§ 19.44

This Division provides requirements for the implementation or "exercising" of the permits required by this Zoning Ordinance, including time limits, and procedures for extensions of time.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

The approval of a land use permit (e.g., Design Review, Planned Development Permit, Use Permit, Temporary Use Permit, or Variance) shall become effective on the 11th day following the date of application approval by the appropriate Review Authority, where no appeal of the Review Authority's action has been filed in compliance with Division 19.54 (Appeals).

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

A permit applicant may be required by conditions of approval or by action of the Director to provide adequate security to guarantee the faithful performance and proper completion of any approved work, and/or compliance with conditions of approval imposed by the Review Authority. The provisions of this Section apply to performance guarantees for projects authorized by any of the land use permits covered by this Article.

A.

Form and Amount of Security. The required security shall be in a form approved by the Director and City Attorney. The amount of security shall be as determined by the Director to be necessary to ensure proper completion of the work and/or compliance with conditions of approval.

B.

Security for Maintenance. In addition to any improvement security required to guarantee proper completion of work, the Director may require security for maintenance of the work, in an amount determined by the Director to be sufficient to ensure the proper maintenance and functioning of improvements.

C.

Duration of Security. Required improvement security shall remain in effect until final inspections have been made and all work has been accepted by the Director, or until any warranty period required by the Director has elapsed. Maintenance security shall remain in effect for one year after the date of final inspection.

D.

Release or Forfeit of Security.

1.

Upon satisfactory completion of work and the approval of a final inspection (or after the end of the required time for maintenance security), the improvement and/or maintenance deposits or bonds shall be released.

2.

Upon failure to complete the work, failure to comply with all of the terms of any applicable permit, or failure of the completed improvements to function properly, the City may do the required work or cause it to be done, and collect from the permittee or surety all the costs incurred by the City, including the costs of the work, and all administrative and inspection costs.

3.

Any unused portion of the security shall be refunded to the funding source after deduction of the cost of the work by the City.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

A.

Time Limits.

1.

Unless conditions of approval or other provisions of this Zoning Ordinance establish a different time limit, any permit or approval granted in compliance with Division 19.42 (Permit Approval or Disapproval) that is not

exercised within two years of the date of approval shall expire and become void, except where an extension of time is approved in compliance with Subsection B., below.

2.

The permit shall be deemed "exercised" only when the permittee has obtained a Building Permit, or has commenced the operation of a land use not requiring a Building Permit and has met all required conditions, or has submitted a completed application for a subsequent permit.

3.

The land use permit shall remain valid after it has been exercised as long as it has not been revoked, and a building permit is active for the project, or a final building inspection or certificate of occupancy has been granted.

4.

If a project is to be developed in approved phases, each subsequent phase shall be exercised within two years from the date that the previous phase was exercised, unless otherwise specified in the permit, or the permit shall expire and be deemed void. If the project also involves the approval of a Tentative Map, the phasing shall be consistent with the Tentative Map and the permit shall be exercised before the expiration of the Tentative Map, or the permit shall expire and be deemed void. In the event of extensions to approved and unexpired tentative maps and vesting tentative maps enacted by the state legislature, the time limits of all other land use entitlements and approvals granted under this Chapter in conjunction with the original grant of approval to the subdivision map shall also be extended by action of the Community Development Director to be co-terminus with the date of expiration of the tentative map.

B.

Extensions of Time. Upon request by the applicant, the Review Authority may extend the time for an approved permit to be exercised for any approved permit.

1.

The applicant shall file a written request for an extension of time with the Department prior to the date of expiration of the permit, together with the filing fee required by the Council's Fee Resolution.

2.

The burden of proof is on the permittee to establish with substantial evidence that the permit should not expire. If the Review Authority determines that the permittee has proceeded in good faith and has exercised due diligence in complying with the conditions in a timely manner, the Review Authority may grant a time extension for up to an additional two years from the date of the expiration, provided that the Review Authority first finds that:

a.

