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HomeMy WebLinkAbout04 CA 09-005ITEM #4 ,tYC3~ ~\~ DATE: AUGUST 25, 2009 ~ it ~ e ~ - C O m~~~~~~ PLANNING COMMISSION TO: FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CONTINUED ITEM -CODE AMENDMENT 09-005: ORDINANCE 1366 - STANDARDIZED APPEAL PROVISIONS/MINOR TEXT CORRECTIONS RECOMMENDATION That the Planning Commission adopt Resolution No. 4121 recommending that the City Council approve Code Amendment 09-005 (Ordinance 1366), amending various sections of the Tustin City Code to standardize various appeal provisions and implement minor text corrections. BACKGROUND AND DISCUSSION This item was continued from the Planning Commission's meeting of August 11, 2009. Various discretionary actions such as Design Review, Conditional Use Permit, Variance, Use Determination, etc., require decisions by the Director of Community Development, the Planning Commission, the Zoning Administrator, and others prior to action (e.g. approval, conditional approval, or denial). These actions are ultimately appealable to the City Council. The Tustin City Code has been amended many times over the years. Because of the various code amendments, procedural inconsistencies have been gradually introduced to the process of appealing actions. Appeal filing deadlines vary depending upon the application type; there are inconsistencies if the filing deadlines are counted as calendar days or business days; and, there are a variety of appeal hearing officers or boards, including whether an appeal is to be heard by the Planning Commission, City Manager, Tustin Community Redevelopment Agency, or Tustin City Council. Projects with multiple discretionary actions can trigger multiple appeal procedures, filing deadlines, and/or hearing officers/boards for the same project, creating confusion. Also, Tustin City Code Section 9294b adds an additional layer of appeal process by requiring the Planning Commission action agenda to be approved by the Tustin City Council prior to those items being considered approved. This additional requirement delays project implementation and provides an opportunity for additional appeals to be filed, sometimes after the Planning Commission's time limit for filing an appeal has ended. A sample of the broad variety of appeal code inconsistencies is depicted in Table 1 and discussed below. W 0 U U Z W V r O W m J Fa- Za, W W Z J D W J W a a Q U U U U U c U c U U° ~ ~ ~ o ~U ~ c '~ RS `o C o C _`o ~ o_ ~ `o L U ° C U ° ~- ~j o • C U = fl. a ~ Q a :~'' a. ~' n. w a ~' ~ ~ U ° ~ ~ ~ ~ m c ~ U o ~ U ~ U U(n U c N ~+ :~ O :~ O w p C O O - O U - - - y O V N - ~~ j ~ ~ 3 C U U 7 3 7 E C U U ~ 7 ~~ U U C '~ O U O~ C V O o O U O U O V O U 7~ C V O o O U O U p N C U~ a~ ~ •~ O U ~ ~ U ~ ~ ~ ~ ~ ~ m ~ ~, a Q a m = _ U ~'~ _ U _ U _ U ~C •'= .C '~ _ U C ~ c ~ 'C U° = c m U° = c co ~ ~ o t!1 c ca d 4. ~ d ~ o >, ~C ~ O C N N C c ~ tp (II ~ ~ C w U ~ (II N N OZ~ 3 N C '~ ~= ~- '~ O N C ~=_ ~~ ~ ~ N N T ~ N ~ ~ 0 'O t ~ _ ~ O ~ +~ p 0 ~ ( '° C Q m' ~ O Z N p~ ~ C ~ N ~ O Z V N O Z ~ N ~ D y Z~ Z O Z O= Z ~ "° •~~ N ~ Q J ~ ~ O (O U ~ m cL~ Z Z' Z Z' ~ . 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The appeal filing periods are inconsistent among the various sections. Appeal filing periods should be standardized, regardless of the type or number of discretionary actions considered for an application. There should be a definition of when an appeal period ends. 2. The responsible appeal hearing body is inconsistent among the various code sections. The code should be clarified to identify a consistent appeal body. 3. The code does not define the term "days" in all instances. An appeal period should be counted only in "calendar" days since counting "business" days adds confusion and delay when holidays and weekends are considered. 4. The appeal process does not always provide for a Planning Commission hearing before an item is forwarded to the City Council. Early Planning Commission involvement could resolve some appealed matters and reduce the need for appeals to be considered at a City Council meeting. Planning Commission deliberation and recommendations would also provide valuable input to the City Council, if a Planning Commission decision is subsequently appealed. 5. The code requires that the City Council approve all Planning Commission action agendas prior to those actions being considered final. This additional requirement delays project implementation and provides an opportunity for additional appeals to be filed, sometimes after the Planning Commission's time limit far filing an appeal has ended. For example, if there is a fifth Tuesday in the month, or a Council meeting is cancelled, a Planning Commission action to approve a project can be delayed 30 days or more until the action agenda can be scheduled for City Council approval. The City Council would still have the ability to file an appeal as noted in proposed Section 9294.c. 6. Any interested party has the right to appeal any Community Development Department discretionary action. However, City Council appeals have historically occurred at a City Council meeting during which the Planning Commission action agenda is being considered. When this occurs, a majority vote of the Council members in attendance would typically be needed for an appeal to be heard. Individual Council members should have the same right of appeal as any other Tustin citizen. The proposed text amendments provide for this in Section 9294.c. 7. It is not uncommon for a large development project to involve multiple applications including subdivision map, Design Review, Conditional Use Permit and other actions. An appeal filed for complex projects can trigger multiple appeal provisions, deadlines, hearing bodies, etc., creating confusion. Planning Commission Report Code Amendment 09-005 August 25, 2009 Page 4 If approved, Code Amendment 09-005 would: 1. Standardize all related appeal filing deadlines to ten (10) calendar days from the date of the decision. 2. Establish an appeals board hierarchy that is consistent from application to application. All decisions of the Director of Community Development and Zoning Administrator would be appealable to the Planning Commission with all decisions of the Planning Commission appealable to the Tustin City Council. 3. Eliminate the need for Council to consider and approve Planning Commission action agendas in the future. Action agendas could still be provided as information items in the Council packets. 4. Ensure that each City Council member retains appeal rights. However, under the proposed ordinance, any City Council member would need to file an appeal application within the 10-day filing period as noted in proposed Section 9294.c. MINOR TEXT AMENDMENTS While preparing the standardized appeal provisions code amendment, staff identified a few Tustin City Code housekeeping items that warrant updating. For example, Sections 4412, 4413, 4415 and 4417 (adopted in 1961) currently assign responsibility for private property weed abatement by the City to the "Superintendent of Streets," a responsibility that is currently performed by the Director of Community Development. Another example is the proposed elimination of Sections 4621 through 4624 (adopted in 1980) which assigned Noise Ordinance enforcement to the County Health Officer. The City's Code Enforcement division has replaced the County of Orange in enforcing noise violations within the City of Tustin. Also, Section 9298b (adopted in 1962) identifies the Building Official as the person responsible for making land use determinations (i.e. determining that a proposed unlisted use is consistent with the site's zoning classification), a' function currently performed by the Director of Community Development, except when a zoning matter is forwarded to the Planning Commission for consideration. Each of these and other minor housekeeping issues have been corrected in proposed Code Amendment 09-005. PLANNING COMMISSION MEETING OF AUGUST 11, 2009 This matter was continued at the August 11, 2009 Planning Commission meeting to provide the Planning Commission additional time to consider the proposed ordinance amendment. When preparing ordinance amendments, City staff and the City Attorney sometimes utilize a "strikethrough and underline" technique to identify how the existing municipal code text is proposed to be modified (i.e. strikethrough -proposed for deletion, underline -proposed to be