Sections:

Sec. 4-54-010. Purpose. Sec. 4-54-020. Effective Date of Permits. Sec. 4-54-030. Applications Deemed Approved. Sec. 4-54-040. Permits to Run with the Land. Sec. 4-54-050. Acceptance of Conditions. Sec. 4-54-060. Performance Guarantees. Sec. 4-54-070. Permit Time Limits, Extensions, and Expiration. Sec. 4-54-080. Change to an Approved Project. Sec. 4-54-090. Permit Revocation or Modification. Sec. 4-54-100. Resubmittals. Sec. 4-54-110. Covenants of Easements.

This Chapter provides requirements for the implementation or "exercising" of the permits required by this Zoning and Subdivision Code, including time limits and procedures for granting extensions of time.

A Planned Development Permit, Use Permit, or Variance shall become effective on the 6[th] day following the date of application approval by the review authority; provided, no appeal has been filed in compliance with Chapter 4-74 (Appeals).

A planning permit application deemed approved in compliance with State law (Government Code Section 65956) shall be subject to all applicable provisions of this Zoning and Subdivision Code, which shall be satisfied by the applicant before a Building Permit is issued or a land use not requiring a Building Permit is established.

APlanned Development Permit, Use Permit, or Variance approval that is granted in compliance with Chapter 4-52 (Permit Review and Decisions) shall be deemed to run with the land through any change of ownership of the subject site, from the effective date of the permit, except in any case where a permit expires and becomes void in compliance with Section 4-54-070 (Permit Time Limits, Extensions, and Expiration). All applicable conditions of approval shall continue to apply after a change in property ownership.

Supp. No. 5

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ARTICLE 5. PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-050. Acceptance of Conditions.

A Limited Term Permit, Planned Development Permit, Use Permit, or Variance shall have no effect until the permittee acknowledges, in writing, receipt and full acceptance of any condition imposed on the Limited Term Permit, Planned Development Permit, Use Permit, or Variance.

Gustine Zoning and Subdivision Code

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-070. Permit Time Limits, Extensions, and Expiration.

• A. Security deposit. As a condition of approval of a Limited Term Permit, Planned Development Permit, Use Permit, or Variance upon a finding that the City's health, safety and welfare warrant, the review authority may require the execution of a covenant to deposit security, and the deposit of security in a reasonable amount to ensure the faithful performance of one or more of the conditions of approval of the Limited Term Permit, Planned Development Permit, Use Permit, or Variance in the event that the obligor fails to perform. The security shall, as required by law or otherwise at the option of the City, be in the form of cash, a certified or cashier's check, or a faithful performance bond executed by the applicant and a corporate surety authorized to do business in California. The security shall remain in effect until all of the secured conditions have been performed to the satisfaction of the Director.

• B. Payable to the City. Any security required in compliance with this Section shall be payable to the City.

• C. Release of deposit. Upon satisfaction of all applicable provisions of this Section, the security deposit will be released. However, 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, and surety in case of a bond, all cost incurred thereto, including administrative, engineering, legal, and inspection costs. Any unused portion of the security shall be refunded to the obligor after deduction of the cost of the work, except that, to the extent that the Director can demonstrate to the satisfaction of the City Manager that the obligor willfully breached an obligation in a manner that he or she knew or should have known would create irreparable harm to the City, the entire amount of the bond or deposit may be withheld. The City Manager's determination may be appealed to the Council by the obligor by filing an appeal with the City Clerk within five days after the decision.

• A. Time limits.

  1. Unless a condition of approval or other provision of this Zoning and Subdivision Code establishes a different time limit, any permit or approval not exercised within 12 months of the date of approval shall, without further action by the City, expire and become void, except where an extension of time is approved in compliance with Subsection B.

  2. The permit shall not be deemed "exercised" until the permittee has actually commenced the allowed use on the site in compliance with the conditions of approval.

  3. After it has been exercised, a planning permit shall remain valid and run with the land in compliance with Section 4-54-040, as long as a Building Permit is active for the project, and after a final building inspection or certificate of occupancy has been granted.

  4. If a project is to be developed in approved phases, each subsequent phase shall be exercised within 12 months from the date that the previous phase was exercised, unless otherwise specified in the permit, or the permit shall expire and be void in compliance with Subsection D., except where an extension of time is approved in compliance with Subsection B. If the project also involves the approval of a Tentative

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-070. Permit Time Limits, Extensions, and Expiration.

Map, the phasing shall be consistent with the Tentative Map and the permit shall be exercised before the expiration of the Tentative Map, or the permit shall expire and be void.

• B. Extensions of time. Upon written request by the applicant, the review authority may extend the time for an approved planning permit to be exercised.

  1. Filing and review of request.

  - **a. Time for filing.** The applicant shall file a written request for an extension of time with the Director at least seven days before the expiration of the permit, together with the filing fee required by the City's Fee Schedule. 
  
