Chapter 17.84 — PERMIT IMPLEMENTATION, TIME LIMITS, AND EXTENSIONS

This Chapter provides requirements for the implementation or "exercising" of the land use permits or entitlements specified by this Development Code, including time limits and procedures for granting extensions of time.

• A. Effective after appeal period. Development Permits, Planned Developments, Temporary Use Permits, Use Permits, and Variances shall become effective the day after the appeal period has ended, provided that no appeal of the review authority's approval has been filed in compliance with Chapter 17.140 (Appeals).

• B. Appeal of City Planner's action. If the appeal of a decision by the City Planner is filed in a timely manner, the permit or entitlement shall be placed on hold pending the final decision on the appeal by the Planning Commission.

• C. Planning Commission's action. If the appeal of a decision by the City Planner is denied by the Planning Commission, the permit or entitlement shall become effective on the day after the appeal period has ended, provided that no appeal of the Planning Commission's action has been filed.

• D. Appeal of Site Plan or Design Review Committees and Planning Commission's action. If the appeal of a decision by the Site Plan or Design Review Committees or Planning Commission is filed in a timely manner, the permit or entitlement shall be placed on hold pending the final decision on the appeal by the City Council.

• E. City Council's action is fnal.

• F. If the City Council denies the appeal on a decision by the Site Plan or Design Review Committees or Planning Commission, or modifies the approval of the permit or entitlement, the permit or entitlement shall become effective immediately following the City Council's action.

• G. If the appeal of a decision by the Planning Commission is approved and the permit or entitlement is denied by the City Council on appeal, the permit or entitlement shall be deemed void.

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

A permit applicant may be required by conditions of approval, or by action of the City Planner, to provide adequate performance guarantees (e.g., bonds, cash deposits, certified letter of credit, etc.) to ensure the faithful performance of any or all conditions of approval imposed by the review authority. The City Planner shall be responsible for setting the amount of the required performance guarantee, after consultation with the City Building Official.

• A. Time limits. Unless conditions of approval establish a different time limit, any land use permit or entitlement, except a Zoning Clearance, not exercised within two years of approval, including any extension(s), whichever is greater, shall be deemed expired. A Zoning Clearance not exercised within one year of the issuance of the building and/or grading permit, or 120 days where no building and/or grading permit is required, shall be deemed expired.

  1. The permit shall not be deemed exercised until the permittee has obtained a Building Permit and diligently pursued construction, or has actually commenced the allowed use on the subject property in compliance with the conditions of approval, for uses that do not require a Building Permit. Diligent pursuit shall require, at a minimum, the completion of the installation of the foundation(s) for all structure(s) on the property.

  2. Any permit or entitlement which was approved before the adoption of this Development Code without a specific time limit, shall be exercised within two years of approval, or the time periods allowed to complete a Building Permit, including any extensions, whichever is greater, or the permit shall be deemed expired.

  3. For permits or entitlements without provisions for phasing, the use of the property including the construction of all structures and other features of the project, as shown in the approved permit, shall be completed within four years from the date of approval of the permit. Projects granted one two-year extension, in compliance with subsection C , below, shall require completion within six years from the original date of approval of the permit. Permits not completed within these time periods shall be deemed expired.

• B. Phasing.

  1. Authorization for phasing required. Where the permit or entitlement provides for development in two or more phases or units in sequence, the permit or entitlement shall not be approved until the review authority has approved the final development plan for the entire project site. The project applicant shall not be allowed to develop one phase in compliance with the pre-existing base zoning district and development standards and then develop the remaining phases in compliance with this Development Code.

  2. Maximum interval between phases. Construction shall commence for each phase of a multi-phase project within two years after construction has commenced on the previous phase, or the land use permit shall be deemed expired. If the application for the permit also involves the approval of a Tentative Map, the phasing shall be consistent with the Tentative Map and the permit or entitlement shall be exercised before the expiration of the companion Tentative Map.

• C. Extensions of time. Upon the filing of a request for extension by the applicant, the original review authority may extend the time to establish an approved use.

1. The applicant shall file a written request for an extension of time with the City Planner in advance of the expiration date, together with the filing fee required by the City's Schedule of Fees. If the application also involves the approval of a tentative map, the extension shall be consistent with the tentative map extension, in compliance with State law (Government Code Section 66452.12 ) and Section 17.96.150 (Extensions of Time for Tentative Maps).

   2. If the permit or approval being considered for extension originally required a noticed public hearing, the review authority shall hold a public hearing on the proposed extension of a permit, and give notice, in compliance with Chapter 17.180 (Public Hearings).

   3. Consideration of extension.

      • a. The review authority shall determine whether the permittee has made a good faith effort to exercise the permit and that the request is still in compliance with this Development Code, the General Plan, and any applicable Specific Plan.

      • b. The burden of proof is on the permittee to establish, with substantial evidence, why the permit should be extended.

