Chapter 9.60 — REASONABLE ACCOMMODATION

It is the policy of the City of Mission Viejo to comply with the Federal Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act to provide reasonable accommodation in the application of its zoning or building laws, policies or procedures for persons with disabilities seeking fair access to housing. The purpose of this chapter is to establish the process for making a request for reasonable accommodation. For purposes of this chapter, the term "disabled" or "disability" shall have the same meaning as that term is defined in the Federal Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.020. - Application.

(a)

Any person who requests reasonable accommodation, because of a disability, in the application of a zoning or building law, policy or procedure, which may act as a barrier to fair housing opportunities, may do so by filing a completed application with the director of community development ("director"). The director shall promulgate application forms for this purpose.

(b)

If the project for which the request is being made also requires some other approval, permit or entitlement, the applicant shall file the request together with the application for such approval, permit or entitlement.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.030. - Required information.

The applicant shall provide the following information:

(a)

Applicant's name, address, and telephone number;

(b)

Address of the property for which the request is being made;

(c)

The current actual use of the property;

(d)

A description of the accommodation requested including reference to the Development Code provision, policy or procedure from which modification is being requested;

(e)

The basis for the claim that the applicant is considered disabled under the Federal Fair Housing Amendments Act of 1988 or the California Fair Employment Housing Act; and

(f)

A detailed explanation of why the accommodation is reasonable and why the accommodation is necessary to afford the applicant an equal opportunity to use and enjoy a specific dwelling in the city.

(Ord. No. 03-215, § 1, 3-17-03)

Written notice of a request for reasonable accommodation shall be given as follows:

(a)

In the event that there is no approval sought other than the request for reasonable accommodation, the notice shall be mailed to the owners of record of all properties which are immediately adjacent to the property which is the subject of the request.

(b)

In the event that the request is being made in conjunction with some other approval, permit or entitlement, the notice shall be transmitted along with the notice of the other proceeding.

(Ord. No. 03-215, § 1, 3-17-03)

(a)

The director shall review each application for reasonable accommodation and, within five days of receipt thereof, determine whether the application is complete. If the application is determined to be incomplete,

the director shall promptly give the applicant written notice of the additional information necessary to complete the application.

(b)

Within 30 days of receipt of an application that has been determined to be complete, the director shall complete a review of the application and, pursuant to the standards provided in section 9.60.060, either approve, approve subject to conditions or deny the request. However, in the event that the applicant also seeks an approval, permit or other entitlement that is reviewed by the planning and transportation commission, then the planning and transportation commission shall review the application for reasonable accommodation.

(c)

The director shall give the applicant written notice of the director's decision. Notice of the director's decision shall also be given in the same manner as provided in section 9.60.040.

(d)

Within ten days of the date the notice is mailed, any person may make a request for a director's hearing of the decision.

(e)

If no request for hearing is received, the decision shall become final.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.060. - Grounds for accommodation.

In making a determination about the reasonableness of a requested accommodation, the following factors shall be considered:

(a)

Whether the accommodation is reasonable considering the nature of the applicant's disability, the surrounding land uses, and the rule, standard, policy, or practice from which relief is sought;

(b)

Whether the accommodation is necessary to afford the applicant equal opportunity to enjoy and use a specific dwelling in the city;

(c)

Whether the accommodation will have only incidental economic or monetary benefits to the applicant, and whether the primary purpose of the accommodation is to assist with real estate speculation or excess profit taking;

(d)

Whether the accommodation will create a substantial adverse impact on surrounding land uses, or a public nuisance, that cannot be reasonably mitigated;

(e)

Whether the accommodation is reasonably feasible considering the physical attributes of the property and structures;

(f)

Whether there are alternative accommodations which may provide an equivalent level of benefit to the applicant, while minimizing adverse impacts on surrounding land uses and lessening the financial and/or administrative burden on the city;

(g)

Whether the requested accommodation would impose an undue financial or administrative burden on the city; and

(h)

Whether the requested accommodation would constitute a fundamental alteration of the zoning or building laws, policies or procedures of the city.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.070. - Director's hearing.

Within 30 days of receipt of a request, the director shall conduct a hearing on the request for reasonable accommodation at which all reasonable evidence and credible testimony shall be considered.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.080. - Notice of director's decision following a hearing.

(a)

Within five days after the hearing, the director shall issue a written decision approving, including any reasonable conditions, or denying the application.

