Fowler Municipal Code Ch. 9.30 Common Application Processing Procedures

The purpose of this Chapter is to establish procedures necessary for the efficient processing of land use and development applications, permits, and other approvals. These common procedures apply to all permits and approvals described in this Title, unless stated otherwise.

A. All applications for entitlements, as identified in this Title, must be submitted in writing to the Community Development Department on a completed City application designated for the specific request.

B. Minimum submittal requirements shall be established by the City Manager or their designee and listed on the application checklist. Additional information specific to an application and necessary to complete analysis of an application may be required by the Director. All required materials, information, and fees shall be provided before the application is accepted.

C. No application shall be accepted until the required application fees are paid in full. Applications initiated by the City shall not require an application fee.

D. The Council or Commission may initiate an application for any entitlement provided for in this Title.

Applications may be initiated by any interested party, the Director, Planning Commission, or City Council, except that for any application proposing the specific use or development of land, such application shall only be initiated by either of the following:

A. Property owners or all contract purchasers of a subject property or any lessee or agent authorized in writing to act on behalf of the owner or contract purchasers.

B. Public agencies or utilities that have statutory rights of eminent domain for projects they have the authority to construct.

A. Request. The Director may withdraw any application upon written request by the applicant or authorized representative prior to the final determination on the application.

B. Inactive Application. A complete application that has been inactive for a period longer than one (1) year shall be considered withdrawn unless action is initiated. An application shall be considered inactive when additional information, revisions, or funds are requested, and the applicant fails to provide the requested items or where there has been no written correspondence from the applicant. The one-year period may be extended at the discretion of the Director, provided a request for extension is filed by the applicant prior to the application being withdrawn, and the Director finds reasonable cause to grant the extension.

C. Incomplete Application. Notwithstanding the provisions of Government Code section 65913, et. seq. ("Housing Development Approvals"), if additional information is required and the application is not made complete within sixty (60) days of the completeness determination letter, the application shall be deemed to have been withdrawn, and no action will be taken on the application. The 60-day period may be extended for an additional time period not to exceed one (1) year, at the discretion of the Director, if the Director finds that circumstances exist and that unusual hardship to the applicant would result from deeming the application withdrawn. If the required material has not been submitted by the specified date, the application shall be deemed withdrawn. An extension shall only be considered by the Director provided a written request for extension and the associated fee are filed by the applicant prior to the conclusion of the initial 60-day period. The written request for extension shall contain the following information:

1. A written explanation of the delay.

2. The date by which the further application material, studies or information, and, when required, further fees will be submitted.

D. Notice of Withdrawal. The Director shall mail a notice of withdrawal to the applicant within three (3) business days to notify the applicant the application has been withdrawn and that all processing of the application has been terminated. A copy of the notice shall be placed in the project file. If the applicant subsequently wishes to pursue the project, a new application, including fees, plans, exhibits, and other materials, must then be filed in compliance with this Chapter.

E. Fees Partially Refunded. Partial refunds of permit fees collected by the City may be granted at the discretion of the Director only if the applicant submits a written request to withdraw the application prior to staff making a determination or recommendation on the application.

A. Application Completeness. The formal processing of an application shall begin on the date the application is deemed complete. The statutory period of thirty (30) days, established by State law for determining completeness (Government Code section 65943 [Permit Streamlining Act]), shall begin the day the application is accepted by the Department.

B. Initial Determination. Within thirty (30) days of application acceptance, the Director shall determine whether the application is complete. The Director shall notify the applicant in writing that one (1) of the following determinations has been made:

1. Complete application. All submittal requirements have been satisfied and the application has been deemed complete.

2. Incomplete application. Specific information is still necessary to complete the application. The letter may also identify preliminary information regarding the areas in which the submitted application is not in compliance with City development standards and application requirements.

C. Determination on Resubmittal. Within thirty (30) days of acceptance of information submitted in response to a determination of incomplete application, the Director shall determine whether the application is complete. The Director shall notify the applicant in writing that one (1) of the following determinations has been made:

1. Complete application. All submittal requirements have been satisfied and the application has been deemed complete.

2. Incomplete application. Specific information is still necessary to complete the application. The letter shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application.

