§ 9108.11

This Section provides requirements for the implementation or "exercising" of the permits or approvals required by this Development Code, including time limits and procedures for approving extensions of time.

9108.11.020 - Conformation to Approved Plans.

A.

Compliance. All work performed under a Building Permit, Encroachment Permit, or Grading Permit for which project drawings and plans have received approval by the Director, Department staff, 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 Subsection 9108.11.100 (Changes to an Approved Project), below.

C.

Effect of Development Code Amendments on Projects in Progress. The enactment of this Development Code, or an amendment to this Development Code, may have the effect of imposing different standards on a new land use than those that applied to existing development. (For example, this Development Code or a future amendment could specify different landscaping requirements than specified by the former regulations.) The following provisions determine how the requirements of this Development Code will apply to a development project that is in progress at the time this Development Code or an amendment goes into effect.

1.

Application Deemed Complete. A planning permit application (Division 7 [Permit Processing Procedures]), which has been deemed complete by the Director before the effective date of this Development Code or any amendment, shall be processed in compliance with the requirements in effect when the application was deemed complete.

2.

Project Under Construction. A project for which a Building Permit has been issued under the provisions of earlier ordinances of the City which are in conflict with this Development Code, and on which substantial construction has been performed by integration of materials on the site before the effective date of this

Development Code, may be continued and completed in compliance with the plans and specifications upon which the permit was originally issued.

3.

Subdivision Maps. Subdivision maps shall be processed in compliance with the Subdivision Map Act (Government Code Section 66410 et seq.) and Division 5 (Subdivisions).

9108.11.030 - Effective Dates of Permits.

A.

Approvals, Permits, and Variances. An Administrative Modification, Certificates of Demolition, Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Planned Development Permit, Reasonable Accommodation, Site Plan and Design Review, Site Plan and Design Review: Homeowners Association Areas, Temporary Use Permit, or Variance shall become effective 10 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 Development Code, a specific plan, or the Zoning Map shall become effective on the 31[st ] day following the date the ordinance is actually adopted by the Council. For example, an ordinance adopted on October 1[st ] 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.

C.

Issued on the Effective Date. Permits, certificates, and/or other approvals shall not be issued until the effective date, and then only if no appeal of the Review Authority's decision has been filed, in compliance with Section 9108.03 (Appeals).

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

A.

Full Understanding and Acceptance. The applicant, upon receipt of the approved copy of the permit with attached conditions, shall execute an Acknowledgment 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 Acknowledgment and Acceptance of Conditions agreement to the Department, properly signed and dated, within 30 days following the date of the Acknowledgement.

C.

Appeal. If the applicant wishes to appeal any or all of the final conditions of approval, the applicant shall file an appeal within 10 days following the actual date the decision was rendered by the applicable Review Authority in compliance with Section 9108.07 (Appeals).

D.

New Owner's or Tenant's Responsibility. Any new owner or tenant taking over an existing business's Conditional Use Permit or Minor Use Permit shall be required to sign and submit an Acknowledgment and Acceptance of Conditions stating they have been given a copy of the conditions of approval and accept them, before they are issued a new Business License for the subject business.

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 Development 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.

B.

Public Hearing. The application shall be deemed approved only if the application received proper notice in compliance with Section 9108.13 (Public Notice and Hearings) and Government Code Section 65956(b).

A.

Run with the Land. An Administrative Modification, Conditional Use Permit, Minor Use Permit, Planned Development Permit, Site Plan and Design Review Site Plan and Design Review: Homeowners Association Areas, Temporary Use Permit, or Variance approval that is approved in compliance with Section 9107.03 (Application Processing Procedures) 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 Subsection 9108.11.080 (Expiration), below.

B.

Conditions Shall Apply. All applicable conditions of approval shall continue to apply after a change in property ownership.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

A.

Deposit of Security.

1.

As a condition of approval of an Administrative Modification, Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Planned Development Permit, Site Plan and Design Review, Site Plan and Design Review: Homeowners Association Areas, Temporary Use Permit, or Variance, upon a finding that the City's health, safety, and general 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 Attorney 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, be in a form approved by the City Attorney.

4.

The security shall remain in effect until all of the secured conditions have been performed to the satisfaction of the Director in conjunction with the City Engineer.

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 Subsection.

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.

5.

The Director's determination may be appealed to the Council by the obligor by filing an appeal with the City Clerk within 10 days following the decision to withhold the security, in compliance with Section 9108.07 (Appeals).

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

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 Administrative Modification, Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Planned Development Permit, Site Plan and Design Review, Site Plan and Design Review: Homeowners Association Areas, Temporary Use Permit, or Variance, shall comply with the following expiration provisions. See Division 5 (Subdivisions) for expirations related to subdivision maps.:

1.

Exercised.

a.

To ensure continued compliance with the provisions of this Development 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 Subsection 9108.11.090 (Time Extensions). In the event the permit or approval has not been fully exercised in that time period, the permit or approval shall expire and be deemed void (vs. 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.

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 preexisting base zone and then develop the remaining phases in compliance with this Subsection, 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, and 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 submitted plans in Building Services plan-check.

b.

