Berkeley Municipal Code Ch. 23.404 Common Permit Requirements

This chapter establishes requirements that apply to all discretionary permits required by the Zoning Ordinance. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Application Submittal. Applications for discretionary permits required by the Zoning Ordinance shall be submitted to the Planning and Development Department ("Department").

B. Application Form and Contents.

1. Applications shall be made in writing on a form provided by the Department.

2. Applications shall identify one person as the applicant.

3. Applications shall be filed with all information and materials required by the Department. Depending on the type of project and required permit, required information and materials may include plans, renderings, models, photographs, material samples, reports, studies, and other items necessary to describe existing conditions and the proposed project.

4. All submitted application materials become City property available to the public.

5. The applicant is responsible for the accuracy and completeness of all information submitted to the City.

C. Eligibility for Filing. An application may be filed by:

1. The owner of the subject property;

2. An agent with written authorization to represent the owner;

3. A person under contract or with an exclusive option to purchase the property, with written consent of the current owner;

4. A tenant with written consent of the owner or the owner’s authorized designee; or

5. An agency lawfully instituting eminent domain proceedings.

D. Pre-Application Notice Posted by Applicant.

1. Before submitting an application for a discretionary permit, an applicant shall post a conspicuous notice of the proposed project readily visible from the street adjacent to the property’s primary frontage.

2. The form and contents of the notice shall be as specified by the Department.

E. Application Fees.

1. When Required.

(a) An application shall be accompanied by all required fees listed in the current Fee Schedule approved by the City Council.

(b) The Department will process an application only if all required fees are paid, unless the City approves a fee waiver in accordance with Paragraph 2 (Fee Waivers) below. The Department will not deem an application complete if a required fee remains unpaid.

(c) Application fees are not required when the City is the applicant, or when a fee is waived under any other provision of the Municipal Code.

2. Fee Waivers. In addition to seeking a fee waiver or deferral under other provisions of the Municipal Code, an applicant may request a fee waiver or deferral as follows:

(a) An applicant shall submit to the Department a written request for a fee waiver or deferral before submitting the application. The request shall identify the amount of all Current Planning fees required for the project and describe the reasons why the fee waiver or deferral is necessary.

(b) The Director shall forward the request to the City Manager. The City Manager may approve the request upon finding that:

i. The project will provide a significant public service or benefit, and

ii. The waiver or deferral is necessary to make the project economically feasible to construct or establish.

(c) The City Manager shall notify the City Council of a decision to approve a requested fee waiver or deferral. At its discretion, the City Council may reverse the City Manager’s decision and deny the request.

(d) If the request is approved, the applicant shall include with the application a letter from the City Manager authorizing the fee waiver or deferral. The Department will accept the application only if submitted with the City Manager’s letter.

3. Refunds and Withdrawals.

(a) If an application is withdrawn before a decision, the applicant may be eligible for a refund of a portion of the fee.

(b) The amount of the refund shall be determined by the Zoning Officer based on the level of staff review conducted to date. Refunds of fees may not be made for denied applications.

F. Multiple Permit Applications.

1. Zoning Ordinance Discretionary Permits. The following procedures apply to proposed projects that require multiple discretionary permits under the Zoning Ordinance (e.g., Use Permit and Variance).

(a) An applicant shall request City approval of all required permits as part of a single application unless the Zoning Officer waives this requirement.

(b) The Department shall process multiple permit applications for the same project concurrently.

(c) City action on projects requiring multiple permits shall occur as follows:

i. Concurrently for permits reviewed by the same review authority (e.g., the Zoning Adjustments Board (ZAB) concurrently reviews and acts on a Variance and Use Permits required for a project); and

ii. Sequentially for permits reviewed by different review authorities, as necessary (e.g., the City Council approves a Zoning Map amendment before ZAB action on a Use Permit).