(b)

The notice of director's decision shall contain the director's factual findings, conclusions, and reasons for the decision.

(c)

Notice of the director's decision shall be given in the same manner as provided in section 9.60.040.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.090. - Expiration of grants of reasonable accommodation.

Any modification granted for an individual with a disability shall be a personal accommodation for the individual applicant and shall not run with the land, unless the director determines that it would be impractical to require the property to be returned to its previous condition once the disabled person no longer occupies the property. Prior to the issuance of a building permit or any other applicable permit for such modification, the permittee shall execute a notarized statement that permits the city to inspect the affected property at least annually to verify compliance with this chapter and with any applicable conditions of approval. Prior to any transfer of interest in the property, the permittee shall notify the transferee of the existence of the accommodation, the personal status of the accommodation and the requirements that the tranferee must apply for a new accommodation as necessary. Except as otherwise provided by the director, as set forth herein, once such transfer takes effect the accommodation shall have no further validity.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.100. - Appeal.

The decision of the director or the planning and transportation commission shall be subject to appeal pursuant to the procedures set forth in chapter 9.56 of the Municipal Code.

(Ord. No. 03-215, § 1, 3-17-03)

Sec. 9.60.110. - Fee.

There shall be no fee for an application under this chapter.

(Ord. No. 03-215, § 1, 3-17-03)

ARTICLE V. SUBDIVISION REGULATIONS CHAPTER 9.70. - GENERAL PROVISIONS

Sec. 9.70.005. - Title.

Chapters 9.70 through 9.85 of this Code may be cited as the "City of Mission Viejo Subdivision Code."

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.70.015. - Purpose.

(a)

The purpose of this chapter is to provide regulations and controls for the design and improvement of subdivisions in the City of Mission Viejo, in accordance with the Subdivision Map Act.

(b)

Other purposes of this chapter are:

(1)

To implement the City of Mission Viejo General Plan.

(2)

To provide regulations and controls, within the law, over the use of land in the City of Mission Viejo for the health, safety and welfare of present and future residents of Mission Viejo.

(3)

To provide a procedure for lot line adjustments in the City of Mission Viejo.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

No person shall offer to sell or lease, contract to sell or lease, sell or lease, finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or allow occupancy thereof, for which a final tract map is required by this article, until such map thereof, in full compliance with the provisions of this article and the Subdivision Map Act, has been filed for record by the county recorder.

(b)

No person shall sell, lease or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or allow occupancy thereof, for which a parcel map is required by this article, until such map thereof, in full compliance with the provisions of this article, and the Subdivision Map Act has been filed for record by the county recorder.

(c)

No permit to develop any real property which has been divided or which has resulted from a division in violation of the Subdivision Map Act or this article shall be granted by any officer or employee of the City of Mission Viejo or by the planning commission or the city council unless a certificate of compliance has been issued and recorded for the property to be developed in accordance with Division 15 of this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The director shall formulate such rules, procedures and interpretations as may be necessary or convenient to administer this article. Such rules, procedures and interpretations shall be referred to as the "City of Mission Viejo subdivision manual" or the "subdivision manual." The subdivision manual shall be adopted or amended by the city council by resolution. The director is hereby authorized to incorporate future amendments to the subdivision manual provided such amendments are consistent with this division, and provided that the Subdivision Map Act does not require that such amendments be adopted by ordinance of the city council. Copies of the subdivision manual shall be made available to the public at a cost sufficient to pay for printing. Where conflicts occur between the provisions of this code or other regulations of the

city and the Subdivision Map Act or a subdivision issue is not covered by the city's Code, the Subdivision Map Act shall prevail.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any reference to the "city engineer" in this chapter shall be to the City Engineer of the City of Mission Viejo Public Works Department.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.70.035. - Director.

Any reference to the "director" in this chapter shall be to the Director of Community Development of the City of Mission Viejo Community Development Department.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

There is hereby established a subdivision committee, hereinafter referred to as "committee." Membership shall consist with such requirements as specified in the subdivision manual. The director of community development may designate a chairman and vice-chairman of the committee.

(b)

The City of Mission Viejo Subdivision Committee is hereby designated as an advisory agency as that term is used in the Subdivision Map Act, and shall have the authority to review and approve, conditionally approve, or disapprove lot line adjustments. The subdivision committee shall review and make recommendations to the planning commission on petitions for tentative tract maps, tentative parcel maps, and local park dedications, modifications, and park implementation plans.

