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Home My WebLink AboutCC RES 11-19RESOLUTION NO. 11-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, INITIATING A CODE AMENDMENT (DRAFT ORDINANCE NO. 1397) TO AMEND THE TERM "NONCONFORMING" AS SET FORTH IN THE TUSTIN CITY CODE TO CLARIFY, PROVIDE CONSISTENCY, AND REDUCE AMBIGUITY THROUGHOUT THE CODE; AND DIRECTING THE PLANNING COMMISSION TO CONSIDER SAID CODE AMENDMENT FOR RECOMMENDATION TO CITY COUNCIL. The City Council does hereby resolve as follows: I. The City Council finds and determines as follows: A. That, pursuant to Tustin City Code Section 9295c the City Council may initiate a code amendment of the Tustin City Code by filing a resolution of the City Council's intention with the Planning Commission; B. That on March 1, 2011, the City Counci! held a noticed de novo public hearing on an appeal of the Planning Commission's December 14, 2010, determination regarding the property located at 520 Pacific Street; C. That at said public hearing, the City Council directed staff to draft a code amendment to amend the term "nonconforming" as set faith in the Tustin City Code (TCC) and other Zoning Documents to clarify; provide consistency with prior practice; and reduce ambiguity throughout the Cade. II. The City Council hereby initiates a code amendment for Draft Ordinance No. 1397, attached hereto in Exhibit A, to amend the term "nonconforming" as set faith in the Tustin City Code to mean structures and uses which were legally erected, established, and which have been lawfully and continuously maintained, but which no longer conform to the regulations and requirements of the zoning district; and directs the Planning Commission to consider said code amendment for recommendation to City Council. Resolution 11-19 Page 1 of 9 PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on the 15t" daY of March, 2011. Amante, Nielsen, Gavello, Gomez, Murray (5} None (d) None (d) AMANTE, ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do 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 Resolution No. 11-19 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 15t" day of March, 2011, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER, City Clerk None (o> Resolution 11-19 Page 2 of 9 EXHIBIT A ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO C~.ARIFY THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chap#er 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "t_egal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure that was lawfully established or built under previous regulations but does not meet existing standards. Illegal uses or structures have no vested rights. Illegal uses or structures are a public nuisance that shall either be brought into legal conforming status or shall be removed. Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance. Nonconforming uses or structures that have not been lawfully established pursuant to Section 9273 of this Code are illegal and are declared a public nuisance and shall be altered to conform with all applicable standards and regulations and shall be subject to actions and penalties allowed by this Code. If any ambiguity or conflict arises concerningthe legal or illegal status of a nonconforming use or structure wi#hin the Tustin City Code the provisions of Section 9273 shall prevail. Section 3. Section 3914 of Chapter 9, Article 3 of the Tustin City Code is hereby amended as follows: 3914 REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES (a} Any lawfully established sexually oriented business lawfully operating on or before February 17, 1998, that is in violation of Sections 3912 and/or 3913, shall be deemed legal nonconforming uses. A legal nonconforming use will be permitted to continue for a period of one (1}year, with a possible Resolution 11-19 Page ~ of 9 extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the initial financial investment in the legal nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such legal nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at the particular location is the conforming use and the later established business(es) is legal nonconforming. (b) A lawfully established sexually oriented business lawfully operating as a conforming use is not rendered a legal nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit andlor license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit andlor license and does not apply when an application for a permit andlor license is submitted after a permit andlor license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30} days of the effective date of such ordinance. Section 4. Section 7271 e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the Director to (a} remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the legal nonconforming newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack is one which has not been authorized by the Director and ownership is not known, nor apparent after inspection, a notice complying with this sectian shall be affixed to the newsrack. Resolution 11-19 Page 4 of 9 Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (c) Any lawfully established and developed parcel which is legal and conforming or legally non-conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of--way by a public agency would result in densities exceeding the density permitted by the Zoning Cade or would result in an increased nonconformity with regard to density shall not be considered legal nonconforming pursuant to Section 9227b2 and Section 9273 of the Zoning Code with regard to density only, provided that all other provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Article 9 of the Tustin City Cade is hereby amended as follows: 9273 LEGAL NONCONFQRMING STRUCTURES AND USES This section shaA apply to all structures and uses that were lawfully established or constructed under previous regulations but that do not meet existing standards ("Legal Nonconforming"). Pursuant to Section 9273(b} if there is no substantial evidence that the nonconforming uses or structures have been lawfully established such nonconforming uses or structures are illegal, declared a public nuisance shall be altered to conform with all applicable standards and regulations and shall be subject to