2. Design Review. See Section 23.406.070 (Design Review) for the Design Review application process.

3. Other Permits.

(a) Separate applications are required for permits required by portions of the Municipal Code outside of the Zoning Ordinance. The City will review and act on these applications in a separate but coordinated process from applications required under the Zoning Ordinance.

(b) For example, if a project requires both a Use Permit approved by the ZAB and a Structural Alteration Permit (SAP) approved by the Landmarks Preservation Commission (LPC), then a separate SAP application is required. A SAP application is processed separately from the Use Permit applications and is scheduled for consideration at a hearing before the LPC. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Review for Completeness.

1. Determination of Completeness. Department staff shall determine whether an application is complete based on the Department application submittal checklist.

2. Request for Additional Information. If it is not complete, the Department shall inform the applicant in writing as to the information and materials needed to complete the application.

3. Review Timeline. The Department shall review and determine whether an application is complete within the timelines required by Government Code Section 65920 et seq. (Permit Streamlining Act).

B. Record of Date of Complete Application. The Department shall record the date the application is deemed complete.

C. Referrals to Landmarks Preservation Commission. At every regular Landmarks Preservation Commission (LPC) meeting, the Department shall provide the LPC a list of all pending permit applications.

D. Project Evaluation and Staff Reports.

1. Staff Evaluation. The Department shall review all applications to determine if they comply with the Zoning Ordinance, the General Plan, and other applicable City policies and regulations and state laws.

2. Staff Report. For all applications requiring review by the ZAB and City Council, the Department shall prepare a staff report describing the proposed project and including, where appropriate, a recommendation to approve, approve with conditions, or deny the application.

3. Report Distribution. The staff report shall be given to the applicant after it is provided to the review authority and before action on the application.

E. Environmental Review.

1. CEQA Review.

(a) After acceptance of a complete application, the Department shall review the project in compliance with the California Environmental Quality Act (CEQA) and any adopted City CEQA guidelines.

(b) The City shall determine the required level of environmental review (e.g., exemption, Negative Declaration) within the timeframe required by CEQA.

2. Special Studies Required. Special studies, paid for in advance by the applicant, may be required to supplement the City’s CEQA compliance review.

F. Summary Denial of Applications.

1. Section Purpose. This section describes the process by which the Zoning Officer may deny an application without notice or hearing ("summary denial") for property subject to City action to abate a public nuisance or correct a Zoning Ordinance violation.

2. Applications Subject to Summary Denial.

(a) The Zoning Officer may summarily deny an application that would legalize a structure or use subject to a final City order under 23.414 (Nuisance Abatement).

(b) The Zoning Officer shall not summarily deny applications for permits that are necessary to comply with any such order.

3. Factors to Consider. When deciding whether to deny such an application, the Zoning Officer shall consider:

(a) Whether the project will be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the area or neighborhood of the proposed use;

(b) Whether the project will be detrimental or injurious to property and improvements of the adjacent properties, the surrounding area or neighborhood or to the general welfare of the City;

(c) Whether the applicant had an adequate opportunity to submit the application before the adoption of a final order under Chapter 23.414 (Nuisance Abatement); and

(d) The level of permit applied for (i.e., AUP, Use Permit, or Variance). Applications for Variances as a means of legalizing a violation are particularly disfavored.

4. Hearing Not Required. A public hearing is not required for the Zoning Officer to summarily deny an application.

5. Decision is Final. A decision by the Zoning Officer to summarily deny an application is final and may not be appealed. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Notice of Administrative Decisions.

1. When Required. A Notice of Administrative Decision shall be given after the Zoning Officer’s decision on an Administrative Use Permit (AUP).

2. Content of Notice. A Notice of Administrative Decision shall contain the following information:

(a) A description of the proposed project in the AUP application.

(b) The Zoning Officer’s decision on the AUP application.

(c) The location and times in which the application may be reviewed by the public.

(d) The procedure and time period in which the decision may be appealed to the Zoning Adjustments Board (ZAB).

(e) The address where appeals may be filed.

