This Chapter provides requirements for the implementation or "exercising" of the permits or approvals required by this Zoning Code, including time limits and procedures for approving extensions of time.
(Ord. 1017, 2013)
A.
Compliance. All work performed under a Building Permit, Encroachment Permit, Grading Permit, or Zoning Clearance for which project drawings and plans have received approval by the Director, Department staff, Development Review Committee, Commission, or Council shall be in compliance with the approved drawings and plans, and any conditions of approval imposed by the review authority.
B.
Changes. Changes to an approved project shall be submitted and processed in compliance with Section 20.565.100 (Changes to an Approved Project), below.
(Ord. 1017, 2013)
A.
Approvals, permits, and Variances.
1.
A Zoning Clearance, Home Occupation Permit, and Temporary Use Permit shall become effective immediately following its issuance.
2.
A Conditional Use Permit, Minor Use Permit, Minor Variance, Planned Development Permit, Site Plan and Design Review, or Variance shall become effective 10 calendar days following the actual date the decision was rendered by the applicable review authority.
B.
Plans/Amendments.
1.
Council actions to adopt or amend a development agreement, this Zoning Code, a specific plan, or the Zoning Map shall become effective on the 31st day following the date the ordinance is actually adopted by the Council. For example, an ordinance adopted on October 1st will actually be effective on November 1st, unless otherwise provided in the adopting ordinance.
2.
Council actions to adopt or amend the General Plan shall become effective on the actual date the decision is rendered by the Council, unless otherwise provided in the adopting resolution.
(Ord. 1017, 2013)
A.
Full understanding and acceptance. The applicant, upon receipt of the approved copy of the permit with attached conditions, shall execute an Acknowledgement and Acceptance of Conditions agreement with the City, certifying full understanding and acceptance of the final conditions of approval.
B.
Signed and dated. The applicant shall return the Acknowledgement and Acceptance of Conditions agreement to the Department, properly signed and dated, within 30 days following the date of the Acknowledgement.
(Ord. 1017, 2013)
A.
Applicable provisions. Any application deemed approved by operation of law in compliance with Government Code Section 65956(b) shall be subject to all applicable provisions of this Zoning Code, which shall be fully satisfied by the applicant before a Building Permit is issued or a land use not requiring a Building Permit is exercised or established.
(Ord. 1017, 2013)
A.
Run with the land. A Conditional Use Permit, development agreement, Minor Use Permit, Minor Variance, Planned Development Permit, Site Plan and Design Review, Temporary Use Permit, transfer of development rights, or Variance approval that is approved in compliance with Chapter 20.500 (Permit Application Filing and Processing) shall be deemed to run with the land through any change of ownership of the subject site, from the effective date of the permit, except in any case where a permit expires and becomes void in compliance with Section 20.565.080 (Expiration), below.
B.
Conditions shall apply. All applicable conditions of approval shall continue to apply after a change in property ownership.
(Ord. 1017, 2013)
A.
Deposit of security.
1.
As a condition of approval of a Conditional Use Permit, Minor Use Permit, Minor Variance, Planned Development Permit, Site Plan and Design Review, Temporary Use Permit, or Variance, upon a finding that the City's health, safety, and welfare warrant, the review authority may require the execution of a covenant to deposit security and the deposit of security in a reasonable amount and form approved by the City Manager to ensure the faithful performance of one or more of the conditions of approval of the permit or Variance in the event that the obligor fails to perform.
2.
The applicant/owner may offer to provide adequate security for the faithful performance of a condition(s) of approval imposed as part of the approval process if the Director determines that the condition(s) may be implemented at a later specified date (e.g., inability to install required landscaping due to weather conditions).
3.
The security shall, as required by law or otherwise at the option of the City Manager, be in the form of cash deposit or a certified or cashier's check, letter of credit, or a performance bond executed by the applicant and a corporate surety authorized to do business in California and approved by the City Manager.
4.
The security shall remain in effect until all of the secured conditions have been performed to the satisfaction of the Director.
5.
Security required in compliance with this Section shall be payable to the City.
B.
Release of security. Upon satisfactory compliance with all applicable provisions of this Section, the security deposit shall be released.
C.
Failure to comply.
1.
