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Home My WebLink About05 CA 2011-021 ITEM # 5 ..~ AGENDA REPORT MEETING DATE: SEPTEMBER 27, 2011 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CODE AMENDMENT 11-002 (DRAFT ORDINANCE NO. 1397), CLARIFYING THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN RECOMMENDATION: That the Tustin Planning Commission adopt Resolution No. 4183 (Attachment A) recommending: 1) That the Tustin City Council find that the Negative Declaration prepared for Code Amendment (CA) 11-002 (Draft Ordinance No. 1397 - as amended) is adequate; and, 2) That the Tustin City Council adopt Draft Ordinance No. 1397 -. as amended, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. SUMMARY: At the request of the City Council, staff prepared Draft Ordinance No. 1397 to provide clarity, provide consistency and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. .The Tustin City Council has requested that the Planning Commission consider verbatim City Council minutes of March 15, 2011 (Attachment B) and Draft Ordinance No. 1397, and provide a recommendation on the proposed ordinance to the Tustin City Council. Resolution No. 4183 has been prepared for Planning Commission consideration and action in this regard. BACKGROUND: On December 14, 2010, the Tustin Planning Commission considered an appeal of a Community Development Department code enforcement action involving potentially illegal alterations and additions to a single family residentially zoned property. The matter was appealed and heard by the Tustin City Council on March 1, 2011. 784518.2 Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 2 City Council deliberations at that time focused largely upon understanding and interpreting Tustin City Code Section 9273, the City of Tustin's regulations for nonconforming structures and uses. At the conclusion of the matter, the City Council directed staff to draft a code amendment to provide clarity, provide consistency, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code (TCC). As directed, Draft Ordinance No. 1397 was presented to the City Council on March 15, 2011 (Agenda Item No. 17). Draft Ordinance No. 1397 proposes: - clarifying language wherever the term "nonconforming" was used in the Tustin City Code, including a new definition and clarifying that illegal structures or uses are a public nuisance that should be corrected in (Article 1 -Administration and Article 9 -Land Use); - clarifying that only lawfully established sexually oriented businesses are considered legal nonconforming (Article 3 -Business Regulations); - clarifying that only lawfully established newsracks are considered legal (Article 7 - Public Facilities); and, - clarifying that only lawfully established structures, uses, lots, wireless facilities, and signs are considered legal nonconforming (Article 9 -Land Use). Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. On March 15, the City Council passed Resolution No. 11-19 by a vote of 5-0, and directed that the Commission receive and consider Draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on Draft Ordinance No. 1397 (Agenda Item #17) so that the Commission would be aware of the City Council's concerns, and provide a recommendation on the proposed ordinance to the Tustin City Council. Nonconforming Structures, Uses and Lots Document On September 13, 2011, the Tustin Planning Commission conducted a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots (input from that meeting is discussed at the end of this report). As part of the Commission's agenda packet, a document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots was provided to the Tustin Planning Commission. The document provides clarity regarding the application of nonconforming provisions and court precedence in California, including: NONCONFORMING STRUCTURES, USES AND LOTS w :t~~ ~ati-.~. >a.,~e~M.A..w,a , ~~ ,~;: aFy •. .- ,. a tra~os<mncr the i,a<n+, apnraaenn, end e,a., t,~ ~t hlflomra land Vse and ManMng law GeverPo~r,g ~ IMmcontarmingStrvHU~es, VSes =r.d;.ots. - Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 3 That a legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning Code, the Zoning Map, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. Legal nonconforming is sometimes referred to with the term "grandfathered." • A structure, use or lot that is out of conformance with the adopted code is not considered to be nonconforming when it was illegally established. An illegal structure, use, or lot is caused ~+~ by the actions of a past or current owner, tenant or property manager, and not a governmental action. Because the structure, use or lot was not lawfully established, it is ineligible for the privileges afforded to a lawfully established nonconforming structure, use, or lot. Specifically, illegal structures, uses or lots may not remain in their current state indefinitely, but are required to be brought into immediate compliance with current code standards. Illegal nonconformities can pose life-safety concerns to the property owner, neighbors and to others, including safety personnel such as fire and police respondents. As a general rule, adopted codes presume detrimental to the public interest (health, safety, nonconformity needs to be brought into confor some point in time. For example, .,.. „~._ a community that finds that an ;4, existing code allows structures to ~# be built too tall may adopt a code n. A ,: amendment to lower the hei ht ~ ~` g ~ ~. :` , limit of new construction. The ~ ~~ code looks to the future and assumes that existing, .lawfully `` established nonconforming structures that exceed the new ~~~ i ~ , height limit may continue to exist ~;~' but will be brought into '~ conformance or eliminated over ~+,. that a legal nonconformity is morals or welfare), and that the mance with the current code at Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 4 time. Any change in the premises which tends to give permanency to or expands the nonconformance would not be consistent with this purpose. Description of City Code Enforcement Efforts When Illegal Structures, Uses, or Lots are Discovered Illegal structures, uses and lots come to the attention of City staff in a number of ways. The most common method is when a property owner approaches staff to propose an alteration of or addition to an existing structure (this includes when an owner desires to rebuild a structure damaged in a disaster). Another is when a real estate professional, mortgage lender, or prospective buyer contacts the City and requests documentation that room additions, etc. have been added legally. Another is when a property owner is seeking Mills Act property tax relief for a historic property and invites staff to the site. Illegal structures, uses and lots also come to the attention of the City's Code enforcement staff through complaints. Except for proactive neighborhood improvement efforts conducted in cooperation with the Tustin Police Department, City code enforcement is nearly always performed on a complaint basis only. Potentially unauthorized structures, uses or lots are brought to the attention of code enforcement staff through complaints and referrals from the following sources: • Neighbor complaints • Orange County Fire Authority or other County agency staff • Tustin Police Department referral • City plan check or building inspectors • OC Health Department • City Business License staff • County fictitious business name clerk • Real estate professionals including requests by lending institutions • The property's owners • Tenants • Utility providers • Code Enforcement • Staff inspection following fires and other disasters • Others When a potentially unauthorized structure, use or lot is identified, staff will confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff will perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine when it was added to the site, and whether it was lawfully established. Staff often considers the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 5 • Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written histories/letters from current and prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • Request an independent licensed/qualified architect experienced to perform a site assessment. Gity staff will always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is legal. If, at the conclusion of staff review, the potentially unauthorized structure, use or lot is determined to have been lawfully established, pertinent information would be added to the City's records documenting that fact, and the matter would be closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner will be officially requested to correct the concern. When informed by staff that a structure, addition or alteration appears to be illegal, an owner will often pursue the matter further. Sometimes an owner will request another inspection of a potentially unauthorized structure by a City building inspector to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector would typically visit Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 6 the site to observe major life/safety related discrepancies in the workmanship and materials used to determine whether the work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made (e.g. the addition did not have a foundation; electrical, water, sewer and gas installation was hazardous; required fire separation between units or floors was not installed, etc.). Note: a structure built consistent with the Building Code adopted at the time of construction is evidence, considered with the whole record, that a structure may have been lawfully established at the time. Compliance with the Building Code means that the structure was constructed in conformance with the Building Code using conventional building methods, not that the structure was built legally. (A structure may be built in compliance with the Building Code, for instance, but in violation of other codes, like fire codes, or Zoning Code requirements such as setbacks.) However, it is also possible that the opposite would occur, e.g. City inspection of a potentially unauthorized structure could result in the identification of tell-tale Building Code inconsistencies/violations that establish that the structure was illegally constructed. Based upon a staff survey of the 34 Orange County cities, it is standard practice to use such inspection/investigative routines. Current owners of the properly may not have personally caused the illegal structure to be built. In fact, the owner may have purchased the property with an understanding that the property and structures were legal. While some owners may have bought the property unaware of an illegal structure or use, even an innocent current property owner bears the responsibility for ensuring that their structure, use or lot was lawfully established and is lawfully operated. In response to the City's request to correct an illegal structure, some owners work with staff to legalize it "after the fact." Others may work with staff to remove the illegal structure. Under California law, affected owners may have legal recourse against a prior owner, a professional property inspector, real estate agent, or a property title company for a failure to disclose the potentially illegal nature of a structure, use or lot. Planning Commission Determination of December 14, 2010, City Council Determination of March 1, 2011 and March 15, 2011 December 14, 2010 Planning Commission (Board of Appeals) Determination On December 14, 2010, the Tustin Planning Commission (acting as the Board of Appeals) considered an appeal of a Community Development Department code enforcement action. The appeal involved a staff determination that Tustin Zoning and Building Code violations existed at the site involving the illegal addition of two units to a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 7 single family residentially-zoned (R-1) property (that also contained a lawfully constructed single family residence and garage), along with other alterations and additions made in violation of the code. On the advice of City Attorney Holland, the Board of Appeals reversed the Community Development Director's zoning determination and ruled that the two units were nonconforming and could continue to exist on the site. In addition, the Board of Appeals directed the owner to comply with the requirements of a previously issued Notice and Order "to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The Planning Commission's (Board of Appeals') decision on matters involving the Building Code violations was final and not appealable. However, the Board of Appeals' determination on the zoning matter was appealed by a City Council member and heard by the Tustin City Council on March 1, 2011. March 1, 2011 City Council Determination City Council deliberations on March 1, 2011 were focused largely upon understanding and interpreting the City of Tustin's regulations for nonconforming structures and uses. The City's current nonconforming provisions (TCC 9273 and 9298) do not use the term "legal" or "lawfully established" with the term "nonconforming" (Attachment C). However, the current Tustin Code did not always refer to the term "nonconforming" without a qualifier. The City's first Zoning Code, adopted in 1947 (Ordinance No. 47) introduced regulations for nonconforming uses and structures utilizing the term "lawfully nonconforming" and also identified and determined what land use designations would regulate the future built environment for the City of Tustin. Ordinance No. 157 was adopted in 1961, and modified the nonconforming code provisions by dropping the term "lawfully" to only use the term "nonconforming." That wording continues to this date. Although the 1961 nonconforming code did not include the word "lawfully" from the term "lawfully nonconforming", various provisions of the 1947, 1961, and the current Zoning Code clearly requires the lawful establishment of uses and structures' and consider any use of land, structural alterations or modifications, etc., operated and/or maintained contrary to the Zoning Code to be considered public nuisances. Also, TCC Section 9298 was also amended by Ordinance No. 157. Section 9298 states that the Zoning Code as amended "shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving, alteration or enlargement of any building or improvement" except where "greater restrictions" ' There appears to be no debate that the current ordinances require uses, structures or lots established since the adoption of Ordinance 157 in 1961 to have been lawfully established to be considered legal nonconforming. The issue that has arisen, and concerning which clarity may be added to the ordinance, is whether uses, buildings and structures established prior to 1961 must have been lawfully established to qualify for legal nonconforming status. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 8 applied. Section 9298f also states: "Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City which further clarifies that illegal structures, uses, and lots are prohibited. Thus, the 1961 deletion of the term "lawfully" arguably was not intended to alter the interpretation and application of nonconforming regulations to anything other than a legally established structure, use or lot. The nonconforming provisions were amended again in 1989 (Ordinance No. 1013) to state that any structure or use "which is legal" but made nonconforming by the adoption of amendments to the code, is considered legal nonconforming (TCC Section 9273(e)). The November 14, 1988 staff report requesting Planning Commission support of Ordinance No. 1013 stated: "Under the current provisions of the Tustin City Code related to Non- conforming Uses and Structures (Section 9273), a property which was at one time legal and conforming to all the development standards, but, for some reason no longer satisfies minimum zoning code requirements would be considered legal non-conforming." Taken in its entirety, Sections 9273 and 9298 can be construed to mean that only legal or lawfully established structures, uses and lots are legal nonconforming, whether established before or after 7967. Certainly, this has consistently been the interpretation through the years requiring illegal (often unsafe) building additions and alterations, illegal uses, and illegal lots to be brought into conformance with the Tustin Zoning and Building Code. However, it was Ordinance No. 157's omission of the term "lawfully" from the City's nonconforming regulations that provided the basis for City Attorney Holland's opinion at the Planning Commission's (Board of Appeals') appeal hearing on December 14, 2010. To summarize City Attorney Holland's opinion, the term "nonconforming" as previously used in the City's nonconforming regulations was modified by Ordinance No. 157 for those structures, uses or lots that existed when Ordinance 157 was adopted to no longer be limited to only legally established structures, uses or lots. Specifically, adoption of Ordinance No. 157 could be interpreted to mean that both legal and illegal structures, uses, and lots existing prior to 1961 should be granted the rights previously afforded only to legal nonconforming structures, uses, and lots; i.e. both nonconforming legal and illegal structures, uses or lots may continue indefinitely. At the conclusion of the appeal hearing on March 1, 2011, the Tustin City Council concurred with the City Attorney Holland's reasoning and conclusion and voted 4-1 to uphold the Board of Appeals' zoning determination that the two units were nonconforming and could continue to exist on the site. However, The City Council also emphasized that the owner must comply with the Board of Appeals direction that the owner comply with