3. Timing of Notice. A Notice of Administrative Decision shall be posted and mailed after the Zoning Officer’s decision on the AUP.

4. Notice Posting. A Notice of Administrative Decision shall be posted at:

(a) Three visible locations in the vicinity of the subject property; and

(b) The lobby of the Permit Service Center.

5. Notice Mailing.

(a) Minimum Requirement. A Notice of Administrative Decision shall be mailed to the following:

i. Neighborhood and community organizations with a registered interest in receiving notice of the proposed project. See Section 23.404.040.E (Public Notice).

ii. For projects in or adjacent to a Residential District, the owners and residents of the abutting properties.

iii. For major residential additions in the R-1 district within the Hillside overlay zone, the owners and residents of properties within a 300-foot radius of the subject property.

iv. The City of Berkeley Central Library.

(b) Additional Notice. The Zoning Officer may include a larger area to receive a mailed notice when the proposed project may impact a larger area.

6. Temporary Uses and Structures. An AUP for a temporary use or structure is subject to the same notice requirements as other AUPs, except that notice shall be provided at least 14 days before the establishment of the temporary use or structure.

7. Failure to Receive Notice. The validity of the decision shall not be affected by the failure of any property owner, resident, or neighborhood or community organization to receive a mailed notice.

B. Public Hearing Notice.

1. When Required. Public notice shall be given as required by this section for:

(a) Zoning Adjustment Board (ZAB) hearings on Use Permits, Variances, and other decisions requiring a public hearing as specified in the Zoning Ordinance; and

(b) City Council hearings on appeals of ZAB decisions.

2. Content of Notice. Notice of a public hearing shall contain the following information:

(a) The date, location, and time of the hearing.

(b) A written description of the proposed project, including the number of dwelling units and floor area if applicable.

(c) Maps, plans, and other information needed to describe and illustrate the proposed project, as determined necessary by the Department.

(d) The environmental review status under the California Environmental Quality Act (CEQA).

(e) Directions on how to obtain further information about the proposed project or hearing.

(f) The location and times the application may be reviewed by the public.

(g) Instructions to submit written comments on the proposed project.

3. Timing of Notice. Notices shall be posted and mailed at least 14 days before the hearing unless a longer notice period is required by state law. The Zoning Officer or ZAB may extend the notice period to a maximum of 30 days for applications of major significance.

4. Notice Posting. A notice of public hearing shall be posted:

(a) At three visible locations in the vicinity of the subject property:

(b) At the Civic Center (Old City Hall); and

(c) In the lobby of the Permit Service Center.

5. Notice Mailing.

(a) Minimum Requirement. A notice of public hearing shall be mailed to the following:

i. The owners and residents of the abutting and confronting properties.

ii. For the construction or demolition of one or more dwelling units, all property owners and residents within 300 feet on the same street or streets as the proposed project, including the abutting properties to the rear and within a 300-foot radius of the subject property.

iii. For a relocated building, all property owners and residents within a 300-foot radius of both the existing and proposed new location of the building.

iv. Neighborhood and community organizations with a registered interest in receiving notice of the proposed project. See Section 23.404.040.E (Public Notice--Registry of Organizations to Receive Notice).

v. The City of Berkeley Central Library.

vi. Any person who has filed a written request for notice.

(b) Additional Notice. The Zoning Officer, ZAB, or City Council may include a larger area to receive a mailed notice when deemed appropriate.

(c) Failure to Receive Notice. The validity of the hearing shall not be affected by the failure of any property owner, resident, or neighborhood or community organization to receive a mailed notice.

6. Master Use Permit. For a Master Use Permit application, all businesses, residents, and property owners within 500 feet of the subject property shall receive a notice in addition to the notice recipients listed in Paragraph B.5.a (Minimum Requirement) above.

C. Public Notice for Zoning Ordinance Amendments.

1. When Required. Public notice shall be given as required by this section for Planning Commission and City Council hearings on proposed Zoning Ordinance Amendments.