Upon failure to perform any secured condition, the City may perform the condition, or cause it to be done, and may collect from the obligor all costs incurred, including administrative, engineering, legal, and inspection costs.
2.
Any unused portion of the security shall be refunded to the obligor after deduction of the cost of the work.
3.
Any cost in excess of the security shall be an obligation of the applicant/owner and a lien on the property benefitted by the provisions of this Section.
4.
To the extent that the Director can demonstrate that the obligor willfully breached an obligation in a manner that the obligor knew, or should have known, would create irreparable harm to the City, the entire amount of the security may be withheld.
(Ord. 1017, 2013)
A.
Expiration of permit or approval. Unless otherwise specified in the permit or approval, any discretionary permit issued by the City, including, without limitation, any Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Minor Variance, Planned Development Permit, Site Plan and Design Review, Temporary Use Permit, or Variance, for projects not subject to the Subdivision Map Act shall comply with the following expiration provisions:
1.
Exercised.
a.
To ensure continued compliance with the provisions of this Zoning Code, the permit or approval shall be exercised by the applicant within 12 months following the date of final approval, unless otherwise specified in the permit or approval, or an extension is approved by the applicable review authority in compliance with Section 20.565.090 (Time Extensions). In the event the permit or approval has not been fully exercised in that time period, the permit or approval shall be subject to review by the review authority who originally granted the permit or approval to determine whether a good-faith intent to exercise the permit or approval has been demonstrated.
b.
Additionally, if after construction has started, commencement work is discontinued for a period of 12 months, or the proposed use is discontinued for a period of 12 months, the permit or approval shall be subject to review by the review authority who originally granted the permit or approval to determine whether a good-faith intent to commence the contemplated use or development granted by the permit or approval has been demonstrated.
c.
If the application for the permit or approval also involves the approval of a tentative map, construction commencement shall be implemented before the expiration of the companion final map.
2.
Phasing.
a.
Where the permit or approval provides for development in two or more phases or units in sequence, the permit or approval shall not be approved until the review authority has approved the final phasing plan for the entire project site. The project applicant shall not be allowed to develop one phase in compliance with the pre-existing base zone and then develop the remaining phases in compliance with this Chapter, without prior review authority approval.
b.
Pre-approved phases.
(1)
If a project is to be built in pre-approved phases, each subsequent phase shall have 12 months following the previous phase's date of construction commencement to the next phase's date of construction commencement to have occurred, unless otherwise specified in the permit or approval, or the permit or approval shall be subject to review by the review authority who originally granted the permit or approval to determine whether a good-faith intent to commence the contemplated use or development granted by the permit or approval exists.
(2)
If the application for the permit or approval also involves the approval of a tentative map, the phasing shall be consistent with the tentative map and the permit or approval shall be exercised before the expiration of the associated tentative map.
3.
Definition of "exercise" and evidence of "Good Faith." The following shall be a non-exclusive list of factors that the review authority may consider when determining whether or not a good-faith intent to exercise the permit or approval has been demonstrated:
a.
Whether the applicant has obtained a Building Permit.
b.
Whether the applicant has obtained a Grading Permit.
c.
Whether the applicant has diligently continued the approved grading and construction activities in a timely manner in compliance with the subject Building Permit.
d.
Whether the applicant has actually implemented the allowed land use, in its entirety, on the subject property in compliance with the conditions of approval.
4.
Procedure for determination.
a.
The determination of whether or not a good faith intent to exercise the permit or approval has been demonstrated, as specified in Subparagraph 3., above, shall be made by the original review authority following a public hearing noticed and conducted in compliance with Chapter 20.625 (Public Hearings).
b.
At the public hearing, the original review authority shall investigate the facts bearing on each case and render its decision in writing within 40 days after the date of the first hearing, unless continued for further investigation, study, or hearing.
c.
The original review authority shall cause to be served on the applicant, and if different, the property owner, its written decision, in compliance with Section 20.625.060 (Decision and Notice).
5.
Burden of proof. It shall be the applicant's burden to prove to the original review authority, by a preponderance of the evidence, that, no later than the date that the City delivered the public notice required by Chapter 20.625 (Public Hearings), a good-faith intent to exercise the permit or approval has been demonstrated.
B.