      • c. If the review authority determines that the permittee has proceeded in good faith, has exercised due diligence in seeking to establish the permit and that the request is still in compliance with this Development Code, the General Plan, and any applicable Specific Plan, the review authority may grant an extension of the permit for a period of up to a total of two additional years.

      • d. The review authority may impose conditions on the approved extension deemed reasonable and necessary to ensure that the approval will remain in compliance with the findings required by this article for the applicable land use permit, and to bring the project into compliance with the General Plan and this Development Code.

      • e. On Tentative Map extensions, the review authority shall either approve, without new conditions, or deny the extension.

• A. City Planner's review. The City Planner shall review all applications for time extensions for Building Permits before they are granted by the Building Official.

• B. Purpose of review. The City Planner's review shall determine that the development project, covered by the Building Permit, remains in full compliance with this Development Code.

• C. Findings. The Building Official shall not grant the requested time extension if:

  1. Substantial work in compliance with the original permit has not occurred; and

  2. The City Planner finds that the project described in the Building Permit is not in compliance with any applicable provision of this Development Code.

Any development or new land use authorized through a Development Permit, Planned Development, Temporary Use Permit, Use Permit, or Variance shall be established only as approved by the review authority and subject to any conditions of approval imposed on the project, except where changes to the project are approved in compliance with this Section.

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

• B. Extent of changes allowed. Generally, minor changes to an approved project may be authorized by the City Planner while major changes shall only be authorized by the original review authority, unless expressly stated otherwise by the conditions of approval imposed on the project, as follows:

  1. Minor changes. The City Planner may authorize minor changes to an approved site plan, architecture, or the nature of the approved use if the changes:

     • a. Are consistent with all applicable provisions of the Development Code;

     • b. Do not involve a feature of the project that was a specific consideration by the review body in taking action in the adoption of findings in a negative declaration or environmental impact report (EIR) for the project;

     • c. Do not involve a feature of the project that was a basis for conditions of approval for the project that imposed limitations, restrictions, or requirements upon the feature above and beyond the requirements of this Development Code or that was a specific consideration by the review body in taking action in the approval permit;

     • d. Do not result in an expansion of the use greater than 10 percent of the total floor area, 10 percent of any outdoor activity area(s), or 10 percent of the total site disturbance area(s); and

     • e. Do not involve a substantial change to the site plan or the building design.

  2. Major changes.

     • a. Major changes to the project which involve features described in subsections B.1.b., B.1.c., B.1.d., and B.1.e above shall only be approved by the review authority through

a new land use permit application or modification of a land use permit, processed in compliance with this Development Code.

• b. If a new land use permit application, or modification of a land use permit, is subsequently approved by the review authority, any previously approved land use permit shall be deemed void and superseded by the new land use permit, or modification.

• c. If any of the matters identified above originally required a noticed public hearing, the review authority shall hold a public hearing on the proposed/requested change(s), and give notice, in compliance with Chapter 17.180 (Public Hearings).

• A. Time limit for resubmittals. When an application for a land use permit, or modification to a land use permit, is denied, no application for the same or substantially similar permit or modification for the same site shall be filed in whole, or in part, within six months of the date of denial, except as may be specified at the time of denial.

• B. Action of City Planner. The City Planner shall determine whether the new application is for a land use permit, or modification, which is the same or substantially similar to the previously denied permit, or modification.

• C. Effective date. The decision of the City Planner shall become effective the day after the appeal period has ended, provided that no appeal of the City Planner's decision has been filed in compliance with Chapter 17.140 (Appeals).

• A. Covenant may be required. When necessary to achieve the land use goals of the City, the City may require a property owner(s) holding property in common ownership to execute and record a Covenant of Easement in favor of the City and providing for air access, emergency access, landscaping, light, and parking access, or for open space. The Covenant may be imposed as a condition of approval by the City Planner, Site Plan Review Committee, Planning Commission, or City Council.

• B. Form of Covenant. The Covenant of Easement shall describe the real property to be subject to the easement and the real property to be benefited by the easement. The Covenant shall also identify the approval or permit granted which relied upon or required the Covenant. The form of the Covenant shall be approved by the City Attorney.

• C. Effect of Covenant. The Covenant shall be effective when recorded and shall 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 conveyance of the affected real property. From and after the time of its recordation, the Covenant shall 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 upon, and the benefits of the Covenant shall inure to, all successors-in-interest to the real property.

• D. Enforceability of Covenant. The Covenant shall be enforceable by the successor(s)-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.

• E. Release of Covenant. The Covenant may be released by the City at the City's discretion, at the request of any person, in accordance with Chapter 17.88 (Vacations).

• F. Fees. The City may impose fees to recover the City's reasonable cost of processing a request for a release. Fees for the processing shall be specified in the City's Schedule of Fees.