Division 2 — NONCONFORMING LOTS, LAND USES, AND STRUCTURES[[4]]

Footnotes:

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Editor's note— Ord. No. 2009, § 1, adopted March 14, 2023 repealed div. 2, §§ 90-55—90-66, and § 2 of the same enacted a new div. 2 as set out herein. Former div. 2 pertained to nonconformities and derived from Ord. No. 1585, adopted August 25, 1998; and Ord. No. 1709, adopted January 13, 2004.

(a)

The city council finds that nonconforming lots, land uses, structures, and improvements within the city, including those that are legally established and those that are illegal, are detrimental to the orderly development of the city, and the health, safety, peace, comfort and welfare of persons and property within the city.

(b)

The purpose of this division is to provide for the orderly termination of nonconforming rights for lots, land uses, structures, and improvements that were previously legally established; however, due to revisions to the development code, the previously legally established provisions no longer comply with the development code. The orderly termination of legally established nonconforming lots, land uses, structures, and improvements is necessary to promote the public health, safety and welfare, and to bring nonconforming lots, land uses, and structures into conformity with current development code provisions, and the goals and policies of the general plan.

(c)

This division is intended to limit the expansion of nonconforming lots, land uses, structures and improvements, establish the circumstances under which they may be continued, and provide for their correction, maintenance, and removal.

(d)

This division is intended to provide for the elimination of nonconforming lots, land uses, structures, and improvements as rapidly as possible, without infringing upon the constitutional rights of their owners.

(Ord. No. 2009, § 2, 3-14-23)

(a)

Nonconforming lots, land uses, structures, and improvements may be maintained, expanded, altered, and/or abated only in accordance with the provisions of this division. It shall be the property owner's responsibility to provide evidence or information to justify the establishment of the nonconforming rights provided under this division.

(b)

A lot, land use, structure, or improvement that becomes nonconforming due to a change in zoning district boundary or development code amendment, the period prescribed for abatement of the use or improvement of the lot or structure shall begin on the effective date of the change in zoning district boundary or development code amendment.

(Ord. No. 2009, § 2, 3-14-23)

(a)

A lot that is not in compliance with the development standards prescribed by this development code, as they pertain to minimum area, dimension, or configuration, shall be deemed a "legal nonconforming lot," provided the lot was lawfully created and existing at the time the ordinance codified in this development code that created the nonconformity became effective.

(b)

A legal nonconforming lot shall be granted all development rights and land uses of the zoning district in which it is located.

(Ord. No. 2009, § 2, 3-14-23)

A use that lawfully occupied a building or land at the time an ordinance codified in this development code became effective and does not conform to the use regulations of the zoning district in which it is located, shall be deemed a "legal nonconforming use." A legal nonconforming use may continue, subject to the following:

(1)

Discontinuance and abandonment of use, and loss of legal nonconforming status.

a.

Without further action by the city, a legal nonconforming use shall lose its legal nonconforming status and shall not be reestablished if the legal nonconforming use is abandoned for any reason.

1.

Residential land uses. A legal nonconforming residential land use shall be deemed abandoned if the use is discontinued for a period of 180 or more consecutive days.

2.

Nonresidential land uses. A legal nonconforming nonresidential land use shall be deemed abandoned if the use is discontinued for a single period of 180 or more consecutive days.

b.

Wherein the determination of abandonment of a land use is in question, the determination of abandonment shall be made by the community development director, or their designee, based upon satisfactory evidence. If there are no business receipts, records, or necessary licenses available to provide evidence that the land use in question has been in continual operation, the community development director, or their designee, may make a determination of "abandonment of use" based upon consideration of [i] the removal, without replacement, of equipment, furniture, machinery, fixtures, structures, or other components necessary to business operation, and/or [ii] the shut-off or disconnect of utilities (water, electricity, and/or natural gas).

c.

Following the discontinuance of a nonconforming land use, the use of a property shall comply with all current requirements of this development code and the applicable zoning district.

(2)

Change in ownership, tenancy or management. A change in ownership, tenancy or management of a nonconforming use shall not affect its legal nonconforming status, provided the use is not discontinued pursuant to subsection (1) (discontinuation of use and loss of legal nonconforming status) above, or the type of use and/or intensity of use does not change.

(3)

New development. New development on any lot upon which a legal nonconforming use exists shall require that all uses on the property conform to the provisions of this development code.

(4)

Alterations and expansion of use. A nonconforming use shall not be enlarged or extended in such a way as to occupy any part of any structure or property that the use did not occupy prior to the creation of the nonconformity.

(5)

Intensification of use. A nonconforming use shall not be intensified in such a way as to increase the discrepancy between existing conditions and the standards set forth in this development code.

(6)

Replacement of a nonconforming use by another nonconforming use. A legal nonconforming use may be replaced by another nonconforming use if the community development director, or their designee, can clearly establish the following:

a.

The nonconforming use is similar to the use(s) originally permitted in the structure/on the site;

b.

The nonconforming use will not adversely affect, or be materially detrimental to, adjoining properties; and

c.

The previous nonconforming use has not ceased for a period of 90 or more consecutive days.

(7)

Abatement of nonconforming uses. Nonconforming uses shall be abated as follows:

a.

A use shall be discontinued upon the issuance of a cease and desist order by the city if:

1.

The use is nonconforming due to an operation or process that poses a threat to the public health, safety or welfare, as determined by the police chief, fire chief, community development director, code enforcement

supervisor, building official, public works director, or any of their designees; and

2.