D. Right to Appeal. The applicant may appeal the determination in accordance with Section 9.30.090 (Appeals of Discretionary Actions) and California Government Code section 65493 (Permit Streamlining Act). A final determination on the appeal shall be rendered not later than sixty (60) days after receipt of the applicant's written appeal.

A. Environmental Review. After acceptance of a complete application, the project shall be reviewed in accordance with the environmental review procedures of the California Environmental Quality Act (CEQA).

B. Application Routing. The Director may refer an application for review and comment to any other government agency and/or City department the Director determines appropriate to ensure compliance with all provisions of the Municipal Code and other adopted policies and plans.

C. Development Review Committee Review. The Director shall provide all discretionary development applications for murals, residential subdivision, multi-family residential, commercial, and mixed-use projects to the Development Review Committee (DRC) for review and recommendation. The DRC may require the applicant to submit additional information reasonably necessary to determine whether the proposed development complies with this Title. The DRC shall make recommendations on the application to the Planning Commission for those applications requiring Commission action. For applications that do not require Commission action, the recommendation of the DRC shall be made to the Director.

D. Report Preparation. Reports for an application shall be prepared and disseminated as follows:

1. For applications decided at the administrative level, the Director will prepare a report, including a decision to approve, conditionally approve, or deny the application.

2. For applications to be heard by the Planning Commission and/or City Council, the Director will prepare a report to the recommending authority, if applicable, and designated approving authority describing the project and may include a recommendation to approve, conditionally approve, alter, or deny the application. The report shall be provided to the applicant prior to consideration of the application, but no later than three (3) business days prior to the hearing. The report may be amended as necessary or supplemented with additional information at any time prior to the hearing to address issues or information not reasonably known at the time the report is prepared.

E. Time Limit for Determination.

1. The City shall comply with the following timelines for providing written documentation to an applicant if the City determines a proposed housing development project is inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, State law, standard, requirement, or other similar provision, in accordance with Government Code section 65589.5 (Housing Accountability Act). Such written documentation shall identify the provisions, and an explanation of the reasons for the determination. Written documentation shall be provided as follows:

a. Within thirty (30) days of the date the application for the housing development project is determined to be complete, if the housing development project contains one hundred fifty (150) or fewer units.

b. Within sixty (60) days of the date the application for the housing development project is determined to be complete, if the housing development project contains more than one hundred fifty (150) units.

2. If the City fails to provide the required documentation pursuant to Subsection (E)(1) of this Section, the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.

A. Public Hearing Required. Where required pursuant to this Title, the following procedures shall govern the public notice and public hearing for a permit or other approval.

B. Notice of Public Hearing.

1. Content. The notice of public hearing shall include the following information:

a. Date, time, and place of hearing.

b. Identification of the reviewing or approving authority.

c. Location of project.

d. Project description, including action to be taken.

e. CEQA determination statement, if applicable.

f. Statement that a person may appear and be heard.

g. Statement that challenges of the action taken in court may be limited to raising only those issues raised at the public hearing or submitted to the hearing body in writing prior to, or at the public hearing.

h. Information on the availability and location of staff reports and public review materials.

2. Delivery. Pursuant to California Government Code sections 65090—65094, not less than ten (10) days before the scheduled date of a hearing, public notice shall be given of such hearing in the manners listed below.

a. Notice of public hearing shall be published in at least one (1) newspaper of general circulation in the City.

b. Except as otherwise provided herein, notice of the public hearing shall be mailed to the owners of property within a radius of three hundred (300) feet of the exterior boundaries of the property involved in the application or to twenty-five (25) property owners within a radius around the property involved in the application, whichever is greater, as determined by the Director, using for this purpose the last known name and address of such owners as shown on the last equalized assessment roll or those names and addresses known to the City. The radius may be increased as determined to be necessary and desirable by the Director based on the nature of the proposed project. If the number of owners exceeds one thousand (1,000), the City may, in lieu of a mailed notice, provide notice by placing a notice of at least one-third (⅓) page in one (1) newspaper of general circulation within the City.

