§ 9-802

This Chapter establishes the procedures that are common to the application for and processing of all permits and approvals provided for in the Development Title, except as superseded by a specific requirement of this Title or State law.

(a)

Authority to File Applications. The following persons and/or entities are considered qualified applicants and have authority to file an application for review or approval under this Title:

(1)

The owner of the subject property ("owner"), including any person, corporation, partnership or other legal entity that has a legal or equitable title to land that is the subject of a development proposal.

(2)

The owner's agent, with written consent of the owner.

(3)

The purchaser of the subject property, with written consent of the owner.

(4)

A lessee, with written consent of the owner.

(b)

Application Contents.

(1)

Application Forms. The Director must prepare and issue application forms that specify the information and materials required from applicants for projects subject to the provisions of the Development Title.

(2)

Electronic Submissions and Supporting Information and Materials. The Director may require the electronic submission of application materials, consistent with the Government Code, and also is authorized to request the submission of additional information and materials from the applicant when necessary to complete the review of the project. The information and materials may include, but are not limited to, written descriptions, photographs, plans, drawings, maps, renderings, models, material samples and other items necessary to describe existing conditions and the proposed project. Unless otherwise specified, all renderings must depict the proposed structure, landscaping, and other improvements, and surrounding uses as they would appear after project completion.

(3)

Submittal Waivers. The Director may waive certain submittal requirements to tailor the requirements to the information necessary to review the particular application.

(4)

Public Review. All forms, information, and materials submitted in support or in opposition to an application become property of the County. These items may be distributed to the public, and will be made available

for public inspection except for information that is legally allowed to be protected from public review. Upon reasonable request and during normal business hours, any person may examine these submittals in the Planning and Development Services Division. Unless prohibited by law, copies of these submittals will be made available at a reasonable cost.

(c)

Application Fees.

(1)

Schedule of Fees. The Board of Supervisors is responsible for maintaining a Master Fee Schedule for fees and deposits for permits, appeals, amendments, penalties, copying, and similar items to defray the cost of processing applications under this Title.

(2)

Payment of Fees. Payment of the fee is required in order for an application to be complete, unless a fee waiver has been granted. Preapplication fees may be applied toward the cost of a full application under the following circumstances:

(A)

If the full application is submitted no more than three years from the date the pre-application is deemed complete for processing, and

(B)

If the full application is substantially in conformance with the pre-application.

(3)

Multiple Applications. The County's processing fees are application specific. For example, if the application for a Master Plan includes a Conditional Use Permit, both fees will be charged unless otherwise stated.

(4)

Time and Materials. At the discretion of the Director or their designee, the fee for a project application or activity may be based on the actual County cost of processing the application or activity. The decision to use actual cost of processing shall be based on:

(A)

The extraordinary amount of staff time estimated to process the application; or

(B)

The lack of a specific adopted fee to address the project application or activity.

The decision must be made within thirty (30) business days after the application is declared complete. Actual cost shall include employee salaries and benefits, overhead, and materials.

(5)

Fees for Specialists. The County may use professional services as follows:

(A)

When special expertise is required,

(B)

To relieve workload peaks,

(C)

At the request of an applicant, or

(D)

For any other reason deemed appropriate by the Director.

The consultant shall be selected by the Director or their designee with the applicant being responsible for the cost of the professional services.

(6)

Reinitiation of Withdrawn Applications. At the discretion of the Director or their designee, an application that has been withdrawn may be reinitiated with no fee requirements if the following requirements are met:

(A)

Substantially the Same. The new application is substantially the same as the withdrawn application;

(B)

Processing. Processing of the new application will generally proceed from the point the withdrawn application stopped;

(C)

Elapsed Time. Less than eighteen (18) months have elapsed since the application was withdrawn; and

(D)

Consistency. The application is consistent with current provisions of this Title.

(7)

Refund of Fees. Application fees are non-refundable unless otherwise provided for in the County Code, by a policy of the Board of Supervisors, or at the discretion of the Director.

(a)

Purpose. Pre-Application Review is an optional review process for discretionary permits. This review's purpose is to provide information on relevant policies, zoning regulations, and procedures. This review is intended for large, complex projects and/or potentially controversial projects.