added). However, when a code amendment involves the replacement of all or most of the existing code text, the "strikethrough and Planning Commission Report Code Amendment 09-005 August 25, 2009 Page 5 underline" technique is not used in the interest of brevity. Code Amendment 09-005 proposes to replace or amend a number of code sections, so the strikethrough and underline technique was not utilized for proposed Ordinance No. 1366. However, to assist the public and Planning Commission in understanding the proposal, staff has identified by Section number the existing Municipal Code text that is proposed for amendment (Attachment B). ENVIRONMENTAL ANALYSIS Proposed Code Amendment 09-005 is exempt from environmental review under CEQA pursuant to Section 15061(b)(3) of the State CEQA Guidelines. This section provides that a project is exempt from environmental review where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The proposed amendment deals only with procedural matters related to an existing appeal process and would not change any development or use standards, cause any development to occur, or otherwise directly or indirectly affect the environment. CITY ATTORNEY REVIEW The City Attorney has reviewed the content and form of Code Amendment 09-005 (Ordinance 1366). Dana L. Ogdon Elizabeth A. Binsack Assistant Director Community Development Director Attachments: A. Resolution No. 4121 with proposed Ordinance No.1366 B. Affected Text From Current Municipal Code S:\Cdd\PCREPORT\2009\CA 09-005 (appeals clean-up ord).doc ATTACHMENT A RESOLUTION NO. 4121 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL APPROVE CODE AMENDMENT 09-005 (ORDINANCE 1366) AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO STANDARDIZE COMMUNITY DEVELOPMENT APPEAL PROVISIONS AND IMPLEMENT MINOR TEXT CORRECTIONS. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That the proposed amendment to the Tustin City Code is necessary to strengthen, clarify, and standardize Community Development Department appeal provisions and implement minor text corrections. B. That the proposed code amendment is regulatory in nature and would provide for a consistent appeal filing period and process and an appeals review board hierarchy process. C. That the City of Tustin has a substantial interest in ensuring that Community Development Department procedures and Tustin City Codes are clear and concise. D. That on August 25, 2009, a public hearing was duly noticed, called, and held on proposed Code Amendment 09-005 (Ordinance 1366) by the Planning Commission. E. That the proposed amendment is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines. This section provides that a project is exempt from environmental review where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The proposed amendment deals only with procedural matters and would not change any development or use standards, cause any development to occur, or otherwise directly or indirectly affect the environment. II. The Planning Commission hereby recommends that the City Council approve Code Amendment 09-005 (Ordinance 1366) amending various sections of the Tustin City Code to standardize Community Development appeal provisions and implement minor text corrections attached hereto as Exhibit A. Resolution No. 4121 Page 2 PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 25t" day of August, 2009. Charles E. Puckett Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) City of Tustin ) I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California, that Resolution No. 4121 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 25t" day of August, 2009. ELIZABETH A. BINSACK Planning Commission Secretary Exhibit A ORDINANCE NO. 1366 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS PROVISONS OF THE TUSTIN CITY CODE, FOR THE PURPOSE OF CREATING A UNIFORM APPEALS PROCESS FOR CERTAIN DECISIONS RELATED TO THE COMMUNITY DEVELOPMENT DEPARTMENT AND IMPLEMENTING MINOR TEXT AMENDMENTS. City Attorney Summary This ordinance creates a uniform appeal process for matters that are handled by the Community Development Department, including the provision for de novo appeal hearings and consistent timeframes and procedures for notice and decisions. The Ordinance also makes minor non- substantive changes consistent with current city structure and organization of administrative services. The City Council of the City of Tustin ordains: Section 1. Subsection g of Section 2512 to the Tustin City Code is amended to read: g Appeal from Decision of the Director Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Section 2. Subsection d of Section 2513 of the Tustin City Code is amended to read: d Appeal from Denial of Fee--Exempt License Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Section 3. Section 3731 of the Tustin City Code is amended to read: 3731 GENERAL Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Section 4. Section 3924 of the Tustin City Code is amended to read: 3924 APPEAL OF PERMIT DENIAL/SUSPENSION/REVOCATION Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Ordinance 1366 Page 2 Section 5. Section 4412 of the Tustin City Code is amended to read: 4412 NOTICE TO ABATE Whenever the Director of Community Development or his or her designee shall find that a condition prohibited by Section 4411 exists upon any lot, piece or parcel of land, or upon any street, alley, sidewalk or right of way abutting such lot, piece or parcel of land, the Director of Community Development shall give or cause to be given, in the manner provided in this Chapter, a notice to remove such weeds, rubbish or other material. Section 6. Section 4413 of the Tustin City Code is amended to read: 4413 NOTICE PROCEDURE Notice to abate shall be given by posting in a conspicuous place upon or in front of the lot, piece or parcel of land on which or upon the street, alley, sidewalk or right of way adjacent to which such weeds, rubbish or other material may be. The notice shall be headed "Notice to Clean Premises" in letters not less than one inch in height, and the notice, in legible characters, shall direct the removal of weeds, rubbish or other material as the case may be, and refer to this Code for further particulars. Such notice shall be in substantially the following form: NOTICE TO CLEAN PREMISES Notice hereby is given that contrary to the provisions of the Code of the City of Tustin, California, noxious and dangerous weeds and/or rubbish, refuse, and dirt are existing upon or in front of the following described property: (give the address, or if posting a whole street, the name of the street). That they constitute a public nuisance which must be abated by the removal of the weeds, rubbish, refuse and dirt. Unless said removal is made within ten (10) calendar days from the date of this notice, the same shall be removed by the City, and the cost of the removal assessed upon the land from which, or in front of which weeds, rubbish, refuse and dirt are removed, and such cost so assessed will constitute a lien upon such land until paid. All persons having any objection to the proposed required removal may appeal to the City Council, in writing, within 10 calendar days from the date of this notice. DATED: This day of Director of Community Development, City of Tustin, California Ordinance 1366 Page 3 Section 7. Section 4415 of the Tustin City Code is amended to read: 4415 PROOF OF NOTICE TO ABATE Proof of the posting, serving in person or mailing of any notice, order, or determination provided for in this Chapter, shall be by affidavit of the person performing the duty and the affidavit must specify the time when the duty was performed. It shall be the duty of the Director of Community Development to keep such affidavits among the official records. Section 8. Section 4416 of the Tustin City Code is amended to read: 4416 APPEAL FROM NOTICE TO ABATE Within ten (10) calendar days from the date of the notice to abate any person may appeal the determination of the Director of Community Development in accordance with Section 9294 of this Code. Section 9. Section 4417 of the Tustin City Code is amended to read: 4417 REMOVAL BY CITY Unless the weeds, rubbish or other material have ~t been removed from the premises in question or from the street, alley, sidewalk or right of way abutting such premises as directed by written notice, the Director of Community Development thereupon shall cause the same to be removed and may enter upon