c. Where the mailing address of such property, as shown on the last equalized assessment roll, is different than the physical address of such property, a notice shall also be mailed to the physical address and addressed to the "occupants."

d. Notice of the public hearing shall be mailed to the owner of the subject real property or the owner's authorized agent, to the project applicant, and to each local agency expected to provide water, sewerage, streets, roads, schools, or other essential facilities or services to the proposed project and whose ability to provide such facilities or services may be significantly affected.

e. Notice of the public hearing shall be posted at City Hall and on the City's website.

f. Notice of the public hearing shall be mailed to any person who has filed a written request for notice per Subsection (C) of this Section.

g. Whenever a hearing is held regarding a permit for a drive-through facility, or modification of an existing drive-through facility permit, the City shall incorporate, where necessary, notice procedures to the blind, aged, and disabled communities in order to facilitate their participation in any hearing on, or appeal of the denial of, a drive-through facility permit.

h. For a proposed conversion of residential property to a condominium, community apartment, or stock cooperative project, such notice shall be given by mail to each dwelling unit of the property, including time and place of the hearing and notice of the tenants' rights to appear and to be heard in accordance with Government Code section 66451.3.

i. In addition to the notice required by this Section, the City may give notice of the hearing in any other manner it deems necessary or desirable.

C. Requests for Notification. Any person who requests to be on a mailing list for notice of hearing shall submit such request in writing to the City Clerk. The City may impose a reasonable fee for recovering the cost of such notification.

D. Receipt of Notice. Failure of any person or entity to receive any properly issued notice required by law for any hearing required by this Title shall not constitute grounds for any court to invalidate the actions of a designated approving authority for which the notice was given.

E. Hearing Procedure. Hearings as provided for in this Chapter shall be held in accordance with the following provisions.

1. Hearings shall be held at the date, time, and place for which notice has been given as required in this Chapter. The recommending authority and approving authority shall conduct the public hearing(s) and hear testimony from interested persons.

2. Any hearing may be continued to a certain date, time, and place with no additional notice required. The continuance may occur either before the item is heard (if no one is present to testify or all those present consent to the continuance) or after testimony has been taken and before the completion of the hearing.

3. If the hearing is not continued to a date, time, or place certain, the hearing shall be re-noticed.

F. Time Limit for Decision. Within forty (40) days after the conclusion of a public hearing, a decision on the matter shall be rendered by the approving authority.

G. Notice of Decision. Written notice of decision of the approving authority shall be provided to the applicant and all parties requesting such notification. Notices of decision are not required for actions of a recommending body. The notice of decision shall be provided as follows:

1. Planning Commission Determination. A written notice of decision shall be mailed within three (3) business days of the date of decision and shall include:

a. The application request as acted upon by the Planning Commission.

b. Any conditions of approval or other requirements applied to the decision.

c. The action taken by the Planning Commission.

d. The deadlines, criteria, and fees for filing an appeal.

2. City Council Determination. A written notice of decision shall be mailed within ten (10) business days of the date of decision and shall include:

a. The application request as acted upon by the City Council.

b. Any conditions of approval or other requirements applied to the decision.

c. The action taken by the City Council.

A. Recommending Authority. The recommending authority as designated in Table 9.30.890-1 (Designated Authority for Permits and Approvals) shall hear and make recommendations on the proposed land use or development permit approval in accordance with the requirements of this Title.

B. Approving Authority. The approving authority as designated in Table 9.30.890-1 (Designated Authority for Permits and Approvals) shall approve, conditionally approve, or deny the proposed land use or development permit or action in accordance with the requirements of this Title. Generally, the Director or their designee will make non-discretionary and discretionary decisions at the administrative level, the Planning Commission will make discretionary decisions, and the City Council will make legislative decisions. In acting on an application, the approving authority decision may be appealed pursuant to procedures set forth in Section 9.30.090 (Appeals of Discretionary Actions).

