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HomeMy WebLinkAbout16 APPEAL PROVISIONS 2ND READING 11-17-09Agenda Item 16 AGENDA REPORT Reviewed: r ~ City Manager ~~ ., ;' Finance Director N/A MEETING DATE: NOVEMBER 17, 2009 TO: WILLIAM HUSTON, CITY MANAGER FROM: OFFICE OF THE CITY CLERK SUBJECT: CODE AMENDMENT (CA) 09-005; ORDINANCE NO. 1366 -STANDARDIZED APPEAL PROVISIONS/MINOR TEXT CORRECTIONS SUMMARY: The Tustin City Code has been amended many times over the years, gradually introducing inconsistencies to the appeal process for various discretionary actions. Appeal filing deadlines vary depending upon the application type; there are inconsistencies as to whether filing deadlines are counted as calendar days or business days; and, there are a number of appeal hearing officers or boards identified, including the Planning Commission, City Manager, a Hearing Officer, the Tustin Community Redevelopment Agency, and Tustin City Council. On September 22, 2009, the Tustin Planning Commission held a public hearing and adopted Resolution No. 4121 recommending that the Tustin City Council approve Code Amendment 09- 005 (Ordinance No. 1366), amending various sections of the Tustin City Code to standardize appeal provisions and implement minor text corrections. RECOMMENDATION: Have second reading by title only and adoption of Ordinance No. 1366 (roll call vote). FISCAL IMPACT: None BACKGROUND: On November 3, 2009, the City Council had first reading by title only and introduction of the following Ordinance: ORDINANCE NO. 1366 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS PROVISIONS 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. Kristi Recchia Interim City Clerk ATTACHMENT: Ordinance No. 1366 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 matfers 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 ~ 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 shalt 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 officer 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 a 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 a 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, MAYOR 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: