Any proposed amendment to the General Plan not excluded by (1) above, requires application and noticing as outlined in this Chapter.

Amendment by Resolution. The City Council shall adopt amendments to the General Plan by Resolution. The City Council may approve, modify, or disapprove the recommendation of the Planning Commission. Any substantial changes proposed by the City Council not previously considered by the Planning Commission shall first be referred to the Planning Commission for its consideration.

Zoning Code Amendments.

Types of Amendments. There are two types of amendments to the Zoning Code including:

Zone Text Amendment — a revision, correction, addition or modification to the text of the Zoning Code, including changes to development standards, use regulations or procedures.

Zone Change — a change to the zoning designation of a property or properties on the Zoning Map.

Planning Commission Recommendation. The Planning Commission shall hold at least one public hearing and make a written recommendation on the adoption of a Zone Text Amendment or Zone Change. Such recommendation shall include the reasons for the recommendation and the relationship of the proposed amendment to the General Plan. The Planning Commission shall send its recommendation to the City Council.

City Council Consideration. The City Council shall hold at least one public hearing for any Zoning Code amendment. The City Council may approve, modify, or disapprove the recommendations of the Planning Commission; provided that any modifications to the proposed amendment are referred to the Planning Commission for report. The Planning Commission is not required to hold a public hearing to review the modifications sent by the City Council. No further City Council action is required when the Planning Commission has recommended disapproval of a Zoning Code amendment.

Amendment by Ordinance. The City Council shall adopt amendments to the Zoning Code by Ordinance.

Local Coastal Program Amendments. A Local Coastal Program Amendment (LCPA) is required for modifications to the policies text, figures, tables, charts, and graphs, or land use designations, or land use and development standards contained in the portions of the General Plan Land Use Element, Land Use Map, Zoning Code or the Zoning Map effectively certified by the Coastal Commission as the LCP, for any property in the Coastal Zone. Amendments to the existing certified Dana Point Specific Plan/Local Coastal Program shall be processed in accordance with the procedures contained in that LCP. Amendments shall be processed in accordance with the following provisions:

Frequency of Submittals of LCP Amendments to the Coastal Commission. No more than three submittals of "major" LCPAs to the Coastal Commission are permitted per calendar year, although there is no limit to the number of changes which can be included in each submittal. There is also no limit on the number of submittals of "minor" LCPAs which may be submitted to the Coastal Commission. Coastal Act/30514(b))

Types of Amendments.

"Major Amendments". A major amendment is any amendment which does not meet the criteria for a "minor" or a "de minimis" amendment as listed below.

"Minor Amendments". A "minor" amendment to an LCP includes but is not limited to the following:

Amendments to address the certification of zoning ordinances, zoning district maps or other implementing actions for newly-annexed or detached territory, when either of the following occur:

The certified land use plan and zoning designations of the City of Dana Point and the previous or new jurisdiction(s) of the geographic area are equivalent, or;

The Coastal Commission has certified proposed pre-annexation zoning for the City of Dana Point.

Wording changes in the implementation program which make a use as designated in the zoning ordinances, zoning district maps or other implementing actions more specific without changing the type, location, or intensity of use and which are found by the Executive Director of the Coastal Commission or the Coastal Commission to be consistent with the land use plan as certified by the Coastal Commission.

Changes in the kinds, location, intensity or density of uses covering areas specifically certified by the Coastal Commission as acceptable alternative land uses that become effective upon occurrence of specified events (such as the availability of sewer service) as authorized in the Land Use Plan.

For the Land Use Plan only:

The correction, reorganization, revisions, or deletion of certified language which when taken together does not change the kind, location, intensity or density of use or modify the resource protection measures for any area or property.

Additions or revisions to certified policies which impose further conditions, restrictions or limitations on any use which might adversely affect the resources of the coastal zone, if those amendments do not conflict with any policy of Chapter Three of the (Coastal Act or with any other certified land use plan policy.

Change in the notification and hearing procedures that is consistent with the requirements of the Coastal Act. (Coastal Act/30501, 30514(c); 14 Cal. Code of Regulations/13554, 13555)

"De Minimis Amendments".