Table 9.30.080-1: Designated Authority for Permits and Approvals

Notes:

1 A = Approving Authority; R = Recommending Authority

C. Multiple Entitlements. When a proposed project requires more than one (1) permit or approval with more than one (1) approving authority, all applications shall be processed concurrently and action shall be taken by each approving authority, with the option to elevate all discretionary actions to the highest approval authority.

D. Referral to the Planning Commission. At any point in the review process, the Director may transfer approving authority to the Planning Commission at their discretion because of policy implications, unique or unusual circumstances, or the magnitude of the project. Decisions referred to the Planning Commission shall be considered at a noticed public hearing. Public notice shall be provided, and a public hearing conducted pursuant to Section 9.30.070 (Public Hearing and Notice). A referral to the Planning Commission is not an appeal and requires no appeal application or fee.

E. Referral to the City Council. At any point during the Planning Commission hearing, the Planning Commission may, by simple majority, transfer approving authority to the City Council because of policy implications, unique or unusual circumstances, or the magnitude of the project. Decisions referred to the City Council shall be considered at a noticed public hearing. Public notice shall be provided, and a public hearing conducted pursuant to Section 9.30.070 (Public Hearing and Notice). A referral to the City Council is not an appeal and requires no appeal application or fee.

A. Appeal Authority. Any discretionary action of the Director or Planning Commission made pursuant to this Title may be appealed to the designated appeal authority listed in Table 9.30.090-1 (Appeal Authority). Ministerial decisions by the Director may not be appealed. Actions taken by the Planning Commission in exercise of its appeal authority may be further appealed to the City Council. Decisions by the City Council are final and may not be appealed.

Table 9.30.090-1: Appeal Authority

B. Right to Appeal. Any aggrieved person may file an appeal pursuant to this Chapter. An aggrieved person shall be any person who, in person or through a representative, appeared at a public hearing of the City of Fowler in connection with the decision or action being appealed; or who, by other appropriate means prior to the hearing, informed the approving authority of the nature of their concern(s); or who, for good cause, was unable to do either.

C. Filing an Appeal. Appeals shall be submitted to the Director with the appropriate fees, as determined by the City's fee schedule adopted by Council resolution, on forms provided by the Department and shall include at a minimum:

1. The date the action was taken.

2. Specific condition, standard(s), or action being appealed.

3. Appeals shall only be considered if filed within ten (10) consecutive calendar days following the date of action for which the appeal is made. If the last day to act falls on a nonbusiness day, the following business day shall be deemed to be the last day to act.

D. Planning Commission and City Council Member Appeal.

1. Any member of the Planning Commission may initiate an appeal of any discretionary action of the Director based on the requirements of Section 9.30.090, Subsection (C) (Filing an Appeal). Appeals filed by the Planning Commission, as set forth herein, shall be exempt from payment of fees that would otherwise apply.

2. Any member of the City Council may initiate an appeal of any discretionary action of the Director or Planning Commission based on the requirements of Section 9.30.090, Subsection (C) (Filing an Appeal). Appeals filed by the City Council, as set forth herein, shall be exempt from payment of fees that would otherwise apply.

E. Notice and Schedule of Appeal Hearings. Unless otherwise agreed upon by the person filing the appeal and the applicant, appeal hearings shall be conducted within thirty (30) days from the date of appeal submittal, or at the next possible regular meeting of the appeal authority, whichever is later. Notice of hearing for the appeal shall be provided pursuant to the noticing requirements of Section 9.30.070 (Public Hearing and Notice).

F. Appeal Hearing and Action. Each appeal shall be considered a de novo (new) hearing. The Planning Commission or City Council may approve, deny, or modify the recommendation of the lower authority. Written notice of decision shall be issued in accordance with Section 9.30.070, Subsection (G) (Notice of Decision).