2. Content of Notice. Notice of a public hearing shall contain the following information:

(a) The date, location, and time of the hearing.

(b) A written description of the proposed amendment.

(c) A map showing the location of a proposed Zoning Map amendment, if applicable.

(d) The environmental review status under the California Environmental Quality Act (CEQA).

(e) Directions on how to obtain further information about the proposed amendment or hearing.

(f) Instructions to submit written comments on the proposed amendment.

3. Timing of Notice. Notice shall be provided at least 10 days before the hearing unless a longer notice period is required by state law. The Planning Commission or City Council may require an extended notice period for applications of major significance.

4. All Zoning Ordinance Amendments. The following notice requirements apply to all Zoning Ordinance Amendments.

(a) Notice shall be posted at the Civic Center (Old City Hall) and in the lobby of the Permit Service Center.

(b) Notice shall be mailed to:

i. Neighborhood and community organizations with a registered interest in receiving notice of the proposed amendment. See Section 23.404.040.E (Public Notice).

ii. The City of Berkeley Central Library; and

iii. Any person who has filed a written request for notice.

5. Zoning Ordinance Text Amendments. In addition to requirements in Paragraph 4 (All Zoning Ordinance Amendments) above, notice of a Zoning Ordinance Text Amendment shall be published in a newspaper of general circulation in the city at least 7 days before the hearing.

6. Zoning Ordinance Map Amendments. The following notice requirements apply to Zoning Ordinance Map Amendments in addition to requirements in Paragraph 4 (All Zoning Ordinance Amendments) above.

(a) Less than 5 Acres. For Zoning Map Amendments affecting an area less than 5 acres, public notice shall be:

i. Posted at three visible locations in the vicinity of the subject property; and

ii. Mailed to subject property owners, residents and tenants of the subject property, and all property owners, residents, and tenants within 300 feet of any part of the subject property.

(b) 5 Acres or More. For Zoning Map Amendments affecting an area 5 acres or more, public notice shall be:

i. Posted on each street frontage adjacent to the subject property.

ii. Mailed to all property owners, residents, and tenants within the subject property.

iii. Published twice in a newspaper of general circulation in the city at least 14 days before the hearing, and then again at least 7 days before the hearing.

7. Additional Notice. The Zoning Officer, Planning Commission, and City Council may require additional public notice as determined necessary or desirable.

8. Failure to Receive Notice. The validity of the hearing shall not be affected by the failure of any property owner, resident, tenant, or neighborhood or community organization to receive a mailed notice.

D. Public Notice for Design Review.

1. Staff-Level Design Review.

(a) When Required. Notice of Design Review shall be posted on or adjacent to the subject property at least 14 days before staff decision on Design Review application.

(b) Notice Contents. A Notice of Design Review shall contain the following information:

i. A description of the proposed project.

ii. Staff’s anticipated decision on the Design Review application.

iii. The location and times at which the application may be reviewed by the public.

iv. The procedure and time period in which appeals to the Design Review Committee may be made.

v. The address where such appeals may be filed.

2. Design Review Committee Meetings.

(a) Meeting Agenda. Agendas for Design Review Committee (DRC) meetings shall be posted at the Civic Center (Old City Hall) at least 72 hours before the meeting. The agenda must list all projects and discussion items to be considered at that DRC meeting.

(b) Posting and Mailing Notice Not Required. There is no requirement to mail notices or post a notice on a subject property in advance of the DRC meeting.

E. Registry of Organizations to Receive Notice.

1. The Department shall maintain a registry of neighborhood and community organizations to receive notices of public hearings and administrative decisions.

2. An organization shall be included in the registry shall submit a written request to the Department with the following information:

(a) The name and address of the organization.

(b) The names, addresses and phone numbers of the contact persons.

(c) The geographic area of interest, shown on a map, for which notices will be sent to the organization.