(c)

The subdivision committee shall review and make recommendations to the city council on petitions for reversions to acreage.

(d)

The subdivision committee shall perform its duties as may be specified by the director or the city council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.70.045. - Planning commission.

The City of Mission Viejo Planning Commission is hereby designated as an advisory agency as that term is used in the Subdivision Map Act, and shall have the authority to review and approve, conditionally approve, or disapprove tentative tract maps and tentative parcel maps. In addition, the planning commission is

hereby designated as an appeal board as that term is used in the Subdivision Map Act and shall hear appeals from actions of the subdivision committee with respect to lot line adjustments.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.70.050. - City council.

The City of Mission Viejo City Council is hereby designated as an appeal board as that term is used in the Subdivision Map Act and shall hear appeals from actions of the planning commission with respect to tentative tract maps, tentative parcel maps, and lot line adjustments.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.70.055. - Processing and filing fees.

Fees to cover the costs incurred by the city in processing maps, plans and requests filed pursuant to the provisions of the Subdivision Map Act and this article shall be paid to the City of Mission Viejo in compliance with the latest fee resolution adopted by the city council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.71. - DEFINITIONS

Sec. 9.71.005. - Map act prevails.

The definitions in the Subdivision Map Act shall govern the meaning of words in this chapter, except as follows:

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.71.010. - Development Code, Grading Code, map act definitions apply.

Unless otherwise defined in this chapter, words and phrases used in this chapter shall be deemed to have the same meaning applied to them in the City of Mission Viejo Development Code, City of Mission Viejo Grading and Excavation Code, and the Subdivision Map Act.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.71.015. - Subdivision Code definitions.

(a)

Specific definitions for terms used in this chapter are as follows:

(1)

Advisory agency. See sections 9.70.040 and 9.70.045 of this chapter.

(2)

Appeal board. See sections 9.70.045 and 9.70.050 of this chapter.

(3)

Building site. A parcel, or contiguous parcels, of land which was established in compliance with the building site requirements in the Development Code.

(4)

Community apartment project. A project in which an undivided interest in the land is coupled with the right of exclusive occupancy of any apartment located thereon.

(5)

Condominium. An estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial or commercial building on such real property, such as an apartment, office or store. A condominium may include in addition a separate interest in other portions of such real property.

(6)

Condominium project. An entire parcel of real property divided, or to be divided, into condominiums, including all structures thereon.

(7)

Council. Refers to the City of Mission Viejo City Council, which is the governing body of the City of Mission Viejo.

(8)

City standards. Refers to the City of Mission Viejo Development Standards and Specifications as adopted by the city council.

(9)

County surveyor. Refers to the County Surveyor of the County of Orange.

(10)

Development Code. Refers to the City of Mission Viejo Development Code.

(11)

Driveway. A designated passageway providing vehicular access between a street and a garage or carport, a parking area, or other driveway or street. A driveway shall not be considered a street.

(12)

Easement. A recorded right or interest in land owned by another, which entitles the holder thereof to some use, privilege or benefit out of or over said land.

(13)

Engineering geologist. A person duly certified in the State of California to practice engineering geology.

(14)

Flood control work or drainage work. Refers to all means of conveying or storing storm waters, including natural watercourses, improved drainage channels, retarding basins, closed conduits or pipes, and authorized or existing flood control channels; and also the control of sedimentation.

(15)

Flood hazard. Means the capability of flowing water or mixtures of soils and water to impair or to damage buildings and other structures, and their functions, to erode natural and modified land surfaces, including channels and watercourses; and to deposit eroded material on either public or private property in a damaging or impairing manner and amount.

(16)

Flood hazard, possible. Means possible extension of areas denoted as "subject to flood hazard," including also the uncertainty of degree or extent of bank erosion.

(17)

Grading Code. Refers to the City of Mission Viejo Grading and Excavation Code.

(18)

Hillside. Refers to a parcel of land or a definable portion thereof with an average slope of ten percent or more, or an average rise or fall of one foot or more vertically for each ten feet horizontally.

(19)

Improvement. Refers to such street work and utilities to be installed or agreed to be installed by the subdivider on the land to be used for public or private streets, highways, ways and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs as a condition precedent to the approval and acceptance of the final tract or parcel map thereof. "Improvement" also refers to such other specific improvements or types of improvements, the

installation of which, either by the subdivider, by public agencies, by private utilities, by any other entity approved by the city council, or a combination thereof, is necessary or convenient to insure conformity to or implementation of the City of Mission Viejo General Plan or any adopted specific plan.