The proposed extension is consistent with the General Plan, and any applicable specific plan, and the overall project remains consistent with those plans as they exist at the time the extension request is being considered; and

b.

There are adequate provisions for public services and utilities (e.g., access, drainage, fire protection, sewers, water, etc.), to ensure that the proposed extension would not endanger, jeopardize, or otherwise be detrimental to the public health, safety, or general welfare, or be injurious to the property or improvements in the vicinity and applicable zoning district.

3.

No more than two time extensions shall be granted.

C.

Hearing on Expiration. At the request of the applicant, the Review Authority shall hold a hearing on any proposed expiration of a permit, in compliance with Division 19.58 (Public Hearings).

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

Development or a new land use authorized through a permit granted in compliance with this Zoning Ordinance shall be established only as approved by the Review Authority and subject to any conditions of approval, except where changes to the project are approved in compliance with this Section.

A.

Request for Change. 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 or establishment and operation of the approved use.

B.

Minor Changes. The Director may approve minor changes to an approved site plan, Master Plan/Precise Development Plan, Design Review, or Use Permit if the changes:

1.

Are consistent with all applicable provisions of this Zoning Ordinance;

2.

Will not involve a change to a negative declaration or environmental impact report for the project;

3.

Do not involve a feature of the project that was specifically addressed in, or was a basis for conditions of approval for the project or that was a specific consideration by the Review Authority in the approval of the permit; and

4.

Do not expand the approved floor area or any outdoor activity area by 10 percent or more over the life of the project.

C.

Major Changes. Changes to the project that do not comply with Subsection B., above, shall only be approved by the appropriate Review Authority through a new permit application.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

A land use permit granted in compliance with this Division shall continue to be valid upon a change of ownership (e.g., of the site, structure, or use that was the subject of the permit application), provided that the use remains in compliance with all applicable provisions of this Zoning Ordinance and any conditions of approval.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

A.

Resubmittals prohibited within 12 months. For a period of 12 months following the disapproval, or revocation of a discretionary land use permit or entitlement, no application for the same or substantially similar project for the same site shall be filed.

B.

Director's determination. The Director shall determine whether the new application is for a project that is the same or substantially similar to the previously approved or disapproved permit or entitlement.

C.

Appeal. The determination of the Director may be appealed to the Commission, in compliance with Division 19.54 (Appeals).

D.

Council waiver. The Council may waive the prohibition in Subsection A., above.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

A.

Applicability. When necessary to achieve the land use goals of the City, the Review Authority may impose conditions on the approval of a discretionary land use permit application requiring the property owners of an approved project who hold property in common ownership to execute and record a Covenant of Easement in favor of the City, in compliance with Government Code Sections 65870 et seq.

1.

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

2.

The Covenant of Easement may be imposed as a condition of approval by the Review Authority.

B.

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

1.

Describe the real property to be subject to the easement;

2.

Describe the real property to be benefitted by the easement;

3.

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

4.

Identify the purpose of the easement.

C.

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

D.

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

1.

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

2.

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

E.

Enforceability of Covenant. The Covenant of Easement shall be enforceable by the successors-in-interest to the real property benefitted 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 benefitted by the Covenant, to enforce or to challenge the Covenant or any requested amendment or release.

F.

Release of Covenant. The release of the Covenant of Easement may be effected either by the Commission, or the Council on appeal, following a public hearing in compliance with Division 19.58 (Public Hearings).

1.

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

2.

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

G.

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

H.

Open Space Easements. Open space easements shall be granted, released, and/or modified in compliance with Government Code Sections 51075 et seq. An open space easement that was executed prior to 1974 shall be modified or released in compliance with Government Code Sections 51050 et seq.

(Ord. No. 1576, § 2 (Exh. A, amd.), 10-23-2012)

DIVISION 19.48 - DEVELOPMENT AGREEMENTS