The owner fails to discontinue the operation or process, or to fully mitigate the hazard(s) involved.

b.

A use that does not occupy a structure, or that occupies a structure having an assessed valuation of less than $2,500.00 and causes a public or private nuisance, shall be discontinued within five years following the effective date of the ordinance codified in this development code.

c.

The abatement of nonconforming alcohol businesses shall be governed by section 90-60 (deemed approved alcohol use nuisance regulations of this division).

d.

The abatement of nonconforming tobacco businesses shall be governed by section 90-61 (deemed approved tobacco use nuisance regulations of this division).

e.

A nonconforming use that has been discontinued or abandoned shall comply with subsection (1) (discontinuance and abandonment of use, and loss of legal nonconforming status) of this section.

(Ord. No. 2009, § 2, 3-14-23)

A structure or improvement that was lawfully constructed or installed at a time an ordinance codified in this development code became effective, and does not conform to the development standards of the zoning district in which it is located, shall be deemed a "legal nonconforming structure" or "legal nonconforming improvement," as applicable. A legal nonconforming structure or improvement may continue, subject to the following:

(1)

Damage or destruction of a legal nonconforming structure.

a.

A legal nonconforming structure that is damaged or partially destroyed by fire or other calamity, or the public enemy, or other cause which is beyond the control of the property owner, and which could not otherwise have been prevented by reasonable care and maintenance of the structure, may be reconstructed, restored, or rebuilt up to the original size, placement and density, provided that total cost of the reconstruction, restoration, or rebuilding does not exceed more than 50 percent of the structure's fair market value prior to said damage or destruction. Structure reconstruction, restoration, or rebuilding shall commence within 180 days following the occurrence of damage, and shall be diligently pursued to completion.

b.

In the event that the cost of reconstructing, restoring, or rebuilding a structure exceeds 50 percent of the fair market value of the structure prior to such damage occurring, the structure may be reconstructed, restored, or rebuilt up to its original size, placement, and density prior to such damage occurring, and the use of the structure resumed, subject to the following:

1.

The planning commission, at a duly noticed public hearing, shall first find that the reconstruction, restoration, or rebuilding of the nonconforming structure:

(i)

Will not be detrimental or injurious to the health, safety or general welfare of persons residing or working in the neighborhood;

(ii)

Will not be detrimental or injurious to property and improvements in the neighborhood; and

(iii)

Continuation of the nonconforming structure will not result in an annoyance to and/or reduction of any surrounding property.

2.

The public hearing and findings prescribed in subparagraph (1)b.1. above, shall not be required for the reconstruction, restoration, or rebuilding of a legal nonconforming single-family dwelling located on a lot that is designated for single-family dwellings in the general plan.

3.

The reconstruction, restoration, or rebuilding shall be commenced within 180 days following the date that the damage or destruction occurred and diligently pursued to completion.

4.

Nothing in this section shall be construed to permit the continuation of conditions that will endanger the health, safety, or welfare of building occupants, the residents of the area, or which constitute a public or

private nuisance.

(2)

Reconstruction, restoration or rebuilding of legal nonconforming multiple-family housing.

a.

Pursuant to Government Code § 65852.25, legal nonconforming multiple-family housing that has been involuntarily damaged or destroyed by fire or other catastrophic event, or the public enemy, and such involuntarily damage or destruction could not otherwise have been prevented by reasonable care and maintenance of the structure, may be reconstructed up to the original size, placement and density, excepting multiple-family housing that conforms with one or more of the following:

1.

The reconstruction, restoration, or rebuilding will be detrimental or injurious to the health, safety or general welfare of persons residing or working in the neighborhood, or will be detrimental or injurious to property and improvements in the neighborhood;

2.

The existing nonconforming use of the building or structure would be more appropriately moved to a zone in which the use is permitted, or that there no longer exists a zone in which the existing nonconforming use is permitted; or

3.

The existing nonconforming use of the building or structure has ceased for a period of 180 or more consecutive days.

b.

The reconstruction, restoration, or rebuilding of any legal nonconforming multiple-family housing pursuant shall conform to all of the following:

1.

The California Building Standards Code, as that code was in effect at the time of reconstruction, restoration, or rebuilding;

2.

Any more restrictive local building standards authorized pursuant to Health and Safety Code §§ 13869.7, 17958.7, and 18941.5, as those standards were in effect at the time of reconstruction, restoration, or rebuilding;

3.

The provisions of this development code, so long as the predamage size and number of dwelling units are maintained;

4.

Architectural regulations and standards, so long as the predamage size and number of dwelling units are maintained; and

5.

A building permit shall be obtained within two years following the date that the damage or destruction occurred, and diligently pursued to completion.

c.

The reconstruction, restoration, or rebuilding of multiple-family housing that is involuntarily damaged or destroyed by fire or other catastrophic event, or by the public enemy, shall be prohibited within any industrial zoning district.

(3)

Alterations and expansions to legal nonconforming structures. A nonconforming structure shall not be moved, altered or enlarged so as to increase the discrepancy between existing conditions and the most current standard as prescribed by the zoning district in which the structure is located. Furthermore, reasonable repairs and alterations may be made to legal nonconforming nonresidential structures, provided that no structural alterations shall be made that would prolong the life of supporting members, such as bearing walls, columns, beams, or girders, of a structure. Structural elements may be modified only if the modification or repair is immediately necessary to protect the public health and safety, occupants of the legal nonconforming structure, or adjacent property, as determined by the building official, excepting alteration and/or enlargement of the following:

a.