(b)

Exemption from Permit Streamlining Act. An application that is accepted for Pre-Application Review is not complete under the California Permit Streamlining Act unless and until the Zoning Administrator has received the application, reviewed it, and determined it to be complete as required by Section 9-802.050, Review of Applications.

(c)

Review Procedure. The Zoning Administrator conducts the Pre-Application Review. The Zoning Administrator may consult with or request review by any County agency, department, or official with interest in the application.

(d)

Recommendations are Advisory. Neither Pre-Application Review nor the information conveyed during the Pre-Application Review is a recommendation for approval or denial of an application by County representatives. Any recommendations that result from Pre-Application Review are advisory; they are not binding on the applicant or the County.

9-802.040 - REVIEW OF APPLICATIONS

(a)

Review for Completeness.

(1)

Zoning Administrator Determination. The Zoning Administrator must determine whether an application is complete within 30 days of the date that the application is filed with the required fee. If the Zoning Administrator does not make such determination, the application is deemed complete pursuant to State law and shall be processed accordingly.

(2)

Historic Sites. If this Title requires a determination of whether the site of a proposed housing development is a historic site, that determination must be made at the time that an application is deemed complete.

(3)

Extensions. The Zoning Administrator and the applicant may mutually agree in writing to extend this time period.

(b)

Incomplete Application.

(1)

Zoning Violations. An application is incomplete if conditions exist on the site in violation of this Title or any permit or other approval granted in compliance with this Title, unless the proposed project includes a correction of the violation(s) or resolution of the violation is being addressed in a concurrent enforcement action.

(2)

Notification of Deficiencies. If an application is incomplete, the Zoning Administrator must provide written notification to the applicant specifically identifying how the application is deficient and stating that the Planning and Development Services Division will not process an incomplete application. The application must then be classified as "incomplete."

(3)

Correcting Deficiencies. The applicant must provide the materials and/or information required to correct the deficiencies in the application within the time limit specified by the Zoning Administrator, which must not be sooner than 30 days. The Zoning Administrator may grant one extension of up to 90 days.

(4)

Expiration of Application. If an applicant fails to correct any specified deficiency within the specified time limit, the application will be deemed expired. After the expiration of an application, the submittal of a new, complete application is required.

(5)

Appeal of Determination. The decision that an application is incomplete may be appealed to the Planning Commission in accordance with Section 9-802.150, except that there must be a final written determination on the appeal no later than 60 days after the Planning Commission's receipt of the appeal.

(c)

Complete Application.

(1)

Complete Application Required. An application must be complete before review of the application begins.

(2)

Determination of Complete Application. An application is complete when the Zoning Administrator determines that it is submitted on the required form, includes all the necessary information to decide whether the application will comply with the requirements of this Title, and is accompanied by the applicable fee(s). The Zoning Administrator's decision under this paragraph is final and not subject to review by a decision-making body.

(3)

Recording Date and Scheduling Hearing. When an application is determined to be complete, the Zoning Administrator must make a record of that date. If the application requires a public hearing, the Zoning Administrator must schedule it within a reasonable period of time (not more than 60 days from the date of the application is determined to be complete) and notify the applicant of the date and time.

When multiple applications that require public hearings are filed for the same projects, all issues shall be heard together by the review authority with the highest authority, and other review bodies shall provide recommendations to that review authority unless more specific procedures for a specific application or procedure are prescribed elsewhere in the Development Title. In other words, if an application for a Zone Reclassification and an application for a Use Permit are filed for the same project, then both of those applications shall be heard by the Planning Commission to make a recommendation to the Board of Supervisors.

Before approving any application subject to discretionary review under this Title, the requirements of the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000 et seq.) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) must be met.

(a)

Procedures. The County adopts and incorporates by reference the State CEQA Guidelines as its environmental review procedures.

(b)

Determination of Exemption. The Environmental Review Officer must determine whether a project is exempt from environmental review under CEQA and, if so, must make a record of that determination. If the project is not exempt, a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report must be prepared at the applicant's expense.

