Chapter 20.64 — USE PERMITS AND VARIANCES (§ 20.64.010 – § 20.64.160)

Conditional use permits may be issued for any of the uses or purposes for which such permits are required by the various zoning district regulations. In addition, conditional use permits may be issued for any temporary activity, including, but not limited to, any commercial or non-commercial festival, exhibit, or other similar activity, provided that the total duration thereof does not exceed two days.

(Ord. 896 § 1, May 16, 1977)

Application for a conditional use permit shall be made to the Planning Commission on a form prescribed by the Commission and shall be accompanied by a site plan and plans and elevations for any structure drawn to scale to show the details of the proposed use. Such application shall be accompanied by a fee in an amount fixed by resolution to be adopted by the City Council.

(Ord. 788 § 4, February 20, 1973) The Planning Commission shall hold a public hearing on each application for a use permit. (Ord. 1182 § 8, April 2, 2002)

Notice of the public hearing shall be given as specified in Section 20.60.200.

(Ord. 1041 § 2, September 3, 1985)

In order to grant any use permit, the findings of the Planning Commission shall be that the establishment, maintenance or operation of the use applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort or general welfare of the persons residing or working in the neighborhood of such proposed use, nor be detrimental or injurious to property and improvements in the neighborhood of such proposed use, nor to the general welfare of the City. Any decision granting a use permit shall expressly set forth the findings of fact supporting such decision. The Planning Commission may designate such conditions in connection with the use permit as it deems necessary to secure the purposes of this title, and may require such guarantees, including the posting of a bond or the deposit in cash of funds, and evidence that such conditions are being or will be complied with. (Ord. 829 § 1, September 16, 1974)

h the findings of fact supporting such decision. The Planning Commission may designate such conditions in connection with the use permit as it deems necessary to secure the purposes of this title, and may require such guarantees, including the posting of a bond or the deposit in cash of funds, and evidence that such conditions are being or will be complied with. (Ord. 829 § 1, September 16, 1974)

The City of Mill Valley is a predominantly residential community. Commercial zones within the City are intended primarily to provide local retail and service businesses necessary to serve adjoining residential areas. They are to serve as neighborhood commercial zones and are not intended for the purpose of providing retail and service businesses on a regional basis. In order to maintain its community character, it is desirable to restrict or limit certain types of uses. Establishments which provide live entertainment and/or which serve alcoholic beverages for consumption on the premises could have a detrimental effect on the community if established in larger numbers, or if established without adequate controls as hereinafter set forth. The location, number and manner of operation of such uses should be controlled to strengthen and promote the stability, balance and predominantly residential character of the City. For these reasons, the Planning Commission, before making the findings required by Section 20.64.040 with respect to such uses, shall consider, among other things, the following:

A.

The location of the proposed use and its relationship and effect upon residential or other areas of the City and surrounding uses;

B.

The number of such uses presently existing or recently approved within the affected neighborhood and within the City;

C.

The need of the community for additional numbers of such uses, paying particular heed to the question of whether the neighborhood is already adequately served by similar uses; D.

The hours of operation of the proposed use and the potential conflict of those hours with the health, safety and comfort of the residents of the neighborhood;

E.

The relationship and/or conformance of the use to the goals, objectives and policies of the City's General Plan or any specific plans adopted or under consideration;

F.

The recommendations of the City Engineer, Police and Fire Departments as to traffic, safety and other matters;

G.

The impact on the community of any proposed entertainment.

(Ord. 826 § 1, August 5, 1974)

Prior to approving a conditional use permit for establishments which provide live entertainment and/or which serve alcoholic beverages for consumption on the premises, the Planning Commission, in making the findings set forth in Section 20.64.040, shall consider the following matters, among others, and the necessity of imposing specific conditions with respect thereto:

A.

Off-Street Parking. Parking requirements may be imposed exceeding those set forth in Chapter 20.60.

B.