  - **b. Evidence to be provided.** The review authority shall determine whether the applicant has made a good faith effort to exercise the permit. The burden of proof is on the applicant to establish, with substantial evidence, that circumstances beyond the control of the applicant (e.g., demonstrated financial hardship, problems with completing the acquisition of the parcel, poor weather during periods of planned construction, etc.) have prevented exercising the permit. 
  
  - **c. Public hearing.** If the original approval required a public hearing, the review authority shall hold a public hearing on a proposed extension of time, after providing notice of the public hearing in compliance with Chapter 4-78 (Public Hearings).
  

2. Action on extension request. A permit may be extended as follows for no more than one additional 12-month periods beyond the expiration of the original approval; provided, the review authority first finds that there have been no changes in the conditions or circumstances of the site or project that would have been grounds for disapproval of the original project.

  - **a. Commission's action.** One extension may be approved, approved with modifications, or disapproved by the Commission, whose decisions may be appealed to the Council in compliance with Chapter 4-74 (Appeals). 

• C. Effect of expiration. After the expiration of a planning permit in compliance with Subparagraph A.1., no further work shall be done on the site until a new planning permit and any required Building Permit or other City permits are first obtained.

Development or a new land use authorized through a planning permit granted in compliance with this Zoning and Subdivision Code shall be established only as approved by the review authority, and in compliance with any conditions of approval, except where a change to the project is approved as follows.

• A. Application. An applicant shall request a desired change in writing, and shall also furnish appropriate supporting materials and an explanation of the reasons for the request. A change may be requested either before or after construction, or establishment and operation of the approved land use.

• B. Public hearing. If the original project approval required public notice and a hearing, public notice shall be provided, and the review authority shall conduct a public hearing on the requested changes in compliance with Chapter 4-78 (Public Hearings).

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-090. Permit Revocation or Modification.

• C. Changes approved by Director. The Director may authorize one or more changes to an approved site plan, architecture, or the nature of the approved land use where the Director first finds that the changes:

  1. Are consistent with all applicable provisions of this Zoning and Subdivision Code;

  2. Do not involve a feature of the project that was a basis for findings in a Negative Declaration or Environmental Impact Report for the project;

  3. Do not involve a feature of the project that was specifically addressed or was a basis for conditions of approval for the project or that was a specific consideration by the review authority (e.g., the Director, Commission, or Council) in the project approval; and

  4. Do not result in an expansion of the land use.

The Director may choose to refer any requested change to the original review authority for review and final action.

• D. Changes approved by original review authority. A proposed change that does not comply with the criteria in Subsection C., above shall only be approved by the original review authority for the project through a new permit application processed in compliance with this Zoning and Subdivision Code.

• A. Purpose. Discretionary permits or approvals issued in compliance with this Zoning and Subdivision Code may be revoked or modified in compliance with this Section.

• B. Procedures. This Section provides procedures for securing revocation or punitive modification of previously approved permits or approvals.

• C. Revocations. The City's action to revoke a permit or approval shall have the effect of terminating the permit and denying the privileges granted by the original approval.

• D. Modifications.

  1. The City's action to modify a permit or approval, rather then to revoke it, shall have the effect of changing the operational aspects of the permit.

  2. The changes may include the operational aspects related to buffers, duration of the permit or entitlement, hours of operation, landscaping and maintenance, lighting, parking, performance guarantees, property maintenance, signs, surfacing, traffic circulation, or any other aspect/condition determined to be reasonable and necessary to ensure that the permit is operated in a manner consistent with the original findings for approval.

• E. Immediate action by the Director.

  1. The Director (may, upon making any one of the findings identified in Subsection G. (Commission's action), below, immediately suspend the permit or approval and shall notify the permittee or property owner and the Commission.

  2. When deemed necessary, in order to protect the public health, safety, or general welfare, the Director may order all operations, or any portion thereof, authorized by the permit or approval, to cease during the time it is suspended, and the order shall remain in effect unless and until modified, revoked, or suspended by the Commission or Council.

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-090. Permit Revocation or Modification.

F. Hearings and notice.

1. The review authority shall hold a public hearing to revoke or modify a permit or approval granted in compliance with the provisions of this Zoning and Subdivision Code.

2. At least 10 days before the public hearing, notice shall be delivered in writing to the owner of the property for which the permit was granted and the applicant for the subject permit or approval, if not the owner of the subject property. The only exception to the 10-day notice provision shall be for Limited Term Permits which, because of their short term nature, shall only require a 24-hour notice.

3. Notice shall be deemed delivered two days after being mailed, certified and first class, through the United States Postal Service, postage paid, to the property owner as shown on the latest adopted property tax roll and to the applicant, if not the owner of the subject property.