(c)

Exempt Projects. Prior to approving the project, the decision-maker(s) must first approve the Environmental Review Officer's determination of an exemption. Following project approval, a Notice of Exemption need not be filed with the Recorder-County Clerk unless the applicant requests it, or the County determines that it is necessary. The applicant must pay all filing fees for the Notice of Exemption.

(d)

Non-exempt Projects. If the Environmental Review Officer determines that the project is not exempt from environmental review under CEQA, the following apply:

(1)

The applicant must be notified and must deposit with the County sufficient funds to pay the anticipated cost of preparation and processing of the required environmental document, including the County's administration fee.

(2)

Prior to approving the project, the decision-maker must first approve the Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report. Any identified mitigation measures must be incorporated into the conditions of approval of the project unless a Statement of Overriding Considerations is adopted.

(3)

Following project approval, a Notice of Determination must be filed with the San Joaquin Clerk of the Board-Recorder's Office, County Recorder Division at the applicant's expense.

Whenever the provisions of this Title require public notice, notification must be provided in compliance with this section and State law. Unless otherwise specified in the Development Title or applicable State law, all notice must be provided at least 10 days prior to the public hearing or, where no hearing is required, 15 days before the date of action. The type of notice(s) required is indicated in Table 9-802.170, Decision Making, Public Hearing, and Notice Requirements.

(a)

Contents of Notice. The notice must include the following information:

(1)

The location of the real property, if any, that is the subject of the application;

(2)

A general description of the proposed project or action;

(3)

The date, time, location, and purpose of the public hearing or the date of action when no public hearing is required;

(4)

The identity of the hearing body or officer;

(5)

The names of the applicant and the owner of the property that is the subject of the application;

(6)

The location and times at which the complete application and project file may be viewed by the public;

(7)

If a public hearing is required, a statement that any interested person or authorized agent may appear and be heard; and

(8)

A statement describing how to submit written comments, what the appeal procedures are, and that failure to raise an issue may limit appeal rights.

(b)

Types of Notice.

(1)

On-Site Poster (Type A). The applicant erects a poster on the site of the proposed project, readily visible to the public, in a format prescribed by the Zoning Administrator. This poster must remain in place until the public hearing or date of action, after which the applicant must remove the poster.

(2)

Limited Notice (Type B). Notice is provided by first class mail delivery to the applicant, the owner, any occupant of the subject property, and all property owners of record within 300 feet of the subject property as shown on the latest available assessment role.

(3)

Posted and Online Notice (Type C). Notice is posted at County's Administrative Office and on the County's website and at two additional public places within the County.

(4)

Newspaper Notice (Type D). A display advertisement of sufficient size to convey the required information, consistent with Government Code Sections 6040 through 6044, is published in a newspaper of general circulation.

(5)

Mailed Notice (Type E). Notice is provided by first class mail delivery to the parties listed below. If the number of owners to whom notice would be mailed or delivered to is greater than 1,000, Type D newspaper notice may be used instead.

(A)

The applicant, the owner, and any occupant of the subject property.

(B)

Depending on the General Plan designation of the property involved, a notice of the hearing, for propertyspecific applications only, shall be mailed to all owners of real property as shown on the latest tax rolls, as follows:

(i)

In agricultural and conservation areas, and in freeway service and industrial areas outside of communities, all owners of property within 2,600 feet of the perimeter of the property. However, property owners of no more than 10 parcels in any direction need to be notified, provided all owners within 1,000 feet are notified;

(ii)

In rural residential and very low-density residential areas, all owners of property within 1,000 feet of the perimeter of the property. However, property owners of no more than five parcels in any direction need to be notified, provided all owners within 500 feet are notified; and

(iii)

In all other areas, all property owners within 500 feet of the perimeter of the property.

(iv)

All neighborhood and community organizations that have previously filed a written request for notice of projects in the area where the site is located.

(C)

For property-specific applications only, notice of the hearing shall be mailed or sent by email to each local agency expected to provide water, sewage disposal, streets, roads, schools, parks, or other essential facilities or services to the project.