Ventilation. Doors and windows may be required to be closed between certain hours. The applicant may be required to install and maintain mechanical equipment sufficient to provide adequate ventilation without reliance upon open doors and windows. The applicant may be required to provide the building official with the necessary engineering data to verify that this condition can be met.

C.

Noise. The applicant may be required to provide adequate measures controlling noise within and without the premises.

D.

Hours of Operation. Hours of operation may be restricted. These hours may be subject to adjustment at each periodic review of the application.

E.

Seating Capacity and Occupancy Load. Seating capacity and occupancy load may be limited and the applicant required to provide reasonable means of enforcing such limitations. (Ord. 826 § 2, August 5, 1974)

Because establishments which provide live entertainment and/or which serve alcoholic beverages for consumption on the premises could have detrimental effects which are difficult to foresee upon original examination, conditional use permits for such establishments shall be reviewed six months after issuance

and not less than annually thereafter. Upon such review, the conditions of the conditional use permit may be modified if necessary to achieve the objectives of this chapter, or the same may be revoked for the reasons set forth in Section 20.64.140. Any such modification or revocation shall be subject to the notice, hearing and appeal provisions of this title.

(Ord. 826 § 3; Ord. 880 § 1, October 21, 1976)

No building permit shall be issued where a use permit or variance is required until such use permit or variance has been granted, and then only in accordance with the terms and conditions of the use permit or variance so granted. No building permit shall be issued until the 10-day appeal period as provided in this title has elapsed. If an appeal is filed, in writing, then no building permit may be issued before the matter has been settled.

When, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the provisions of this title will deprive such property of privileges enjoyed by other property in the vicinity and under identical zoning classification, or deprive provision of solar access, variances may be granted by the Planning Commission or Zoning Administrator as provided in this chapter; provided, however, that no variance may be granted under this title which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property. Any decision granting a variance shall expressly set forth the findings of fact which support such decision.

(Ord. 892 § 2; Ord. 932 § 6; Ord. 999 § 6, November 15, 1982)

Application for a variance shall be made in writing on a form prescribed by the Planning Commission or the Director of Planning and Building and shall be accompanied by a fee in an amount to be fixed by resolution adopted by the City Council. The application shall be accompanied by a statement, plans, and evidence showing:

A.

That there are exceptions, or extraordinary circumstances, or conditions applying to the land, building or use referred to in the application, which circumstances or conditions are peculiar to the property in question, and do not apply generally to land, buildings and/or uses in the same district.

B.

That the hardship is not due to any action on the part of the applicant.

C.

That the granting of the application is necessary for the preservation and enjoyment of reasonable property rights of the petitioner.

D.

That the granting of such application will not under the circumstances of the particular case, affect adversely the health, comfort or safety of persons residing or working in the neighborhood of the property of the applicant and will not, under the circumstances of the particular case, be detrimental to the public welfare or injurious to property or improvements in the neighborhood.

(Ord. 788 § 5; Ord. 932 § 7, November 20, 1978)

The Planning Commission or Zoning Administrator shall hold a public hearing on each application for a variance within 45 days after the application is accepted as being complete.

(Ord. 1041 § 3, September 3, 1985) Notice of the hearing shall be given as specified in Section 20.60.200.

(Ord. 1041 § 4, September 3, 1985)

In order to grant a variance, the Planning Commission or Zoning Administrator shall find that each and every condition under subsections A, B, C and D of Section 20.64.070 shall apply to the land, building or

use for which the variance is sought and that such variance shall be consistent with the general purposes of this title.

The Planning Commission or Zoning Administrator may designate such conditions in connection with a variance as deemed necessary to secure the purpose of this title and may require such guarantees and evidences that said conditions are being or will be complied with.

(Ord. 932 § 8, November 20, 1978)

Variances to regulations pertaining to lot size, setback, height limitations, lot coverage, and yard requirements may be allowed to improve solar access or energy conservation. (For definition of "solar access" refer to Section 20.08.162.)