(20)

Inundation. Ponded water or water in motion of sufficient depth to damage property due to the mere presence of water or to deposition of silt.

(21)

Master plan of drainage. An engineering report adopted by the city council, pursuant to Government Code § 66683, which outlines the local drainage facilities (but not including necessary on-site or regional facilities), needed for proper development of a specific area of the City of Mission Viejo.

(22)

Person. Any individual, firm, co-partnership, joint venture, association, club, social club, fraternal organization, corporation, estate, trust, business trust, receiver, syndicate, this and any other county, city and county, municipality, district, or other political subdivision, or any other group or combination acting as a unit.

(23)

Remainder parcel. That portion of a parcel of land which is not to be included within the boundaries of the final parcel or tract map.

(24)

Right-of-way. A specifically defined area or strip of land, either public or private, on which an irrevocable right of passage or use has been recorded.

(25)

Slope, manmade. A manufactured slope consisting wholly or partly of either cut or fill material.

(26)

Soil engineer. A civil engineer duly registered in the State of California whose field of expertise includes soil mechanics.

(27)

Stock cooperative. As defined in the Subdivision Map Act.

(28)

Street. A public or private vehicular way, other than an alley or driveway constructed to city standards including both local streets and arterial highways.

(29)

Subdivider. As defined in the Subdivision Map Act.

(30)

Subdivision. As defined in the Subdivision Map Act.

(31)

Subdivision Map Act. Refers to the Government Code tit. 7, div. 2.

(32)

Vehicular access rights. Refers to the right to gain entry or exit with a vehicle to or from a street or driveway to or from abutting land.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.72. - TYPES OF MAPS PERMITTED

Sec. 9.72.005. - Tentative tract maps.

A tentative tract map is a preliminary map that is used whenever a parcel or a number of contiguous parcels of land is proposed to be subdivided for the purpose of creating five or more lots, five or more condominium units, the conversion of five or more existing dwelling units to a stock cooperative, or a community apartment project containing five or more apartment units, except as otherwise specified by section 9.72.010 or section 9.72.025.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

A tentative parcel map is a preliminary map that is used whenever a parcel or contiguous parcels of land is proposed to be subdivided for the purpose of creating less than five lots, less than five condominium units, or a community apartment project containing less than five apartment units, or where:

(a)

The land before division contains less than five acres, each parcel proposed to be created by the subdivision will abut upon a maintained public street or highway, and all dedications and improvements required by city standards will have been previously complied with.

(b)

Each parcel proposed to be created by the subdivision will have a gross area of 20 acres or more and an approved access to a maintained public street or highway.

(c)

The land proposed to be subdivided consists of a parcel or parcels of land having approved access to a public street or highway which comprises part of a tract of land zoned for business park, industrial or

commercial development, and which has the approval of the city engineer as to street alignments and widths.

(d)

Each parcel proposed to be created by the subdivision will have a gross area of not less than 40 acres or not less than a quarter of a quarter section.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.72.015. - Final tract maps.

A subdivision may be created by the recordation of a final tract map that is in substantial conformance with all or a portion of an approved tentative tract map. Each final tract map shall include all or a portion of the approved tentative tract map. It shall be filed in compliance with the provisions of this chapter, the Subdivision Map Act and the subdivision manual.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.72.020. - Final parcel maps.

(a)

A subdivision may be created by the recordation of a final parcel map that is in substantial conformance with an approved tentative parcel map or with a portion of an approved tentative parcel map which complies with the provisions of section 9.72.010(c). A final parcel map may also be recorded on portions of a tentative tract map when such portions comply with the specifications of section 9.72.010(b), (c), or (d). It shall be filed in compliance with the provisions of this article, the Subdivision Map Act and the subdivision manual.

(b)

A parcel map shall be based upon a field survey except that a parcel map may be compiled from record data when the city engineer determines that the subdivision does not require a field survey provided the map complies with the provisions of the Subdivision Map Act.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Certain types of land divisions and transactions may be completed without complying with the entire tentative and final tract or parcel map procedure, as specified.

(a)

A request for determination as to the status of any parcel of land created as a result of a lease or conveyance specified by subsections (1) through (9) may be submitted in compliance with the certificate of compliance procedure as stated in Subarticle 15 of this article. Neither a tentative or final tract or parcel map is necessary for the following:

(1)

The financing or leasing of apartments, offices, stores or similar space within apartment buildings, industrial buildings, commercial buildings, mobile home parks or trailer parks.