private property for the purpose of so doing. Section 10. Section 4418 of the Tustin City Code is amended to read: 4418 ASSESSMENT OF COSTS a Assessment Procedure The Director of Community Development shall keep or cause to be kept a permanent record showing the legal description, as shown on the last equalized assessment roll of the County, of each piece of property or lot from which, or the street, alley, sidewalk or right of way abutting such property from which, the weeds, rubbish or other material have been removed under the provisions of this Chapter, and such record book shall show any and all expense incurred by the City in the removal of the weeds, rubbish, or other material as such expense relates to each separate property ownership. Each entry in this record book shall be made upon the completion of work done on each piece of property or lot, or upon the street, alley, parkway, or sidewalk abutting thereon. After such entry has been made in the record book, the same shall constitute an assessment against the parcel of land and thereafter such assessment shall be confirmed by motion or resolution of the City Council and the assessment, after made and confirmed, and upon recordation of such order of the City Council confirming Ordinance 1366 Page 4 the assessment in the Office of the County Recorder of the County in which the property is situated, shall become a lien upon the parcel. b Assessment Roll The Director of Community Development Staff shall prepare and file with the County Assessor a certified copy of the motion or resolution of the City Council. The County Assessor shall enter each assessment in the county tax roll opposite the parcel of land. The amount of the assessment shall be collected at the time and in the manner of ordinary municipal taxes. If delinquent, the amount is subject to the same penalties and procedure of foreclosure and sale as is provided for ordinary municipal taxes. c Refund of Erroneous Collection Any assessment or any portion of an assessment levied pursuant to the provisions of this Chapter which herefore or hereafter has been paid more than once, erroneously or illegally collected, paid in excess of the amount chargeable, was not chargeable to the person or the property paying the same under the provisions of this Chapter, by reason of a clerical error of the employees or officials of the City, may be refunded by order of the City Council in the same manner, to the same extent and under the same conditions as now or hereafter are provided by the City for refund of payments of general taxes, at any time after the amount of the assessment_has been delivered to the County Assessor and entered upon the assessment books. The owner of any property assessed who may claim that the assessment is void in whole or in part may pay the same under protest. Such protest shall be in writing, shall be received by the City Clerk on or before March first after the tax became due and payable, and shall specify whether the whole or any part of the assessment is void and the grounds upon which such claim is founded. Such owner after such payment, may recover the same in the manner and under the conditions provided in Section 39585 of the State Government Code. Section 11. Section 4509 of the Tustin City Code is amended to read: 4509 APPEALS Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. Section 12. Sections 4621 through 4624, inclusive, of the Tustin City Code are repealed. Section 13. Section 5501 of the Tustin City Code is amended to read: "Enforcement officer" means the Director of Community Development or any other person or City officer or employee as may be designated by the City Manager to enforce property maintenance, zoning, and other nuisance abatement regulations and standards of the City violations. Ordinance 1366 Page 5 Section 14. Section 5504 of the Tustin City Code is amended to read: 5504 APPEALS Any person may appeal any decision of the enforcement ofi:lcer in accordance with Section 9294 of this Code. Section 15. Subsection f of Section 7211 of the Tustin City Code is amended to read: f Appeals Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Section 16. Section 7265 of the Tustin City Code is amended to read: 7265 APPEALS Any person may appeal any decision of the Director in accordance with Section 9294 of this Code. Section 17. Paragraph 6 of Subsection C of Section 8915 of the Tustin City Code is amended to read: 6. Any person may appeal any decision of the Director of Community Development in accordance with Sections 9294 of this Code. Section 18. Paragraph 4 of Subsection g of Section 9252 of the Tustin City Code is amended to read: 4. Any person may appeal any decision of the Director of Community Development or Planning Commission in accordance with Sections 9294 of this code (Appeals). Section 19. Subsection f of Section 9272 of the Tustin City Code is amended to read: f Appeals Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. Ordinance 1366 Page 6 Section 20. Section 9294 of the Tustin City Code is amended to read: 9294 APPEALS a Appeal of Decisions of the Director of Community Development or Zoning Administrator Any decision of the Director of Community Development or the Zoning Administrator may be appealed to the Planning Commission by any person. All appeals shall be filed with the City Clerk during normal business hours within ten (10) calendar days of the date of the decision and be accompanied by a deposit or fee as required by City Council resolution or ordinance. All appeals shall be made in writing and shall specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and reasons why the action taken by the Director of Community Development or the Zoning Administrator should be modified or reversed. Timely filing of a written appeal shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the appeal has been resolved. A public hearing date shall be set within 60 calendar days of filing of the appeal for Planning Commission consideration of the matter. The hearing shall be de novo and the Planning Commission may approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Director of Community Development or the Zoning Administrator for further proceedings in accordance with directions of the Planning Commission. b Appeal of Planning Commission Any decision of the Planning Commission may be appealed to the City Council by any person. All appeals shall be filed with the City Clerk during normal business hours within ten (10) calendar days of the date of the decision and accompanied by a deposit or fee as required by City Council resolution or ordinance. All appeals shall be made in writing and shall specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and reasons why the action taken by the Planning Commission should be modified or reversed. Timely filing of a written appeal shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the appeal has been resolved. A public hearing date shall be set within 60 calendar days of filing of the appeal for City Council consideration of the matter. The hearing shall be de novo and the City Council may approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. A decision of the City Council on such appeal shall be final. Ordinance 1366 Page 7 c Request for Hearing by a Member of the City Council In lieu of the provisions of Subsection b of this Section, any decision of the Planning Commission may be set for public hearing at the request of a member of the City Council. A Request for Hearing shall be filed with the City Clerk during normal business hours within ten (10) calendar days of the date of the decision. The Request for Hearing shall be made in writing and shall specify the affected decision and the reason for the Request for a Hearing. Timely filing of a Request for Hearing shall automatically stay all actions and put in abeyance all approvals or permits which may have been granted; and neither the applicant nor any enforcing agency may rely upon the decision, approval, or denial or other action appealed from, until the the hearing has been conducted and the City Council takes action on the matter. The City Clerk shall set a public hearing date within 60 calendar days of filing of the Regeust for Hearing. The hearing shall be de novo and the City Council may approve, approve with conditions, or disapprove the matter in accordance with this Code or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. A decision of the