(D)

Any person or group who has filed a written request for notice regarding the specific application and has paid any required fee that the Board of Supervisors has adopted to provide such service.

(E)

The Zoning Administrator can require additional notification, as deemed necessary, on a case-by-case basis.

(6)

Additional Notice (Type F). Notice may be provided in any other manner deemed necessary or desirable by the Zoning Administrator.

(c)

Failure to Receive Notice. The validity of the proceedings is not affected by the failure of any person or entity to receive notice under this Section.

Whenever the provisions of this Title require a public hearing, the hearing must be conducted in compliance with the requirements of State law and as follows.

(a)

Staff Report. At least five days prior to the hearing, the Zoning Administrator must issue a staff report containing an analysis of the project, recommendation for action, and any recommended conditions of approval deemed necessary to ensure that the project will comply with the General Plan, any applicable Master Plan, Public Financing Plan, Special Purpose Plan, Specific Plan, or Planned Development zone, the Development Title, and any other applicable County regulations.

(b)

Presentations. At the hearing, the Zoning Administrator must briefly present his or her analysis of the project and recommendation for action. If the hearing is before the Board of Supervisors, the Planning Commission's recommendation must also be presented. The applicant must be provided an opportunity to make a presentation.

(c)

Testimony. Any person may appear at the public hearing and submit oral or written evidence, either individually or as a representative of a person or an organization.

(d)

Time Limits. The presiding officer may establish time limits for individual testimony and may request that individuals with shared concerns select one or more spokespersons to present testimony on behalf of those individuals.

(e)

Continuation of Public Hearing. The body conducting the public hearing may continue it to a fixed date, time and place, in which case no additional notification is required. Or, the body conducting the public hearing may continue it to an undetermined date and provide notice of the continued hearing when the date, time and place for the hearing have been determined.

(f)

Investigations or Actions. The body conducting the public hearing may require investigations or actions to be conducted, as it deems necessary and in the public interest, in any matter to be heard by the hearing body. The investigation or action may be made by a committee of one or more members of the hearing body or by County staff. Facts established by the investigation and results of actions will be submitted to the hearing body either in writing, to be filed with the records of the matter, or in testimony before the hearing body, and may be considered by the body in making its decision.

When making a decision to approve, approve with conditions, modify, revoke or deny any discretionary permit under this Title, the responsible decision-maker must issue a Notice of Action and make findings as required by this Title.

(a)

Date of Action. After the close of the public hearing or, if no hearing is required, no sooner than ten days after any notice was provided, the decision-maker must make a decision to approve, approve with conditions, or deny the application. Decisions must also be made within any applicable time period set forth below.

(1)

Project Exempt from Environmental Review. Within 30 days of the date the County has determined an application to be complete, a determination must be made whether the project is exempt from Environmental Review per State CEQA requirements.

(2)

Project for which a Negative Declaration or Mitigated Negative Declaration is Prepared. Within 60 days of the date a Negative Declaration or Mitigated Negative Declaration has been completed and adopted for project approval, the County must take action on the accompanying discretionary project.

(3)

Project to Develop Affordable Housing for which an Environmental Impact Report is Prepared. Within 90 days from the date that the decision-making authority certifies the Final Environmental Impact Report for an affordable housing project that meets the criteria set forth in California Government Code Section 6590(a) (2) for environmental review of affordable housing projects, the County must take action on the accompanying project.

(4)

Project for which an Environmental Impact Report is Prepared. Within 180 days from the date the decisionmaking authority certifies a Final Environmental Impact Report, the County must take action on the accompanying discretionary project.

(b)

Findings. The decision must be based on the findings required by this Title. The findings must be based on consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record and must be stated in writing. They may refer to a County resolution, ordinance, or record of the action on the application.

(c)

Conditions of Approval. In approving an application, the decision-maker may impose reasonable conditions it deems necessary to ensure that the project will comply with the General Plan, any applicable Master

Plan, Public Financing Plan, Special Purpose Plan, Specific Plan, or Planned Development zone, the Development Title, and any other applicable County regulations.