A nonconforming structure shall not be moved, altered or enlarged so as to increase the discrepancy between existing conditions and the most current standard as prescribed by the zoning district in which the structure is located, excepting alteration and/or enlargement of:

1.

A single-family dwelling conducted pursuant to subsection (8) (nonconforming single-family residential structures) of this section.

2.

A multiple-family development conducted pursuant to subsection (9) (nonconforming multiple-family residential development) of this section.

A nonresidential lot and/or structure conducted pursuant to subsection (10) (alteration and/or expansion of a nonconforming nonresidential structure) of this section.

b.

Within nonresidential zoning and land use districts, reasonable repairs and alterations may be made to legal nonconforming nonresidential structures, provided that no structural alterations shall be made that would prolong the life of supporting members, such as bearing walls, columns, beams, or girders, of a structure. Structural elements may be modified only if the modification or repair is immediately necessary to protect the public health and safety of occupants of the legal nonconforming structure or adjacent property, as determined by the building official, except as otherwise allowed by subsection (10) (alteration and/or expansion of a nonconforming nonresidential structure) of this section. The total cost of the repairs or alterations may not exceed 50 percent of the replacement cost of the nonconforming structure; however, improvements required to reinforce an unreinforced masonry structure shall be permitted without replacement cost limitations, provided the retrofitting is strictly limited to compliance with current earthquake safety standards.

(4)

Interior modifications to legal nonconforming structures. Changes to interior partitions or other nonstructural improvements and repairs may be made to legal nonconforming structures provided that, over any consecutive five-year period, the total cost of the desired improvements or repairs does not exceed 50 percent of the replacement cost of the structure. For the purpose of this provision, the replacement cost shall be determined by the community development director.

(5)

New structures. Any new structure constructed on a lot with an existing legal nonconforming structure shall be constructed in conformance with all applicable provisions of this development code; however, in no case may a new nonresidential structure be constructed on the same lot as an existing legal nonconforming residential structure.

(6)

Abatement of nonconforming structures posing a threat to the public health, safety and general welfare. A structure that is nonconforming because of a violation or deficiency that poses a threat to the public health, safety, or general welfare, as determined by the building official, and that fails to provide necessary improvements to resolve the nonconformity or to fully mitigate the hazard involved, shall be abated, condemned or demolished upon the issuance of a nuisance abatement, condemnation, or demolition order by the city.

(7)

Conversion of nonconforming residential structures located within industrial zoning districts. A nonconforming residential structure located within an industrial zoning district shall not be converted to accommodate a commercial or industrial land use.

(8)

Alteration and/or expansion of a nonconforming single-family residential structures. In addition to the requirements of subsections (1) through (7) of this section, a nonconforming single- family residential lot and/or structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this development code, but which under the provisions of this development code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for single-family residential purposes, shall be subject to the following:

a.

Alterations and expansions to single-family structures in nonresidential zones.

1.

Necessary repairs and desirable alterations, as deemed appropriate by the community development director, may be made to a legal nonconforming single-family residential structure that is nonconforming as to use.

2.

A single-family dwelling that is nonconforming as to use may be enlarged by an additional 25 percent of the original enclosed floor area, provided the addition meets all other provisions of this development code.

3.

A single-family dwelling that is nonconforming as to its location within a zoning district that does not permit single-family dwellings, and in which the residential use was lawfully established and continuously maintained, shall be subject to the development regulations of the R-1-10 zoning district.

4.

The addition or enlargement of a garage for the purpose of providing off-street parking facilities shall be permitted and shall not be counted toward the additional floor area permitted by subsection (8)a.2. above.

b.

Continuation of a nonconforming setback. A single-family dwelling having a nonconforming side yard setback, which is added to, extended or enlarged, may continue the nonconforming setback, provided the addition, extension or enlargement maintains a side yard setback equal to or greater than the existing side yard setback, and is no greater than 14 feet in height.

c.

On-site parking. A single-family residential dwelling that is nonconforming as to site development or design, which is expanded or enlarged to include more than three bedrooms, or wherein a second unit or guesthouse is constructed, unless otherwise exempted by state law, off-street parking shall be provided, unless physical constraints exist that would make it impractical to provide the required parking facility(ies), as determined by the community development director, given the existing site design and configuration. For the purpose of this provision, a bedroom shall be considered any room within the structure that is not a

clearly established garage, kitchen, bathroom, hallway or open living area (e.g. dining, family, and living rooms).

d.

Fences and walls. A street side yard fence or wall that is nonconforming as to setback and was lawfully constructed prior to 1998, may be replaced with a block wall or other fence, keeping within the existing setback, provided visual evidence (such as a photograph) of the nonconforming setback is provide to the community development department prior to building permit issuance for the new fence or wall. If a fence or wall nonconforming as to setback is demolished or removed prior to obtaining a building permit for a new fence or wall, the new fence or wall must meet the setback requirements in effect at the time of building permit issuance.

e.

Revocable encroachment agreement. A front yard fence or wall that is located in the right-of-way shall be demolished prior to the issuance of any new construction permits on the property. An existing nonconforming fence or wall located in the right-of-way may be repaired or replaced in-kind only when visual evidence has been provided (such as a photograph) demonstrating a consistent and clear historical pattern of development within the neighborhood is provided to the community development department, subject to the following criteria.