G. Judicial Review.

1. The judicial review of an administrative order or decision of the Council or any officer or agent of the City under the provisions of California Code of Civil Procedure section 1094.5 may be had only if the petition for the writ of mandate is filed not later than the 90th day following the date on which the decision becomes final.

2. Without limitation by the foregoing, the City makes California Code of Civil Procedure section 1094.6, relating to the judicial review of administrative orders or decisions, the time for filing petitions therefor, and providing for the preparation of records, applicable to the City and its officers and agents as if said section were incorporated in this Chapter in full.

A. Time Limits. Any permit not exercised within the specified time limit from the date of approval shall expire and become void, except where an extension of time is approved pursuant to this Section.

B. Exercising Permits. The exercise of a permit occurs when the property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon such permit(s), as determined by the Director. A permit may be otherwise exercised pursuant to a condition of the permit or corresponding legal agreement that specifies that other substantial efforts or expenditures constitutes exercise of the permit. Following are the criteria for determining if a permit has been exercised and therefore would not expire:

1. A building permit is issued, and construction is underway.

2. A certificate of occupancy has been issued, or temporary occupancy has been granted, as determined by the Building Official, for the use or structure.

3. The site is occupied in accordance with the approved permit.

4. The site is occupied in accordance with an approved phase of a phased development and development has been diligently pursued for future phases of an approved permit.

5. An extension of time is approved in accordance with Subsection (C) (Permit Extensions) of this Section, if applicable.

C. Permit Extensions.

1. Extensions of time. An extension of up to two (2) years may be approved, subject to the findings described in Subsection (C)(4) of this Section.

2. Process. Requests shall be submitted in writing to the Director at least thirty (30) days prior to the expiration date of the permit or approval, along with the appropriate fees. The Director shall be the approving authority for extension requests.

3. Conditions. The permit, as extended, may be conditioned to comply with any development standards that may have been enacted since the permit was initially approved, unless the permit has vesting rights.

4. Permit extension findings. An extension may be granted only when the designated approving authority finds the following:

a. The original permit findings can still be made.

b. There has been diligent pursuit to exercise the permit or approval that warrants such extension.

c. There have been no significant changes in the General Plan, this Title, or applicable Municipal Code requirements that would cause the approved project to become out of compliance with applicable policies and regulations.

d. There have been no significant changes in the character of the area within which the project is located.

e. Granting of an extension will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity.

D. Permit Expiration.

1. Multiple entitlements. Notwithstanding the expiration specified for individual permit and approval types, when an approved project had more than one (1) permit or approval processed concurrently in accordance with Section 9.30.080, Subsection (C) (Multiple Entitlements) all permit expiration dates shall be consistent. The longest permit expiration date shall apply.

2. Expiration. If the time limits are reached with no extension requested, or a requested extension is denied or expires, the permit shall expire.

E. Permit Expiration for a Closed Business. All permits shall expire when a business or use is closed or discontinued for more than one (1) calendar year. Approval of new permits based on current requirements shall be required prior to any business activity or use on the site.

A. Applicability. Any person holding a permit granted under this Title may request an amendment to that permit. For the purpose of this Section, the amendment of a previously approved permit may include amendment of the terms of the permit itself, amendment to project design, or the waiver or alteration of conditions imposed in the granting of the permit.

B. Request for Amendment. An applicant may request an amendment to a permit after the effective date of the permit. An application shall be made on forms provided by the Department and shall be accompanied by the applicable fee.

C. Review Process. An amendment may be granted only when the designated approving authority makes all findings required for the original approval. The designated approving authority for an amendment to a previously approved permit shall be determined as follows:

1. Minor amendment.

a. Applicability. A minor amendment is a non-substantive change of a previously approved permit, including:

i. Structural additions to non-residential projects of more than two hundred (200) square feet and less than two thousand five hundred (2,500) square feet or fifty percent (50%) of existing square footage, whichever is less. Square footage shall be the aggregate of all proposed structures.

ii. Structural additions or alterations to existing residential projects that add no more than six (6) units.