(d)

Referral Back to Planning Commission. In approving applications requiring Board approval upon a recommendation of the Planning Commission, the Board of Supervisors may add, modify, or delete any terms of the permit itself or any provisions of the conditions of approval. Such action may, but need not be, referred back to the Planning Commission for its review and recommendation.

(e)

Notice of Decision. After the decision is made, the Zoning Administrator must issue a notice of decision. For a Planning Commission or Board action, this notice must consist of the approved resolution or ordinance and any associated conditions of approval. For a decision by any other decision-maker, a letter must be issued to the applicant indicating the decision and any written findings and conditions of approval. A copy of the notice must also be provided to any other person or entity that has filed a written request of such notification.

A final decision on an application for any discretionary approval subject to appeal is effective after the expiration of the 10-day appeal period following the date of action, unless an appeal is filed. No Building Permit or Business License for the structure or use that is the subject of the application may be issued until after the close of the 10-day appeal period.

(a)

Expiration. The decision-maker, in the granting of any permit or approval, may specify a time within which the proposed use or construction must be undertaken and actively and continuously pursued. If no time period is specified, any permit or approval granted under this Title automatically expires if it is not exercised or extended within one year of its issuance.

(1)

Exercise of Use Permit. A permit for the use of a building or land that does not involve construction is exercised when the permitted use has commenced on the site.

(2)

Exercise of Building Permit. A permit for the construction or alteration of a building or structure is exercised when a valid County Building Permit, if required, is issued, and construction has lawfully commenced.

(b)

Extensions. The Zoning Administrator may grant a two-year extension of any permit or approval granted under this Title upon receipt of a complete written application with the required fee prior to the approval's

expiration date. In order to grant an extension, the Zoning Administrator must make all of the following findings:

(1)

The applicant has clearly documented that he or she has made a good faith effort to commence and diligently pursue work;

(2)

It is in the best interest of the County to extend the approval;

(3)

There are no substantial changes to the project, no substantial changes to the circumstances under which the project is undertaken, and no new information of substantial importance that would require any further environmental review pursuant to the California Environmental Quality Act; and

(4)

The applicant is maintaining the property in compliance with all applicable County regulations.

(c)

In granting an extension pursuant to subsection (b) above, the decision-maker may modify the conditions of approval as deemed necessary to fulfill the purposes of the Development Title.

(a)

Minor Modifications. The Zoning Administrator may approve minor modifications to approved plans or conditions of approval that are substantially consistent with the original findings and conditions of approval and that would not intensify any potentially detrimental effects of the project. Changes to less than 20 percent of a project's new floor area are considered minor modifications that may be approved by the Zoning Administrator.

(b)

Major Modifications. Modifications that the Zoning Administrator determines are not minor require the approval of the original decision-maker.

(1)

Exceptions apply to projects appealed to the Board of Supervisors for which the Planning Commission is normally the decisions-maker. Modifications to these items will be reviewed by the Planning Commission.

(2)

Any person holding a permit granted under this Title may apply for such modification by following the same procedure required for the initial application for the permit. Such modifications may be to the terms of the

permit itself or to conditions of approval.

Any permit granted under this Title may be revoked or modified for cause if any of the conditions or terms of the permit are violated or if any law or regulation is violated. The provisions of this section are not - applicable to the termination of nonconforming uses, which are governed by the provisions of Chapter 9 405, Nonconforming Uses, Structures, and Lots.

(a)

Automatic Revocation. At the discretion of the Review Authority, a development approval that has been granted or modified subject to one or more conditions, may cease to be valid, and all rights or privileges that were granted shall lapse, even if other provisions in the Title are to the contrary, in the following circumstances:

(1)

If any final judgment of a court of competent jurisdiction declares that one or more of the conditions are void or ineffective and such condition(s) are necessary to the continued operation of the use; or

(2)

If the enforcement or operation of one or more of the conditions are permanently enjoined or otherwise prohibited.

(b)

Initiation of Proceeding. The Zoning Administrator, the Planning Commission, or the Board of Supervisors may initiate modification or revocation proceedings.

(c)

Public Notice. Notice of Modification or Revocation must be provided if the original permit required notice.