1.

The existing fencing or wall should not be located in a manner that is hazardous for traveling public, including motorists, bicyclists and pedestrians.

2.

The fencing or wall shall not impede existing travel lanes.

3.

The fencing or wall shall not conflict with existing public utility structures, such as hydrants, vault and service meters, overhead power lines, pipelines, conduits or substructures of any public utility.

4.

Prior to building permit issuance, the property owner shall enter into a revocable encroachment agreement with the city. The revocable encroachment agreement shall be terminated when roadway expansion or other improvements are necessary as required by the city.

5.

In no case, shall existing chain link fences be replaced.

6.

The community development department shall report all revocable encroachment agreements to the city engineer.

(9)

Alteration and/or expansion of a nonconforming multiple-family residential development. In addition to the applicable requirements of subsections (1) through (7) of this section, a nonconforming multiple-family residential structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this development code, but which under the provisions of this development code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for multiple-family residential purposes, shall be subject to the following:

a.

An existing multiple-family residential development that is nonconforming as to base residential density, may be granted a one-time increase in residential density, not to exceed 25 percent of the residential density before the increase, subject to the granting of a conditional use permit.

b.

The increase in residential density shall be acted on based upon the information provided in the submitted application, evidence presented in the planning department's written report, and any comments and/or testimony provided by the public, only after considering and clearly establishing all of the below-listed findings, which shall be in addition to the findings for conditional use permit approval, and giving reasons in support of each finding. The application shall be denied if one or more of the below-listed findings cannot be clearly established.

1.

The density increase will protect a valuable property investment;

2.

The density increase will not adversely affect or be materially detrimental to surrounding properties;

3.

The expansion is architecturally compatible with the existing building;

4.

The density increase and building expansion is compatible with the character of the surrounding area; and

5.

The density increase will provide adequate parking.

c.

Notwithstanding the density increase described in subsection a. above, the city shall not preclude an existing multiple-family residential development that is nonconforming as to base residential, the addition of at least one dwelling unit.

(10)

Alteration and/or expansion of a nonconforming nonresidential structure. In addition to the requirements of subsections (1) through (7) of this section, a nonconforming nonresidential lot and/or structure that was lawfully established and maintained prior to the adoption of the ordinance codified in this development code, but which under the provisions of this development code does not conform with the regulations of the zoning district in which it is located with respect to use, design, and/or development standards, and which is continuously used and maintained for nonresidential purposes (excepting nonconforming alcohol businesses, which shall comply with section 90-60 (abatement of nonconforming alcohol businesses) of this division), shall be subject to the following:

a.

A nonconforming nonresidential land use or structure may be granted a one-time, 25 percent expansion in area, subject to the granting of a conditional use permit.

b.

The alteration and/or expansion of a nonconforming nonresidential lot and/or structure shall be acted on based upon the information provided in the submitted application, evidence presented in the planning department's written report, and any comments and/or testimony provided by the public, only after considering and clearly establishing all of the below-listed findings, which shall be in addition to the general findings for conditional use permits under this Code, and giving reasons in support of each finding. The application shall be denied if one or more of the below-listed findings cannot be clearly established.

1.

The alteration/expansion will protect a valuable property investment;

2.

The alteration/expansion and the proposed use will not adversely affect or be materially detrimental to surrounding properties;

3.

The alteration/expansion will allow for modernization in order to properly operate the use and protect valuable property rights;

4.

The alteration/expansion is architecturally compatible with the existing building;

5.

The alteration/expansion is compatible with the character of the surrounding area; and

6.

The alteration/expansion will provide adequate parking and will not displace existing parking facilities.

(11)

Nonconforming improvements. Nonconforming improvements such as landscaping, screen walls, security fences, and enclosures for trash receptacles, shall be altered to comply with the district regulations covering the following standards as a condition of any discretionary land use or development entitlement approval required by this development code:

a.

The landscaping of setback areas, insofar as a setback exists;

b.

The landscaping of parking areas, provided fulfilling the requirement does not reduce off-street parking or loading spaces to fewer than prescribed by division 6.03 (off-street parking and loading) of this development code;

c.

The screening of outdoor storage and loading areas;

d.

The design, height, and placement of security fences; and

e.

The enclosure of trash receptacles.

(Ord. No. 2009, § 2, 3-14-23)

(a)

Findings. The city council hereby finds and declares that:

(1)

Nuisance and criminal activities such as drug dealing, public drunkenness, loitering, and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and around the premises of on and off-sale alcohol uses.

(2)

Neighborhood character can change over time and the careful regulation of nuisance activity by alcohol uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods.

(3)

Poorly regulated off-sale alcohol uses increase the availability of alcohol in the communities in which they are located, and studies have demonstrated a link between the availability of alcohol and numerous negative consequences, including violence, fatal traffic crashes, and nuisance law violations.

(4)

The city currently lacks a targeted administrative mechanism to its existing nuisance laws based on the alcohol uses on a store-by-store basis through the attachment of conditions, the imposition of administrative penalties, or the revocation of use permits.

(5)

Alcohol uses operating outside of the law negatively impact those uses operating within the law and as good neighbors.

(6)

The city recognizes its responsibility to enforce the law and the need for a partnership with alcohol uses and the city, including the police department and the city attorney, to address illegal activities in proximity to an alcohol use. The city also recognizes that there are occasions when owners and employees of alcohol uses would fear for their personal safety in requesting that persons engaging in illegal activities cease those activities.