actions and penalties allowed by this Code. Uses or structures that were ille aq 1 or unlawful at the time of the enactment of any Tustin City Code are not legal nonconforming and therefore are not vested with the rights and privileges afforded under this Code. If any ambiguity or conflict arises concerning the legal or illegal status of a nonconforming use or structure either within this Chapter or elsewhere within the Tustin City Code this Section shall prevail {a) Except as otherwise provided in this Section, lawfully established uses of land, buildings, or structures -may be continued, although the particular use, or the building or structure does not conform to the regulations specified by this Chapter for the district in which the particular building or structure is located or use is made; provided, however, no legal nonconforming structure or use of land may be extended to occupy a greater area of land, building or structure than is occupied at the time of the adoption of this Chapter. If any legal nonconforming use is discontinued or abandoned, any subsequen# use of such land or building shall conform to the regulations specified for the district in which such land or building is located. If no structural alterations are made therein, a legal nonconforming use may be changed to another use of the same or more restrictive Resolution 11-19 Page 5 of 9 classification upon the securing of a use permit. If the legal nonconforming use is replaced by a more restrictive legal nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any le al nonconforming use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or building is located. (b) Any lawfully established building or structure, vr, which is legal nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in compliance with the regulations set forth in this Chapter for the district in which such building or structure is located; provided, however, that any such legal nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. The -Community Development Department of the City of Tustin may send, by certified mail, return receipt requested, to the current owner of any nonconforming building or structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a s#atement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and providing substantial evidence that all structures on the premises were 1) lawfully established 2} continuously used and maintained in a manner conforming to the regulations specified for the district in which such land or building is located 3) that no structural alterations or expansions, or changes in use were made without the prior authorization of the City, and that no alterations were made other than to implement general repairs or to make the use or structure more conforming with the rules and regulations of the Tustin City Code. Said statement shall be filed with the Community Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. The burden of proof to establish the lawful and continuing existence of the structure and use at the time of the enactment of the ordinance and for all periods of time as required under this Section rests with the current owner. Resolution 11-19 Page 6 of 9 (c) A legal nonconforming building, destroyed to the extent of more than fifty {50) percent of its reasonable value at the time of its destruction by fire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations existing in the district wherein it is located. (d) The provisions set forth in (b} and {c) above, shall apply to structures, land and uses which hereafter become le~c a_I nonconforming due to any reclassification of districts under this Chapter; provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered legal nonconforming. (e) Any use of land, building, or structure which is made "non-conforming" either in design or arrangement due to acquisition of public right-af-way by the City, shall be exempt from the provision, unless it is established by the Community Development Department that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. Section 7. Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established wireless communication facilities for which applications for the modifications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to legal nonconforming wireless communication facilities that are leclal nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. Modifications to legal nonconforming wireless communication facilities shall not increase the nonconformities. Section 8.Section 9297 of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean__ a use or structure that was lawfull established or built under arevious regulations but does not meet existing standards. Illegal uses or structures have no vested rights Illegal uses or structures are a public nuisance that shall either be brought into legal conforming status or shall be removed. Resolu#ion 11-19 Page 7 of 9 Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "legal Noneanfarrrring Sign " means a sign that was lawfully erected which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: c. Legal Nonconforming ° Signs. legal nonconforming sign shall be made to conform to all provisions of this Chapter if the Director determines that any of the following events occur. 1. A legal. nonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A legal nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety {90) days, it shall be presumed that such use has been abandoned in accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A legal nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, including destruction by an act of God. Section 11. 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. Resolution 11-19 Page 8 of 9 PASSED AND ADOPTED at a special meeting of the City Council of the City of Tustin held on the day of 2011. JERRY AMANTE, Mayor ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE } SS CITY OF TUSTIN ) I, Pamela Stoker, City Gerk and ex-officio Clerk of the City Council of the City of Tustin, California, do 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. 1397 was duly passed and adopted at a special meeting of the Tustin City Council, held on the day of 2011, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER, City Clerk Resolution 11-19 Page 9 of 9