(d)

Required Findings. After a duly-noticed public hearing, a permit may be modified or revoked by the original decision-maker under any one of the following findings:

(1)

The approval was obtained by means of fraud or misrepresentation of a material fact;

(2)

One or more of the conditions upon which such development approval was granted have been violated;

(3)

The use or facility for which the development approval was granted is so conducted or maintained as to be detrimental to the public health or safety, or as to be a public nuisance of the conditions upon which such development approval was granted have been violated;

(4)

The use, building, or structure has been substantially expanded beyond what is set forth in the original permit, thereby causing substantial adverse impacts to the surrounding neighborhood;

(5)

The use in question has ceased to exist or has been suspended for one year or more; or

(6)

There is or has been a violation of or failure to observe the terms or conditions of the permit or approval, or the use has been conducted in violation of the provisions of this Title or any other applicable law or regulation.

(e)

Notice of Action. A written determination of the modification or revocation must be mailed to the permit holder within five days of determination.

(f)

Appeals. A modification or revocation decision of the Zoning Administrator, the Director, or the Planning Commission may be appealed pursuant to Section 9-802.0140, Appeals.

(a)

Purpose and Applicability. This section establishes the procedures for appeals of any discretionary action in the administration or enforcement of the provisions of this Title, as long as the decision is not prescribed as final in the individual section of this Title that authorizes the decision.

(1)

Discretionary Decisions at Staff Level. Discretionary decisions at staff level on permits and related approvals may be appealed to the Planning Commission by filing a written appeal with the Community Development Department.

(2)

Appeals of Discretionary Decisions at Planning Commission. Discretionary decisions of the Planning Commission on permits and related approvals may be appealed to the Board of Supervisors by filing a written appeal with the Community Development Department. Appeal decisions of the Board of Supervisors are final.

(b)

Appeal Period. Unless otherwise specified, appeals shall be filed within 10 days of the date of action, with the first day of the appeal period beginning the day after action is taken on the project, and if filed, shall stay any further action on the permit until finally resolved. If the end of the appeal period falls on a nonbusiness day, the appeal period shall be extended to include the close of the next business day.

(c)

Who May Appeal. Appeals may be filed only by one of the following:

(1)

The applicant or the applicant's representative;

(2)

A person who may be adversely affected by the decision or who has participated in the review process by submitting written or oral testimony on the application or by attending a public hearing on the application; or

(3)

A person who was prevented from participating in the review by circumstances beyond his or her control.

(d)

Time Limits. Unless otherwise specified in State or Federal law, all appeals must be filed in writing within 10 days of the date of the action, decision, motion, or resolution from which the action is taken. In the event an appeal period ends on a Saturday, Sunday, or any other day the County is closed, the appeal period is extended to the close of business on the next consecutive business day.

(e)

Procedures.

(1)

Filing. The appeal must be written on the appropriate form provided by the County, identify the decision being appealed, clearly and concisely state the reasons for the appeal, and also state specifically how and where the underlying decision constitutes an abuse of discretion and/or is not supported by substantial evidence in the record. The appeal must be accompanied by the required fee.

(2)

Proceedings Stayed by Appeal. The timely filing of an appeal shall stay all proceedings in the matter appealed including, but not limited to, the issuance of County building permits and business licenses.

(3)

Transmission of Record. The Director or, in the case of appeals to the Board, the Clerk of the Board must schedule the appeal for consideration by the authorized hearing body within 60 days of the date the appeal is filed. The Director must forward the appeal, the notice of action, and all other documents that constitute the record to the hearing body. The Director must also prepare a staff report that responds to the issues raised by the appeal and may include a recommendation for action.

(f)

Standard of Review. The appellate body will review whether the underlying decision is supported by substantial evidence and/or constitutes an abuse of discretion. The same standards and evaluation criteria, including the findings required, apply as they were for the original application. The appellate body's review is limited to the issue(s) raised in the petition for appeal.

(g)

Public Notice and Hearing.