(7)

Good faith efforts on the part of the owners and employees of alcohol uses to address illegal activities in proximity to their stores, including meeting the performance standards in subsection 90-90(g), can reduce the nuisance impacts of such alcohol uses.

(b)

Title; reference. The provisions of this section 90-60 shall be known as the "deemed approved alcohol use nuisance regulations." The purpose of these regulations is to promote the public health, safety and general welfare by requiring that businesses that sell alcoholic beverages and that were permitted, conditionally permitted, or nonconforming uses before the adoption of these regulations, or that are permitted or conditionally permitted by the city after the adoption of these regulations, comply with the performance standards as specified in subsection 90-90(g) in order to achieve the following objectives:

(1)

To protect adjacent neighborhoods from the harmful effects of nuisance activities often attendant to the sale of alcoholic beverages.

(2)

To provide opportunities for businesses that sell alcoholic beverages to operate in a mutually beneficial relationship to each other and to other commercial and civic services.

(3)

To provide mechanisms to address nuisance problems often associated with the sale of alcoholic beverages, such as litter, graffiti, unruly behavior, and escalated noise levels.

(4)

To ensure that businesses that sell alcoholic beverages are not the source of undue public nuisances in the community.

(5)

To ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment.

(6)

To monitor alcohol uses to ensure that they do not substantially change their mode or character of operation.

(c)

Automatic deemed approved status. All businesses or entities engaged in the sale of alcoholic beverages that are operating as permitted, conditionally permitted, or nonconforming uses prior to the effective date of this ordinance are now automatically deemed approved alcohol uses. Each such deemed approved alcohol use shall retain this status as long as it continues to comply with the performance standards as specified in subsection 90-90(g).

(d)

Status of new alcohol uses. After the effective date of the ordinance codified in this section all new permitted alcohol uses shall also be subject to the performance standards as specified in subsection 9090(g) and shall receive the same notices and be subject to the same administrative procedures, penalties and fees as those deemed approved alcohol uses that were operating as permitted, conditionally permitted, or nonconforming uses prior to the effective date of the ordinance codified in this section.

(e)

Previously non-conforming alcohol uses. Any deemed approved alcohol use that was previously considered to be a non-conforming use shall continue to be subject to those provisions of this Code that govern non-conforming uses to the extent those provisions do not conflict with the provisions of this section.

(f)

Abandonment. Whenever a deemed approved alcohol use ceases to be operated continuously, or undergoes a substantial change in mode or character of operation, such deemed approved alcohol use

shall not be resumed. A substantial change in the mode of character of operation shall not include:

(1)

Changes in ownership or an owner-to-owner transfer of an alcohol beverage control license.

(2)

Re-establishment, restoration, or repair of an existing alcohol use on the same lot after total or partial destruction or damage due to fire, riot, insurrection, toxic accident or act of God.

(3)

Temporary closure for not more than 90 days for repair, renovation or remodeling, or in cases of vacation or illness.

(g)

Notification to owners of deemed approved alcohol uses. Within six months of the enactment of the ordinance codified in this section, and every year thereafter, the community development department, in coordination with the police department, shall notify the owner of each deemed approved alcohol use of the use's deemed approved status. Such notice shall be sent via U.S. mail and shall include a copy of the performance standards as specified in subsection 90-90(g), notification that the deemed approved alcohol use is required to comply with the performance standards, and notification that the deemed approved alcohol use is required to comply with all other provisions of the deemed approved alcohol use regulations. As long as service is made following these procedures failure of any person to receive notice given pursuant to this section shall not affect the deemed approved status of the use.

The community development department shall refer to the state alcoholic beverage control department's database of all active licenses in the city to determine the names and addresses of the operators of deemed approved alcohol uses.

(h)

Education and outreach to deemed approved alcohol uses.

(1)

Within six months of the enactment of this legislation, the community development director, or his or her designee, in cooperation with the chief of the police department or his or her designee, shall develop and implement an education and outreach program to educate deemed approved alcohol uses about the steps each use may take to operate as a good neighbor in their communities, to avoid nuisance behaviors, and to abide by requirements of this Code. This education and outreach program shall be aimed towards the prevention of alcohol-related nuisances. The education and outreach program shall be directed to all deemed approved alcohol uses.

(2)

The education and outreach program shall include:

a.

The development and distribution of informational packets on the requirements and benefits of this Code and of other educational materials, including, but not limited to, culturally and linguistically appropriate informational posters, brochures, and other materials for display at deemed approved alcohol uses.

b.

Commencing within six months of the enactment of this legislation, biennially the community development department shall provide educational sessions for operators of deemed approved alcohol uses. Operators of deemed approved alcohol uses who do not attend the educational session every two years shall receive an educational site visit from the community development department. This visit should be coordinated with and, when possible, conducted with police department personnel.

(i)

Violations of performance standards. If the city attorney receives from any city official authorized to enforce the provisions of this Code, including but not limited to the community development director, the chief of police, or the designee of any of these officials, a request to consider bringing an administrative hearing or prosecuting a deemed approved alcohol use for violations of city, state and/or federal laws for violations of the performance standards, or for violations of any condition that has been placed on a deemed approved alcohol use, the city attorney may determine that it is appropriate to file a civil action against the deemed approved alcohol use and/or may determine that it is appropriate to bring the deemed approved alcohol use to an administrative hearing. At the administrative hearing, the city attorney may request that a decision be issued ordering that the violations of the performance standards be corrected, that a decision be issued imposing administrative penalties against the deemed approved alcohol use, and/or that a decision be issued imposing conditions on the continued operation of the deemed approved alcohol use.