City Council at the conclusion of hearing pursuant to this Subsection shall be final. Section 21. Subsection b of Section 9298 of the Tustin City Code is amended to read: b Criteria for Determination Whenever the Director of Community Development or Planning Commission of the City of Tustin is called upon to determine whether or not the use of land or any structure in any district is similar in character to the particular uses allowed in the district, the Director or Commission shall consider the following factors as criteria for their determination: (1) Effect upon the public health, safety and general welfare of the neighborhood involved and the City at large. (2) Effect upon traffic conditions. (3) Effect upon the orderly development of the area in question and the City at large, in regard to the general planning of the whole community. Section 22. Subsection c of Section 9298 of the Tustin City Code is amended to read: c Responsibility of Enforcement It shall be the duty of the Director of Community Development or designee to enforce the provisions of this Chapter pertaining to the use of land or buildings in the erection, construction, reconstruction, moving, alteration, or addition to any buildings or structures. Any permit or license of any type issued by any department or officer of the City of Tustin issued in conflict with the provisions of this Chapter is hereby declared to be null and void. Ordinance 1366 Page 8 Section 23. Subsection e of Section 9298 of the Tustin City Code is amended to read: e Appeals Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. Section 24. Paragraph (4) of Subsection c of Section 9299 of the Tustin City Code is amended to read: (4) Zoning Administrator Action. After consideration of the application, and after making the appropriate findings as required above, the Zoning Administrator shall take action to approve, approve with conditions or deny the application. The decision of the Zoning Administrator shall be final unless appealed pursuant to subsection d below. The Zoning Administrator shall provide notice to the applicant within two (2) business days following the action. Section 25. Subsection d is added to Section 9299 of the Tustin City Code to read: d Appeals Any person may appeal any decision of the Zoning Administrator in accordance with Section 9294 of this Code. Section 26. Subsection e of Section 9299 is repealed. Section 27. Subsection f of Section 9299 is repealed. Section 28. Subsection f of Section 9405 of the Tustin City Code is amended to read: f. Appeals Any person may appeal any decision of the Director of Community Development or Planning Commission in accordance with Section 9294 of this Code. Section 29. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 30. This Ordinance shall become effective at 12:01 am on the thirty-first day after passage. Ordinance 1366 Page 9 PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this _ day of 2009. DOUG DAVERT, MAYAYOR ATTEST: PAMELA STOKER, CITY CLERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY ATTORNEY STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1366 was duly and regularly introduced and read at the regular meeting of the City Council held on the _ day of 2009, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _ day of 2009, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Published: ATTACHMENT B Section 1. Business Regulations - Subsection g of Section 2512 -Appeal from Decision of the Director Any person may appeal to the City Council any decision of the Director with respect to the issuance or refusal to issue such license by filing a notice of appeal with the Director. The Council shall thereupon fix a time and place for hearing such appeal. The Director shall give notice to such person of the time and place of hearing by serving it personally or by depositing it in the United States Post Office at Tustin, California, postage prepaid, addressed to such person at his or her last known address. The Council shall have the authority to determine all questions raised on such appeal. No such determination shall conflict with any substantive provision of this Chapter. Section 2. Business Regulations - Subsection d of Section 2513 -Appeal from Denial of Fee - Exempt License Any person denied afee-exempt license or endorsement for a particular solicitation by the Director, after compliance with the procedural requirements thereof and believing himself or herself to be entitled to receive fee-exemption or solicitation endorsement on the basis of the information filed with the Director, may appeal to the City Council for its order directing the Director to grant such exemption or solicitation endorsement. Appeal shall be in writing, filed in triplicate with the Director, and shall clearly and concisely state: (1) Subdivision of section 2513b entitling such applicant to such exemptions or solicitation endorsement. (2) The facts relied upon to establish that applicant meets the requirements and conditions of such subdivision. (3) That the applicant has disclosed all such facts to the Director. (4) That the applicant has filed a duly executed statement of facts as required and such other proof of entitlement as the Director has requested. The City Council may decide such appeal and shall deny the same unless it finds that the written appeal complies with the requirements of this section, that the applicant has furnished to the Director all of the documents and data reasonably required by him or her, and that the applicant, upon the record, is entitled to exemption from the usual fees or to a solicitation endorsement. Section 3. Business Regulations - 3731 -GENERAL Any person may appeal a decision of the Director or the Planning Commission to the City Council. The right to appeal to the City Council shall terminate upon the expiration of fifteen (15) days from the date of mailing of the notice. The notice of appeal is to be sent to the City's Community Development Department. Within thirty (30) days of the receipt of said notice of appeal, the Director shall notify the applicant of the date of the City Council hearing. (1) In the event an appeal is timely filed, the Director's or the Planning Commission's decision shall not be in effect until a final decision has been rendered by the City Council. If no appeal is filed, the Director's or the Planning Commission's decision shall become effective upon expiration of the period for filing appeals. (2) The City Council may preside over the hearing on appeal or, in the alternative, the City Manager may appoint a hearing officer to conduct the hearing, receive relevant evidence, and submit to the City Council, findings and recommendations to be considered by the City Council. The City Council shall render its decision within forty-five (45) days from the date of the hearing or, in the event that a hearing officer has been appointed, within forty-five (45) days from the date on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. The applicant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the decision was based, and the opportunity to present contrary evidence at the hearing. (3) Notice of the date, time, and place of the hearing shall be mailed at least ten (10) days prior to the date of the hearing, by the U.S. Mail, with proof of service attached, addressed to the address listed on the massage application, massage technician application, or, the address given in the Notice of Appeal, as the case may be. (4) The following rules of evidence shall apply: (a) Oral evidence shall be taken only under oath or affirmation. The City Council or hearing officer shall have authority to administer oaths, and to receive and rule on admissibility of evidence. (b) Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses who have testified under direct examination. The City Council or hearing officer may call and examine any witness. (c) Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this part. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded. (5) No permit granted herein shall confer any vested right to any person or business for more than the permit period. Section 4. Business Regulations -APPEAL OF PERMIT DENIAL/SUSPENSION/ REVOCATION (a) After denial of an application, or denial of a renewal of an application, or upon the issuance of a Notice of Suspension or a Notice of Revocation of a permit by the Community Development Director, the applicant or permittee may seek review of such action by filing a written appeal with the City Council. An appeal must be filed with the City Clerk within ten (10) calendar days of a denial, suspension, or revocation of a permit. The hearing before the City Council will be 2 held no less than five (5) business days from the date of the filing of the appeal or at the next regularly scheduled meeting of the City Council. The City Council shall issue its decision within fifteen (15) calendar days of the hearing. The decision of the City Council shall be final. If the denial, suspension or revocation is affirmed on review by the City Council, the applicant or permittee may seek expedited judicial review of such administrative action pursuant to California Code of Civil Procedure Section 1094.8 because the permit regulates expressive conduct protected by the First Amendment to the United States Constitution. The applicant or permittee shall be responsible for reimbursing the City for its actual costs for transcribing, copying, or otherwise preparing the administrative record required for court hearing. (b) There shall be an automatic stay of enforcement of a permit denial, suspension, or revocation throughout the administrative and/or judicial appeal process. (c) When the Community Development Director or designee or City Council revokes a permit, the revocation shall continue for one (1) year and the permittee shall not be issued a sexually oriented business permit for one (1) year from the date revocation became effective. If, subsequent to revocation the Community Development Director or designee finds that the basis for revocation has been corrected, the applicant shall be granted a permit. Section 5. Health and Sanitation -Weed and Litter Control - 4412 -NOTICE TO ABATE Whenever the Superintendent of Streets shall find that a condition prohibited by Section 4411 exists upon any lot, piece or parcel of land, or upon any street, alley, sidewalk or right of way abutting such lot, piece or parcel of land, he shall give or cause to be given, in the manner provided in this Chapter, a notice to remove such weeds, rubbish or other material. Section 6. Health and Sanitation -Weed and Litter Control - 4413 -NOTICE PROCEDURE Notice to abate shall be given by posting in a conspicuous place upon or in front of the lot, piece or parcel of land on which or upon the street, alley, sidewalk or right of way adjacent to which such weeds, rubbish or other material may be. The notice shall be headed "Notice to Clean Premises" in letters not less than one inch in height, and the notice, in legible characters, shall direct the removal of weeds, rubbish or other material as the case may be, and refer to this Code for further particulars. Such notice shall be in substantially the following form: NOTICE TO CLEAN PREMISES Notice hereby is given that contrary to the provisions of the Code of the City of Tustin, California, noxious and dangerous weeds and/or rubbish, refuse, and dirt are existing upon or in front of the following described property: (give the address, or if posting a whole street, the name of the street). That they constitute a public nuisance which must be abated by the removal of the weeds, rubbish, refuse and dirt. Unless said removal is made within 10 days from the date of this notice, the same shall be removed by the City, and the cost of the removal assessed upon the land from which, or in front of which weeds, rubbish, refuse and dirt are removed, and such cost so assessed will constitute a lien upon such land until paid. 3 All persons having any objection to the proposed required removal may appeal to the City Council, in writing, within 10 days from the date of this notice. DATED: This day of Superintendent of Streets, City of Tustin, California Section 7. Health and Sanitation -Weed and Litter Control - 4415 -PROOF OF NOTICE TO ABATE Proof of the posting, serving in person or mailing of any notice, order, or determination provided for in this Chapter, shall be by affidavit of the person performing the duty and the affidavit must specify the time when the duty was performed. It shall be the duty of the Superintendent of Streets to keep such affidavits among the official records in his office. Section 8. Health and Sanitation -Weed ar~d Litter Control - 4416 -APPEAL FROM NOTICE TO ABATE Within ten days from the date of the notice to abate, the owner or any other persons interested in the property, land, or lots affected by said notice may appeal to the City Council from the determination of the Superintendent of Streets; such appeal shall be in writing, shall state the objections, and the name and address of the person filing the appeal. The appeal shall be filed with the City Clerk and shall be presented by the Clerk to the City Council at its next regular meeting following the date of filing. The City Council at such meeting, or at such meeting to which the matter may be continued by the Council, shall hear and pass upon such appeal, and the decision of the Council thereupon shall be final and conclusive. Section 9. Health and Sanitation -Weed and Litter Control - 4417 -REMOVAL BY CITY Unless within ten days from the date of notice to abate or in the event that an appeal has been made to the City Council, within ten days from that date of the determination of the appeal, (unless such appeal is sustained, and the Council determines that no such removal shall be required,) and written notice of the determination mailed to the one appealing at the address shown in the appeal, the weeds, rubbish or other material have not been removed from the premises in question or from the street, alley, sidewalk or right of way abutting such premises as directed by such notice or by the City Council on appeal, the Superintendent of Streets thereupon shall cause the same to be removed and may enter upon private property for the purpose of so doing. If upon appeal the requirements of the original notice have been modified by the City Council, the Superintendent of Streets in causing such weeds, rubbish or other material to be removed shall be governed by the determination of the City Council. Section 10. Health and Sanitation -Weed and Litter Control - 4418 ASSESSMENT OF COSTS a Assessment Procedure The Superintendent of Streets, or such other official as may be designated by the City Council, shall keep or cause to be kept in his office a permanent record showing the legal 4 description, as shown on the last equalized assessment roll of the County, of each piece of property or lot from which, or the street, alley, sidewalk or right of way abutting such property from which, the weeds, rubbish or other material have been removed under the provisions of this Chapter, and such record book shalt show any and all expense incurred by the City in the removal of the weeds, rubbish, or other material as such expense relates to each separate property ownership. Each entry in this record book shall be made upon the completion of work done on each piece of property or lot, or upon the street, alley, parkway, or sidewalk abutting thereon. After such entry has been made in the record book, the same shall constitute an assessment against the parcel of land and thereafter such assessment shall be confirmed by motion of the City Council and the assessment, after made and confirmed, and upon recordation of such order of the City Council confirming the assessment in the Office of the County Recorder of the County in which the property is situated, shall become a lien upon the parcel. b Appeal from Assessment Between the first and fifteenth day of July of each year the Superintendent of Streets shall cause to be published in the Tustin News, a newspaper of general circulation in the City, a notice to the effect that any person affected or aggrieved by any act or determination of the Superintendent of Streets or of the City Council in connection with the provisions of this Chapter, may appeal to the City Council. Such appeal shall be in writing and shall be filed with the City Clerk prior to the fifteenth day of July. At the next regular meeting of the City Council, the Council shall hear and pass upon each such appeal, and the determination of the Council thereupon shall be final and conclusive. In the event any determination of the Superintendent of Streets is modified by determination of the City Council or any assessment changed or corrected, the Superintendent of Streets shall cause such correction to be made upon the record showing the assessment. c Assessment Roll At the expiration of the time for appeal or upon the determination by the City Council of all appeals so filed and in compliance with the requirements of any determination so made, the Superintendent of Streets shall deliver to the City Clerk an abstract of the entries of the permanent record in which the engineer has shown each assessment, for the preceding fiscal year. Such abstract shall show the property affected and the amount charged there against. The City Clerk, prior to August tenth of each year, shall deliver to the County Auditor the amount of each such charge to be placed upon the assessment roll against the respective lots and thereafter such charges shall be of the same character and effect, subject to the same penalties, and shall be collected in the same manner and at the same time as City taxes are collected. The provisions of this section shall not apply to any piece of property or land or lot the charge against which has been paid prior to the delivery to the City Clerk of such abstract, but in such case an appropriate entry shall be made in the record book by the Superintendent of Streets, showing that such charge has been paid, so that when the same is delivered to the City Clerk all assessments shown thereon shall be valid and effective. d Refund of Erroneous Collection Any assessment or any portion of an assessment levied pursuant to the provisions of this Chapter which herefore or hereafter has been paid more than once, erroneously or illegally collected, paid in excess of the amount chargeable, was not chargeable to the person or the property paying the same under the provisions of this Chapter, by reason of a clerical error of 5 the employees or officials of the City, may be refunded by order of the City Council in the same manner, to the same extent and under the same conditions as now or hereafter are provided by the City for refund of payments of general taxes, at any time after the abstract of charges taken from the record book of the Superintendent of Streets has been delivered to the County Assessor and entered upon the assessment books. The owner of any property assessed who may claim that the assessment is void in whole or in part may pay the same under protest. Such protest shall be in writing, shall be received by the City Clerk on or before March first after the tax became due and payable, and shall specify whether the whole or any part of the assessment is void and the grounds upon which such claim is founded. Such owner after such payment, may recover the same in the manner and under the conditions provided in Section 39585 of the State Government Code. e Claims for Damage Against City If the City Council finds that property damage results from negligence of a City officer or employee in connection with the abatement of a nuisance pursuant to this Chapter, a claim for such damage may be paid from the City General Fund. Claims therefore shall be governed by Chapter 2 of Division 3.5 of Title 1 of the State Government Code. Section 11. Health and Safety -Abandoned and Inoperative Vehicles - 4509 -APPEALS The property owner or vehicle owner may appeal the decision of the hearing officer by filing a written notice of appeal with the City Clerk within five (5) business days after the decision by the hearing officer. The City Clerk shall give at minimum a ten (10) days written notice of the time and place of the hearing to the property owner and the vehicle owner. Such appeal shall be heard by the City Council which may affirm, amend or reverse the order or take other action deemed appropriate. In conducting the hearing the City Council shall not be limited by the technical rules of evidence. The decision of the City Council shall be final. Section 12. Health and Safety -Noise Control -Sections 4621 through 4624 repealed: 4621 MANNER OF ENFORCEMENT; ADOPTION OF TITLE 4, DIVISION 6, CODIFIED ORDINANCES OF ORANGE COUNTY The Orange County Health Officer and his duly authorized representatives, the Tustin Police Chief and his authorized representatives, and the Tustin Building Official, and such city employees as designated by the City Chief Administration Officer, are hereby empowered to, and it shall be their duty to, enforce the provisions of this Chapter, and the provisions of Title 4, Division 6 of the Codified Ordinances of the County of Orange, adopted hereby by reference. Said officials, representatives and employees are also authorized pursuant to California Penal Code Section 836.5, to arrest any person without a warrant when they have reasonable cause to believe that such person has committed a misdemeanor in their presence. No person shall interfere with, oppose or resist any authorized person charged with enforcement of this chapter while such person is engaged in the performance of his duty. 4622 VARIANCE PROCEDURE 6 The owner or operator of a noise source which violates any of the provisions of this Chapter may file an application with the Health Officer for a variance from the provisions thereof wherein said owner or operator shall set forth all actions taken to comply with said provisions, the reasons why immediate compliance cannot be achieved, a proposed method of achieving compliance, and a proposed time schedule for its accomplishment. Said application shall be accompanied by a fee in the amount of seventy-five dollars ($75.00) or as hereinafter amended by the Orange County Board of Supervisors. A separate application shall be filed for each noise source; provided, however, that several mobile sources under common ownership, or several fixed sources on a single property may be combined into one (1) application. Upon receipt of said application and fee, the Health Officer shall refer it with his recommendation thereon within thirty (30) days to the Noise Variance Board for action thereon in accordance with the provisions of this chapter. An applicant for a variance shall remain subject to prosecution under the terms of this section until a variance is granted. 4623 NOISE VARIANCE BOARD The Noise Variance Board, as established by Section 46.0013 of the Codified Ordinances of the County of Orange, California, shall evaluate all applications for variance from the requirements of this Chapter and may grant said variances with respect to time for compliance, subject to such terms, conditions and requirements as it may deem reasonable to achieve maximum compliance with the provisions of this Chapter. Said terms, conditions and requirements may include, but shall not be limited. to, limitations on noise levels and operating hours. Each such variance shall set forth in detail the approved method of achieving maximum compliance and a time schedule for its accomplishment. In its determinations said Board shall consider the magnitude of nuisance caused by the offensive noise; the uses of property within the area of impingement by the noise; the time factors related to study, design, financing and construction of remedial work; the economic factors related to age and useful life of equipment; and the general public interest and welfare. Any variance granted by said Board shall be by resolution and shall be transmitted to the Health Officer for enforcement. Any violation of the terms of said variance shall be unlawful. 4624 APPEALS Within i:lfteen (15) days following the decision of the Variance Board on any application the applicant, the Health Officer, or any member of the City Council, may appeal the decision to the City Council by filing a notice of appeal with the Secretary of the Variance Board. In the case of an appeal by the applicant for a variance, the notice of appeal shall be accompanied by a fee to be computed by the Secretary on the basis of the estimated cost of preparing the materials required to be forwarded to the City Council as discussed hereafter. If the actual cost of such preparation differs from the estimated cost appropriate payments shall be made either to or by the Secretary. Within fifteen (15) days following receipt of a notice of appeal and the appeal fee, the Secretary of the Variance Board shall forward to the City Council copies of the application for variance; the recommendation of the Health Officer; the notice of appeal; all evidence concerning said application received by the Variance Board and its decision thereon. In addition, any person may file with the City Council written arguments supporting or attacking said decision and the City Council may in its discretion hear oral arguments thereon. The City 7 Clerk shall mail to the applicant a notice of the date set for hearing of the appeal. The notice shall be mailed at least ten (10) days prior to the hearing date. Within sixty (60) days following its receipt of the notice of the appeal, the City Council shall either affirm, modify, or reverse the decision of the Variance Board. Such decision shall be based upon the City Council's evaluation of the matters submitted to the City Council in light of the powers conferred on the Variance Board and the factors to be considered, both as enumerated in Sections 4622 and 4623. As part of its decision the Council may direct the Variance Board to conduct further proceedings on said application. Failure of the City Council to affirm, modify or reverse the decision of the Variance Board within said sixty-day period shall constitute an affirmance of the decision. Section 13. Public Safety -Section 5501 (Definitions) "Enforcement officer" means that person or other City officer or employee as may be designated in writing by the City Manager to enforce property maintenance, zoning and other City violations. Section 14. Public Safety - 5504 -APPEALS a Appeal of Enforcement Officer Decision Any person entitled who is dissatisfied with a public nuisance determination of the enforcement officer shall have the right to appeal to the Planning Commission within seven (7) days from the date of mailing of the decision of the enforcement officer. Such appeal shall be in writing and filed with the Community Development Department, together with a filing fee in an amount as may be prescribed by the City Council by resolution. The notice of appeal shall specify: (1) The legal description and street address of the property; (2) The determination being appealed; (3) The owner's or appealing party's legal interest in the property; (4) A statement of disputed and undisputed facts; (5) A statement specifying that portion of decision or hearing proceedings that are being appealed together with any evidentiary and supporting materials that would support the appeal; (6) A signed verification of the truth of all matters. Upon the timely filing of a notice of appeal in the proper form, the Community Development Department shall place said appeal upon regular meeting of the Planning Commission scheduled to be held not less than thirty (30) days after said appeal is received. The Community Development Department shall provide written notice of the appeal, including the time, place and date of the hearing on the appeal, to the appellant and any other person to whom notice of the enforcement officer's order was sent. Said notice shall be sent in the same manner as notice of the enforcement officer's notice and order. The Planning Commission may limit the issues on appeal to those set forth in the appellant's notice of appeal, may consider the record produced before the enforcement officer, and may allow additional evidence to be produced. Notice of the Planning Commission's determination shall be in substantially the same form as that sent by the enforcement officer and shall be sent to all persons to whom notice of 8 the enforcement officer's order was sent as well as to all persons requesting such notice, in writing, at the time the appeal is heard. b Appeal of Planning Commission Decision Any person who is entitled to notice of hearing, who participated in the Planning Commission hearing and who is dissatisfied with a public nuisance decision of the Planning Commission may appeal any order, requirement, decision or determination to the City Council in the same manner set forth for enforcement officer appeals. Appeals shall be made in writing and filed with the City Clerk prior to 5:00 p.m. of the day of the first regular meeting of the City Council following the Planning Commission action to be appealed, together with a filing fee in the amount as prescribed by the City Council resolution which may be amended from time to time. Upon any appeal being duly filed or requested by the City Council, a time for hearing shall be a date set within thirty (30) days of the filing of the appeal. Notice of the appeal shall be sent in the same manner as notice of the Planning Commission's decision. At the close of the hearing on an appeal, the City Council may reverse or modify the decision of the Planning Commission and/or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. If the City Council does not take any action reversing, modifying and/or remanding of the decision of the Planning Commission within thirty (30) days after the filing of appeal thereon, the Planning Commission's action on the matter shall be final and conclusive. Notice of a final determination shall be sent in the same manner as after the Planning Commission's determination. Section 15. Public Facilities - 7211f -APPEALS The City Council shall have the power to hear and decide appeals based upon the enforcement of the provisions of this section. Any permittee or owner who is aggrieved by any decision of the Director may appeal that decision by submitting a written notice of appeal to the City Clerk within twenty-one (21) days of the date on which notice of the decision was mailed. The City Council may preside over the hearing on appeal or may designate a hearing officer to take evidence and submit a proposed decision together with findings, within fifteen (15) days from the date of the hearing. The City Council shall, within thirty (30) days from the date of the hearing, render its decision on the appeal, together with findings. The decision of the City Council shall be final. Section 16. Public Facilities. - 7265 -APPEALS Appeals of the Director's decisions may be taken and heard in accordance with Section 9272(f) of the Tustin City Code. Section 17. Business Regulations -Paragraph 6 of Subsection C of Section 8915 6. Any applicant or aggrieved party may appeal any decision of the Director of Community Development to the Planning Commission and any decision of the Planning Commission to the City Council by filing a written request with the City within seven (7) days after the respective decision is made. 9 Section 18. Land Use -Paragraph 4 of Subsection g of Section 9252 4. The decision of the Community Development Director is appealable to the Planning Commission and any decision of the Commission is appealable to the City Council. Any appeal shall be made in writing and delivered to the Department of Community Development no later than seven (7) calendar days from the date of the decision. Such appeal shall specify the grounds upon which the appeal is based and be accompanied by a fee set by resolution of the City Council. Planning Commission or the City Council, as applicable, shall set the matter for consideration at the next regular meeting of the Commission or City Council, and shall give written notice to the appellant of the time and date set for consideration of the appeal. Upon the hearing of such appeal, the Commission or City Council may affirm, reject, or modify a decision on the Certificate of Appropriateness. Section 19. Land Use - Subsection f of Section 9272 Appeal of any decision of the Community Development Director may be made by any person to the Planning Commission pursuant to the following procedures: (1) Within seven (7) days of any decision an appeal may be filed in writing with the Community Development Department stating the reason for said appeal, accompanied by a fee of $30.00, provided, however, that any appeal filed pursuant to this Section by the City Council or any member thereof shall not be subject to the requirement of payment of any fee. (2) The Planning Commission shall schedule a hearing of said appeal at a meeting to be held within thirty (30) days of the filing of such appeal or at such other time as may be determined by the Planning Commission from time to time. (3) The decision of the Planning Commission shall be final unless an appeal is filed with the City Council within fifteen (15) calendar days of the date of the action taken by the Planning Commission. Appeals to the City Council shall be filed under the same procedures as other appeals on the Zoning Ordinance. Section 20. Land Use - 9294 -APPEALS a Appeal of Decisions Any person may appeal any order, requirement, decision or determination of the Planning Commission to the City Council in the manner set forth in this section unless the jurisdiction of the Planning Commission is otherwise specifically declared by ordinance to be final and conclusive. Appeals shall be made in writing and filed with the City Clerk prior to 5:00 p.m. of the day of the first regular meeting of the City Council following the Planning Commission action to be appealed, together with a filing fee in an amount as prescribed from time to time by the City Council by resolution. b Finality of Planning Commission Actions A record of each action of the Planning Commission shall be placed on the agenda of the City Council at its first regular meeting following the action of the Planning Commission, together with a copy of the staff report thereon. The action of the Planning Commission shall become final unless at said meeting of the City Council an appeal is requested by the City 10 Council and/or unless an appeal has been filed by any other person prior to said meeting, as prescribed in paragraph a above. c Appeal Procedures Upon any appeal being duly filed by any person as herein provided or by the City Council as herein provided, the City Clerk shall set a time for hearing by the City Council which shall be a date within twenty (20) days of the filing of the appeal. Notice of such hearing shall be given as set forth in Section 9296 of this Code. The City Clerk shall also notify the Planning Commission of the appeal. d City Council Decision on Appeal At the close of the hearing on an appeal, the City Council may reverse or modify the decision of the Planning Commission and/or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. If the City Council does not take any action of reversal, modification and/or remand of the decision of the Planning Commission within sixty (60) days after the filing of appeal thereon, the Planning Commission's action on the matter shall be final. Section 21. Land Use - Subsection b of Section 9298 b Criteria for Determination Whenever the Building Official, or Planning Commission of the City of Tustin is called upon to determine whether or not the use of land or any structure in any district is similar in character to the particular uses allowed in the district, the Commission shall consider the following factors as criteria for their determination: (1) Effect upon the public health, safety and general welfare of the neighborhood involved and the City at large (2) Effect upon traffic conditions. (3) Effect upon the orderly development of the area in question and the City at large, in regard to the general planning of the whole community. Section 22. Land Use -Subsection c of Section 9298 c Responsibility of Enforcement It shall be the duty of the Building Official to enforce the provisions of this chapter pertaining to the use of land or buildings in the erection, construction, reconstruction, moving, alteration, or addition to any buildings or structures. Any permit or license of any type issued by any department or officer of the City of Tustin issued in conflict with the provisions of this chapter is hereby declared to be null and void. Section 23. Land Use - Subsection e of Section 9298 e Penalties Any person, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this chapter shall be guilty of a misdemeanor, and upon 11 conviction thereof shall be punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the County Jail for six (6) months, or by both such fine and imprisonment. Any violation of this chapter which is committed and continues from day to day constitutes a separate offense for each and every day during which such violation is committed or continued. Section 24. Land Use -Paragraph (4) of Subsection c of Section 9299 (4) Zoning Administrator Action. After consideration of the application, and after making the appropriate findings as required above, the Zoning Administrator shall take action to approve, approve with conditions or deny the application. Notice of actions taken by the Zoning Administrator shall be transmitted to the applicant, Planning Commission and City Council prior to the end of the appeal period and shall be determined to be final unless appealed pursuant to subsection d below. The Zoning Administrator shall provide notice to the applicant within two (2) business days following the action. Section 25. Land Use - Not a Revision to Existing Code Section 26. Land Use - Subsection e of Section 9299 e Appeal to Planning Commission/Redevelopment Agency The applicant, or any other interested party, may appeal any action of the Zoning Administrator with respect to the action, or any condition imposed, to the Planning Commission, or an appeal of a design review application within a redevelopment project area to the Redevelopment Agency, by filing a written notice and paying applicable fees, as established by resolution, to the Community Development Department within seven (7) calendar days of the Zoning Administrator's action. Upon receipt of an appeal, the Community Development Department shall schedule the matter for consideration, giving the same notice as provided under subsection c.2 above. After consideration of the appeal, the Planning Commission or Redevelopment Agency shall take action to approve, approve with conditions or deny the application. The Planning Commission or Redevelopment Agency may uphold, modify or overrule all or parts of the Zoning Administrator's action. Actions of the Planning Commission or Redevelopment Agency on minor adjustments, conditional use permits and other specified development applications shall be supported with the findings required by subsection c.3 above. Section 27. Land Use - Subsection f of Section 9299 f Appeal to City Council The applicant, or any other interested party, may appeal any action of the Planning Commission with respect to the action, or any condition imposed, to the City Council by filing a written notice and paying applicable fees, as established by resolution, to the Community Development Department within seven (7) calendar days of the Planning Commission's action. Upon receipt of an appeal, the Community Development Department shall schedule the matter for consideration, giving the same notice as provided under subsection c.2 above. After consideration of the appeal, the City Council shall take final action to approve, approve with conditions or deny the application. The City Council may uphold, modify or overrule all or parts of the Planning Commission's action. Actions of the City Council on minor 12 adjustments, conditional use permits and other specified development applications shall be supported with the findings required by subsection c.3 above. Section 28. Land Use - Subsection f of Section 9405 f. Appeals. (1) Permit application. An appeal of a decision relative to a Sign application may be made to the Planning Commission. Such appeal shall be filed in writing, including the appeal fee, to the Community Development Department, within ten (10) days after mailing of notification to the applicant of the Community Development Director's application determination. The appeal fee shall be established by a resolution of the City Council. (2) Written determinations. To appeal a determination of the Community Development Director, the appellant shall file a written request for an appeal along with appeal fees with the Community Development Department, within ten (10) days after the mailing of the notice of determination. The Planning Commission shall be empowered to make decisions on the determination. Any determination initially made by the Planning Commission may be appealed to the City Council. (3) Hearings. A final decision rendered by a hearing officer may be appealed to the City Council. To appeal a hearing officer's decision, the appellant shall file a written request for an appeal along with appeal fees with the Community Development Department, within ten (10) days after the mailing of the notice of decision. (4) The Planning Commission or City Council, as applicable, shall set the matter for consideration within thirty (30) days of the Community Development Department's receipt of appellant's written request for an appeal and the full payment of the appeal fee, and shall give written notice to the appellant of the time and date set for consideration of the appeal. The Commission or City Council, as the final decision making body, may affirm, reject, or modify a previous decision or determination. 13