(Ord. 1182 § 8, April 2, 2002)

If the applicant for a conditional use permit or a variance has been notified by the City in writing that a structure has been commenced in violation of the terms and conditions of this title, and construction continues after such notice, a fee of $1,000.00 shall be paid by the applicant.

Any use permit or variance may be revoked if any of the conditions or terms of such use permit or variance are violated or for other good cause. In such case the Planning Commission shall hold a hearing on the proposed revocation, after giving written notice to the permittee at least 10 days prior to the hearing, and shall submit its recommendations to the City Council. The City Council shall act thereon within 30 days.

Any use permit, variance or plan review becomes null and void if not exercised within one year following the date the same is granted; provided, however, that when a use permit, variance or plan review has not been exercised within one year and good cause for such delay has been shown, the Planning Commission may grant an extension of not more than one year within which such conditional use permit, variance or plan review may be exercised. A use permit, variance or plan review shall be deemed to have been exercised if:

A.

The use has commenced; and

B.

A building permit has been issued by the Building/Zoning Code Inspector and construction has been commenced and has been or is being diligently pursued toward completion.

(Ord. 826 § 4, August 5, 1974)

Any person owning real property within the City may file an application to have this title changed with respect to the zoning classification of his or her property. Such person shall file with the Clerk of the Planning Commission a written application containing such information as the Planning Commission shall from time to time require. The applicant shall pay to the City a fee in an amount established by resolution to

be adopted by the City Council. At the conclusion of such hearing, the Planning Commission shall report its recommendations for or against the application to the City Council for final action.

Notice of time and place of such hearing shall be given by publication at least once in a newspaper of general circulation in the City of Mill Valley at least 10 days prior to the time of the hearing.

(Ord. 788 § 6, February 20, 1973)

Aside from any other fees or deposits, the applicant requesting any entitlement requiring a public hearing shall furnish to the City payment for contract services to compile and type the names and addresses of owners and occupants within the notification area on envelopes containing the public notice. (Ord. 848 § 1, July 30, 1975)

Chapter 20.65 OUTDOOR DINING AREAS AND OUTDOOR

MERCHANDISE DISPLAYS (§ 20.65.010 – § 20.65.110)

Outdoor dining areas or outdoor merchandise displays may be permitted subject to approval by the Planning Director or other review body and issuance of an outdoor dining permit or outdoor merchandise display permit.

(Ord. 1307 § 1, March 4, 2019)

Applications for outdoor dining permits and outdoor merchandise display permits shall be submitted to the Planning Director, together with the appropriate fee, as established by resolution adopted by the City Council, and other required materials. A site plan drawn to scale, depicting passageway dimensions, the location of seating, tables, umbrellas and/or merchandise displays, together with such other information and exhibits as required by the Planning Director, shall accompany the application. The application must be

reviewed by and found to meet the standards of the Department of Public Works, the Mill Valley Fire Department, and the Mill Valley Police Department.

The Planning Director may grant an outdoor dining permit or outdoor merchandise display permit provided that the following findings can be made:

A.

The proposed outdoor dining area or outdoor merchandise display will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the neighborhood of the proposed use.

B.

The proposed outdoor dining area or outdoor merchandise display will not adversely affect properties in the neighborhood of the proposed use.

The Planning Director may impose reasonable conditions of approval upon any outdoor dining permit or outdoor merchandise display permit as necessary to accomplish the purposes of this chapter.

Any decision of the Planning Director to grant an outdoor dining permit or an outdoor merchandise display permit may be appealed to the Planning Commission in accordance with Chapter 20.100 of this Code.

A.

Outdoor dining areas shall be permitted as accessory uses in connection with lawfully established restaurants or food service establishments.

B.

Food and beverages served in the outdoor dining area shall be limited to that which is served in the interior of the restaurant or food service establishment.

C.

An outdoor dining area must be located directly adjacent to the restaurant or food service establishment to which it is an accessory use.

D.

Tables, chairs, umbrellas or other fixtures associated with outdoor dining areas shall be compatible with the character of the adjacent buildings and with the design guidelines in the Mill Valley General Plan, subject to the approval of the Planning Director.