3. It is the responsibility of the organization to inform the Department of any changes to the organization information identified in Paragraph (2) above. (Ord. 7830-NS § 8, 2022; Ord. 7787-NS § 2 (Exh. A), 2021)

A. General. Hearings shall be conducted in a manner consistent with the requirements of State and local law and the procedures approved by the review authority.

B. Time and Place of Hearing. A hearing shall be held at the date, time and place for which notice was given, unless the required quorum of review authority members is not present.

C. Public Comment. All hearings shall be open to the public, which have the opportunity to present their views and be heard in accordance with established procedures.

D. Quorum Required for Action. A majority of the members of review authority must be present to take action on an application.

E. Continued Hearings.

1. Any public hearing may be continued from time to time without further notice, provided that the chair of the review authority announces the date, time, and place to which the hearing will be continued before the adjournment or recess of the hearing.

2. Hearings may not be continued beyond the time limits for reviewing applications established by the Permit Streamlining Act, CEQA, and other state and federal laws unless the applicant expressly waives their rights relating to time limits for City action on a pending application.

F. Action.

1. After the close of public hearing, the review authority shall either approve, modify, or deny the application; continue the hearing to a future date; or refer the application to a mediation or conflict resolution service.

2. If an application is referred to mediation, it must return to the review authority for action.

G. CEQA. For projects not subject to a CEQA exemption, the review authority that approves the application takes final action on the project’s CEQA determination. Final action on the CEQA determination, when required, shall occur before or concurrent with action on required permits. The City is not required to take final action on CEQA documents for denied applications.

H. Conditions of Approval.

1. The review authority may attach conditions to any permit as it deems reasonable or necessary to achieve consistency with the General Plan and Zoning Ordinance, and to promote the public health, safety, and welfare.

2. As a condition of approval, the City may require an applicant to provide adequate financial security to guarantee the proper completion of an approved project.

3. Any approval may be subject to time limits.

I. Exceptions to Protect Constitutional Rights.

1. The ZAB or City Council may waive or limit the application of any Zoning Ordinance requirement to a development project if it finds that such requirement would result in a deprivation of the applicant’s constitutional rights.

2. The burden of establishing that this exemption applies is on the applicant.

J. Use of Conflict Resolution or Mediation Service.

1. General. The ZAB or Zoning Officer may refer an applicant and neighbors to a conflict resolution or mediation service to resolve conflicts over a proposed project.

2. Eligible Services. The ZAB or Zoning Officer may refer participating parties only to a conflict resolution or mediation service on a pre-approved list maintained by the City.

3. Non-Binding Results. The results of the conflict resolution or mediation service shall be non-binding on the final decision of the ZAB or Zoning Officer.

4. Timing of Referral. A referral may be made at any time after an application is deemed complete and before a final decision on the application.

5. Additional Meetings Allowed. Nothing in this section prevents the parties from meeting on their own at any time, with or without a mediator, in an attempt to resolve their differences.

6. Early Discussions Encouraged. The City encourages applicants and neighbors to discuss proposed projects early in the project-planning process so that differences may be resolved before the submission of an application.

7. Payment for Service. The applicant shall pay for the cost of conflict resolution or mediation service.

8. Rules and Expectations. Mediation and conflict resolution shall be conducted in accordance with the following provisions, a copy of which shall be made available to participating parties, before beginning the process.

(a) The goal of mediation is to seek a mutually agreeable result for the pending application.

(b) Participation for the applicant and others parties is strictly voluntary.

(c) All participants shall be made aware that there is no City requirement to come to an agreement.

(d) The ZAB or Zoning Officer shall direct the mediator as to what issues are to be addressed in the mediation process. The mediator may ask the ZAB or the Zoning Officer for a clarification of these issues from time to time.

(e) Department staff will be available to provide the mediating parties with information on rights and requirements prescribed by the Zoning Ordinance.

(f) The mediation service will provide the ZAB or the Zoning Officer with a report as to the result of the mediation within 45 days of the referral.