Effect of expiration. If the review authority who originally granted the permit or approval determines that a good-faith intent to exercise the permit or approval has not been demonstrated, the review authority shall determine that the permit or approval has expired. Thereafter, the following provisions shall control:
1.
No further action is required by the City;
2.
No further reliance may be placed on the previously approved permit or approval;
3.
The applicant shall have no rights previously granted under the permit or approval;
4.
The applicant shall be required to file a new application(s) and obtain all required approvals before any further construction can commence or any use may be implemented; and
5.
Any security provided by the applicant under the previously approved permit or approval may be utilized by the City to provide suitable protection from any harm that may result from the terminated development or use.
(Ord. 1017, 2013)
Requests for a time extension for a permit or approval shall be filed and processed in the following manner:
A.
Director's action to extend.
1.
The Director shall have the authority to extend the period specified in Section 20.565.080 (Expiration), above, for up to one additional six-month period. The Director may defer action and refer the request to the Commission for consideration and final action.
2.
The applicant's written request for an extension of time shall be on file with the Department before expiration of the permit or approval, together with the filing fee required by the City's Planning Fee Schedule.
B.
Suspension of expiration.
1.
The filing of a written extension request shall suspend the actual expiration of the permit or approval until the extension request has been acted upon by the Director.
2.
Building or Grading Permits shall not be issued in compliance with the permit or approval during the period of the suspension.
C.
Applicable review authority's action on further extension.
1.
Upon good cause shown, a further extension may be approved, approved with modifications, or disapproved by the applicable review authority (i.e., Director, Commission, or Council) that originally granted the permit or approval, subject to the findings identified in Subsection G. (Required findings), below.
2.
The permit or approval may be extended for up to one additional 12-month period, up to a maximum of three years following the original date of approval, unless otherwise allowed by State law.
D.
Required findings. An extension of the permit or approval may be granted only if the applicable review authority first makes all of the following findings:
1.
There have been no changes in circumstances or law that would preclude the review authority from making the findings upon which the original approval was based; and
(Ord. 1017, 2013)
A.
Application.
1.
A development or new land use allowed through a Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Minor Variance, Planned Development Permit, Site Plan and Design Review, Temporary Use Permit, or Variance shall be in substantial compliance with the approved drawings and plans, and any conditions of approval imposed by the review authority, except where changes to the project are approved in compliance with this Section.
2.
An applicant shall request desired changes in writing to the Director, and shall also furnish appropriate supporting materials and an explanation of the reasons for the request.
3.
Requested changes may involve changes to the project (e.g., hours of operation, expansion of a use, etc.) as originally proposed by the applicant or approved by the review authority.
4.
Requested changes may also involve changes to one or more conditions imposed by the review authority, but only when actual changes to the project would justify a change to one or more conditions of approval (e.g., reduction in the area of a use would result in a reduction in anticipated traffic, thereby possibly reducing the traffic-related conditions).
5.
Changes shall not be implemented until first approved by the applicable review authority in compliance with this Section, and may be requested either before or after construction or establishment and operation of the approved use.
C.
Minor changes by Director. The Director may authorize minor changes to an approved site plan, architecture, or the nature of the approved use only if the changes:
1.
Are consistent with all applicable provisions of this Zoning Code and are in substantial compliance with the original approval; and
2.
Do not involve a feature of the project that was:
a.
A basis for findings in a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report for the project, or determining that the project was exempt from CEQA review;
b.
A basis for conditions of approval for the project; or
c.
A specific consideration by the review authority (e.g., the Director, Commission, or Council) in granting the permit or approval.
D.
Major changes. Major changes include changes to the project involving features specifically described in Subparagraph C. 2., above, and shall only be approved by the review authority (e.g., original, appeal, call for review authority that rendered the final City action on the application) through a new application, processed in compliance with this Zoning Code.
(Ord. 1017, 2013)
A.
Resubmittal after disapproval with prejudice. The review authority may disapprove a discretionary permit or amendment, on the ground that a similar application for the same site has been disapproved in the past two years, or other time period as the previous review authority may have specifically stated in its disapproval (also known as disapproval with prejudice).
B.
Exception to Subsection A., above. The review authority may allow exception to Subsection A., above, based on one or more of the following findings:
1.
New evidence material to a revised decision will be presented that was unavailable or unknown to the applicant at the previous hearing(s) and that could not have been discovered in the exercise of reasonable diligence by the applicant.