iii. Expansion of existing parking lots that add fewer than twenty-five (25) parking spaces on an existing site.

iv. Changes to parking areas or circulation patterns or reduction of the number of parking spaces.

v. Landscape modifications which alter the general concept or reduce the effective amount of landscaping.

vi. Architectural, exterior material, or color changes which alter or conflict with the basic architectural form and theme of an existing building or change the location of windows or doors.

vii. Adjustments to the standards of development established through an approved Planned Development.

viii. Other requests like the above-listed minor amendments, as determined by the Director.

b. Review process. The Director is the designated approving authority for minor amendments. No public hearing shall be required. A written notice of decision shall be issued in the same manner as the original permit, except that notice of decision shall also be provided to the original approving authority when the original approval was made by a body other than the Director. Minor amendments to discretionary permits may be appealed in accordance with Section 9.30.090 (Appeals of Discretionary Actions).

2. Major amendments. Major amendments to a previously approved permit shall be processed as follows:

a. Applicability. A major amendment is a substantive change of a previously approved permit, including:

i. Structural additions to non-residential projects of equal to or greater than two thousand five hundred (2,500) square feet or fifty percent (50%) of existing square footage, whichever is less. Square footage shall be the aggregate of all proposed structures.

ii. Structural additions or alterations to existing residential projects that add more than six (6) units.

iii. Expansion of existing parking lots that add twenty-five (25) parking spaces or more on any existing site.

iv. A modification in the approved access to the project site.

v. Changes in the allowed uses established for an approved Planned Development.

vi. Expansion of use over fifty percent (50%) of square footage.

vii. Other requests that cannot be classified as a minor amendment.

b. Review process. The original approving authority shall be the designated approving authority for major amendments to a permit. Where entitlements were processed concurrently, the designated approving authority shall be the approving authority specified under Table 9.30.0890-1 (Designated Authority for Permits and Approvals) for the permit or approval, subject to the request for major amendment. A major amendment shall be processed in the same manner and subject to the same standards as the original application. Major amendments of discretionary permits may be appealed in accordance with Section 9.30.090 (Appeals of Discretionary Actions).

D. Permit Expiration. Granting of an amendment to a previously approved permit does not extend the permit expiration date. A permit extension must be reviewed and approved in accordance with the provisions of Section 9.30.100 (Permit Time Limits, Expiration, and Extensions).

An application shall not be accepted or acted upon if within the past year the City has denied an application for substantially the same project on substantially the same real property, unless the Director finds one (1) or more of the following circumstances to exist:

A. New Evidence. As determined by the Director, there is sufficient new information that was not available during consideration of the application, nor at the previous hearing, and could not have been previously discovered in the exercise of reasonable diligence by the applicant.

B. Substantial and Permanent Change of Circumstances. As determined by the Director, there has been a substantial and material change of circumstances since the previous determination that affects the applicant's real property.

C. Mistake at Previous Hearing. A mistake was made at the previous hearing that was a material factor in the denial of the previous application.

D. Reapplication is initiated by Council or Commission. The Commission or the Council may initiate a reapplication for any entitlement provided for in this Chapter without restriction by this Section.

A. Applicability. At the time of submitting an application for a land use permit or approval, all applicants requesting such an approval agree, as a part of the required application, to defend, indemnify, and hold harmless the City from any claim, action, or proceeding brought to attack, set aside, void, or annul any subsequent approval by the City which is brought within the applicable statute of limitations. The indemnification shall include damages awarded against the City, costs of suit, attorneys' fees, and other costs and expenses incurred in connection with any such claim, action, or proceeding. In addition, an indemnification agreement may be required as a condition of approval for the project.

B. Notification. In the event that a claim, action, or proceeding referenced in Section 9.30.090 is brought, the City shall promptly notify the applicant thereof.

(Articles 1 through 14, codified from Ordinance No. 12-55, as amended by Ordinance No. 79-4, effective April 19, 1979, amended in their entirety by Ordinance No. 81-8, effective September 17, 1981, on file in the office of the City Clerk.)