Whether the applicant has obtained a Building or 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. If a public hearing is required, noticing shall be conducted in compliance with Section 9108.13 (Public Notice and Hearings).

Exception: The determination of whether or not good faith intent to exercise the approval has been demonstrated, as specified in Subparagraph 3., above, for approvals issued in compliance with Subsection 9107.10 (Site Plan and Design Review: Homeowners Association Areas) shall be made by the original Review Authority.

b.

At the public hearing, the original Review Authority shall investigate the facts bearing on each case and render its decision in writing within 30 days following 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 Subparagraph 9107.03.080 F (Notice of the Decision).

d.

The decision of the original Review Authority shall be final following a 10-day appeal period, unless appealed to the applicable Review Authority in compliance with Section 9108.03 (Appeals).

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 Section 9108.13 (Public Notice and 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 deem the permit or approval expired and void. 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) with all required fees 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. No. 2363, § 4(Exh. A), 11-5-19)

Requests for a time extension for a permit or approval shall be filed and processed in the following manner:

A.

Filed Before Expiration.

1.

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 Fee Schedule.

2.

Exception: For Homeowners Association Area the applicant's written request for an extension of time shall be on file with the ARB Chairperson before expiration of the permit or approval.

B.

Public Hearing Requirements.

1.

A public hearing shall not be required for the Director's decision on an extension of time.

2.

However, the Director may conduct a public hearing in compliance with Section 9108.13 (Public Notice and Hearings) if deemed appropriate by the Director.

3.

A public hearing shall be required for the Commission's decision on an extension of time or the Council's decision if an appeal of the Commission's decision has been filed. The request for extension shall be noticed and the hearing shall be conducted in compliance with Section 9108.13 (Public Notice and Hearings).

4.

Exception: For Homeowners Association Area:

a.

A public hearing shall not be required for the ARB Chairperson's decision on an extension of time.

b.

The ARB Chairperson may, if deemed appropriate, defer action and refer the application to the Architectural Review Board for review under the Regular Review process and require a public hearing in compliance with Section 9108.13 (Public Notice and Hearings).

c.

A public hearing shall be required for the ARB's decision on an extension of time. The request for extension shall be noticed and the hearing shall be conducted in compliance with Section 9108.13 (Public Notice and Hearings).

C.

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 ARB, ARB Chairperson, Director, Commission, and/or Council.

2.

Building or Grading Permits shall not be issued in compliance with the permit or approval during the period of the suspension.

D.

Director's Action on First Extension.

1.

Upon good cause shown, an extension may be approved, approved with modifications, or denied by the ARB, ARB Chairperson, or Director, subject to the findings identified in Subsection F (Required Findings), below.

2.

The Director may defer action and refer the request to the Commission for consideration and final action.

3.

The ARB, ARB Chairperson, and Director's decision may be appealed to the Commission and then the Council, in compliance with Section 9108.03 (Appeals).

4.

The permit or approval may be extended for a maximum of 12-months beyond the expiration date of the original approval, unless otherwise allowed by State law.

E.

Commission's Action on Subsequent Extension.

1.

Upon good cause shown, an additional extension may be approved, approved with modifications, or denied by the Commission, subject to the findings identified in Subsection F. (Required Findings), below.

2.

The Commission's decision may be appealed to the Council, in compliance with Section 9108.03 (Appeals).

3.

The permit or approval may be extended for one additional 12-month period, unless otherwise allowed by State law, following the expiration of the original 12 (vs. 24) month period of approval, for a grand total of 48 months following the original date of approval (original 24 months, plus 12 months by the Director, and 12 more months by the Commission).

F.

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:

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

2.

Appropriate evidence has been provided by the applicant to document that:

a.

A good faith intent to exercise the permit or approval has been demonstrated; and

b.

The extension is required due to an unusual hardship that was not the result of personal action(s) undertaken by the applicant.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

9108.11.100 - Changes to an Approved Project.

A.

Application.

1.

A development or new land use allowed through an Administrative Modification, Conditional Use Permit, Home Occupation Permit, Minor Use Permit, Planned Development Permit, Site Plan and Design Review, Site Plan and Design Review: Homeowners Association Areas, Temporary Use Permit, or Variance shall be implemented 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 Subsection.

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.

Exception: For Site Plan and Design Review: Homeowners Association Areas applications, an applicant shall request desired changes in writing to the ARB Chairperson 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., days or hours of operation) 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.

5.

Changes shall not be implemented until first approved by the applicable Review Authority in compliance with this Subsection, and may be requested either before or after construction or establishment and operation of the approved use.

B.

Notice and Hearing. If the project application originally required a noticed public hearing, the Review Authority shall hold a public hearing, except for the minor changes outlined below (See Subsection C, Minor Changes by Director.), and shall give notice, in compliance with Section 9108.13 (Public Notice and Hearings).

C.

Minor Changes by an ARB Chairperson or Director. The ARB Chairperson or 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 Development 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 or appeal Review Authority that rendered the final City action on the application) through a new application, processed in compliance with this Development Code.

(Ord. No. 2363, § 4(Exh. A), 11-5-19)

Section 9108.13 - Public Notices and Hearings