the requirements of a previously issued Notice and Order "to the extent such corrections. are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The determination does not affect enforcement of the California Building and Safety Code, so even illegal "nonconforming" structures (established prior to 1961) would continue to be Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 9 required to comply with the current Building Code to address life-safety issues. However, the City Council's March 1, 2011 determination has implications that go far beyond simply classifying two illegal units at 520 Pacific Street as nonconforming; if followed in other decisions, or if courts were to agree the existing Code has that meaning, it could have the effect of conferring nonconforming status to all legal and illegal structures, uses and lots in the City established prior to 1969. If established prior to 1961, owners of illegal structures, sexually-oriented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc. may argue that their facilities should be considered nonconforming and allowed to continue indefinitely, citing the determination of the appeal of 520 Pacific Street. Since the determination, several property owners that are the subject of active code enforcement for illegal construction have indicated that their additions occurred prior to 1961 and should be allowed to remain. Again, the implications are far-reaching. Of the 34 Orange County cities, only four cities have adopted ordinances that do not use the term "legally" or "lawfully" with the term "nonconforming" (Tustin, Dana Point, Santa Ana, La Habra). As the result of a survey, staff has determined that all Orange County cities pursue similar illegal zoning and building code violation code enforcement. If clarification of the matter does not occur, the code could be interpreted as allowing pre- 1961 illegal structures, uses and lots to continue to exist indefinitely within Tustin, subject to the limits placed on nonconforming structures. Members of the City Council discussed some of these implications at the March 1, 2011 meeting. The discussions concluded that the City's nonconforming provisions were confusing as written and should be reviewed for possible amendment to provide clarity in the matter. As previously noted, the Tustin City Council directed staff to prepare a code amendment for the City's nonconforming provisions that would clarify, provide consistency, and to reduce ambiguity throughout the City to be brought before the City Council on March 15, 2011. March 15, 2011 City Council Determination As directed, Draft Ordinance No. 1397 was presented to the Tustin City Council on March 15, 2011 (Agenda Item No. 17) to clarify, provide consistency, and to reduce ambiguity in the regulation of nonconforming structures, uses and lots. Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. Following discussion, the City Council passed Resolution No. 11-19 (Attachment D) by a vote of 5-0, directing that the Planning Commission receive and consider Draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on Draft Ordinance No. 1397 so that the Commission would be aware of the City Council's concerns in the matter, and provide a recommendation on the proposed ordinance to the Tustin City Council. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 10 Code Amendment 11-002 (Draft Ordinance No. 1397- as Amended) Draft Ordinance No. 1397, as amended, is intended to clarify the City's nonconforming provisions. The ordinance was drafted to clarify and reintroduce the term "Legal Nonconforming" in order to more clearly exclude illegal structures, uses and lots from being considered nonconforming, no matter when the structure, use or lot was established. Also, every reference in the Tustin City Code to the term "nonconforming" that does not clearly refer to a legal or lawfully established structure, use, or lot is proposed to be modified to include the words "legal" or "lawfully established" to ensure that the term is no longer ambiguous. In addition, the City Attorney has proposed additional modifications noted in the draft to provide additional clarity of interpretation and application. Adoption of the currently proposed Draft Ordinance No. 1397 would clarify that the City's nonconforming responsibilities and privileges are intended to only apply to a lawfully established structure, use or lot anywhere in the City. If adopted, Draft Ordinance No. 1397 would, as a practical matter, limit the effect of the City Council's March 1, 2011 determination to apply nonconforming status to only the two illegal units which were the subject of the appealed matter at 520 Pacific Street, as approved in City Council Resolution No. 11-18. If adopted, Draft Ordinance No. 1397 would clarify that all other structures, uses, and lots in the City that were established or enlarged illegally are not legal nonconforming, and are not allowed to continue indefinitely. If adopted, only lawfully established structures, sexually oriented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc., would be legal nonconforming. The Tustin City Council adopted Resolution No. 11-19 directing that the Planning Commission consider Draft Ordinance No. 1397 along with City Council input at that time (see verbatim minutes provided as Attachment B, and that the Planning Commission provide the City Council with a recommendation on Draft Ordinance No. 1397 (Attached to Resolution No. 11-19 as Attachment D). It should be noted that City Council did not have the benefit of much of the information contained in this report when considering and discussing the matter on March 15, 2011. In addition, Ordinance No. 1397 has been subsequently been amended and refined. California Preservation Foundation Input The City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). The Certified Local Government Program is a preservation partnership between local, state and national governments focused on promoting historic preservation at the grass roots level. Certification provides the City access to the expert technical advice of the State Office of Historic Preservation as well as the National Park Service's Advisory Council on Historic Preservation. Partnerships with the National Alliance of Preservation Commissions, Preserve America, the National Trust for Historic Preservation, and the National Main Street Center are also networks that CLGs have an opportunity to tap into. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 11 Following City Council action on March 15, 2011, a representative of the California Preservation Foundation (CPF) contacted Community Development Department staff and expressed an interest in reviewing and commenting on the City's Draft Ordinance No. 1397. The CPF representative was provided a copy of Draft Ordinance No. 1397 (Exhibit 2 of Attachment A) for review and comment. On May 5, 2011, the CPF representative and City staff discussed the ordinance by conference call, and on August 25, 2011 City staff outreached and met with the CPF representative and discussed Draft Ordinance No. 1397 with the goal of ensuring that the ordinance would not negatively impact historic resources. CPF concurred with staffs initial draft of Draft Ordinance No. 1397 and the Community Development Department's methods for researching historic structures, uses, and lots (discussed above), but suggested the following to strengthen the ordinance and approach. 1. Formalize the City's investigative procedures through an adopted/approved policy to ensure implementation of a standardized approach by current and future staff and the affected public, including but not limited to a review of the following criteria: • Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. City Response -Staff believes that this was an outstanding suggestion and addresses some of the concerns previously raised by the City Council. Because code enforcement investigative procedure is administered at the department level, a Community Development Department policy memo reflecting the above approach has been prepared for concurrence by the Planning Commission and City Council (Attachment E). Staff will also be developing a list of professional consultants that Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 12 can be called upon (on a rotating basis) to assist in any site assessment that may be needed in the future. 2. Include language in the ordinance that clarifies that staff has discretion to find that any one or a combination of the criteria described above provide sufficient proof that the potentially unauthorized use or structure is lawfully established. City Response -Proposed language was added by staff and the City Attorney's office to Draft Ordinance No. 1397 clarifying that staff (Community Development Director) would have the discretion to determine that a potentially unauthorized structure, use, or lot was lawfully established after consideration and review of the available whole record of information. Only if the Director makes a finding that the available evidence indicates the use and/or the structure, use or lot is or is not legal nonconforming would a potentially unauthorized structure, use or lot be determined illegal, declared a public nuisance, and be subject to enforcement action. Analysis This report discusses a broad number of issues related to how nonconforming provisions apply to both legal and illegal structures, uses and lots. Staff believes that a careful analysis of the information provided supports the conclusion that there is an immediate need to amend the Tustin City Code to ensure the proper clarity separating lawfully established nonconforming structures, uses, and lots from illegally established structures, uses and lots. The following points summarize the most critical reasons that the Planning Commission should consider supporting Draft Ordinance No. 1397. 1. Unlike legal nonconforming structures that were lawfully constructed for continuous use, or adaptive reuse where a nonconforming structure was lawfully altered to support the establishment of a conforming use, illegal conversions do not meet the code. As a result, illegal structures, uses and lots pose serious safety risks to the health, safety and welfare of inhabitants of the property, neighbors, and safety personnel. 2. Bootlegged structures are rarely constructed to meet code requirements. Left unresolved, illegal structures, uses, or lots threaten the public's health, safety and welfare. 3. Because illegal structures, uses or lots must be made safe, certain building upgrades and improvements are necessary. This is opposite the intent of nonconforming provisions, i.e. that the structure, use or lot may continue indefinitely. Staffs experience is that the owner's cost of hiring a professional architect, structural engineer, and licensed contractor to legalize a bootlegged structure or use, may exceed the value of keeping the illegal structure. Sometimes removal is the better option when faced with the expense of bringing a bootlegged building up to code. Staff believes that the current interpretation that an older illegal Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 13 structure, use or lot is nonconforming presents aconfused/mixed message that the property is nonconforming but can't continue indefinitely as it currently exists. 4. Illegal structures, uses, and lots impact the quality of life in a neighborhood by creating unplanned impacts to the public infrastructure (i.e. increased school and park attendance [no fees paid], water and sewer impacts [sizing may not be adequate and no fees paid], increased on-street parking, etc.) and may cause housing overcrowding. Some uses can have deleterious effects on sensitive uses such as the elderly, children, etc. 5 Staff has encountered actual code h~; enforcement cases (summarized in Y the document entitled `-~ Single family residence 4 Illegal I1r~il~; . Nonconforming Structures, Uses and Lots: A Discussion of the , ~~ ~;~ , Intent, Application, and Practice of .i~ ~ ~ ~ California Land Use and Plannin ` ~ 1~- 9,~~ _ Law Governing Nonconforming '"`- Structures, Uses and Lots where it ~ .:,. ~ ,` ~` ~. • I appears that a property owner r illegally constructed four additional i - ~~~~~~~~~ .. units at the rear of an older home within an R-1 (single family residential) zoned property following Planning Commission and City Council denial of a 9968 Zone Change application. Pursuant to the recent interpretation, if the four units were illegally constructed prior to 1961, staff would arguably lack the authority under the Zoning Code to treat the uses as illegal even though the Planning Commission and City Council had specifically denied that use of the property. Enforcement of City Codes may be limited to enforcement of building and hazardous buildings codes. Illegal actions should not be rewarded by the passage of time. 6. City Code Enforcement staff have handled numerous cases in the past where owners or tenants have added illegal uses to a property in violation of State and local law including illegal auto repair, prostitution, conversion of a single family home to an apartment or boarding house. (including bedroom use of the attic, basement, garage, etc.), commercial food preparation, industrial business (with hazardous materials stored on the site), illegal meat processing, motorcycle manufacturing and street testing, and intensification and upgrading of commercial and industrial buildings to accommodate assembly uses without meeting the code. If the illegal use has operated prior to 1961 and continuously since without illegal expansion, it could be entitled to remain at the site as nonconforming. The issue is made more complicated when one considers the number of potential uses that are prohibited by federal and state law that also may have operated at the site since before 1961. 7. 30 of 34 Orange County cities have adopted ordinances that use the term "legal" or "illegal" along with the term "nonconforming" to clarify the legal status of a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 14 structure, use, or lot. The cities of Tustin (until March 1, 2011), Santa Ana and La Habra have historically interpreted the code to apply only to legal or lawfully established structures, uses, or lots. This practice is consistent with the key terms and key concepts summarized in the document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots and consistent with the planning practice utilized in other Orange County cities. Tustin's March 1, 2011 approach makes it unique in allowing illegal structures, uses, and lots to remain indefinitely, subject only to the limits placed upon legal nonconforming structures, uses and lots. 8. The Tustin City Code continues to refer only to the term "nonconforming" and does not currently differentiate between legal or illegal structures, uses or lots. If an argument can successfully be made that a structure, use, or lot established before 1961 is nonconforming, what about those established in 1962 or 2001? The code is ambiguous and should be clarified. PLANNING COMMISSION WORKSHOP INPUT On September 13, 2011, the Tustin Planning Commission conducted a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots. In addition, the Planning Commission was provided a copy of the verbatim minutes from the City Council's March 15, 2011 meeting as well as a copy of City Council Resolution No. 11-19 directing the Planning Commission to consider Draft Ordinance No. 1397. The report and workshop were generally well received by the Planning Commission. Six members of the public also spoke during the workshop. Staff has prepared the following responses to several of the questions and issues raised at that time: • A concern was articulated with the prior City Attorney's interpretation of the application of nonconforming provisions. The City Attorney's interpretation was rendered in regards to a specific case involving an appeal at 520 Pacific Street. That matter has been decided by the Tustin City Council and is final. The City Council specifically requested the matter be analyzed and an ordinance amendment be considered. Draft Ordinance No. 1397 has been prepared to provide clarity, consistency, and reduce ambiguity related to future determinations regarding nonconforming uses and structures in the City of Tustin. • Requested clarification regarding projects in progress and how these properties are affected when a zoning ordinance change occurs. Sometimes, code amendments occur while a project is in the process of being reviewed. Once a Zoning Code Amendment, Zoning Map Change or Subdivision Ordinance Amendment is adopted, projects in progress (in plan check, where a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 15 permit has been issued, etc.) may typically continue to completion, even though the project would be nonconforming immediately upon completion. Owners of such projects always have the option of revising the project to be conforming to the newly adopted code. Any project that is not pursued to completion (i.e. permits have expired, etc.) would not be allowed to later complete the project using the previous code. An example of this situation is the City Council's 2006 adoption of Ordinance No. 1313 prohibiting additional self-storage warehouse uses in the City of Tustin. Ordinance No. 1313 found that the City had experienced an overconcentration of such uses, and amended the Zoning Code to remove "self-storage mini warehouses" as a permitted use everywhere in the City. Consequently, all existing self storage uses in the City were made nonconforming through the adoption of Ordinance No. 1313. Two self-storage projects were in the process of being reviewed at the time the ordinance was adopted, and both were allowed to be constructed as