In the event that the deemed approved alcohol use has, within the past three years, been the subject of an administrative hearing at which a finding of violation of the performance standards was made, at which conditions were imposed on the deemed approved alcohol uses' continued operations, and/or at which administrative penalties were imposed on the deemed approved alcohol use for violation of the performance standards, the city attorney may request that an administrative hearing be held to consider the revocation of the deemed approved alcohol use's deemed approved status and/or request additional penalties or conditions.

(j)

Conditional use permits. In the event that the city attorney receives a request to consider bringing an administrative hearing pursuant to this section, and determines that the alleged violations are violations of conditions imposed by the planning commission or city council through the conditional use permitting process, the city attorney shall refer its findings to the planning department for actions consistent with section 90-42.11. Notwithstanding the foregoing, any alleged violations that are not violations of conditions imposed by the planning commission or city council through the conditional use permitting process shall be subject to the administrative hearing process in this section.

(k)

Administrative hearings.

(1)

Hearings under this section shall be conducted in conformity with division 12 of article II of chapter 1 of this Code.

(2)

Notice. The notice to the owner of the deemed approved alcohol use of the administrative hearing shall be substantially in the following form, but may include additional information:

"You are hereby notified that an administrative hearing will be held before the City of Hemet Hearing Officer at the date and time contained within this Notice to determine whether, due to violations of the

Performance Standards found at Hemet Municipal Code Section 90-90(g), conditions should be imposed on the Deemed Approved Alcohol Use status of the business operated at pursuant to the Deemed Approved Alcohol Use Regulations contained in the Hemet Municipal Code, whether administrative penalties should be imposed, and/or whether the Deemed Approved Status of the Alcohol Use should be

revoked. You may be present and give testimony at the hearing. You may be, but need not be, represented by counsel. In the event that you or the City Attorney requests to submit briefing prior to the administrative hearing, all parties will be notified of the briefing schedule set by, the Hearing Officer appointed in this matter."

A brief statement of the reason(s) for the hearing shall also be included with the notice, including a list of which performance standards the deemed approved alcohol use is considered to be violating.

(3)

Purpose of the hearing. The purpose of the administrative hearing is to receive information as to whether the deemed approved alcohol use is in compliance with the performance standards found at subsection 90-90(g). The hearing officer shall determine whether the deemed approved alcohol use is in compliance with the performance standards. Based on this determination, the hearing officer may continue the deemed approved status for the use in question, may impose administrative penalties for violations of the performance standards, may impose such reasonable conditions as are in the judgment of the hearing officer necessary to ensure compliance with the performance standards, and may revoke the deemed approved alcohol use's deemed approved status. If the hearing officer determines instead to impose further, new conditions on the deemed approved alcohol use, such conditions shall be based upon the information then before the hearing officer.

(4)

In reaching a determination as to whether a use has violated the performance standards, or as to the appropriateness of imposing conditions on a use, revoking a use, assessing administrative penalties, or the amount of administrative penalties to assess, the hearing officer may consider:

a.

The length of time the deemed approved alcohol use has been out of compliance with the performance standard(s); and

b.

The impact of the violation of the performance standard(s) on the community; and

c.

Any information regarding the owner of the deemed approved alcohol use's efforts to remedy the violation of the performance standard.

d.

"Efforts to remedy" shall include, but are not limited to:

1.

Timely calls to the police department that are placed by the owner of the deemed approved alcohol use, his employees, or agents.

2.

Requesting that those persons engaging in activities causing violations of the performance standards cease those activities, unless the owner of the deemed approved alcohol use, or his employees or agents feels that their personal safety would be threatened in making that request.

3.

Making improvements to the use's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks, and graffiti abated within a reasonable time.

(5)

The decision of the hearing officer shall be based upon all information received at the administrative hearing, including, but not limited to, information compiled by city staff, testimony from the owner of the deemed approved alcohol use, and the testimony of all other interested persons. Any conditions imposed by the hearing officer shall be a condition of the deemed approved alcohol use's continued operation. Any condition imposed by the hearing officer shall not be considered a suspension, revocation, or withdrawal of a deemed approved alcohol use's use permit.

(6)

All determinations, decisions, and conditions made or imposed under this section regarding the use of a deemed approved alcohol use shall run with the land.

(l)

Illegal use. A deemed approved alcohol use, that has been finally revoked shall lose its deemed approved alcohol use status and shall no longer be considered a legal use of the building, structure, site, or portion thereof, and shall cease operation immediately.

(Ord. No. 2009, § 2, 3-14-23)

(a)

Findings. The city council hereby finds and declares that:

(1)

Nuisance and criminal activities such as drug dealing, loitering, and other behaviors that negatively impact neighborhoods occur with disproportionate frequency at and around the premises engaged in the sale of tobacco products.

(2)

Neighborhood character can change over time and the careful regulation of nuisance activity by tobacco uses will help to ensure that such uses do not contribute to the deterioration of neighborhoods.

(3)

Poorly regulated tobacco uses increase the availability of tobacco in the communities in which they are located, and studies have demonstrated a link between the availability of tobacco and numerous negative consequences.