E.

Furniture and fixtures utilized in outdoor dining areas shall be of good quality, durable materials and construction, and shall be maintained in such a manner as to enhance the downtown area.

F.

Furniture and fixtures utilized in outdoor dining areas may not be bolted into the ground or fastened to streetlights, trees or other street furniture. Tables and chairs must be removed during non-business hours,

unless located on private property.

G.

Any outdoor lighting associated with outdoor dining areas shall be subject to the approval of the Planning Director.

H.

Portable heaters utilized in outdoor dining areas shall be located a minimum of three feet from any combustible material and shall be located completely within the confines of the outdoor dining area.

I.

The canopies of umbrellas utilized in outdoor dining areas must provide a minimum vertical clearance of seven and one-half feet, unless the umbrella does not extend beyond the outside edge of a table. Umbrella canopies shall not be placed within two feet of the face of a curb. Weather shields, temporary walls and awnings, must provide a minimum vertical clearance of seven and one-half feet.

Not more than 50% of the total perimeter lineal footage of the outdoor dining area may be fully enclosed, unless additional parking is provided in accordance with Section 20.60.090. Weather shields, walls, planters or other barriers defining the open portion of outdoor dining area shall not exceed 48 inches in height.

J.

No sound amplification device, musical instrument or sound reproduction device shall be operated or used in outdoor dining areas.

K.

Outdoor dining areas shall be maintained in a clean condition at all times. All litter and food items associated with the outdoor dining area shall be removed and disposed of on a continual basis. The ground surface of the outdoor dining area shall be steam cleaned or pressure washed on a quarterly basis, or as often as determined necessary by the City. Residue water from steam cleaning or pressure washing must be appropriately collected in accordance with best management practices guidelines, never flushed down a gutter or storm drain.

L.

Outdoor dining areas shall be designated by fixed, permanent markings as shown and approved in the permit application.

M.

Outdoor dining areas located in the public right-of-way shall allow a minimum 48 inches, unobstructed passageway from the exterior border of the dining area to the interior edge of the curb of the adjacent street, or to any curb, ramp or crosswalk, or to any other fixed obstruction (i.e., light pole, planting area, parking meter) at all times. No wait staff or busing shall be allowed within the required 48-inch clearance area. Outdoor dining areas shall not obstruct access to parking areas or driveways, or encroach on landscape areas. Owner/operator shall be responsible for compliance with Title 24 of the California Building Code with regards to accessibility.

N.

No additional parking shall be required, unless in the opinion of the Planning Director, significant additional seating is created in the outdoor dining area.

O.

The permit shall expire with the change of business owner or the change of use of the business. (Ord. 1307 § 1, March 4, 2019)

A.

Outdoor merchandise displays shall be permitted as accessory uses to lawfully established retail businesses in the C-G (General Commercial) and C-N (Neighborhood Commercial) districts.

B.

The type of merchandise displayed in an outdoor merchandise display shall be limited to the type of merchandise sold by the business at the site.

C.

An outdoor merchandise display must be located directly adjacent to the retail business to which it is an accessory use.

D.

Outdoor merchandise display fixtures shall be compatible with the character of the adjacent buildings and

with the design guidelines in the Mill Valley General Plan, subject to the approval of the Planning Director. Merchandise displays utilizing card tables, cardboard cartons, plastic milk crates or plywood boxes are not permitted.

E.

Outdoor merchandise display fixtures shall be of good quality, durable materials and construction, and shall be maintained in such a manner as to enhance the downtown area.

F.

Outdoor merchandise display fixtures may not be bolted into the ground or fastened to streetlights, trees or other street furniture. All merchandise and merchandise display fixtures must be removed during nonbusiness hours unless located on private property.

G.

Outdoor merchandise displays shall be limited to 75% of the business frontage, measured by linear foot. H.

Outdoor merchandise displays, including the merchandise placed on them shall be limited to a width of 30 inches and may not be more than six feet high. Merchandise too large to be placed on a display may be freestanding.