legal nonconforming uses. A goal of nonconforming regulations is to eventually correct or replace a nonconforming use with a conforming use. Under the current provisions of the Tustin City Code, if an existing self-storage use in Tustin is ever destroyed by more than 50%, it would not be allowed to be replaced. • Requested clarification regarding the application of the 50% replacement rule. As noted above, a community goal is the eventual correction or replacement of all nonconforming structures, uses, and lots. The nonconforming provisions of the Tustin City Code have established a maximum value for improvement of a nonconforming structure (50% of the assessed value of the structure). Planning staff does not keep a running tab of permitted minor repairs, re-roofs, etc., occurring over time at any particular property. However, deferred maintenance of a nonconforming structure by an owner may compound the cost of any work needed to repair a damaged nonconforming structure. The 50% rule is typically considered following a disaster such as a fire, when an owner will submit information that can be used by staff to determine whether the nonconforming building or use may be replaced. If the value of the improvements needed to restore the damaged nonconforming building exceed the threshold of 50% of the building's assessed value (as reflected on the County Assessor Tax Roll), the nonconforming structure and/or use (or portion thereof) may not be repaired, but must be replaced with a conforming structure or use. • Requested clarification on the impacts to public services caused by nonconforming structures and uses. Lawfully constructed nonconforming structures, uses and lots do not typically have an impact on public services. It is assumed that all public service impacts have been addressed at the time of original construction/establishment of a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 16 lawfully established structure or use, or are continuously funded through afair- share payment of required property taxes, fees and assessments. Citizens who reside in legal units correctly assume the structures have been constructed in accordance with the code and are safe. Illegal structures, however, are constructed without meeting building and safety codes, creating a hazard to the life safety of building occupants, neighbors and other citizens, but also fire and police personnel who may not realize that they are at risk when they stand on or enter into an unsafe illegal structure that is on fire. Also, public services (i.e. sewage treatment, road repair, police/fire protection, school attendance, library services, etc.) are made available to all, regardless of whether one lives in a legal or illegal unit. However, only law-abiding owners pay for these services. Owners of illegal units add citizens to the community without paying their fair share of the cost to provide services to those citizens, while continuing to receive a financial benefit from the rental of those illegal - - units. Illegal unit owners not only do not pay for the initial costs of service at the time of construction of the illegal units, they also do not pay for any public impacts on roads, parks, schools, water and sewer systems and other infrastructure that may result over time. The unfunded cost for these services may eventually become a financial burden upon a community. All citizens would suffer with the loss or reduction of public services. The overall health of a community and positive quality of life is dependent its citizens acting in a law abiding and responsible manor most of the time. • Suggestion that staff work with the State Historic Preservation Office regarding this issue. As previously noted the report Nonconforming Structures, Uses and Lots..., the City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). State Historic Preservation Office certification of the City recognizes that the City is independently competent, experienced and fully responsible for deciding matters involving the stewardship, preservation and protection of the City's qualified historic resources. When necessary, the City of Tustin utilizes a wide range of resources for expert technical advice, including recognized historic architect John Loomis of 30th Street Architects to ensure that properties are modified in a manner that is consistent with the City's Residential Design Guidelines, the Secretary of Interior's Guidelines for Rehabilitating Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 17 Historic Structures, so as to prevent or reverse inappropriate or inconsistent alterations and restore the architectural integrity of historic resources. • Suggested removing the burden of proof from property owners to the City. The burden of proof should remain with a property owner. Owners have an interest and capability of maintaining their structure, use or lot. The City does not. Further, owners have the obligation to comply with all laws and regulations. City staff will assist an owner in reviewing official and unofficial records to determine the legal status of a potentially unauthorized structure, use or lot. And, once a "whole record" (discussed above) is available, the Director of Community Development is responsible for making the official determination whether sufficient evidence exists to establish the legality of a potentially unauthorized structure, use or lot (appealable to the Zoning Administrator, Planning Commission and City Council). • The issue of nonconforming needs to be addressed to eliminate circumstances like the situation with J.C. Dugard. Agreed. • Requested consistency with regard to terminology. Specifically noted the term "bootlegged" may not have been clearly defined. The term was referenced on page 12 of the document Nonconforming Structures, Uses and Lots...and states: "An illegal structure, sometimes referred to as a "bootlegged structure," is a building constructed without permission of the City and without required plan check or building inspector oversight." Requested clarification on the difference between the zoning code and building code in regards to nonconforming structures. In regards to the zoning code, page 3 of the September 13, 2011 Planning Commission workshop staff report and page 4 of the document Nonconforming Structures, Uses and Lots...states: "a legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning Code, the Zoning Map, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. Footnote #2 at the bottom of page 4 of the document Nonconforming Structures, Uses and Lots...states: "Under the Building Code, a lawfully constructed building is not affected by subsequent Building Code updates that may occur in future Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 18 years." To summarize, Building Code revisions over the years do not cause a structure, use or lot to be considered nonconforming. • Requested clarification of what value staff places on the various pieces of evidence considered by staff in determining whether a potentially unauthorized structure, use or lot is legal or illegal. The various pieces of evidence considered by staff (identified on page 23 of the document Nonconforming Structures, Uses and Lots...) are not weighted, giving the greatest amount of flexibility to the Director of Community Development and any subsequent appeal body, when considering the breadth of evidence in the "whole record" when determining the legal or illegal nature of a potentially unauthorized structure, use or lot. However, strong consideration would be given to the following two pieces of evidence: o Building permits, occupancy permits, Variances, or other official records are available. o A building inspected by a qualified individual and determined to have been built consistent with the adopted building and zoning codes existing at the time of construction. Note: Illegal structures can be built by a qualified person in compliance with the codes adopted at the time. Thus additional evidence may be needed to reach a conclusion. However, it is much more likely that an inspection would prove beyond doubt that an illegal building does not meet the codes adopted at the time of construction. Absent the above, staff would give careful consideration to the whole record, including any available evidence identified on page 23, and any other pertinent information that is provided by the owner and/or another interested party. • Requested clarification regarding the use of the document Nonconforming Structures, Uses and Lots...as a possible Guidelines document to be referenced in Draft Ordinance No. 1397. Staff intended the document: Nonconforming Structures, Uses and Lots...to provide information to the Planning Commission and City Council on the intent, application and practice of California Land Use and Planning Law governing nonconforming structures, uses and lots. Staff believes that the list of available evidence to be considered when establishing the whole record of a potentially unauthorized structure, use or lot would be valuable when discussing the matter with an affected property owner. However, staff believes that the list is best included in the Community Development Department policy memo provided as Attachment E to this report rather than referencing the document Nonconforming Structures, Uses and Lots...within the ordinance itself. Adoption as part of Draft Ordinance No. 1379 would possibly complicate flexibility and future revision of the list of evidence. The Community Development Department policy memo Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 19 provides the greatest flexibility in allowing the list to remain a "living document" that would enable future revision of the list. ENVIRONMENTAL ANALYSIS Proposed Code Amendment 11-002 is considered a "project" by the California Environmental Quality Act ("CEQA") (Pub. Resources Code §21000 et. seq.). City staff prepared an Initial Study for Code Amendment 11-002 (Draft Ordinance No. 1397) that determined that the proposed project could not have a significant effect on the environment, and a Negative Declaration (ND) will be prepared. A Notice of Intent to Adopt a Negative Declaration was published and the draft Negative Declaration and Initial Study were made available fora 20-day public review and comment period from September 1, 2011 to September 21, 2011, in compliance with Sections 15072 and 15105 of the State CEQA Guidelines. The Planning Commission should consider the Initial Study and the Negative Declaration provided as Exhibit 1 to Planning Commission Resolution No. 4183 and recommend it to the Tustin City Council as adequate for Code Amendment 11-002 (Draft Ordinance No. 1397). PUBLIC NOTICE, CHAMBER OF COMMERCE, TUSTIN PRESERVATION CONSERVANCY REVIEW A public notice was published in the Tustin News on September 1, 2011, informing the public of proposed Code Amendment 11-002 (Draft Ordinance No. 1397). A copy of the staff report and proposed Draft Ordinance No. 1397 was also forwarded to the Chamber of Commerce and Tustin Preservation Conservancy prior to the Planning Commission's hearing on the matter. CONCLUSION On March 15, 2011, the City Council directed staff to revise the Tustin City Code as it relates to the term "nonconforming" to clarify, provide consistency, and to reduce ambiguity throughout the City Code and also directed that the Planning Commission consider the matter. Code Amendment 11-002 (Draft Ordinance No. 1397 - as amended) was prepared for this purpose. As directed, the Planning Commission should consider the information presented in this report, the verbatim minutes of the City Council meeting on March 15, 2011 and proposed Draft Ordinance No. 1397. At the conclusion of its deliberations, the Planning Commission should adopt Resolution No. 4183 (Attachment A) recommending: 1) that the Tustin City Council find that the Negative Declaration prepared for Code Amendment (CA) 11-002 (Draft Ordinance No. 1397 - as amended) is adequate; and, 2) that the Tustin City Council adopt Draft Ordinance No. 1397 - as amended, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and struc/~tu/yr/e~~s in the City of Tustin. ts~.w. 1~ ~ 9 ~./ , .,, ~ ~r ~~ ~Z~l ,~ cFf~-G13~.. Dana L. Ogdon, AICR,, Elizabeth A. Binsack Assistant Director Director of Community Development Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 20 ordinanceno1397 (Public Hearing).doc Attachments: A. Planning Commission Resolution No. 4183 Exhibit 1. Initial Study and Negative Declaration for Draft Ordinance No. 1397 Exhibit 2. Draft Ordinance No. 1397 - as amended. B. Verbatim City Council minutes of March 15, 2011 C. Tustin City Code Section 9273 and 9298 D. City Council Resolution No. 11-19 E. Community Development Department Policy Memo formalizing the Department's code enforcement investigative procedures pertaining to potentially unauthorized structures, uses, and lots. ATTACHMENT A Planning Commission Resolution No. 4183 Exhibit 1. Initial Study and Negative Declaration for Ordinance No. 1397. Exhibit 2. .Ordinance No. 1397 (with modifications suggested by the California Preservation Foundation). RESOLUTION NO. 4183 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE TUSTIN CITY COUNCIL FIND THAT THE NEGATIVE DECLARATION IS ADEQUATE, AND ADOPT ORDINANCE NO. 1397 (CODE AMENDMENT 11-002) AMENDING VARIOUS CODE SECTIONS TO PROVIDE CLARITY, CONSISTENCY, AND REDUCE AMBIGUITY RELATED TO NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That on March 15, 2011, the Tustin City Council unanimously adopted Resolution No. 11-19 directing that the Tustin Planning Commission receive and consider draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on draft Ordinance No. 1397 so that the Commission would be aware of the City Council's concerns, and provide a recommendation on the proposed ordinance to the Tustin City Council. B. That Code Amendment 11-002 (Ordinance No. 1397) is considered a "project" by the California Environmental Quality Act ("CEQA") (Pub. Resources Code §21000 et. seq.). C. That City staff prepared an Initial Study for Code Amendment 11-002 (Ordinance No. 1397) that determined that the proposed project could not have a significant effect on the environment, and a Negative Declaration (ND) will be prepared. D. That a Notice of Intent to Adopt a Negative Declaration was published and the draft Negative Declaration and Initial Study were made available fora 20-day public review and comment period from September 1, 2011 to September 21, 2011, in compliance with Sections 15072 and 15105 of the State CEQA Guidelines. E. That on September 13, 2011, the Planning Commission held a public workshop on the intent and practice, of California Land Use and Planning Law governing nonconforming structures, uses, and lots. F. That on September 27, 2011, a public hearing on Code Amendment 11-002 (Ordinance No. 1397) was duly called, noticed, and held by the Planning Commission. G. The Planning Commission considered the Initial Study and the Negative Declaration (Exhibit 1) and finds it adequate for Code Amendment 11-002 (Ordinance No. 1397). H. That Code Amendment 11-002 (Ordinance No. 1397) is necessary to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin (Exhibit 2). Resolution No. 4183 Page 2 That Code Amendment 11-002 (Ordinance No. 1397) is consistent with the goals, policies, and general plan land use programs specified in the Tustin General Plan for the City of Tustin, including the following land use goals and policies: LU Goal 1: Provide for a well balanced land use pattern that accommodates existing and future needs for housing, commercial and industrial land, open space and community facilities and services, while maintaining a healthy, diversified economy adequate to provide future City services. LU Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. LU Goal 3: Ensure that new development is compatible with surrounding land uses in the community, the City's circulation network, availability of public facilities, existing development constraints, and the City's unique characteristics and resources. LU Goal 4: Assure a safe, healthy, and aesthetically pleasing community for residents and businesses; The Planning Commission hereby recommends that the City Council approve Code Amendment 11-002, by adopting Ordinance No. 1397, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 27th day of September, 2011. JEFF R. THOMPSON Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4183 Page 3 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. 4183 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 27~' day of September, 2011. ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT 1 INITIAL STUDY AND NEGATIVE DECLARATION FOR CODE AMENDMENT 11-002 (ORDINANCE NO. 1397) Appendix G (rEn~virfonmental Checklist Form) CITY OF TUSTIN COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573-3100 ~~ i._u;n~a, ~3~ .. ~~.~ rt ie~ flt~i~e7111~*~~i t_tl ~: ',tf.l~ A. BACKGROUND Project Title: Code Amendment 11-002 (Draft Ordinance No. 1397) Nonconforming structures and uses Lead Agency: City of Tustin 300 Centennial Way Tustin, California 92780 Lead Agency Contact Person: Dana Ogdon, Assistant Director of Community Development Phone: (714) 573-3109 Project Location: Citywide Project Sponsor's Name and Address: City of Tustin 300 Centennial Way, Tustin, CA 92780 General Plan Land Use Designation: Citywide Zoning Designation: Citywide Project Description: Citywide Surrounding Land Uses and Setting: Citywide Other public agencies whose approval is required: ^ Orange County Fire Authority ^ ^ Orange County EMA District ^ ^ South Coast Air Quality Management ^ ^ Orange County Health Care Agency City of Santa Ana City of Irvine Other Attachments: EXHIBIT 1: Tustin Planning Area INITIAL STUDY B. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: City of Tustin The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ^ Aesthetics ^ Biological Resources ^ Greenhouse Gas Emissions ^ Land Use /Planning ^ Population /Housing ^ Transportation/Traffic DETERMINATION: On the basis of this initial evaluation: ^ Agriculture and Forestry Resources ^ Cultural Resources ^ Hazards & Hazardous Materials ^ Mineral Resources ^ Public Services ^ Utilities /Service Systems ^ Air Quality ^ Geology /Soils ^ Hydrology /Water Quality ^ Noise ^ Recreation ^ Mandatory Findings of Significance ® I find that the proposed ,project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ^ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. ^ I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. ^ I find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. Signature: _ Printed Name: Signature: _ Preparers Amy Thomas, Date: FS ~co 1 pment Director Date: to (( 2 ~ ~=~age Appendix G (Environmental Checklist Form) C. EVALUATION OF ENVIRONMENTAL I FACTS: 1) A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone). A "No Impact" answer should be explained where it is based on project-specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on a project-specific screening analysis). 2) All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. 3) Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, an EIR is required. 4) "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from "Earlier Analyses," as described in (5) below, may be cross-referenced). 5) Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case, a brief discussion should identify the following: a. Earlier Analysis Used. Identify and state where they are available for review. b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c. Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 6) Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. 7) Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. 8) This, is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 9) The explanation of each issue should identify: a. the significance criteria or threshold, if any, used to evaluate each question; and b. the mitigation measure identified, if any, to reduce the impact to less than significance D. INITIAL STUDY 1 Issues: AESTHETICS. Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rocks outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? INITIAL STUDY Potentially Significant Impact Less Than Significant With Mitigation Incorporated City of Tustin Less Than Significant Impact No Impact Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The City of Tustin General Plan encourages protection of scenic views and resources through site planning and architectural design; and through implementation of the Grading Manual. The ordinance is intended to amend the Zoning Code to revise the definition of "nonconforming" to clarify, provide consistency, and reduce ambiguity throughout the code. The ordinance is not anticipated to affect any scenic resources in that there are no physical changes proposed. Therefore, this project will not have a substantial adverse effect on a scenic vista. b) No Impact. The General Plan Circulation Element does not identify any State scenic highways within the City. There are no impacts related to the Ordinance in that the amendment is proposed to revise the nonconforming definition to clarify, provide consistency, and reduce ambiguity throughout the code. The intent of the code amendment is to implement and codify the City's current practice of ensuring that historic structures are maintained and illegal and/or unpermitted additions, alterations, or enlargements are lawfully established in accordance with the City's Cultural Resources District Regulations and the appropriate procedures and findings for a Certificate of Appropriateness are obtained. Said Certificate of Appropriateness must include specific findings for construction or alteration to ensure that alterations 4~~~'age INITIAL STUDY City of Tustin or adaptive reuse of the structures will not detrimentally alter, destroy or adversely affect the resource and, in the case of a structure is compatible with the architectural style of the existing structure. In addition to allowing expansion/alteration of an identified historic structure, the City also supports adaptive reuse of historic structures. Adaptive reuse preserves the important physical attributes of the historic resource for future generations to appreciate by adapting old structures for purposes other than what the building was originally designed. This concept of adaptive reuse presumes that the owner of the property has legally obtained the proper permits and that the building was adapted (upgraded to meet applicable Building Codes) so that it may lawfully be used differently than the building was originally designed. Illegal additions (even old ones) may detract from the social, cultural or historical significance of an important historic resource. Most importantly, old structures or uses must be lawfully established to ensure that they do not pose a hazard to occupants or the community. The City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). The Certified Local Government Program is a preservation partnership between local, state and national governments focused on promoting historic preservation at the grass roots level. Certification provides the City access to the expert technical advice of the State Office of Historic Preservation as well as the National Park Service's Advisory Council on Historic Preservation. Partnerships with the National Alliance of Preservation Commissions, Preserve America, the National Trust for Historic Preservation, and the National Main Street Center are also networks that CLGs have an opportunity to tap into. City staff routinely and responsibly reviews the City's Cultural Resources Survey when researching the legality of a questionable structure, use or lot.. When needed, staff has also employed the expertise of 30~' Street Architects, an historic preservation architecture and planning firm recognized statewide as experts in documenting, preserving and restoring historic resources. Staff also researches and considers a wide variety of other historical information (historic phone books, historic aerial photographs, evidence provided by persons associated with the historic past of the site, etc.) when examining the facts associated with a questionable structure, use or lot. Ultimately, the Code Amendment will provide consistency in the code and allow implementation to ensure that the integrity of historic structures are preserved for the intended use and/or are legally established and maintained or are adaptively reused. With the clarification of the term nonconforming to include the terms "lawfully established" and "legal", no impacts are anticipated from the implementation of the proposed project. c) No Impact. The code amendment does not exempt individual projects from review. Impacts related to any future project may be identified and evaluated in conjunction with the applicable discretionary process and may be subject to separate CEQA review. Therefore, no impacts are forecast from the implementation of the proposed project. d) No Impact. The code amendment will not create a source of light and glare. Individual projects may be subject to providing a photometric plan and additional review may be required on a case-by-case basis for lighting of parking lots and loading areas. However, there is no impact associated with this project. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 5~'a~ge INITIAL STUDY Issues: II. AGRICULTURE AND FOREST RESOURCES. In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. In determining whether impacts to forest resources, including timberland, are significant environmental effects, lead agencies may refer to information compiled by the California Department of Forestry and Fire Protection regarding the state's inventory of forest land, including the Forest and Range Assessment Project and the Forest Legacy Assessment project; and forest carbon measurement methodology provided in Forest Protocols adopted by the California Air Resources Board. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? City of Tustin Less Than Potentially Significant Less Than No Significant With Significant Im act Impact Mitigation Impact p Incorporated ^ ^ ^ b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? c) Conflict with existing zoning for, or cause rezoning of, forest land (as defined in Public Resources Code section 12220(8)), timberland (as defined by Public Resources Code section 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(8))? ^ ^ ^ ^ ^ ^ 6 ~ ., :~ ~ e INITIAL STUDY City of Tustin d) Result in the loss of forest land or ~ ~ ~ conversion of forest land to non-forest use? e) Involve other changes in the existing ~ ~ ~ environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use or conversion of forest land to non-forest use? Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The code amendment will not result in the conversion of farmland to anon-agricultural use. The code amendment will provide clarity, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Future individual projects will be subject to discretionary review and potential conditions of approval. Furthermore, since there are no improvements proposed in conjunction with this project, it will not result in any impacts to Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland). b) No Impact. The code amendment will not result in conversion of farmland to anon-agricultural use. There are no areas subject to a Williamson Act contract, and conservation of farmland in the Tustin Planning Area. Impacts related to any future project would be identified and evaluated in conjunction with each specific project. Therefore, no impacts are forecast to occur as a result of implementation of the code amendment. c) No Impact. The code amendment will not conflict with existing zoning for, or cause rezoning of, forest land, timberland, or timberland zoned Timberland Production in that the City of Tustin does not have any forestland, timberland, or timberland zoned areas within the City boundaries. d) No Impact. The code amendment will not conflict with existing zoning for, or cause rezoning of, forest land, timberland, or timberland zoned Timberland Production in that the City of Tustin does not have any forestland, timberland, or timberland zoned areas within the City boundaries. e) No Impact. As described in Response Il.b above, the proposed project will not directly impact or result in the conversion of existing farmland uses to non-agricultural uses. Therefore, no impacts are forecast to occur as a result of implementation of the code amendment. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 3. Cal EPA/ARB Greenhouse Gas Inventory Data - 2000 to 2006 http://www. arb. ca.gov/cc/inventory/data/data. htm 4. State of California Department of Conservation Farmland Mapping & Monitoring Program http://www.conservation ca gov/DLRP/fmmp/Pages/Index aspx 5. Public Resources Code section 12220(g), 4526 6. Government Code section 51104(g) 7~P~g~ INITIAL STUDY Issues: III. AIR QUALITY. Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? Potentially Significant Impact Less Than Significant With Mitigation Incorporated ^ ^ ^ ^ ^ ^ ^ ^ o ^ City of Tustin Less Than Significant Impact No Impact Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impacts. The proposed project would not conflict with or obstruct implementation of the applicable air quality plan, as prepared by the South Coast Air Quality Management District (SCAQMD) in the Air Quality Management Plan (AQMP) for the South Coast Air Basin. No physical improvements are proposed in conjunction with the code amendment. Impacts related to any future project would be 8~r~~~ INITIAL STUDY City of Tustin identified and evaluated in conjunction with the discretionary review process and/or applicable specific plan or other review document and may be subject to separate CEQA review. Therefore, no impacts are forecast to occur as a result of implementation of the code amendment. b-e) No Impacts. Grading and development activities are not associated with the proposed code amendment. Impacts related to any future project would be identified and evaluated in conjunction with the discretionary review process and/or applicable specific plan or other review document and may be subject to separate CEQA review. Furthermore, projects are subject to the City's standard conditions of approval to minimize local nuisance from grading and construction activities. This condition is in conformance with the SCAQMD requirements and therefore, no impacts are anticipated to occur. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: IV. BIOLOGICAL RESOURCES. Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant Impact No Impact 9~~~~e INITIAL STUDY Issues: c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratary wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? City of Tustin Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a-b) No Impact. The California Fish and Game Code was adopted by the State legislature to protect the fish and wildlife resources of the State. Special permits are required for any lake or stream alterations, dredging or other activities that may affect fish and game habitat. No physical improvements are currently proposed in conjunction with the amendment to the zoning code. Impacts related to any future project would be identified and evaluated in conjunction with the California Fish and Game Code and may be subject to separate CEQA review. Therefore, no impacts will result with implementation of the code amendment. c) 10~Page No Impact. In accordance with the City's existing permit (ORDER NO. R8-2009-0030 NPDES No. CAS618030) with the Santa Ana Regional Quality Control Board, any future applicant may be required to prepare a Storm Water Pollution Prevention Plan (SWPPP) to ensure grading and reclamation activities do not allow runoff from the site to carry sediment during a storm event to impair the water quality. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity INITIAL STUDY City of Tustin of the term "nonconforming" in the TCC. Any future project that is considered a priority project will be required to prepare a Water Quality Management Plan (WQMP) as part of the discretionary review process to ensure runoff from the site, due to ongoing operations, does not impair water quality downstream. Therefore, no impact is anticipated as part of the code amendment that could cause a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act. d) No Impact. As discussed in response IV.a, b, the code amendment does not propose any physical changes. The code amendment incorporates uses previously determined by the Community Development Director and/or Planning Commission to be similar in use. Impacts related to any future project could be identified and evaluated as part of the discretionary review process in conjunction with the California Fish and Game Code and may be subject to separate CEQA review and conditions of approval limiting grading activities. Therefore, no impacts are anticipated from the implementation of the code amendment. e) No Impact. The City's General Plan Conservation/Open Space/Recreation Element mandates continued maintenance of significant tree. stands. New developments may require a biological assessment as required in the review process. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" in the TCC. Future development applications may be subject to further discretionary review for consistency with any local policies or ordinances protecting biological resources. Therefore, there is no impact f) No Impact. The City of Tustin is a participating member of the Natural Community Conservation Plan (NCCP) and is within the Coastal Sub/Central Orange County NCCP region. No physical improvements are currently proposed in conjunction with the amendment to the zoning code. Impacts related to any future project would be identified and evaluated in conjunction with the applicable NCCP/HCP plan or any other conservation plan and may be subject to separate CEQA review. Therefore, the code amendment has no impact. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 3. Department of Fish and Game, Natural Community Conservation Plan http://www.dfg.ca.gov/habcon/nccp/status/OrangeCoastal/ Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated V. CULTURAL RESOURCES. Would the project: a) Cause a substantial adverse ~ ~ ~ change in the significance of a historical resource as defined in § 15064.5? 11~Page INITIAL STUDY City of Tustin b) Cause a substantial adverse ~ ~ ~ change in the significance of an archaeological resource pursuant to § 15064.5? c) Directly or indirectly destroy a ~ ~ ~ unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, ~ ~ ~ including those interred outside of formal cemeteries? Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. The intent of the code amendment is to implement and codify the City's current practice of ensuring that historic structures are maintained and illegal and/or unpermitted additions, alterations, or enlargements are lawfully established in accordance with the City's Cultural Resources District Regulations and the appropriate procedures and findings for a Certificate of Appropriateness are obtained. Said Certificate of Appropriateness must include specific findings for construction or alteration to ensure that alterations will not detrimentally alter, destroy or adversely affect the resource and, in the case of a structure is compatible with the architectural style of the existing structure. As set forth in the City of Tustin General Plan Housing Element, (pg. 33) Historic Resources -Older neighborhoods in Tustin contain several historic residences that should be preserved as part of the community's heritage. These historic homes were identified through an inventory of historic buildings in 1990. Further, the General Plan, Housing Element (pg. 50) Building Codes and Enforcement: The City of Tustin adopts the Uniform Construction Codes, as required by State law, which establish minimum construction standards as applied to residential buildings. The City's building codes are the minimum standards necessary to protect the public health, safety and welfare and ensure safe housing. Only local modifications to the codes are made which respond to local climatic or geographic conditions and clarify administrative procedures. Although not mandated to do so, the City has adopted the State Historical Code that relaxes building code requirements citywide for historic structures/buildings. Adoption of the codes reduces rehabilitation costs. Ultimately, the Code Amendment will provide consistency with the General Plan and in the Tustin City Code and to ensure that the integrity of historic structures is legally established and maintained. a) No Impact. The City of Tustin General Plan sets out conservation goals to maintain and enhance the City's unique culturally and historically significant building sites or features. Specifically, Policy 12.1 Identify, designate, and protect facilities of historical significance, and Policy 12.3 Development adjacent to a place, structure or object found to be of historic significance should be designed so that the uses permitted and the architectural design will protect the visual setting of the historical site. Since the proposed zoning code amendment will not change or alter the physical environment and each individual project will be subject to the City's Goals and Policies of the General Plan and Zoning Code regulations. Further, with the implementation and codification of the City's current practice of ensuring that historic structures are preserved for the intended use and/or are lawfully established and maintained or are adaptively reused, it is not anticipated to create a substantial adverse change to historical resources and no impacts are forecast from the implementation of the proposed project. In addition to allowing expansion/alteration of an identified historic structure, the City also supports adaptive reuse of historic structures. Adaptive reuse preserves the important physical attributes of the INITIAL STUDY City of Tustin historic resource for future generations to appreciate by adapting old structures for purposes other than what the building was originally designed. This concept of adaptive reuse presumes that the owner of the property has legally obtained the proper permits and that the building was adapted (upgraded to meet applicable Building Codes) so that it may lawfully be used differently than the building was originally designed. Illegal additions (even old ones) may detract from the social, cultural or historical significance of an important historic resource. Most importantly, old structures or uses must be lawfully established to ensure that they do not pose a hazard to occupants or the community. The City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). The Certified Local Government Program is a preservation partnership between local, state and national governments focused on promoting historic preservation at the grass roots level. Certification provides the City access to the expert technical advice of the State Office of Historic Preservation as well as the National Park Service's Advisory Council on Historic Preservation. Partnerships with the National Alliance of Preservation Commissions, Preserve America, the National Trust for Historic Preservation, and the National Main Street Center are also networks that CLGs have an opportunity to tap into. City staff routinely and responsibly reviews the City's Cultural Resources Survey when researching the legality of a questionable structure, use or lot. When needed, staff has also employed the expertise of 30th Street Architects, an historic preservation architecture and planning firm recognized statewide as experts in documenting, preserving and restoring historic resources. Staff also researches and considers a wide variety of other historical information (historic phone books, historic aerial photographs, evidence provided by persons associated with the historic past of the site, etc.) when examining the facts associated with a questionable structure, use or lot. b) No Impact. According to the City of Tustin General Plan Conservation/Open Space/Recreation Element (Goal 13), and the Standard Conditions of Approval, individual projects will be subject to site inspection by certified archaeologists or paleontologists for new development in designated sensitive areas. These conditions will be required on a case-by-case basis for individual projects subject to discretionary review; however this code amendment proposes no physical changes. Therefore, no impacts related to archaeological resources would result from the proposed code amendment. c) No Impact. Same as response Illb d) No Impact. No physical improvements are currently proposed in conjunction with the code amendment. As such, the project will not adversely affect, destroy or disturb human remains. Impacts related to any future project would be identified and evaluated through the discretionary review process in conjunction with a specific project and standard conditions of approval applied; however, no foreseeable impacts related to cultural resources are anticipated. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 3. California Law http://www.lec~i~~~~;.~.a,c~_~~~~~~~_I~3~~~.htrrol 13~Page INITIAL STUDY Issues: Potentially Significant Impact VI GEOLOGY AND SOILS. Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i. Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic ground shaking? iii. Seismic-related ground failure, including liquefaction? iv. Landslides? b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? City of Tustin Less Than Less Than No Significant Significant Impact With Mitigation Impact Incorporated ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ 14~Page INITIAL STUDY Issues: d) Be located on expansive soil, as defined in Table 18 1 B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? Potentially Significant Impact Less Than Significant With Mitigation Incorporated City of Tustin Less Than No Significant Impact Impact Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. According to the City of Tustin General Plan, Public Safety Element (January 2001), the Tustin Planning Area (Planning Area) lies within a seismically active region. However, there are no known active or suspected potentially active faults identified within the Planning Area. The EI Modena fault passes through the Planning Area's northern section; however, studies have not been conclusive about the active/inactive status of this fault. The code amendment proposes no physical changes and future proposals would be subject to individual review. Therefore, no impacts associated with rupture of a known earthquake fault are anticipated with the implementation of the code amendment. ii. No Impact. There is no evidence of any active or potentially active faults within the Tustin Planning Area (Planning Area) and it is not located within an Alquist-Priolo Earthquake Fault Zone. However, the Planning Area is located in the seismically active region of southern California. Slight to intense ground shaking is possible within the Planning Area if an earthquake occurs on a segment of the active faults in the region. Under current seismic design standards and California Building Code (CBC) provisions, new buildings would incur only minor damage in small to moderate earthquakes, and potential structural damage during a large earthquake, although new buildings are expected to remain standing during such events (City of Tustin General Plan, Safety Element). With application of the provisions of Chapter 16A Division IV of the 1998 California Building Code and the Structural Engineers Association of California, (SEAOC) guidelines, adequate structural protection in the event of an earthquake would be provided, thus reducing impacts from strong seismic ground shaking to a less than significant level. Since there is no development associated with the zoning code amendment and individual projects would be subject to the California Building Code and the SEAOC guidelines, no impacts will occur as part of this project. 15~Page INITIAL STUDY City of Tustin .:, _. ,: . iii. No Impact. There is no development associated with the zoning code amendment and individual projects would be subject to the California Building Code and the SEAOC guidelines. Furthermore, a standard condition of approval requiring a soils report will be required prior to issuance of a grading permit for any future project. Therefore, no impacts will occur as part of this code amendment. b) No Impact. The City of Tustin is a co-permittee with Orange. County in the NPDES program, which is designed to reduce pollutants in storm water runoff. Accordingly, during construction of any future project, the applicant will be required to develop and submit a SWPPP to the Santa Ana RWQMP for compliance with the Statewide NPDES for construction activity. The SWPPP would contain BMPs as identified in the Orange County Drainage Area Master Plan (DAMP) to eliminate or reduce erosion and polluted runoff. General BMPs applicable to construction include erosion controls, sediment controls, tracking controls, wind erosion control, non-storm water management, and materials and water management. A standard condition of approval requiring BMP's as part of individual development plans may be required as part of the discretionary review process prior to issuance of a grading permit for any future project. Therefore, no impacts will occur as part of this project. c-d) No Impact. As indicated in Vl.a (ii) above, there is no development associated with the zoning code amendment. Individual projects would be subject to the California Building Code and the SEAOC guidelines. A soils report prepared by a certified soils engineer may be required as part of any project on a case-by-case basis. Since there is no development associated with the zoning code amendment, no impacts will occur as part of this project. e) No Impact. The code amendment does not involve the use of septic tanks or alternative wastewater disposal systems. On a case-by-case basis as part of the discretionary review process, any future proposed project may be subject to submit asite-specific geotechnical investigation for the site and preparation of a geologic and soils report prepared by a certified soils engineer. Therefore, no impacts will occur from the implementation of the proposed project. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated VII GREENHOUSE GAS EMISSIONS Would the project: a) Generate greenhouse gas emissions, ~ ~ ~ either directly or indirectly, that may have a significant impact on the environment? 16~ Page INITIAL STUDY __ b) Conflict with an applicable plan, policy or ~ ~ regulation adopted for the purpose of reducing the emissions of greenhouse gases? City of Tustin Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. There is no development associated with the zoning code amendment. Future individual projects would be subject to CEQA review on a case-by-case basis. Therefore, no impacts are anticipated to directly or indirectly have an impact on the environment. b) No Impact. There is no development associated with the zoning code amendment; the plan is consistent with the City's General Plan and does not conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: VIII HAZARDS AND HAZARDOUS MATERIALS. Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? Potentially Significant Impact Less Than Significant With Mitigation Incorporated ^ ^ ^ ^ Less Than Significant Impact No Impact 17~f~~~~ Issues: c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adapted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? INITIAL STUDY City of Tustin Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. 18~:='~C,~ INITIAL STUDY City of Tustin a-c) No Impact. The project involves the implementation of a new zoning code amendment to clarify the term nonconforming as set forth in the Tustin City Code. There are no hazardous materials proposed as part of this project. Each individual development project will be subject to review on a case-by-case basis for hazardous materials. Therefore, no impacts related to this issue will result from the proposed project, and no mitigation measures are required. d) No Impact. This project does not involve a specific hazardous materials site. Any new project will be subject to review with the list compiled pursuant to Government Code Section 65962.5. A standard condition of approval may require asite-specific geotechnical investigation for the entire site and preparation of a geologic and soils report will be required as part of the project. Therefore, no impacts related to this issue will result from the proposed project. e-f) No Impact. According to the City's General Plan Circulation Element, air travel is available from John Wayne Airport in Orange County, approximately five miles to the south by surface roadway. However, the Tustin Planning Area does not lie within any of John Way's safety zones. The former MCAS Tustin helicopter station was located in the southern portion of the City. A Specific Plan for reuse of the base has resulted in the elimination of aviation uses, with the exception of heliports individually permitted or blimp operations as an interim use. New development will be subject to review with the Airport Land Use Commission if necessary. Any conditions of approval will be incorporated into each individual project where necessary. Therefore, no safety hazards are anticipated related to this issue. g-h) No Impact. The code amendment to amend the term nonconforming in the Tustin City Code would not involve any uses that would interfere with the City's Emergency Operations Plan or with major emergency evacuation routes out of the area; nor is it anticipated to expose people or structures to a significant risk of loss, injury or death wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands. Therefore, there are no impacts associated with this issue. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated IX HYDROLOGY AND WATER QUALITY. Would the project: a) Violate any water quality standards or ~ ~ ~ waste discharge requirements? 19~Page INITIAL STUDY City of Tustin Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated b) Substantially deplete groundwater ~ ~ ~ supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially. alter the existing ~ ~ ~ drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing ~ ~ ~ drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on-or off-site? e) Create or contribute runoff water ~ ~ ~ which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water ~ ~ ~ quality? g) Place housing within a 100-year flood ~ ~ ~ hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? 20~ gage INITIAL STUDY Issues: Potentially Significant Impact h) Place within a 100-year flood hazard area structures that would impede or redirect flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? Less Than Significant With Mitigation Incorporated City of Tustin Less Than No Significant Impact Impact Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The City of Tustin is a co-permittee with Orange County in the NPDES program, which is designed to reduce pollutants in storm water runoff. The code amendment does not include construction of new facilities. Accordingly, during construction of any future development project, the applicant may be required to develop and submit a SWPPP to the Santa Ana RWQMP for compliance with the Statewide NPDES for construction activity. The SWPPP would contain BMPs as identified in the Orange County Drainage Area Master Plan (DAMP) to eliminate or reduce erosion and polluted runoff. General BMPs applicable to construction include erosion controls, sediment controls, tracking controls, wind erosion control, non-storm water management, and materials and water management. By preparing a SWPPP for NPDES compliance in addition to the standard conditions of approval for water quality, any future project could potentially meet all applicable regulations to manage runoff from the project site. Pollutants in storm water would be substantially reduced by source control and treatment BMPs. Since there is no development proposed as part of this project, it would not violate any water quality standards or waste discharge requirements. b) No Impact. The proposed code amendment will not substantially deplete groundwater supplies or interfere substantially with groundwater recharge in that there is no construction associated with the proposed code amendment. c) No Impact. Construction of any future project may temporarily alter existing drainage patterns, as there would be areas of exposed soil during grading and excavation activities. If a storm event were to occur during these activities, exposed sediments may be carried off-site and into the local storm drain system increasing siltation. However, as discussed in Response No. IX.a-b, any future project would be required, as part of the standard conditions of approval of the discretionary review process, to implement construction BMPs in compliance with the NPDES permit and Orange County Drainage Area Master Plan (DAMP) to eliminate or reduce erosion and polluted runoff. Therefore, there are no impacts associated with this project. 