(4)

The city currently lacks a targeted administrative mechanism to its existing nuisance laws based on the tobacco uses on a store-by-store basis through the attachment of conditions, the imposition of administrative penalties, or the revocation of use permits.

(5)

Tobacco uses operating outside of the law negatively impact those uses operating within the law and as good neighbors.

(6)

The city recognizes its responsibility to enforce the law and the need for a partnership with tobacco uses and the city, including the police department and the city attorney, to address illegal activities in proximity to an tobacco use. The city also recognizes that there are occasions when owners and employees of tobacco uses would fear for their personal safety in requesting that persons engaging in illegal activities cease those activities.

(7)

Good faith efforts on the part of the owners and employees of tobacco uses to address illegal activities in proximity to their stores, including meeting the performance standards subsection 90-91(f) can reduce the nuisance impacts of such tobacco uses; and

(b)

Title; reference. The provisions of this section 90-61 shall be known as the "deemed approved tobacco use nuisance regulations." The purpose of these regulations is to promote the public health, safety and general welfare by requiring that businesses that sell tobacco products and that were permitted, conditionally permitted, or nonconforming uses before the adoption of these regulations, or that are permitted or conditionally permitted by the city after the adoption of these regulations, comply with the performance standards as specified in subsection 90-91(f) in order to achieve the following objectives:

(1)

To protect adjacent neighborhoods from the harmful effects of nuisance activities often attendant to the sale of tobacco products.

(2)

To provide opportunities for businesses that sell tobacco products to operate in a mutually beneficial relationship to each other and to other commercial and civic services.

(3)

To provide mechanisms to address nuisance problems often associated with the sale of tobacco products, such as litter, graffiti, unruly behavior, and escalated noise levels.

(4)

To ensure that businesses that sell tobacco products are not the source of undue public nuisances in the community.

(5)

To ensure that sites where tobacco products are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment.

(6)

To monitor tobacco uses to ensure that they do not substantially change their mode or character of operation.

(c)

Automatic deemed approved status. All businesses or entities engaged in the sale of tobacco products that are operating as permitted, conditionally permitted, or nonconforming uses prior to the effective date of this ordinance are now automatically deemed approved tobacco uses. Each such deemed approved tobacco use shall retain this status as long as it continues to comply with the performance standards as specified in subsection 90-91(f).

(d)

Status of new tobacco uses. After the effective date of the ordinance codified in this section all new permitted tobacco uses shall also be subject to the performance standards as specified in subsection 9091(f) and shall receive the same notices and be subject to the same administrative procedures, penalties and fees as those deemed approved tobacco uses that were operating as permitted, conditionally permitted, or nonconforming uses prior to the effective date of the ordinance codified in this section.

(e)

Previously non-conforming tobacco uses. Any deemed approved tobacco use that was previously considered to be a non-conforming use shall continue to be subject to those provisions of this Code that govern non-conforming uses to the extent those provisions do not conflict with the provisions of this section.

(f)

Abandonment. Whenever a deemed approved tobacco use ceases to be operated continuously, or undergoes a substantial change in mode or character of operation, such deemed approved tobacco use shall not be resumed. A substantial change in the mode of character of operation shall not include:

(1)

Changes in ownership.

(2)

Re-establishment, restoration, or repair of an existing deemed approved tobacco use on the same lot after total or partial destruction or damage due to fire, riot, insurrection, toxic accident or act of God.

(3)

Temporary closure for not more than 90 days for repair, renovation or remodeling, or in cases of vacation or illness.

(g)

Notification to owners of deemed approved tobacco uses. Within six months of the enactment of the ordinance codified in this section, and every year thereafter, the community development department, in coordination with the police department, shall notify the owner of each deemed approved tobacco use of the use's deemed approved status. Such notice shall be sent via U.S. mail and shall include a copy of the

n to owners of deemed approved tobacco uses. Within six months of the enactment of the ordinance codified in this section, and every year thereafter, the community development department, in coordination with the police department, shall notify the owner of each deemed approved tobacco use of the use's deemed approved status. Such notice shall be sent via U.S. mail and shall include a copy of the

performance standards as specified in subsection 90-91(f), notification that the deemed approved tobacco use is required to comply with the performance standards, and notification that the deemed approved tobacco use is required to comply with all other provisions of the deemed approved tobacco use regulations. As long as service is made following these procedures failure of any person to receive notice given pursuant to this section shall not affect the deemed approved status of the use.

(h)

Education and outreach to deemed approved tobacco uses.

(1)

Within six months of the enactment of this legislation, the community development director, or his or her designee, in cooperation with the chief of the police department or his or her designee, shall develop and implement an education and outreach program to educate deemed approved tobacco uses about the steps each use may take to operate as a good neighbor in their communities, to avoid nuisance behaviors, and to abide by requirements of this Code. This education and outreach program shall be aimed towards the prevention of tobacco-related nuisances. The education and outreach program shall be directed to all deemed approved tobacco uses.

(2)

The education and outreach program shall include:

a.

The development and distribution of informational packets on the requirements and benefits of this Code and of other educational materials, including, but not limited to, culturally and linguistically appropriate informational posters, brochures, and other materials for display at deemed approved tobacco uses.

b.

Commencing within six months of the enactment of the ordinance codified in this section, biennially the community development department shall provide educational sessions for operators of deemed approved tobacco uses. Operators of deemed approved tobacco uses who do not attend the educational session every two years shall receive an educational site visit from the community development department. This visit should be coordinated with and, when possible, conducted with police department personnel.