(1)

Notice. Public notice must be provided, and the hearing conducted by the applicable appeal body in accordance with Sections 9.802,070 and 9.802.080. Notice must be provided in the same manner that was required for the action that is the subject of the appeal. Notice of the hearing must also be given to the applicant, the party filing the appeal, and any other interested person who has filed with the Clerk of the Board a written request for such notice. In the case of an appeal of a Planning Commission decision, notice of the appeal must also be given to the Planning Commission. The Planning Commission may be represented at the hearing.

(2)

Hearing. At the hearing, the appellate body must review the record of the decision and hear testimony of the appellant, the applicant, and any other interested party.

(h)

Action. The appellate body may affirm, modify, or reverse the original decision. When a decision is modified or reversed, the appellate body must state the specific reasons for modification or reversal. Decisions on appeals must be rendered within 30 days of the close of the hearing. An action to grant an appeal requires a majority vote of the hearing body members. A tie vote has the effect of rejecting the appeal.

(i)

Referral Back by Board of Supervisors. The Board of Supervisors may choose to refer a matter back to the Planning Commission for further consideration and a decision if significant new evidence is presented in conjunction with the appeal, which may include substantial changes to the original proposal.

(j)

Judicial Action. The appellate body's final decision may be subject to litigation in the Superior Court. Exhaustion of the administrative remedies provided in in this Title, in accordance with Government Code

Section 65009 and common law, may be required for the Court to hear the merits of the litigation.

Unless otherwise specified, applications shall be approved for a maximum of 36 months from the effective date of approval. In order for incomplete Zoning Compliance Reviews and other land use permits to remain in active status beyond 36 months, the following must occur:

(a)

Requirements or Conditions. All conditions of approval must be complied with;

(b)

Building Permits. All required Building Permits (excluding any future permits allowed with an alternative phasing timeline by an approved land use permit) shall be issued prior to the expiration date of the land use permit;

(c)

Public Improvement Plans. All required Public Improvement Plans (excluding any future permits allowed with an alternative phasing timeline by an approved land use permit) shall be approved prior to the expiration date of the land use permit;

(1)

Public Improvement Plans shall be submitted to the Department of Public Works no less than one (1) month prior to the expiration date of the land use permit, unless permitted by the Director;

(d)

Other Permits. All required permits from other public agencies (excluding any future permits allowed with alternative phasing by an approved land use permit) shall be issued prior to the expiration date of the land use permit, unless otherwise stated.

No application may be accepted if a similar application has been finally denied during the immediately preceding one-year period. For the purposes of this Section, "similar application" shall mean an application under the same regulation applicable to the same property. This Section shall not apply to applications denied without prejudice, which can be resubmitted within one year upon payment of a fee as set forth by resolution of the Board of Supervisors.

Table 9-802.170 summarizes decision-making responsibilities for the various discretionary permits and actions under this Title and the public notice required for them if applicable.

TABLE 9-802.170: SUMMARY OF DECISION MAKING, PUBLIC HEARING, AND NOTICE REQUIREMENTS

(Ord. No. 4632, § 25, 9-26-2023)

(a)

Purpose and findings.

(1)

The Board of Supervisors finds that applications for any land use project for which a discretionary permit is required pursuant to the Development Title may require environmental review by the County pursuant to the California Environmental Quality Act ("CEQA").

(2)

Substantial County time and effort are expended in complying with CEQA's requirements and other legal requirements before approving such projects.

(3)

Judicial challenges to the County's approvals of such projects are costly and time consuming. Challengers often seek an award of attorneys' fees in such challenges. As applicants are the primary beneficiaries of project approval, the Board of Supervisors finds that applicants should bear the expense of defending the project approval against any such judicial challenge, including but not limited to damages, costs, expenses, attorneys' fees, and expert witness costs that may be asserted by any person or entity against the County, private attorney general fees claimed by or awarded to any party against the County, and the County's costs incurred in preparing an administrative record which are not paid by the petitioner.

(b)

Indemnification agreement.