21~Page INITIAL STUDY City of Tustin d-e) No Impact. The code amendment provides clarification to the term nonconforming in various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming". Any future project would be subject to individual review and may be subject to CEQA review. To ensure off-site drainage does not result in flooding on or off-site, any future applicant may be required, as part of the standard conditions of approval, to provide on-site hydrology and hydraulic calculations for the proposed development and hydraulic calculations for proposed connections to the existing storm drain system. This will ensure drainage improvements of any future project site will have a less than significant effect on the environment. However, this will be assessed as part of the discretionary review process; there are no impacts associated with the implementation of the code amendment. f) No Impact. Compliance with the NPDES permit (refer to Response IX.a-b) and BMPs (discussed in Responses IX.a-b, IX.c, above) would reduce potential water quality impacts to less than significant levels. There are no impacts associated with the implementation of the code amendment. g - h) No Impact. The code amendment will amend the Tustin City Code for clarification of the term nonconforming. The proposed code amendment will not place housing or structures within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map in that there is no development associated with the code amendment. Any individual projects will be subject to review according to the Flood Insurance Rate Map. The map would indicate whether a project was subject to a flood zone. However; no development is proposed as part of this project. Therefore, no impacts will occur as part of this project. i) No Impact. As described in response IXg-h, runoff typically increases with parking, however, there is no development associated with this zoning code amendment in that it includes a revision to the term nonconforming in the Tustin City Code for clarification. Any future construction of individual projects will be subject to comply with the requirements of the Orange County NPDES program, which is designed to reduce pollutants in storm water runoff. In the unlikely event of flooding as a result of the failure of a levee or dam, the City has implemented an Emergency Preparedness Plan that addresses several hazard areas including flooding. This Emergency Preparedness Plan has been reviewed by State and Federal agencies which have their own roles in the event of an emergency. Any future development project would be subject to review on a case-by-case basis as to whether or not it is within a flood zone (as addressed in VIII t-u) and potentially subject to significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam. However, there are no impacts associated with the code amendment. j) No Impact. Any future development projects would be subject to review to determine whether the project is within an area that has been identified as susceptible to liquefaction or potential bedrock landslides. These areas are identified on Figure COSR-1 of the City's General Plan. When development is proposed within these areas, studies shall be performed as directed by the City to determine the potential for hazards and the amount of development which is supportable on the site. As described in VIII v, in the unlikely event of inundation by seiche, tsunami, or mudflow an individual project would be part of the City's Emergency Preparedness Plan. Therefore, no impacts associated with the code amendment. Mitigation Measures/Mi Sources: 1. 2. 3. 3. 22 ~ ~;}~?~ ~nitoring Required: No additional mitigation measures required City of Tustin General Plan (January 16, 2001) City of Tustin Zoning Code Flood Insurance Rate Map OC Watersheds http://www.ocwatersheds.com/dampreport/default.aspx?ID=1000358 _ _ __ INITIAL STUDY City of Tustin Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated X. LAND USE AND PLANNING. Would the project: a) Physically divide an established ~ ~ ~ community? . b) Conflict with any applicable land ~ ~ ~ use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat ~ ~ ~ conservation plan or natural community conservation plan? Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. The intent of the code amendment is to implement and codify the City's current practice of ensuring that historic structures are maintained and illegal and/or unpermitted additions, alterations, or enlargements are lawfully established in accordance with the City's Cultural Resources District Regulations and the appropriate procedures and findings for a Certificate of Appropriateness are" obtained. Said Certificate of Appropriateness must include specific findings for construction or alteration to ensure that alterations will not detrimentally alter, destroy or adversely affect the resource and, in the case of a structure is compatible with the architectural style of the existing structure. Ultimately, the Code Amendment will provide consistency in the code and allow implementation to ensure that the integrity of historic structures is legally established and maintained. a) No Impact. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Since the uses are similar and may be subject to discretionary review and conditions of approval, it is not anticipated to physically divide an established community and therefore, no impacts will occur. b) No Impact. The City's General Plan indicates the following: Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. Specifically, Policy 2.1: Consider a// General Plan goals and policies, including those in the other General Plan elements, in evaluating proposed development projects for General Plan consistency. Policy 2.2: Maintain consistency between the Land Use Element, Zoning Ordinances, and other City ordinances, regulations and standards. 23~Page INITIAL STUDY City of Tustin The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Therefore, the project is in conformance with the General Plan, and there are no conflicts related to the implementation of the code amendment. c) No Impact. As indicated in response IV f, the City of Tustin is a participating member of the Natural Community Conservation Plan (NCCP) and is within the CentraUCoastal Orange County region. No physical improvements are currently proposed in conjunction with the amendment to the zoning code. Impacts related to any future project would be identified and evaluated in conjunction with the applicable NCCP/HCP plan or any other conservation plan and may be subject to separate CEQA review. As a result, no impacts are anticipated from the implementation of the code amendment. Mitigation Measures/Monitoring Required: No additional mitigation measures required. Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: XI MINERAL RESOURCES. Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? b) Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? Potentially Significant Impact Less Than Significant With Mitigation Incorporated ^ ^ ^ ^ Less Than Significant Impact No Impact Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a-b) No Impact. According to the City of Tustin Conservation/Open Space/Recreations Element (Figure COSR-2) there are no known mineral resources within the City that would be of value to the region and the residents of the state. Therefore, there are no project related impacts associated with mineral resources. Mitigation Measures/Monitoring Required: No additional mitigation measures required. Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 24~Pa$e INITIAL STUDY Issues: Potentially Significant Impact XII NOISE. Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? City of Tustin Less Than Less Than No Significant Significant Impact With Impact Mitigation Incorporated ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and .reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. 25~Page INITIAL STUDY City of Tustin a -d) No Impact. The City of Tustin General Plan Noise Element, and the City's Municipal Code, Chapter 6 Section 4614, Noise Control (Noise Ordinance) establish noise standards for the City. The Safety and Noise Element addresses noise with respect to general land use compatibility, while the Noise Ordinance addresses noise from specific sources. The Noise Ordinance established exterior noise standards of 55 dBA during the daytime hours between 7:00 a.m. and 10:00 p.m. and 50 dBA during the nighttime hours between 10:00 p.m. and 7:00 a.m. These noise standards are adjusted further based on the cumulative duration of the noise occurrence, as well as the prevailing ambient noise levels near the project. Each future individual project will be subject to review on a case-by-case basis. The proposed project does not include new development and would not expose people to excessive noise; therefore, no impact will occur as a result of this project. e-f) No Impact. According to the City's General Plan Circulation Element, air travel is available from John Wayne Airport in Orange County, approximately five miles to the south by surface roadway. However, the Tustin Planning Area does not lie within any of John Wayne's safety zones. The former MCAS Tustin helicopter station was located in the southern portion of the City. A Specific Plan for reuse of the base has resulted in the elimination of aviation uses, with the exception of heliports individually permitted or blimp operations as an interim use. New development could be subject to review with the Airport Land Use Commission if necessary as well as with the Noise Ordinance. Any conditions of approval will be incorporated into each individual project where necessary. No impact will occur as a result of this code amendment. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated XIII POPULATION AND HOUSING. Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of road or other infrastructure)? ^ ^ ^ b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? 26~I~age ^ ^ ^ INITIAL STUDY City of Tustin c) Displace substantial numbers of ~ ~ ~ people, necessitating the construction of replacement housing elsewhere? Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. The intent of the code amendment is to implement and codify the City's current practice of ensuring that historic structures are maintained and illegal and/or unpermitted additions, alterations, or enlargements are lawfully established in accordance with the City's Cultural Resources District Regulations and the appropriate procedures and findings for a Certificate of Appropriateness are obtained. The Code Amendment will provide consistency in the code and allow implementation to ensure that buildings and structures are legally established and maintained. This code amendment will assist in clarifying that only legally established housing units meet the States and Federal standards for affordable housing, not illegally established units. a) No Impact. The Tustin Planning Area is an established and urbanized area. There is no development associated with the code amendment. It is not anticipated to substantially increase population growth. Therefore, no impact on the local or regional population is expected to occur. b) No Impact. There are no physical improvements in conjunction with the amendment to the Tustin City Code. Impacts related to any future project would be identified and evaluated on a case-by-case basis as part of the discretionary review process. Therefore, no housing would be displaced by the implementation of the proposed project and there are no impacts associated with this code amendment. c) No Impact. No development associated with the code amendment. No persons would be displaced by the implementation of the proposed project. Therefore, there are no impacts associated with this issue. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 27~Page INITIAL STUDY City of Tustin Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated XIV PUBLIC SERVICES. Would the project: a) Result in substantial adverse physical ~ ~ ~ impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: i. Fire protection? ~ ~ ~ ii. Police protection? ~ ^ ~ iii. Schools? ~ ~ ~ iv. Parks? ~ ~ ~ v. Other public facilities? ~ ~ ~ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) The proposed code amendment is not anticipated to cause any adverse physical impacts associated with the provision of new or physically altered government facilities. i. Fire protection. No Impact. The Orange County Fire Authority provides fire protection for the City of Tustin on a contractual basis. All water mains and fire hydrants must be constructed in accordance with Orange County guidelines and are subject to approval by the Orange County Fire Authority. Adherence to these guidelines will ensure that no significant impacts on fire protection services will occur. Future projects may be subject to individual review by the ,Fire Authority as part of the discretionary review routing process. Therefore, there are no impacts related to fire protection. ii. Police protection. No Impact. The Tustin Police Department provides law enforcement services within the City of Tustin. Routine and scheduled patrolling is done throughout the City and would continue as they do under existing conditions. It is not anticipated that the proposed code amendment would require additional officers. Rather, it is assumed that the Police Department will 28~Page INITIAL STUDY City of Tustin continue to assess and evaluate its crime statistics for problem areas within the City. No impacts associated with the implementation of the code amendment. iii. Schools. No Impact. The code amendment will not provide housing that would generate demand for additional schools. The project will not increase student population necessitating a need for new or expanded school facilities. No impacts are anticipated. iv. Parks. No Impact. The code amendment does not propose new construction. Any future project may be subject to further discretionary review. However, the project is not anticipated to generate a demand for additional parks. No mitigation measures are required. v. Other Public Facilities. No Impact. The code amendment is not anticipated to result in any substantial increase in demands on other government services or public facilities such as roads, libraries, hospitals, or post offices. Future projects are not anticipated to generate traffic however; should impacts be associated with an individual project, they would be reviewed and considered on a case-by-case basis and conditions of approval included as necessary to mitigate impacts. No increased need for maintenance of these public facilities is anticipated. No mitigation measures are required. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Less Than Less Than No Significant Significant Significant Impact Impact With Impact Mitigation Incorporated XV RECREATION. Would the project: a) Increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? ^ ^ ^ b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which have an adverse physical effect on the environment? ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Cade. 29~Page INITIAL STUDY City of Tustin a -b) No Impact. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. The proposed project does not involve the construction of uses that will increase demand for parks. Therefore, the proposed project will not adversely impact existing recreational facilities. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant Impact No Impact XVI TRANSPORTATION /TRAFFIC. Would the project: a) Conflict with an applicable plan, ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non-motorized travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? b) Conflict with an applicable congestion management program, including, but not limited to level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? 30~Page INITIAL STUDY Issues: d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? Potentially Significant Impact f) Conflict with adopted policies, plans, or ~ programs regarding public transit, bicycle, or pedestrian facilities, or otherwise decrease the performance or safety of such facilities? City of Tustin Less Than Less Than No Significant Significant Impact With Mitigation Impact Incorporated ^ ^ ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The code amendment will not conflict with adopted plan, ordinance or policies programs supporting alternative transportation in that the new ordinance will provide that will better organize and supplement Tustin's Zoning Code and provide updated uses that have previously been determined to be similar to permitted and conditionally permitted uses. These regulations are consistent with the City's Circulation Element which addresses the circulation improvements needed to provide adequate capacity for future land uses. The Element establishes a hierarchy of transportation routes with specific development standards. Future projects will be required to conform to the City's Circulation Element based on individual review. Therefore, there is no impact to this issue and no mitigation is necessary. b) No Impact. The City has adopted a Congestion Management Program (CMP) to reduce traffic congestion and to provide a mechanism for coordinating land use development and transportation improvement decisions. Any future project will require review and conformance with the requirements of the Tustin General Plan and the CMP. However, no improvements are proposed as part of this project. Therefore, it would have no impact and no mitigation is necessary. c) No Impact. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. There is no construction proposed as part of this project, accordingly, it is not anticipated to produce any air traffic increases, nor would existing air traffic patterns impact it. No impacts are anticipated from implementation of the code amendment. d) No Impact. The code amendment will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Therefore, the code amendment is not anticipated to cause hazardous conditions or allow incompatible uses. No impact will occur as part of this code amendment. 31~Page INITIAL STUDY City of Tustin e) No Impact. The code amendment does not include any new development and will not result in inadequate emergency access. Future development will be reviewed and considered on a case-by- case basis and conditions of approval included as necessary to mitigate impacts. No mitigation is necessary. f) No Impact. The code amendment will not conflict with adopted policy, plan, or programs supporting alternative transportation in that the new ordinance will clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. These regulations are consistent with the City's Circulation Element which addresses the circulation improvements needed to provide adequate capacity for future land uses. The Element establishes a hierarchy of transportation routes with specific development standards. Future projects will be required to conform to the City's Circulation Element based on individual review. Therefore, there is no impact to this issue and no mitigation is necessary. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Issues: Potentially Less Than Less Than Significant Significant Significant Impact With Impact Mitigation Incorporated ^ ^ ^ No Impact XVI I UTILITIES AND SERVICE SYSTEMS. Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? ^ ^ ^ ^ ^ ^ 32~Page INITIAL STUDY Issues: d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? Potentially Significant Impact City of Tustin Less Than Less Than No Significant Significant Impact With Impact Mitigation Incorporated ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The Tustin Planning Area is located within the jurisdiction of the Santa Ana Regional Quality Control Board. The proposed code amendment does not include new development and will amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Any wastewater generated by future projects may be subject to review for impacts on wastewater facilities as part of the discretionary review process. Typically, any increase in wastewater flows resulting from an off-street parking project would be minimal. Future development would be required to comply with local and state regulations to minimize any potential impacts from hazardous materials use. As discussed in Section IX. Hydrology and Water Quality, any future project may be required to implement standard BMPs to control storm water runoff at the project site. Therefore, no impacts are associated with this project. b) No Impact. Irvine Ranch Water District (IRWD) provides water and wastewater services and the Orange County Sewer District provide wastewater services within the Tustin Planning Area. The code amendment does not include new development and will amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. The amount of potable water needed and wastewater generated by a future project be reviewed on a case-by-case basis for any potential to cause significant environmental impacts and would most likely be nominal. Minor infrastructure 33~Page INITIAL STUDY City of Tustin improvements may be required to provide on-site connections from the existing water and wastewater services to any new project. Since there are no new wastewater treatment facilities or potable water facilities will be needed as part of this code amendment there are no impacts. c) No Impact. As discussed in Response No. XVII a) above, the code amendment will amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Future projects would be required to comply with local and state regulations to minimize any potential impacts from expansion of existing facilities. Any future project may be required to implement standard BMPs to control storm water runoff at the project site and may incorporate construction and post-construction BMPs in compliance with the NPDES permit and Orange County Drainage Area Master Plan (DAMP) to eliminate or reduce erosion and polluted runoff. However, there are no impacts from implementation of the proposed code amendment. d- e) No Impact. As discussed in Response No. XVII b) above, the code amendment will amend various sections of the Tustin City Cade (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. Any increase in water demand from any future project is anticipated to be nominal and would be considered and mitigated as necessary on a case-by-case basis. No mitigation measures are required. f-g) No Impact. CR&R Waste Services provides solid waste collection and disposal services to the City of Tustin. Any solid waste generated by a future project would be diverted to a transfer station and then to the Bee Canyon/Bowerman Landfill located at 11002 Bee Canyon Access Road in Irvine. The zoning code amendment does not propose any construction. Furthermore, any future project would be required to comply with local, state, and federal requirements for integrated waste management (i.e. recycling) and solid waste disposal: Waste Management provides recycling opportunities to businesses and institutions, although implementation of recycling programs by businesses and institutions is voluntary. The project is anticipated to have no impact on landfill capacity. h) No Impact. The code amendment will amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. A Standard Condition of Approval will be added to individual future projects requiring a Water Quality Management Plan (WQMP) for the use of non structural and/or structural BMPs including but not limited to tenant education, activity restrictions, street sweeping, landscaped areas with efficient irrigation and limited run-off, strategically placed catch basins with fossil filters, and catch basin stenciling. BMPs required as part of an individual project would not necessarily result in any significant environmental effect. No impact as part of this project. Mitigation Measures/Monitoring Required: No additional mitigation measures required. Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code 3. OC Watersheds http://www.ocwatersheds.com/dampreport/default.aspx?I D=1000358 4. Water Code Section 10910, et. Seq. (SB 610), and the requirements of Government Code Section 664737 (SB 221) 34~ Page INITIAL STUDY Issues: Potentially Significant Impact City of Tustin Less Than Less Than No Significant Significant Impact With Impact Mitigation Incorporated XVIII MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? ^ ^ b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current project, and the effects of probable future projects.) c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? ^ ^ ^ ^ Discussion: Code Amendment 11-002 (CA 11-002) to amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. a) No Impact. The proposed code amendment will amend various sections of the Tustin City Code (TCC) to clarify, provide consistency with prior practice, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code. There is no development proposed as part of this code amendment, therefore, the project will not have the potential to significantly impact sensitive resources. 35~Page INITIAL STUDY City of Tustin _ ,.: , . b) No Impact. As discussed in response XVllla, the code amendment, as proposed, is consistent with the goals and objectives of the City's General Plan. Therefore, the project is not expected to have any cumulatively considerable impacts. c) No Impact. As demonstrated throughout this Initial Study, the proposed project will not have any significant effects considered cumulatively considerable. d) No Impact. As demonstrated throughout this Initial Study, the code amendment does not have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly. Mitigation Measures/Monitoring Required: No additional mitigation measures required Sources: 1. City of Tustin General Plan (January 16, 2001) 2. City of Tustin Zoning Code Note: Authority cited: Sections 21083 and 21083.05, Public Resources Code. Reference: Section 65088.4, Gov. Code; Sections 21080(c), 21080.1, 21080.3, 21082.1, 21083, 21083.05, 21083.3, 21093, 21094, 21095, and 21151, Public Resources Code; Sundstrom v. County of Mendocino, (1988) 202 Cal.App.3d 296; Leonoff v. Monterey Board of Supervisors, (1990) 222 Cal.App.3d 1337; Eureka Citizens for Responsible Govt. v. City of Eureka (2007) 147 Cal.App.4th 357; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th at 1109; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656. 36~Page __ INITIAL STUDY City of Tustin r,~ r.` .~ ~, :~ f~ ~-;. ~... ~~,~.__ ~~a~ _ s1~t. Y~ r'~. 37~Page ~i~ur~ ~-1 Tustin Pl~n~ln ~-r EXHIBIT 2 CODE AMENDMENT 11-002 (ORDINANCE N0. 1397) ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING CODE AMENDMENT 11- 002 AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY 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 Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall have the meaning set forth in Section 9297 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. Except as provided in Section 9273(e) nonconforming uses or structures that have been determined not to be legal nonconforming 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 concerning the legal or illegal status of a nonconforming use or structure within the Tustin Gity 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 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. Ordinance 1397 Page 2 (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 and/or 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 and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or 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 section shall be affixed to the newsrack. Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (c) Any e-x+sti~g-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 Code 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 Code is hereby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this Sestisr~section, a lawfully established structure or use e~-st;r~ctures e~i~#+~g a} }~-~tm; ~^~-the Ordinance 1397 Page 3 may be continued, although the particular structure or use; does not conform to-t# ~^ ~'^+~^^~ ~~e~~-b~hig Shaptercurrent applicable regulations for the district in which the particular ir~g e~-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,-bt++ld+ng or structure than is legally aesupied-authorized at the time of-the structure or use first becomes legal nonconforming. this ~~pt~r. If any I_ec~al nonconforming structure or use is discontinued or abandoned, any subsequent use of such land or b~+ldi~--structure shall conform to the regulations specified for the district in which such land or ~ild+ng-structure is located. If no structural alterations are made therein, a legal nonconforming use e~-a--ne~oe+~fe ~ g--may be changed to another use of the same or more restrictive 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 legal 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 bt~Ading-structure is located. (b) • (1) Any lawful established ~-e~structure, °~ ~~J~e.,g-at-the-~~te~f ~ ,which is IeeLal 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 structure is located; provided, however, that any such legal nonconforming ~aildi+~g-emsstructure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the ~u+id+~ac~°s-structure's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. (2) The D1°^n~n^ 'tea^^~m~^+_Community Development Department of the City of Tustin may send, by first class and certified mail, return receipt requested, to the current ewne~~s ~"o::,^ o^ ±he !^s~-egaalize~-,^~ewurv;ent rol; ^f ~~ ~ u owner of any nonconforming ~+Idi~-a~-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 statement, under oath, on a form submitted for said purpose, setting forth the information required under subsection (b)(3) available evidence pertainina to the following_ all all available evidence that: 1) the structures were established consistent with all codes, regulations and requirements applicable to the premises at the time of construction including copies of all permits issued by governmental agencies• and 2) any enlargement, extension reconstruction or alteration made to each building or structure was made in compliance with the provisions of the Tustin Gity Code that were applicable to the premises at the time of such enlargement extension reconstruction or alteration, or such alteration made the use or structure more conforming with the rules and regulations of the Tustin City Code and 3) each structure has been continuously used and maintained since establishment• and 4) Ordinance 1397 Page 4 that anv maintenance, repair or replacement of the building or structure or portions thereof were consistent with subsection (b)(1) above. continuously maintained since established; and (3) that the use has not been enlarged or extended since the use first became nonconforming. (4) laid--The statement shall be filed with the ~I~r-aiaag ~'~~~;tCommunity Development Department of the City of Tustin within thirty (30) days from the date of such demand. ~J-par~ln the event of any failure to duly file such a statement as herein provided, said Wig-structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. available, including but not limited to the evidence contained in the statement provided by the owner, and shall, within sixty (60) days of submittal of the owner's statement, send to the owner a written preliminary determination of conforming or nonconforming status. The preliminary determination shall include a finding that the available evidence indicates the use and/or the building and/or structure is or is not legal nonconforming. The burden of proof to establish the lawful and continuing existence of the structure and/or use at the time the use or structure first became legal nonconforming and for all periods of time as required under this Section rests with the current owner. The of mailing of the preliminary determination, request a hearing on the preliminary determination before the Zoning Administrator by submitting a written request identifying the preliminary determination, and submitting therewith a hearing fee in the receipt of the request for hearing, and notice of the hearing shall be mailed at least ten (10) calendar days prior to the hearing to the owner and to any other individual(s) requesting the hearing. The owner and each individual requesting the hearing shall have the opportunity to present evidence and witnesses regarding the nonconforming status. The hearing may be continued from time to time by the Director. Within thirty (30) calendar days of the conclusion of the hearing the Director shall send to the owner and anv individual requesting the hearing a written final determination of conforming or nonconforming status that shall include a finding that the available evidence indicates the use and/or the building and/or structure is or is not legal nonconforming. If no hearing is timely requested the preliminary determination shall be deemed final. accordance with Section 9294. Zoning Admi (c) A legal nonconforming ~++Id+r~gstructure, destroyed to the extent of more than. fifty (50) percent of ;zsTea~;a;;;~the building's assessed 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 then existing +r~-for the district wherein it is located. Ordinance 1397 Page 5 (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which laer-~aft~~are or become l~c~~l _nonconforminq 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 le al nonconforming. (e) Any use of land; ~ildir~g; or structure which is Nrr~riivv-vivrrecr-~r~f~+h.i_ca-c~-_-.vnii , ~r rr made "non-conforming" either in design or arrangement due to acquisition of public right-of--way by the City, shall be exempt from p~vi~io~~-v~Sesfien-~2?~~e~E ~ ~~-,~,,d--oses~the provisions of this section and any other provision of the Tustin City Code regulating legal nonconforminq uses buildings or structures, unless it is established by the nor,.,r+.Y,or,+ ~f Community Development Department that such use; -~+ld++~g or structure creates a nuisance or is a threat to the health, safety, welfare or well being of ~~+„ r°~;,~°„+°the occupants or the public. determination pursuant to this Section 9273, all nonconforminq structures and/or uses determined not to be legal nonconforminq shall be illegal and such structures and/or uses are a public nuisance that shall either be altered to conform with all applicable standards and regulations, or shall be discontinued and removed. 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 legal 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, whenever established that was lawfully established and continuously used or occupied under previous regulations but that does not meet existing standards. Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "Legal Nonconforming sSign " means a sign that was lawfully erected iegally which does not comply with the most current adopted sign restrictions and regulations. Ordinance 1397 Page 6 Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: c. Legal Nonconforming sir~nsSi ns. A , 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. Ale al 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. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this _ day of 2011. JERRY AMANTE, MAYOR PAMELA STOKER, City Clerk Ordinance 1397 Page 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1397 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. 