(g) If no agreement between the parties is reached within 45 days, or at any time that the mediator indicates that further meetings between parties is futile, the ZAB or Zoning Officer shall proceed with making a decision on the application. If the parties to the mediation/conflict resolution agree to continue the mediation process, the process may be extended for an additional time period not to exceed 45 days. Unless the applicant expressly waives their rights relating to time limits for City action on a pending application, in no case shall the time periods for mediation cause the application review period to exceed the time limits prescribed by state or federal law.

(h) Participants in mediation are advised that the ZAB or Zoning Officer cannot deny applicants the opportunity to develop their properties in a reasonable manner. The Zoning Ordinance requires that a project must meet all minimum requirements and any other applicable City ordinances and regulations.

(i) Results of the mediation will in no way be binding upon the City, and the ZAB or Zoning Officer may approve, deny, or modify any aspect of any mediated agreement.

(j) A participant who has indicated either agreement or disagreement with the results of a mediation is in no way bound by their decision, and may change their mind after the mediation.

(k) Participation in a mediated meeting, or agreement with the results of a mediation, affects in no way the statutory right of any party to appeal the ZAB or Zoning Officer decision.

(l) Only those aspects of a mediated agreement that are either incorporated into the approved plans of a project, or are made conditions of approval, shall be enforceable by the City.

K. Resubmittal of Same Application.

1. Resubmittals Prohibited. For twelve months following the denial of a discretionary permit application, the Department may not accept an application that is the same or substantially similar to the previously denied application, unless:

(a) The application was denied without prejudice; and/or

(b) Evidence or substantially changed conditions warrant resubmittal as determined by the Zoning Officer.

2. Determination. The Zoning Officer shall determine whether an application is the same or substantially similar to the previously denied application.

3. Appeal. The determination of the Zoning Office may be appealed to the ZAB, in compliance with Chapter 23.410 (Appeals and Certifications).

L. Notice of ZAB Decisions.

1. A Notice of Decision shall be issued after the ZAB:

(a) Approves, modifies, or denies a Use Permit or Variance application; or

(b) Takes action on an appealed decision.

2. The Notice of Decision shall be issued before the ZAB’s next regular meeting and shall describe the ZAB’s action, findings, and applicable conditions.

3. The Notice of Decision shall be posted in the lobby of the Permit Service Center and shall be mailed to:

(a) The applicant;

(b) The appellant, if applicable;

(c) Any person who has filed a written request for notice; and

(d) The City of Berkeley Central Library.

4. The Notice of Decision shall be filed with the City Clerk and provided to the ZAB. The City Clerk shall make the notice available to interested members of the City Council and the public. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Effective Dates.

1. Council Decisions.

(a) A City Council decision on a Zoning Ordinance Amendment and other legislative matters is final and becomes effective 30 days after the decision is made.

(b) A City Council decision on permits, appeals, and other non-legislative matters is final and effective on the date the decision is made.

2. Other Decisions. The following applies to decisions of the Zoning Officer, Design Review Committee, and ZAB.

(a) A non-appealable decision is final and effective on the date the decision is made.

(b) An appealable decision is final and effective upon the completion of the appeal period for the decision if the decision is not appealed or certified by the City Council as provided in Chapter 23.410 (Appeals and Certifications).

B. Effect of Approval.

1. Approval Limited to Proposed Project. An approval authorizes only the proposed project described in the application. In no way does an approval authorize other uses, structures or activities not included in the project description.

2. Replacement of Existing Uses. When the City approves a new use that replaces an existing use, any prior approval of the existing use becomes null and void when permits for the new use are exercised (e.g., building permit or business license issued). To reestablish the previously existing use, an applicant must obtain all permits required by the Zoning Ordinance for the use.

3. Periodic Review and Reporting.

(a) The City may require periodic review of an approved project to verify compliance with permit requirements and conditions of approval.

(b) The permit holder or property owner is responsible for complying with any periodic reporting, monitoring, or assessments requirement.