(1)

As part of the application process for a land use project, and as a condition of the County processing and deeming such an application complete, the applicant shall sign the indemnification statement agreeing to indemnify, defend (with counsel reasonably approved by County), and hold harmless the County and its officers, officials, employees, agents, boards and commissions (collectively "County") as follows:

(A)

Indemnity: The applicant shall indemnify the County:

(i)

From and against any and all claims, demands, actions, proceedings, lawsuits, losses, damages, judgments and/or liabilities arising out of, related to, or in connection with the application and applied for project or to attack, set aside, void, or annul, in whole or in part, an approval of the applied for project by the County, the adoption of environmental review documents related to the applied for project, and any related development approvals or project conditions for the applied for project (hereinafter in this Chapter referred to as "Claim");

(ii)

For any and all costs and expenses incurred by the County on account of any Claim, except where such indemnification is prohibited by law, including but not limited to damages, costs, expenses, attorney's fees, or expert witness costs that may be asserted by any person or entity, private attorney general fees claimed by or awarded to any party against the County, and the County's costs incurred in preparing an administrative record which are not paid by the petitioner.

(iii)

For all of County's costs, fees, and damages incurred in enforcing the indemnification agreement.

(iv)

Except as to the County's sole negligence or willful misconduct.

(B)

Defense:

(i)

The County may participate or direct the defense of any Claim. The County's actions in defense of any claim shall not relieve the applicant of any obligation to indemnify, defend, and hold harmless the County.

(ii)

In the event of a disagreement between County and the applicant regarding defense of any Claim, the County shall have the authority to control the litigation and make litigation decisions, including, but not limited to, the manner in which the defense is conducted.

(iii)

If the County reasonably determines that having common counsel presents such counsel with a conflict of interest, or if the applicant fails to promptly assume the defense of any Claim or to promptly employ counsel reasonably satisfactory to the County, then County may utilize the Office of the County Counsel or employ separate outside counsel to represent or defend the County, and the applicant shall pay the reasonable attorneys' fees and costs of such counsel.

(2)

The agreement shall be on a form approved by the Director, and shall contain the following provisions in regards to the County:

(A)

The County shall promptly notify the applicant of any Claim and if the applicant is not promptly notified, the applicant shall not thereafter be responsible to defend, indemnify, or hold harmless the county;

(B)

The County shall cooperate fully in the defense of the Claim, and if the County fails to do so, the applicant shall not thereafter be responsible to defend, indemnify, or hold harmless the County; and

(C)

The County shall not require the applicant to pay or perform any settlement unless the settlement is approved by the applicant.

(c)

Indemnification requirement is applicable even if applicant fails or refuses to sign the indemnification statement agreeing to indemnify, defend, and hold the County harmless.

Even if the applicant for a land use project refuses to sign the indemnification statement agreeing to indemnify, defend (with counsel reasonably approved by County), and hold harmless the County and its officers, officials, employees, agents, boards, and commissions, the applicant, or the owner of the subject property if different from the applicant, shall:

(1)

Defend, indemnify, and hold harmless the County from any Claim brought against the county to attack, set aside, void, or annul the County's decision to approve the land use project.

(A)

This indemnification shall include any and all costs and expenses incurred by the County on account of any Claim, except where such indemnification is prohibited by law, including but not limited to damages, costs, expenses, attorney's fees, or expert witness costs that may be asserted by any person or entity, private attorney general fees claimed by or awarded to any party against the County, and the County's costs incurred in preparing an administrative record which are not paid by the petitioner.

(2)

Defend, indemnify, and hold harmless the County for all costs incurred in additional investigation of or study of, or for supplementing, preparing, redrafting, revising, or amending any document (such as a negative declaration, Environmental Impact Report, specific plan, or general plan amendment), if made necessary by such a challenge and if applicant desires to pursue securing such approvals, after initiation of such claim, action or proceeding, which are conditioned on the approval of such documents; and

(3)

Indemnify the County for all of the County's costs, fees, attorneys' fees, and damages which the County incurs in enforcing the indemnification provisions set forth in this section.

(d)

Indemnification—Payment on demand.

The applicant shall pay to the County upon demand any amount owed to the County pursuant to the indemnification requirements prescribed in this chapter.

Chapter 9-803 - Zoning Compliance Review