• G. Commission's action. A permit or approval may be revoked or modified by the review authority that originally granted the permit or approval), if the review authority first makes any one or more of the following findings:

  1. Circumstances under which the permit or approval was granted have been changed by the applicant to an extent that one or more of the findings that justified the original approval can no longer be made and the public health, safety, and welfare require the revocation;

  2. The permit or other approval was granted, in whole or in part, on the basis of a misrepresentation or omission of a material statement in the application, or in the applicant's testimony presented during the public hearing, for the permit or approval;

  3. One or more of the conditions of the original permit or approval have not been substantially fulfilled or have been violated; and

  4. The improvement/use allowed by the permit or approval:

  - **a.** Has ceased to exist or has been suspended for at least 12 months; 
  
  - **b.** Is in violation of any applicable code, law, ordinance, regulation, or statute; or 
  
  - **c.** Has become detrimental to the public health, safety, or welfare, or the manner of operation constitutes or is creating a nuisance.
  

H. Appeal of Commission's action.

1. Any person dissatisfied with the action of the review authority regarding the revocation or modification of a permit or approval, may file an appeal in compliance with Chapter 4-74 (Appeals).

2. The appeal shall be filed with the City Clerk within five days of the review authority's action on the revocation or modification.

3. The City Clerk shall set a date for the public hearing and provide notice in compliance with Chapter 4-78 (Public Hearings). Notice shall also be provided to the Commission.

4. The review authority shall submit a written report to the Council, outlining the reasons for its action, together with the evidence in support of the findings for the action being appealed.

5. The Council shall render its decision on the appeal within 30 days after the close of the public hearing.

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-110. Covenants of Easements.

• A. Resubmittals prohibited within 12 months.

  1. An application for a discretionary amendment, entitlement, or permit may be disapproved with prejudice.

  2. An application may be disapproved with prejudice on the grounds that two or more similar applications for the same parcel have been disapproved in the past two years, or that another cause exists for limiting the refiling of the application.

  3. For a period of 12 months following the date of disapproval of a discretionary amendment, entitlement, or permit, no application for the same or substantially similar discretionary amendment, entitlement, or permit for the same site shall be filed, except if the disapproval was without prejudice, or on the grounds of substantial new evidence or proof of changed circumstances to an extent that further consideration is deemed warranted.

• B. Disapproval without prejudice. There shall be no limitation on subsequent applications for a site on which a project was disapproved without prejudice.

• C. Director's determination. The Director shall determine whether the new application is for a discretionary amendment, entitlement, or permit which is the same or substantially similar to the previously disapproved amendment, entitlement, or permit.

• D. Appeal. The determination of the Director may be appealed to the Commission, in compliance with Chapter 4-74 (Appeals).

• A. Applicability. When necessary to achieve the land use goals of the City, the City may require a property owner holding property in common ownership to execute and record a Covenant of Easement in favor of the City, in compliance with State law (Government Code Sections 65870 et seq.)

  1. Required provisions. A Covenant of Easement may be required to provide for emergency access, ingress and egress, landscaping, light and air access, open space, parking, or for solar access.

  2. Condition of approval. The review authority may require a Covenant of Easement as a condition of approval.

• B. Form of covenant. The form of the Covenant shall be approved by the City Attorney, and the Covenant of Easement shall:

  1. Describe property. Describe the real property subject to the easement;

  2. Describe property to be benefited. Describe the real property to be benefited by the easement;

  3. Planning permit. Identify the City approval or permit granted which relied on or required the Covenant; and

  4. Purpose of easement. Identify the purposes of the easement.

• C. Recordation. The Covenant of Easement shall be recorded in the County Recorder's Office.

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-54. PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS Sec. 4-54-110. Covenants of Easements.

• D. Effect of covenant. From and after the time of its recordation, the Covenant of Easement shall:

  1. Act as an easement. Act as an easement in compliance with State law (Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the Civil Code), except that it shall not merge into any other interest in the real property. Civil Code Section 1104 shall be applicable to the conveyance of the affected real property; and

  2. Impart notice. Impart notice to all persons to the extent afforded by the recording laws of the State. Upon recordation, the burdens of the Covenant shall be binding on, and the Covenant shall benefit, all successors-in-interest to the real property.

• E. Enforceability of covenant. The Covenant of Easement shall be enforceable by the successors-in-interest to the real property benefited by the Covenant and the City. Nothing in this Section creates standing in any person, other than the City, and any owner of the real property burdened or benefited by the Covenant, to enforce or to challenge the Covenant or any requested amendment or release.

• F. Release of covenant. The release of the Covenant of Easement may be affected by the Director, or under an appeal, following a noticed public hearing in compliance with Chapter 4-78 (Public Hearings).

  1. May be released by City. The Covenant of Easement may be released by the City, at the request of any person, including the City or an affected property owner, upon a finding that the Covenant, on the subject property, is no longer necessary to achieve the land use goals of the City.

2. Recordation of notice. A notice of the release of the Covenant of Easement shall be recorded with the County Recorder's Office.

• G. Fees. The City shall impose fees to recover the City's reasonable cost of processing a request for a release. Fees for the processing shall be established by the City's Fee Schedule.