The Executive Director of the Coastal Commission may determine that a proposed local coastal program amendment is de minimis if the Executive Director determines that a proposed amendment would have no impact, either individually or cumulatively, on coastal resources, is consistent with the policies of Chapter 3 of the Coastal Act (commencing with Section 30200), and meets the following criteria:

The City of Dana Point, at least 21 days prior to the date of submitting the proposed amendment to the Executive Director, has provided public notice, and provided a copy to the Coastal Commission, which specifies the dates and places where comments will be accepted on the proposed amendment, contains a brief description of the proposed amendment, and states the address where copies of the proposed amendment are available for public review, by one of the following procedures:

Publication, not fewer times than required by Section 6061 of the Government Code, in a newspaper of general circulation in the area affected by the proposed amendment. If more than one area will be affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.

ii.

Posting of the notice by the local government both onsite and offsite in the area affected by the proposed amendment.

iii.

Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.

The proposed amendment does not propose any change in land use or water uses or any change in the allowable use of property.

At the time that the City of Dana Point submits the proposed amendment to the Executive Director, the City of Dana Point shall also submit to the Executive Director any public comments that were received during the comment period provided pursuant to subparagraph a. of paragraph 1. above.

Determination of De Minimis.

The Executive Director shall make a determination as to whether the proposed amendment is de minimis within 10 working days of the date of submittal by the City of Dana Point. If the proposed amendment is determined to be de minimis, the proposed amendment shall be noticed in the agenda of the next regularly scheduled meeting of the Coastal Commission, in accordance with Section 11125 of the Government Code, and any public comments forwarded by the City of Dana Point shall be made available to the members of the Coastal Commission.

If three members of the Coastal Commission object to the Executive Director's determination that the proposed amendment is de minimis, the proposed amendment shall be set for public hearing in accordance with the procedures for either a major or minor amendment, as determined by the Executive Director, or, at the request of the City of Dana Point, returned to the City. If set for public hearing as a major amendment, the time requirements set by Sections 30512 and 30513 of the Coastal Act shall commence from the date on which the objection to the de minimis designation was made.

If three or more members of the Coastal Commission do not object to the de minimis determination, the de minimis local coastal program amendment shall become part of the City's certified local coastal program 10 days after the date of the Coastal Commission meeting. (Coastal Act/30514(d)).

Required Findings for Submittal of LCPAs to the Coastal Commission.

That the public and affected agencies have had ample opportunity to participate in the LCPA process.

That all policies, objectives, and standards of the LCPA conform to the requirements of the Coastal Act, including that the land use plan as amended is in conformance with and adequate to carry out the Chapter Three policies of the Coastal Act.

That Coastal Act policies concerning specific coastal resources, hazard areas, coastal access concerns, and land use priorities have been applied to determine the kind locations, and intensity of land and water uses.

That the level and pattern of development proposed is reflected in the Land Use Plan, Zoning Code, and Zoning Map.

That a procedure has been established to ensure adequate notice of interested persons and agencies of impending development proposed after certification of the LCPA.

That zoning measures are in place (prior to or concurrent with the LCPA) which are in conformance with and adequate to carry out the coastal policies of the Land Use Plan.

Notice/Public Participation Standards. In addition to Notice standards contained in Section 9.61.050, the following notice provisions shall apply (except for De Minimis LCP amendments in which case the notice provisions provided for in Section 9.61.080(e)(2)(C) above shall apply):

Notice of hearings on LCP documents shall be given general publication and shall be transmitted not less than 10 working days before the hearing. Notice of availability of public review drafts of LCPA materials and transmittal of said documents shall be made as soon as public drafts are available, but at a minimum at least six weeks prior to any final action on the documents by the City. Public review drafts shall also be made readily available for perusal in local libraries, at the offices of the Community Development Department and/or other appropriate location at City Hall, and at the Coastal Commission district office having jurisdiction over the City of Dana Point.

At a minimum, notices of public hearings, public review sessions, availability of public review drafts, studies, or other relevant documents or actions pertaining to the preparation and approval of LCPAs must be mailed free of charge by first class mail to:

Members of the public requesting such notices, including those on a list for all coastal decisions in the City;

Contiguous and affected local governments and special districts;

State and Federal agencies specified in Appendix A of Local Coastal Program Manual of the California Coastal Commission or other regional, state and federal agencies that may have an interest in or be affected by the LCPA, including the Coastal Commission itself; and

Local libraries and media. (14 Cal. Code of Regulations/13515).

Planning Commission Recommendation. The Planning Commission shall hold at least one public hearing on the proposed LCPA and make a written recommendation on the adoption of an amendment to a local coastal program. Such recommendation shall include the reasons for the recommendation and the relationship of the proposed Ordinance or amendment to the Coastal Act, and applicable General Plan and/or Specific Plan policies. The Planning Commission shall send its recommendation to the City Council.

City Council Resolution.

The LCPA shall be submitted to the California Coastal Commission, after public hearing, pursuant to a Resolution adopted by the City Council. The Resolution shall include the following:

A statement certifying that the City will carry out the local coastal program in a manner fully in conformity with Division 20 of the Public Resources Code as amended, the California Coastal Act of 1976. (Coastal Act/30510, 30605; 14 Cal. Code of Regulations/13551(a))

The Resolution shall include an exact description of the nature of the amendment, including but not limited to whether the amendment is to the land use plan, implementing actions, or both, and the nature of the proposed changes.

Resolutions for amendments involving changes to the land use plan shall certify that the City has found that the land use plan as amended is in conformity with and adequate to carry out the Chapter Three policies of the Coastal Act.

Resolutions for amendments involving changes to the implementing actions shall certify that the City has found that the implementing actions as amended are in conformity with and adequate to carry out the provisions of the certified land use plan.

The Resolution shall include the numbers of the General Plan, Zone Text, Zone Change, or other amendment(s) being submitted to the Coastal Commission to amend the certified local coastal program.

The Resolution shall include a statement certifying that the amendment will be submitted to the Coastal Commission for review and approval.

The City Council Resolution may provide that the amendment will take effect automatically upon Coastal Commission approval, or as an amendment that will require formal approval by Resolution of the City Council after approval by the Coastal Commission, (Coastal Act/30501, 30512, 30513, 30519, 30605; 14 Cal. Code of Regulations/13551(b))

Under either alternative in subsection 9.61.080(e)(6)(B) above, the requirements of Section 13544 or 13544.5 of the California Code of Regulations as amended must be fulfilled following Coastal Commission approval of the amendment, including that the City Council acknowledges receipt of the Coastal Commissions' certification of the amendment including any terms or modifications which may have been suggested for final certification and agrees to such terms or modifications. (Coastal Act/30501, 30605; 14 Cal. Code of Regulations/13551(b))

(7)

Contents of an LCPA Submittal to the Coastal Commission. At a minimum, the following shall be included in an LCPA submittal:

A summary of the measures taken to provide the public and affected agencies and districts maximum opportunity to participate in the LCP amendment process, including;

a listing of members of the public, organizations, and agencies appearing at any hearing or contacted for comment on the LCP amendment, and copies of speaker slips for all persons testifying at said hearing(s);

copies or written summaries of significant comments received and of the City's response to those comments;

Copies of hearing notices for all public hearings at which the LCPA was discussed or scheduled for discussion;

Proof of publication.

All policies, plans, standards, objectives, diagrams, drawings, maps, photographs, and supplementary data, related to the amendment in sufficient detail to allow review for conformity with the requirements of the Coastal Act. Written documents should be readily reproducible. An amendment to the "land use plan" portion of the LCP shall include, where applicable, a readily identifiable public access component.

A written discussion of the LCPA's relationship to and effect on the other sections of the certified LCP.

An analysis that meets the requirements of Section 13511 or alternatively Section 13514 of the California Code of Regulations as amended. As part of the analysis, the Chapter Three policies of the Coastal Act shall be applied to determine the kind, location and intensity of land and water uses that would be in conformity with the Chapter Three policies.

Any environmental review documents, pursuant to the California Environmental Quality Act, required for all or any portion of the LCPA.

An indication of the zoning measures that will be used to carry out the amendment to the land use plan (unless submitted at the same time as the amendment to the land use plan). (Coastal Act/30501; 14 Cal. Code of Regulations/13552).

(G)

Copies of City staff reports for all public hearings at which the LCPA was discussed or scheduled for discussion.

(H)

Copies of final, adopted Ordinances and Resolutions approving the LCPA.

(I)

Copies of final, approved minutes of all public hearings at which the LCPA was discussed or scheduled for discussion.

(f)

Specific Plan Amendments.

Planning Commission Recommendation. The Planning Commission shall hold at least one public hearing and make a written recommendation on the adoption of an amendment to a Specific Plan. The Planning Commission shall forward its recommendation to the City Council.

City Council Public Hearing. Any proposed amendment to a Specific Plan requires application and noticing as outlined in this Chapter. One City Council public hearing is required.

Amendment by Resolution and Ordinance. The City Council may adopt amendments to Specific Plans by Resolution and Ordinance. The City Council may approve, modify, or disapprove the recommendation of the Planning Commission. Any substantial changes proposed by the City Council not previously considered by the Planning Commission shall first be referred to the Planning Commission for its consideration.

(g)

Procedural Duties Regarding Amendments.

When an application for an amendment is filed in accordance with Section 9.61.040, or when the City Council or Planning Commission has initiated an amendment, the Director of Community Development shall schedule the proposed amendment for a public hearing pursuant to Section 9.61.050 of this Code.

The Planning Commission, upon receiving the recommendation of the Director of Community Development, shall hold a public hearing to ensure consistency with the General Plan or to provide for the public health, safety, and welfare of the citizens, visitors, and workers in the City of Dana Point.

The Planning Commission shall transmit a written recommendation on the proposed amendment to the City Council. The recommendation of the Planning Commission may be for approval, conditional approval or denial except when the proposed amendment is a Zone Change, in which case the recommendation shall be for approval or denial.

The Commission may continue a hearing in order to consider new or revised information as it deems necessary. A continuance shall not extend the period of time within which State law requires the City to render a final decision, unless the applicant requests, or consents to, a continuance beyond that period of time.

Upon receiving the recommendation of the Planning Commission, the City Council shall hold a public hearing and shall make a determination and take final action on the amendment. This action shall take place within the time period specified in Section 9.61.040 of this Code.

The Director of Community Development shall maintain an index of all approved amendments to this Code in order to insure that the Code is properly updated.

(7)

For amendments in the Coastal Zone, the Director of Community Development shall provide notice of the amendment hearings and action to the California Coastal Commission.

(h)

Decision of the City Council. The City Council may approve or deny an application for an amendment. Except for Local Coastal Program Amendments, the action of the City Council shall be final.

(i)

Basis for Denial of Amendments. Amendments to the General Plan, Zoning Code, Zoning Map, Local Coastal Program, or Specific Plan may be denied if they are found to be:

Inconsistent with the General Plan;

Inconsistent with a goal or policy of the General Plan;

Inconsistent with the provisions of the Coastal Act;

Inconsistent with mandatory findings required by State law or by this Code; or

§ 9.61.090 Administrative Modification of Standards.

A threat to the public health, safety, and welfare.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-21, 12/13/94; Ord. 97-05, 9/9/97; Ord. 99-05, 4/27/99)

Intent and Purpose. Standards may be administratively modified by the Director of Community Development to permit development on property which is constrained due to lot size, shape, location, access restrictions, physical constraints or other constraints. Administrative modifications are used only when deviations from Code standards are truly minor and no potential impact will occur to the health, safety or general welfare of adjacent persons or properties will occur.

Authority of the Director of Community Development. The Director of Community Development shall have the authority to approve, conditionally approve, or deny an application for an administrative modification pursuant to the following limitations:

Reduction of required lot area, minimum floor area, setbacks, courts or open areas, landscaped areas, distance between buildings or size and location of parking spaces required by the Zoning Code;

Increases in the height of both retaining and non-retaining side or rear yard fences, walls, or hedges by not more than 10% of the maximum permitted height.

Procedure for Administrative Modifications.

An application shall be filed with the Community Development Department pursuant to Section 9.61.040.

The Director of Community Development shall review the application and shall determine whether the application is complete as described in Section 9.61.040 and whether the application qualifies as an administrative modification within 30 days of the application date.

Notice of the administrative modification shall be provided to owners of the abutting properties.

When in the public interest and agreed to by the applicant, the Director of Community Development may consider and render decisions on administrative modifications without a public hearing.

If the application qualifies as an administrative modification, the Director of Community Development shall render a decision on the request within 30 days of the application being deemed complete and qualified. If the application does not qualify as an administrative request, the Director shall notify the applicant, and the application may be withdrawn as described in Section 9.61.070.

Appeals of the Director's decision may be made pursuant to the provisions of Section 9.61.110.

Basis for Approval or Denial of Administrative Modifications.

The Director of Community Development may impose such conditions as are deemed necessary to protect the public health, safety, and general welfare and assure compliance with the provisions and standards included in this Zoning Code.