2.
There has been a substantial and permanent change of circumstances since the previous hearing(s), which materially affects the applicant's real property.
3.
A mistake was made at the previous hearing(s) that was a material factor in the disapproval(s) of the previous application.
C.
Resubmittal after disapproval without prejudice. There shall be no limitation on subsequent applications for a site where a project was disapproved without prejudice.
(Ord. 1017, 2013)
A.
Applicability. When necessary to achieve the land use goals of the City, the City may require a property owner holding property in common ownership to execute and record a Covenant of Easement in favor of the City, in compliance with Government Code Sections 65870 et seq.
1.
Required provisions. A Covenant of Easement may be required to provide for emergency access, ingress and egress, landscaping, light and air access, open space, parking, reciprocal access, or for solar access.
2.
Condition of approval. The Covenant of Easement may be imposed as a condition of approval by the applicable review authority.
B.
Definitions. For purposes of this Section, the following words, terms, and phrases, when used in this Section, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:
1.
Easement. An easement is usually for the benefit of one or more individuals, and it is actually an interest in land that belongs to someone else and creates an encumbrance on that land. It is created by grant of easement and accompanied by a legal description and plat of the easement.
2.
Irrevocable offer of dedication. This is an actual offer of dedication for future right-of-way which cannot be revoked by the grantor. The offer is recorded, but does not go into effect until the Council authorizes and accepts the right-of-way. The exhibits used are the same as for any other dedication, a legal description and a plat showing its location.
3.
Partial Reconveyance. If a landowner has a loan against the subject property, there is a first deed of trust on the property. The City requires that all property purchased from a property owner be free and clear of all encumbrances. This requires a release from the lender for that portion of the property the City is acquiring.
4.
Reciprocal Access Easement. This is an agreement between parties owning adjacent properties. This allows all owners of property that have entered into this agreement the right to cross over the others property. This instrument is used for ingress and egress, parking, sanitary sewer, water and storm drainage across, over, or under each property for the benefit of each party.
5.
Right-of-entry. Gives the City the right to enter across, over, under, or upon the grantor's property and is usually used to allow construction to proceed before right-of-way being acquired.
C.
Form of covenant. The form of the Covenant shall be approved by the City Attorney, and the Covenant of Easement shall:
1.
Describe property. Describe the real property subject to (i.e., burdened by) the easement;
2.
Describe property to be benefited. Describe the real property to be benefited by the easement;
3.
Planning permit. Identify the City approval or planning permit approved that relied on or required the Covenant; and
4.
Purpose of easement. Identify the purpose(s) of the easement.
D.
Recordation. The Covenant of Easement shall be recorded in the County Recorder's Office.
E.
Effect of covenant. From and after the time of its recordation, the Covenant of Easement shall:
1.
Act as an easement. Act as an easement in compliance with Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the Civil Code, except that it shall not merge into any other interest in the real property. Civil Code Section 1104 shall be applicable to the conveyance of the affected real property; and
2.
Impart notice. Impart notice to all persons to the extent afforded by the recording laws of the State. Upon recordation, the burdens of the Covenant shall be binding on, and the Covenant shall benefit, all successors-in-interest to the real property.
F.
Enforceability of covenant. The Covenant of Easement shall be enforceable by the successors-in-interest to the real property burdened or benefited by the Covenant and the City. Nothing in this Section creates standing in any person, other than the City, and any owner of the real property burdened or benefited by the Covenant, to enforce or to challenge the Covenant or any requested amendment or release.
G.
Release of covenant. The release of the Covenant of Easement may be affected by the Director, or under an appeal, only following a noticed public hearing in compliance with Chapter 20.625 (Public Hearings).
1.
May be released by City. The Covenant of Easement may be released by the City, at the request of any person, including the City or an affected property owner, on a finding that the Covenant, on the subject property, is no longer necessary to achieve the land use goals of the City.
2.
Recordation of notice. A notice of the release of the Covenant of Easement shall be recorded by the Director with the County Recorder's Office.
H.
Fees. The City shall impose fees to recover the City's reasonable cost of processing a request for a release. Fees for the processing shall be established by the City's Planning Fee Schedule.
(Ord. 1017, 2013)