4. Conformance to Approved Plans.

(a) Compliance. All work performed under an approved permit shall be in compliance with the approved plans and any conditions of approval.

(b) Changes. Changes to an approved project shall be submitted and processed in compliance with Section 23.404.070 (Permit Modifications).

C. Time Limits. This subsection applies to approved permits that have not been exercised.

1. Exercised Defined.

(a) A permit authorizing a land use is exercised when both a valid City business license is issued (if required) and the land use is established on the property.

(b) A permit authorizing construction is exercised when both a valid City building permit (if required) is issued and construction has lawfully begun.

2. Expiration of Permit.

(a) The Zoning Officer may declare a permit lapsed if it is not exercised within one year of its issuance, except as provided in Paragraph (b) below.

(b) A permit authorizing construction may not be declared lapsed if the applicant has applied for a building permit or has made a substantial good faith effort to obtain a building permit and begin construction.

(c) The Zoning Officer may declare a permit lapsed only after 14 days written notice to the applicant.

(d) A determination that a permit has lapsed may be appealed to the ZAB in accordance with Chapter 23.410 (Appeals and Certifications).

3. Effect of Lapsed Permit. A permit declared lapsed shall be void and of no further force and effect. To establish the use or structure authorized by the lapsed permit, an applicant must apply for and receive City approval of a new permit.

D. Permits Remain Effective for Vacant Property. Once a permit for a use is exercised and the use is established, the permit authorizing the use remains effective even if the property becomes vacant. The same use as allowed by the original permit may be re-established without obtaining a new permit. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose and Applicability. This section establishes requirements and procedures for an applicant to request modification to an approved discretionary permit.

B. Permit Modification Required. City approval of a permit modification is required to:

1. Expand the floor or land area devoted to an approved use;

2. Expand a customer service area and/or increase the number of customer seats;

3. Change a building’s occupant load rating under the City’s Building Code so that it is classified in a different category with a higher occupancy rating;

4. Increase the number of employees, beds, rooms or entrances;

5. Establish a new product line, service, function or activity so as to substantially change the character of the use;

6. Increase the volume of production, storage or capacity of any business manufacturing process or activity;

7. Change the type of alcohol sales and/or service; and

8. Change, expand, or intensify a use or structure in any other manner or substantially alters the use or structure.

C. Review Authority. A permit shall be modified by the review authority which originally approved the permit.

D. Public Notice and Hearing.

1. Exercised Permits. Public notice and hearing in compliance with this chapter is required to modify a permit that has been exercised. See Section 23.404.060.C.1 (Exercised Defined).

2. Permits Not Yet Exercised. For modifications to permits not yet exercised, the Zoning Officer or ZAB may act on the permit modification without a public hearing, or may set the matter for public hearing at its discretion. A noticed public hearing for a permit modification shall occur in compliance with this chapter.

E. New Building Permits Required. A building permit may not be modified after construction is complete. New construction in accordance with a modified permit requires issuance of a new building permit. (Ord. 7787-NS § 2 (Exh. A), 2021)

A. Purpose and Applicability.

1. This section establishes procedures for the City to revoke or modify a discretionary permit for completed projects due to:

(a) Violations of permit requirements;

(b) Changes to the approved project; and/or

(c) Vacancy for one year or more.

2. Notwithstanding anything to the contrary, no lawful residential use can lapse, regardless of the length of time of the vacancy.

3. Expiration of permits not yet exercised are addressed in Section 23.404.060.C (Time Limits).

B. Initiation.

1. Proceedings to revoke or modify a permit may be initiated by Zoning Officer, Zoning Adjustments Board (ZAB), or City Council referral.

2. Such referral shall identify the permit being considered, the property to which the permit applies, and the reason for the potential revocation or modification.