In making such determination, the Director of Community Development shall find that the proposed administrative modification meets the following criteria:

That there are practical difficulties or unnecessary hardships created by strict application of the Zoning Code due to physical characteristics of the property; and

The administrative modification does not constitute a grant of special privileges which are not otherwise available to surrounding properties in similar conditions and will not be materially detrimental to the public welfare or to the property of other persons located in the vicinity; and

The administrative modification places suitable conditions on the property to protect the public health, safety, and welfare and surrounding properties.

For development within the coastal zone, that the administrative modification would not result in significant adverse impacts either individually or cumulatively to coastal access/recreation opportunities or coastal resources, and the development would be consistent with the policies of the Local Coastal Program certified land use plan.

Notice of Action. The Director of Community Development shall transmit a written Notice of Action to the applicant by first class mail.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 97-05, 9/9/97; Ord. 03-07, 4/9/03)

§ 9.61.100 Preliminary Review.

A preliminary review is a request for a pre-submittal evaluation of a project. The preliminary review will assess the site and architectural design of the proposed project. In addition, this review will consider General Plan consistency, development standards, land use compatibility and community values. The objective of this exercise is to provide the applicant with a sense of the issues that need to be addressed in the formal application. The preliminary review process is not intended and cannot be used as a process to determine the ultimate decision on the formal application. Information gathered through this process can be used to determine whether a formal application should be filed.

Review Levels. There are two levels of preliminary review available to a prospective applicant, described as follows:

Staff Level Review. Staff level review involves an informal assessment of the proposed project by the Community Development and Public Works Staff. These reviews are conducted during the regular weekly staff meetings. This review provides the applicant with an opportunity to receive preliminary comments from the departments who will ultimately make recommendations on a formal application. Staff will provide comments on the preliminary review within five working days of the staff meeting.

Planning Commission Review. Preliminary review by the Planning Commission is a more formal option available to the applicant. This process is more appropriate for projects which may involve more significant issues of sensitivity or compatibility, or qualitative interpretations of City policy. Through this process, a brief assessment will be prepared by staff to identify the issues pertinent to the proposed project. The applicant will have the opportunity to present the proposal directly to the Planning Commission. Preliminary reviews are considered by the Planning Commission under "New Business" at regular meetings. The Planning Commission is legally limited in the type and amount of input they can provide at this level. Typically, comments are focused on the identification of potential issues which may be raised during consideration of a formal submittal. General feedback on how key issues or policies might apply to the project may also be provided.

Fees. Staff level preliminary reviews require no fee. A fee in accordance with those set forth in a annual resolution of the City Council shall apply to an application for preliminary review by the Planning Commission.

Required Submittals.

Staff Level Review. One copy of the conceptual site plan, floor plan(s), building elevations, and any other relevant exhibits.

Planning Commission Review.

Ten copies of the conceptual site plan, floor plan(s), building elevations and any other relevant exhibits;

A letter which provides a brief explanation of the proposed project and justification for the project based on General Plan policies and Zoning Code provisions;

A completed planning application form;

A filing fee as required by Section 9.61.100(b).

(Added by Ord. 94-09, 5/24/94)

§ 9.61.110 Appeal Procedures.

Decisions May Be Appealed. Any decision rendered by the Director of Community Development may be appealed by the applicant, the Planning Commission, the City Council, any property owner or resident of property within a 500 foot radius of the subject property, or any group or individual. Appeals of decisions by the Director of Community Development shall be heard by the Planning Commission.

Any decision rendered by the Planning Commission may be appealed by the applicant, the City Council, any property owner or resident of property within a 500 foot radius of the subject property, or any group or individual. Appeals of decisions by the Planning Commission shall be heard by the City Council.

Filing of Appeals. Appeals to the Planning Commission and City Council must be made no later than 15 calendar days after the rendering of the decision being appealed. Appeals to the Planning Commission shall be filed with the Director of Community Development. Appeals to the City Council shall be filed with the City Clerk.

Appeal Contents. Appeals filed in writing with the Director of Community Development or the City Clerk shall specifically cite the basis of the appeal, including how the person filing the appeal is negatively impacted by the deciding body's determination to approve, conditionally approve, or deny an application.

Appeals of Coastal Development Permit. After the exhaustion of the appeal procedures described in Section 9.61.100(a) through (c) above, except as provided for in Section 9.69.090(a)(1) of this Zoning Code, the City's final action on a coastal development permit for development that is appealable, as described in Section 9.69.090, may be appealed to the Coastal Commission in accordance with the procedures specified in Section 9.69.090.

§ 9.61.120 Revocations and Modifications.