(2)

Mineral, oil or gas leases.

(3)

Land dedicated for cemetery purposes under the Health and Safety Code of the State of California.

(4)

Leases of agricultural land for agricultural purposes.

(5)

Short-term leases (terminable by either party on not more than 30 days' notice in writing) of a portion of the operating right-of-way of a railroad corporation defined as such by the Public Utilities Code § 230.

(6)

Subdivisions in which every parcel has a gross area of 60 acres or more.

(7)

Lot line adjustments.

(8)

Conveyances of land for rights-of-way to or from a governmental agency, public entity or public utility, or to a subsidiary of a public utility for conveyance to such a public utility; however, in any of these instances a tentative and final tract or parcel map be required if the director determines that a map is necessary for purposes of public health and safety or for the general welfare.

(9)

Boundary line or exchange agreements to which the state lands commission or a local agency holding a trust grant of tide and submerged lands is a party.

(10)

The conversion of a community apartment project or stock cooperative to a condominium provided all requirements of the Subdivision Map Act are met.

(11)

The leasing of, or the granting of an easement for wind-powered electrical generation devices if the project is subject to discretionary action by the city.

(12)

The leasing of dwelling units or second units but not the sale or transfer of those units.

(13)

Subdivisions of four or less for construction of removable commercial buildings having a floor area of less than 100 square feet.

(b)

A final parcel map is not required when waived pursuant to the provisions of Division 13 of this chapter.

(c)

A request for certificate of compliance may or may not require a tentative map as specified by the director.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.72.030. - Vesting tentative maps.

A vesting tentative map is a map which confers a vested right to proceed with any development, in compliance with an approved discretionary permit (e.g., conditional use permit and development plan) processed per the city's Development Code or in compliance with specific regulations when a discretionary permit is not required, on a legal building site created by a final map or parcel map for a specified time after recordation.

p which confers a vested right to proceed with any development, in compliance with an approved discretionary permit (e.g., conditional use permit and development plan) processed per the city's Development Code or in compliance with specific regulations when a discretionary permit is not required, on a legal building site created by a final map or parcel map for a specified time after recordation.

(a)

A vesting tentative map is at the option of the subdivider and shall not be a prerequisite to any proposed subdivision or application for development.

(b)

A vesting tentative map shall be labeled clearly on the map as a "vesting tentative map."

(c)

A vesting tentative map is limited to development of the property per the applicable regulations in existence at the time of approval of the vesting tentative map or per subsection (d) below.

(d)

Whenever a subdivider files a vesting tentative map whose intended development is inconsistent with the zoning ordinance in effect at that time, the inconsistency shall be noted on the vesting tentative map, and the vesting tentative map shall be processed subject to the provisions of section 9.73.075 (Zoning Conformance).

(e)

A vesting tentative map shall be processed in the same manner as a tentative map. However, an approving action on a vesting tentative map associated with a discretionary permit shall not occur prior to the effective date of approval of the associated discretionary permit.

(f)

The provisions of section 9.73.095 (Period of Validity; Extensions) shall apply to an approved or conditionally approved vesting tentative map.

(g)

The vested right for a recorded subdivision map shall be for a period one year beyond the recording date of the final map or parcel map, and shall confer on such maps all rights described in the Subdivision Map Act. Where several final maps or parcel maps are recorded on various phases of a project covered by a single vesting tentative map, the one-year time period shall begin when the final map or parcel map for that phase is recorded. Prior to the expiration of the initial one-year period, the developer may apply for a one-year extension of the period of the vested right to the planning commission. As a condition for granting an extension, additional requirements may be imposed. If the extension is denied, the developer may appeal that denial to the city council within 15 calendar days.

(h)

The provisions of section 9.73.090 (Modification of Maps and Conditions of Approval) shall apply to an approved or conditionally approved vesting tentative map.

(i)

Fees for the filing and processing of vesting tentative maps shall be the same as the fees established for the filing and processing of tentative tract maps. However, the city council may establish by resolution an additional fee to cover additional costs incurred by the processing of vesting tentative maps including extension of time.

(j)

Fees for development permits (e.g., building and grading permits) associated with an approved vesting tentative map or a recorded vesting final/parcel map shall be the fees in effect at the time of issuance of such permit.

(Ord. No. 98-193, §§ 1—4, 10-19-98)