I.

Outdoor merchandise displays shall be organized and maintained in an orderly and attractive manner at all times.

J.

No sound amplification device, musical instrument or sound reproduction device shall be operated or used in conjunction with outdoor merchandise displays.

K.

Any outdoor lighting associated with outdoor merchandise displays must be approved as part of the outdoor merchandise display permit process.

L.

Merchandise displays located in the public right-of-way shall allow a minimum 48-inch unobstructed passageway from the exterior border of the designated markings to the interior edge of the curb of the adjacent street, or to any curb ramp or crosswalk, or to any other fixed obstruction (i.e. light pole, planting area, parking meter) at all times. Merchandise display areas shall not obstruct access to parking areas or driveways, or encroach on landscape areas. Owner/operator shall be responsible for compliance with the California Building Code with regards to accessibility and egress.

M.

Outdoor merchandise display areas shall be designated by fixed, permanent markings as shown and approved in the permit application. Minimal contrast markings are required. No paint will be accepted as a

type of designated marking.

N.

Permitted outside merchandise displays located on the public right-of-way shall operate only on the following days.

1.

The weekend including the third Sunday in April, or the 2nd Sunday if the third Sunday is Easter [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

2.

The weekend including the third Sunday in June [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

3.

Wine and Gourmet Food Tasting day (4th Sunday in June) [one day only].

4.

The weekend including the third Sunday in July [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

5.

The weekend including the third Sunday in August [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

6.

The weekend including the third Sunday in October [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

O.

Outside merchandise displays which are located on the public right-of-way are allowed without permit on the following weekends, provided they are in conformance with requirements A through L as outlined in Section 20.65.070 of this chapter:

1.

Memorial Day Holiday (last Monday in May) weekend [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only].

2.

Fall Arts Festival (second or third weekend in September) weekend [three days, consisting of the immediate Friday prior, the Saturday and the Sunday only]. P.

The permit shall expire with the change of business owner or the change of use of the business.

The permit holder of an outdoor dining permit or outdoor merchandise display permit for use of public property shall, at its sole cost and expense, maintain a comprehensive liability insurance policy in an amount specified by the City at all times during the duration of the permit.

A.

Prior to the issuance of an outdoor dining permit or outdoor merchandise display permit, the applicant for the permit shall furnish the City with a certificate of insurance, duly authenticated, evidencing maintenance of the insurance required under the permit.

B.

Said insurance policy shall name the City, its officials, officers, employees, agents and volunteers as additional insureds. Said insurance shall apply as primary insurance, and shall stipulate that any insurance maintained by the City shall be in excess of the permit holder's insurance and shall not contribute with it. The insurance policy shall also contain a provision that cancellation, termination, or suspension of the

policy, or any change of coverage of the insured or additional insureds, shall not be effective until after 30 days prior written notice has been provided to the City.

C.

If the insurance policy is canceled, terminated, suspended or materially changed, the outdoor dining permit or outdoor merchandise display permit shall be suspended until such time as compliance with the requirements of this section has been fully satisfied.

The permit holder of an outdoor dining permit or outdoor merchandise display permit shall indemnify, defend and hold harmless the City, its officials, officers, agents, and employees from any and all claims, causes of action, losses, injuries or damages arising directly or indirectly from the negligent acts, errors or omissions of the permit holder, its officers, agents, employees, or anyone rendering services on its behalf.

This indemnity shall include all reasonable costs and attorney's fees incurred in defending any action covered by this section.

Any outdoor dining permit or outdoor merchandise display permit may be revoked by the Planning Director if any of the terms of such permit or the conditions of approval for said permit are violated, or for other good cause deemed necessary to preserve and protect the health and welfare of the public.

Any decision of the Planning Director to revoke an outdoor dining permit or an outdoor merchandise display permit may be appealed to the Planning Commission in accordance with Chapter 20.100 of this Code.

(Ord. 1203 § 4, May 16, 2005)