Notice of Appeal Hearings. Notice of an appeal hearing shall conform to the requirements of Section 9.61.050 for the original application. The appellant shall be responsible for all noticing materials required in the original application.

(f)

Effective Date of Appealed Actions. A decision rendered by the Director of Community Development appealed to the Planning Commission shall not become final until upheld by the Commission. A decision rendered by the Planning Commission appealed to the City Council shall not become final until upheld by the Council.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-21, 12/13/94; Ord. 96-10, 8/13/96; Ord. 97-05, 9/9/97)

Revocation or Modification of Entitlements. The Planning Commission, on its own motion or by direction from the City Council, may recommend, and the City Council may approve the revocation and/or modification of any previously approved application or granted entitlement, after holding a properly noticed public hearing on the matter where any of the following findings are made:

That the approved application or entitlement was obtained by fraud; or

That the approved application or entitlement is not being exercised; or

That the approved application or entitlement has ceased or has been suspended for a period of time and is causing detriment to the public health, safety and welfare or constitutes a public or private nuisance; or

That the use for which the approved application or entitlement was granted or permitted is being or has been operated or used contrary to the terms or conditions of such approval, or in violation of any statute, ordinance, law, or regulation; or

If any provision of an approved application or entitlement is held or declared invalid, the approved application or entitlement shall be void and all privileges granted thereunder shall lapse.

Notice of Action.

Notice of the action taken by the City Council at a hearing for a revocation or modification of an approved application or entitlement shall be sent by certified mail, return receipt requested, to the person owning and operating the property, structure, or use.

Notification of the action by the City Council shall be made by serving a notice in the manner required by law.

Effective Date of Revocations and Modifications. An order by the City Council revoking or modifying an entitlement shall become effective immediately.

(Added by Ord. 93-16, 11/23/93)

§ 9.61.130 Expiration and Extensions.

Expiration. When the activity for which a discretionary permit such as Conditional Use Permit, Coastal Development Permit or Site Development Permit was granted is not implemented or utilized within the time frame specified in the permit, or within two years if no timeframe is specified in the permit, the discretionary permit shall become null and void and of no effect, unless the permit is extended as provided below.

Extensions. A discretionary permit may be extended in accordance with the following provisions:

An application, consisting of a letter requesting an extension, shall be submitted to the Community Development Department prior to the expiration date of the subject discretionary permit.

A fee, in accordance with the annual fee resolution adopted by the City Council shall be submitted with the letter.

A maximum of two extensions may be granted. Action on the first extension request may be taken administratively by the Director of Community Development. The Director may grant a one-time extension for a maximum of 12 months. Second extension requests must be presented to the Planning Commission for action. The Planning Commission may grant the second extension for a maximum of 12 months.

The action of the Director of Community Development or Planning Commission on a request for extension may be appealed in accordance with Section 9.61.110.

A request for extension may be approved, conditionally approved or denied. An action to conditionally approve or deny a request for extension may be based on the existence of new requirements or standards which were not in effect at the time of the original approval. Such requirements or standards may be contained in the City's Zoning Code or in the Municipal Code, including the Health, Safety and Building Codes.

While the discretionary permit is deemed active during the consideration of an extension request, if the expiration date has passed, the permit may not be implemented unless and until the extension request has been approved.

§ 9.61.140 General Plan Consistency Requirements.

Exception. Where a proposal to acquire land for a governmental enterprise in conjunction with a discretionary permit has been approved, no time limit shall apply to the utilization of said permit, provided that within one year of the date of approval, the subject governmental agency has either acquired the subject property or has commenced legal proceedings for its acquisition.

(Added by Ord. 94-09, 5/24/94; amended by Ord. 08-04, 3/18/08)

Projects involving the acquisition, dedication, disposition, vacation, or abandonment of real property shall not be authorized until the location, purpose, and extent of the action has been submitted to and reported upon by the Planning Commission for consistency with the adopted General Plan. The following actions are exempt from this requirement:

The disposition of the remainder of a larger parcel which was acquired and used in part for street purposes;

Acquisitions, dispositions, or abandonments for street widening; or

Alignment projects, providing such dispositions for street purposes, acquisitions, dispositions, or abandonments for street widening or alignment projects are of a minor nature.

Applications for a General Plan Consistency finding shall be subject to review by the Planning Commission. At the discretion of the Director of Community Development, such applications may be processed in accordance with Section 9.61.040, Procedures for Applications Requiring Discretionary Action.