(i)

Violations of performance standards. If the city attorney receives from any city official authorized to enforce the provisions of this Code, including but not limited to the community development director, the chief of police, or the designee of any of these officials, a request to consider bringing an administrative hearing or prosecuting a deemed approved tobacco use for violations of city, state and/or federal laws for violations of the performance standards, or for violations of any condition that has been placed on a deemed approved tobacco use, the city attorney may determine that it is appropriate to file a civil action against the deemed approved tobacco use and/or may determine that it is appropriate to bring the deemed approved tobacco use to an administrative hearing. At the administrative hearing, the city attorney may request that a decision

be issued ordering that the violations of the performance standards be corrected, that a decision be issued imposing administrative penalties against the deemed approved tobacco use, and/or that a decision be issued imposing conditions on the continued operation of the deemed approved tobacco use.

In the event that the deemed approved tobacco use has, within the past three years, been the subject of an administrative hearing at which a finding of violation of the performance standards was made, at which conditions were imposed on the deemed approved tobacco uses' continued operations, and/or at which administrative penalties were imposed on the deemed approved tobacco use for violation of the performance standards, the city attorney may request that an administrative hearing be held to consider the revocation of the deemed approved tobacco use's deemed approved status and/or request additional penalties or conditions.

(j)

Conditional use permits. In the event that the city attorney receives a request to consider bringing an administrative hearing pursuant to this section, and determines that the alleged violations are violations of conditions imposed by the planning commission or city council through the conditional use permitting process, the city attorney shall refer its findings to the planning department for actions consistent with section 90-42.11. Notwithstanding the foregoing, any alleged violations that are not violations of conditions imposed by the planning commission or city council through the conditional use permitting process shall be subject to the administrative hearing process in this section.

(k)

Administrative hearings.

(1)

Hearings under this section shall be conducted in conformity with division 12 of article II of chapter 1 of this Code.

(2)

Notice. The notice to the owner of the deemed approved tobacco use of the administrative hearing shall be substantially in the following form, but may include additional information:

"You are hereby notified that an administrative hearing will be held before the City of Hemet Hearing Officer at the date and time contained within this Notice to determine whether, due to violations of the Performance Standards found at Hemet Municipal Code Section 90-91(F), conditions should be imposed on the Deemed Approved Tobacco Use status of the business operated at pursuant to the Deemed Approved Tobacco Use Regulations contained in the Hemet Municipal Code, whether administrative penalties should be imposed, and/or whether the Deemed Approved Status of the Tobacco Use should be revoked. You may be present and give testimony at the hearing. You may be, but need not be, represented by counsel. In the event that you or the City Attorney requests to submit briefing prior to the administrative hearing, all parties will be notified of the briefing schedule set by, the Hearing Officer appointed in this matter."

A brief statement of the reason(s) for the hearing shall also be included with the notice, including a list of which performance standards the deemed approved tobacco use is considered to be violating.

(3)

Purpose of the hearing. The purpose of the administrative hearing is to receive information as to whether the deemed approved tobacco use is in compliance with the performance standards found at subsection 90-91(f). The hearing officer shall determine whether the deemed approved tobacco use is in compliance with the performance standards. Based on this determination, the hearing officer may continue the deemed approved status for the use in question, may impose administrative penalties for violations of the performance standards, may impose such reasonable conditions as are in the judgment of the hearing officer necessary to ensure compliance with the performance standards, and may revoke the deemed approved tobacco use's deemed approved status. If the hearing officer determines instead to impose further, new conditions on the deemed approved tobacco use, such conditions shall be based upon the information then before the hearing officer.

(4)

In reaching a determination as to whether a use has violated the performance standards, or as to the

appropriateness of imposing conditions on a use, revoking a use, assessing administrative penalties, or the amount of administrative penalties to assess, the hearing officer may consider:

a.

The length of time the deemed approved tobacco use has been out of compliance with the performance standard(s).

b.

The impact of the violation of the performance standard(s) on the community.

c.

Any information regarding the owner of the deemed approved tobacco use's efforts to remedy the violation of the performance standard.

d.

"Efforts to remedy" shall include, but are not limited to:

1.

Timely calls to the police department that are placed by the owner of the deemed approved tobacco use, his employees, or agents.

2.

Requesting that those persons engaging in activities causing violations of the performance standards cease those activities, unless the owner of the deemed approved tobacco use, or his employees or agents feels that their personal safety would be threatened in making that request.

3.

Making improvements to the use's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks, and graffiti abated within a reasonable time.

(5)

The decision of the hearing officer shall be based upon all information received at the administrative hearing, including, but not limited to, information compiled by city staff, testimony from the owner of the deemed approved tobacco use, and the testimony of all other interested persons. Any conditions imposed by the hearing officer shall be a condition of the deemed approved tobacco use's continued operation. Any condition imposed by the hearing officer shall not be considered a suspension, revocation, or withdrawal of a deemed approved tobacco use's use permit.

(6)

All determinations, decisions, and conditions made or imposed under this section regarding the use of a deemed approved tobacco use shall run with the land.

(l)

Illegal use. A deemed approved tobacco use, that has been finally revoked shall lose its deemed approved tobacco use status and shall no longer be considered a legal use of the building, structure, site, or portion thereof, and shall cease operation immediately.

(Ord. No. 2009, § 2, 3-14-23)

Secs. 90-62—90-70. - Reserved.