3. The Zoning Officer shall determine the public hearing date for all referrals.

C. ZAB Recommendation.

1. Public Hearing.

(a) The ZAB shall hold a public hearing on a permit revocation or modification in compliance with Section 23.404.050 (Public Hearings and Decisions). Notice shall be given in conformance with Section 23.404.040.B (Public Hearing Notice).

(b) The Department shall notify the current permit holder of the date, time, and location of the hearing.

2. ZAB Recommendation.

(a) The ZAB may recommend that the City Council revoke or modify the permit based upon the findings shown in Subsection E (Findings) below.

(b) The ZAB recommendation shall be:

i. Based on the evidence, testimony, and facts presented to the ZAB at the hearing;

ii. Supported by written findings; and

iii. Issued within 35 days after the conclusion of the hearing.

3. Final Decision. A ZAB recommendation to deny or modify a permit shall be deemed a final decision if the permit holder consents to the recommendation within 10 days after the recommendation is made. In such a case, there shall be no City Council review and action on the matter.

4. Report to City Clerk. The Department shall file the ZAB’s recommendation with the City Clerk within 14 days following the recommendation.

D. City Council Action.

1. Report to Council. The City Clerk shall present a ZAB recommendation to the City Council at soonest possible regular City Council meeting.

2. Public Hearing.

(a) If the ZAB recommends that the City Council revoke or modify the permit, the City Council shall hold a public hearing on the matter within 60 days after the ZAB issued its recommendation.

(b) If the ZAB does not recommend that the City Council revoke or modify the permit, the City Council may hold a public hearing on the matter at its discretion.

3. Council Decision. The City Council may modify or revoke the permit based upon the findings shown in Subsection E (Findings) below.

E. Findings. The City Council may revoke or modify a permit if any of the following findings can be made:

1. The permit holder has failed to comply with one or more of the conditions of approval.

2. The use or structure has been substantially expanded or changed in character beyond the approved project.

3. The property has been vacant for one year and the permit holder has not made a good faith effort to re-occupy the property with the use allowed by the approved permit.

G. Notice of Decision.

1. If the City Council revokes or modifies a permit, the City Clerk shall issue a Notice of Decision describing the City Council’s action, with its findings.

2. The City Clerk shall mail the notice to the permit holder, the property owner, the person who requested proceedings under this chapter (if any), and any person who requests such a notification.

3. The City Clerk shall file a copy of the Notice of Decision with the Department.

H. Remedies.

1. If the City revokes or modifies a permit, the City may impose any of the following remedies:

(a) Enjoin the use in whole or in part.

(b) Impose reasonable conditions upon any continued operation of the use, including existing non-conforming uses.

(c) Require continued compliance with newly imposed any conditions.

(d) Require the permit holder to guarantee compliance with newly imposed conditions.

2. If the permit holder fails to comply with newly imposed conditions, the City may impose additional conditions or enjoin the use in whole or in part.

I. Recovery of Costs.

1. Permit Revocation and Modification.

(a) The City may recover the costs to administer permit revocation and modification proceedings in accordance with Sections 1.24.140 through 1.24.210 of Municipal Code Chapter 1.24 (Abatement of Nuisances), except as provided in Paragraph (b) below.

(b) The hearing provided by Section 1.24.080 (Service of Notice of Hearing) shall be held by the City Manager or his/her designee and may be appealed to the City Council within ten days after a decision is mailed. The Council shall hold a hearing on appeals as shown in Section 1.24.180.

2. Remedies.

(a) The City Council may, by resolution, establish reasonable hourly rates which may be charged for the time spent by City employees in the performance of their employment under this section. These hourly rates may be charged on an on-going basis for time spent with respect to any building, structure or use if the City Council takes any action authorized by Subsection H (Remedies) above. In this case, payment of costs charged under this paragraph shall be made a condition of continued operation of the building, structure, or use.

(b) Payments submitted under this Paragraph 2 (Remedies) shall be deducted from any payments submitted under previous Paragraph 1 (Permit Revocation and Modification). (Ord. 7787-NS § 2 (Exh. A), 2021)