1397 was duly and regularly introduced and read at the regular meeting of the City Council held on the day of 2011, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _ day of 2011, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Published: ATTACHMENT B Verbatim City Council minutes of March 15, 2011 Verbatim Minutes -City Council Meetin4 March 15, 2011 Agenda Item No. 17 Mayor Amante: What's the pleasure of the Council? Mayor Pro Tem Nielsen: May i ask a couple of clarifying questions? Mayor Amante: Mr. Mayor Pro Tem. Mayor Pro Tem Nielsen: Procedurally, Elizabeth, I guess would be the best here. Procedurally, whenever this passes and it's recommended or whatever format it's recommended, it goes back to the Planning Commission and comes back to us for final approval. Is that correct? Community Development Director Elizabeth Binsack: That's correct. Mayor Pro Tem Nielsen: Okay, maybe I'm out of line here, but I just want to ask, procedurally, does it usually start at the Planning Commission and come to us? Or is this a city staff or councilmember related? Community Development Director Elizabeth Binsack: Through the Chair, the Tustin City Code allows the Council, when it desires, to have its laws amended. You can actually initiate an ordinance amendment. This is an example of an ordinance. It could be modified at the Planning Commission meeting after public hearing and input. Mayor Amante: Mr. Nielsen, remember that when we met last, among all the other arguments my colleagues made up here is "Well there's a better way for us to do this than to apply it to Mr. Fairbanks, who's been through so much". Weil we could amend the law and clear it up that for eighty-three (83) years that non-conforming has meant non-conforming. That's what this ordinance does. it does what we requested. Staff brought you back an ordinance that clears it up. Mayor Pro Tem Nielsen: There's numerous ways in order to try to clear that up, just trying to get some clarification questions answered.. So whatever. the, if it passes, whatever we're doing goes back to the Planning Commission for their input on it and then it comes back to us. That's really all I was trying. Community Development Director Elizabeth Binsack: They would be making a recommendation to the City Council. Mayor Pro Tem Nielsen: Okay, thank you. Councilmember Gavello: To the Chair. Mayor Amante: Ms. Gavello. Page 1 of 9 Councilmember Gavello: I don't like the way it currently reads, the way it is. So I don't want to send it back to the Planning Commission cause it's nothing that I would approve when it came back to us. So we're going to be wasting a lot of staffs time and the Planning Commission's time because we're setting a direction. So, the way this is worded doesn't work forme at all as far as what we're asking. It's going to drive staff absolutely crazy as far as the work load. It's going to drive our residents crazy. I can't see awin-win on this at ail for anyone. What I would do is the way this is done right now is I would move to deny this the way it is cause it's nowhere close to what I would ever approve. So I don't want to go forward with this. It's demanding too much of the residents and is requiring a lot of the staff as far as work involved with all these homes. So that's what I would like to do and that's what I'm leaning on. So that would be my motion. Mayor Amante: Ms. Gavello, actually, well is there a second for Ms. Gavello's motion? Councilmember Gomez: Second. Mayor Amante: Now we have a second. Let me give you some discussion on it. What it's actually doing is putting into language in your code what's been the practice in the city for eighty-three (83) years. So if that's a huge burden on staff and a huge burden on the citizens, it has been on every citizen and every staff member since the city was incorporated. Mayor Pro Tem Nielsen: Okay, let me kind of say where I am on this. Legal non-conforming is okay and there's a lot of language in here. What it does, it has, in my views, some over draconian language in some of this stuff. Let me kind of give you some specific examples here. In section one, it has the definition of legal non-conforming but it also has a language that if it's not brought into legal conforming status that it shall be removed. That seems a bit draconian. If it has no vested rights, it could be brought up to code. That's better. There's language here that basically puts the complete burden of proof on any sort of non-conforming basis completely on the home owner. Mayor Amante: Where should the burden be? Mayor Pro Tem Nielsen: Well, in my view, if we're looking at this, either equal burden or being more specific on what that burden is going to be. Mayor Amante: So the citizens should prove that, in fact, that it's non-conforming and the burden should be on the taxpayers. Mayor Pro Tem Nielsen: That's not what I said. We're talking about proof. We're not talking about the City has in conjunction with homeowners can have a certain level of evidence that show that. i don't have a problem but I'm not convinced and don't agree with the fact that it should be completely on a homeowner that may have bought their home in 1950, 1960. A home that has been built in the 1920's and trying to buy permits and information. And trying to go through what Mr. Fairbanks has gone through seems to be a very, very limited way or a very, very inefficient way to go about it. Page 2 of 9 Mayor Amante: Weil if the burden then is to be shared, let's say, for instance, the taxpayer finds some evidence that starts to support their burden. Should they have a right to a hearing on that evidence? Cause I did tonight. I found evidence presented to me by staff this afternoon and 1 brought it forward and said 'Gee, I think we ought to reopen. I have some evidence so I can meet my burden which you would like to shift to the taxpayers.' I didn't get the benefit of that. I'm trying to understand where you want the burden to be. Mayor Pro Tem Nielsen: Well, what we're talking about is evidentiary burden, okay. If a home owner, who wants to enjoy the peaceful, tranquil use of their property, and looks to either sell it, refinance it and going through that process has to prove has complete burden on them for proof of legal non-conforming. Where is that line drawn? Where is the burden of proof drawn? My point is that it shouldn't be entirely on the homeowner. It should be a shared burden. Mayor Amante: And if I. Councilmember Gavello; Point of order, point of order to the Chair. Mayor Amante: Excuse me. Councilmember Gavello: No, point of order takes precedence. Mayor Amante; Excuse me a moment. I'm in. Councilmember Gavello: No, I know. Point of order is. Mayor Amante: What would you like Ms. Gavello? Councilmember Gavello: In a point of order, I can interrupt. The decorum states that each councilmember is entitled to speak one time if they'd like to speak. If Councilmember Gomez would like to speak or councilmember Murray would like to speak before another colleague gets more time to speak, that is allowed. That's my point of order. Mayor Amante: Alright, thank you. Well I'm having a discussion with the Mayor Pro Tem. Councilmember Gavello: But it's not a discussion. Point of osier. Mayor Amante: Weil. Councilmember Gavello: We can vote on it. Point of order. I make a motion that the other council members are entitled to speak before you get to speak again. Mayor Amante: Well I'm cony. i have the floor. I'm having a conversation with my colleague. I don't think he's offended. Are you offended Mr. Mayor Pro Tem by my questions? I'm trying to understand, Ms. Gavello, what the Mayor Pro Tem is asserting. If he's asserting that the burden should be shared, which is not the way the law works, by the way, it places burdens on parties. But if, in fact, the burden should be shared, then my question is let's say the taxpayer, through one of its elected, provides evidence, should he be entitled to reopen a hearing and have his Page3of9 evidence heard and weighed? Is that the way you would have it work? Cause if that's the case, then i would like a motion for reconsideration. Mayor Pro Tem Nielsen: Well, my paint being is that there's no procedural issues that 1 see here. Other than, the only procedural seems to be placing the complete burden of proof on the homeowner, the complete burden of proof. And where, frankly, the City has been involved in eliminating that proof particularly with the 1959 permits, those have been destroyed. So it just seems to me that the more conservative approach is more of a joint effort to be able to have resources to get that proof to present as whether it's legal non-conforming or not legal non- conforming. Otherwise, the whole burden of proof falls upon the home owner and then it's, to me, it appears to be more like in the case of we'll say Mr. Fairbanks where he had, what he thought, was reasonable proof. Okay, so it has to be more, in my view, an equal sharing of that burden instead of placing the entire burden upon the homeowner. Mayor Amante: Now the taxpayer must prove that, in fact, it was non-conforming, illegally non- conforming. Mayor Pro Tem Nielsen: Well, hopefully it's a more positive thing to prove that it is legally conforming. Mayor Amante: Oh, I see, so it's the taxpayers burden to cant' the burden of the applicant. I got it. Councilmember Murray: To the Chair. Councilmember Gomez: Mr. Mayor. Mayor Amante: Ms. Gomez. Councilmember Gomez: Okay, my problem with this ordinance is the fact that it seems like at any point of time, the City can send a letter to a resident and ask them to prove something. Okay, that to me I have a problem with. Okay. Secondly, again to Councilmember Nielsen's point about the burden of proof, let me just give you a couple of examples. Okay. There's a major university in Southern California that shall go nameless whose records were ail destroyed. Okay. That major university basically told their graduating students come back and tell us what degree you got and we'll give you a diploma. i am not kidding. Okay. Another example, there is a warehouse, a federal warehouse, that burnt down. That had most of the records of our World War II veterans. Our World War !I veterans are dying at the rate of 800 to 1000 per day. Now, in order for them to get their benefits, it takes the federal government anywhere from eight to fourteen months because they have to piece together these records from several other sources because that one warehouse burnt down. Now my father did not get his benefits. He died while he was waiting for his benefits. My godfather was in the same situation. Luckily, because he was wounded, he got a letter from President Roosevelt. He kept that letter and he sent that letter with his benefit package. When the federal government saw the letter from Roosevelt, they approved his benefits without doing the research. Okay. This is what happens to people when records are destroyed. It's a very unfortunate situation for many, Page 4 of 9 many of our veterans and it has made me very angry over the course of the last several years. But this is what happens. And so now you're putting the burden of proof, we put the burden of proof on our veterans who did not get their benefits because the federal government destroyed or records were destroyed. I won't say the federal govemment did it but it was a result of. Okay. This is a problem for me so I have a challenge here. Okay. I think we need to figure out a better way to do this than putting the burden of proof on the citizens. There has to be some balance. I don't know what the balance is but we got to figure it out. In respect for our citizens, in respect for our ordinances and our laws, we want to uphold the laws but iYs got to be something reasonable. Thank you.. Councilmember Murray: To the Chair. Mayor Amante: Mr. Murray. Councilmemb®r Murray: It's quite obvious with all of us here today, quite obvious with the council, that this matter has taken on a very sensitive tone, a very important tone and it's definitely something that we need to address. But you know, maybe I'm losing, I don`t see the big picture or something but I don't see the urgency or exigency in trying to make this happen so expeditiously that we're not thoughtful about it. And we're not taking everything that we need to into consideration, I'm sure there are best practices out there and other policies in other locations that have gone through similar kinds of challenges that we have been facing regarding this topic and non-conforming. Why don't we just take a step back and look at what we have here drafted, send it back to staff, let them take a look at it and try and refine this a little bit, with some of the input from the community, from some of the input from other practitioners. I mean it's important to do this right. It's been hanging around a long time. Let's be thoughtful about it and try and address it the right way. 1 just don't see the need to get everything done tonight. Mayor Amante: Weil the recommendation of the staff in your agenda is that the Council adopt a resolution to initiate a code amendment to provide clarity, to provide consistency with prior practice for eighty-three years and reduce the ambiguity of the term "non-conforming" throughout the code and to, here's the action part, direct the Planning Commission to consider said code amendment for recommendation to the City Council. That means you're sending it down to the Commission. You're asking them to scrub it, look at it, weigh what's before you, hear testimony from members of the public, hear lawyers present their arguments, hear people talk about where the burdens ought to be and who ought to be charged with the object of proving or disproving a fact. And then they'll make a recommendation, after all the hearings, back to Council and we'll have, again, another full hearing on this issue and the opportunity for the public to address it and for all the council members to weigh in. So I think what you're trying to get to, Mr. Murray, and what Council are asking for in order to weigh and evaluate it is exactly what staff is recommending. You have to send them something to work from. You can't just give them no assignment. You're sending them an assignment and asking them to have hearings and to scrub it. Maybe they'll come back and agree with the Mayor Pro Tem. Maybe they'll agree with me that the burden not be shared but that it be on the applicant because that's where the burden generally is. Maybe they'll come up with some hybrid as councilwoman Gavello suggests but until you send it to the Commission to consider, you'll never know. Page5of9 Councilmember Gavello: To the Chair. Mayor Amante: Ms. Gavello. Councilmember Gavello: There's a motion and a second. Can we vote on it? And then we can see if we come to an agreement. Then I can decide if I want to do a substitute motion. So can we try that? Mayor Amante: I don't know. Is there a motion? Councilmember Gavello: I did. Yes, there's a motion and a second. I did move it probably about twenty minutes ago. I moved to deny it. Mayor Amante: Ms. Gavello, whoa, let me ask, is there a motion? Councilmember Gavello: I still have the Chair. Mayor Amante: Does anyone remember? Where's the motion? Councilmember Gavello: To the Chair. I made a motion that we deny this the way its read cause it's so far out. Mayor Amante: That failed to get a second. Councilmember Gavello: No, it did get a second. Mr. Mayor, it did get a second. Mayor Amante: Who seconded it? Councilmember Gomez: I did. Mayor Amante: I'm sorry. i didn't hear Ms. Gomez's second. So there's a motion and a second to deny the staff recommendation. Any further discussion on it7 Mayor Pro Tem Nielsen: Okay, let's clarify this a little bit for procedural points. if this is denied, then nothing goes to the Planning Commission. Mayor Amante: That's right. You put it in the crib. That's the motion and there's a second. Any further discussion? All those in favor. Councilmember Gavello: I. Councilmember Gomez: i. Mayor Amante: Oppose. Councilmember Nielsen: No. Councilmember Murray: No. Mayor Amante: No, Page 6 of 9 Councilmember Gavello: To the Chair, I have a substitute motion. Mayor Amante: No, that motion already died. Do you have another motion? Councilmember Gavello: Yeah, I'll make a substitute motion. Mayor Amante: It's not a substitute. The motion is dead. Councilmember Gavello: It's a new motion, sorry. I'll make a new motion. I say we continue the item. I don't want to, I really don't want to send this back the way it is to the Planning Commission because it's so far away from what I heard from my colleagues what we want. This is so far away. 1 don't even want them to start with this. So I'm either going to say that we send it to them but not using this as the basis because it's very far away from what I'd want to do. We can send it to the Planning Commission to start reviewing and looking at things. That I would make a motion for to start _ _ . ~ but I'd rather have them do it fresh. Mayor Pro Tem Nielsen: Mr. Mayor, if I could clarify a little bit. Mayor Amante: Are you clarifying her motion? Mayor Pro Tem Nielsen: No, Pm asking staff something. Mayor Amante: Well let me see if her motion has a second. Is there a second for Ms. Gavello's motion to send this down for general discussion to the Planning Commission with no direction and no language to work from? That dies for a lack of second. Mr. Mayor Pro Tem. Mayor Pro Tem Nielsen: Ms. Binsack, if i could ask you a couple of questions. If we could add this, this is staff recommendation, correct? Community Development Director Elizabeth Binsack: Correct. Mayor Pro Tem Nielsen: Okay, if we could do that with comments that have been made by city council members on direction they would like to see this go and they're going to have a public hearing at the Planning Commission level. Is that something that's workable? Community Development Director Elizabeth Binsack: We can do that. We can ask the clerk to provide verbatim minutes and include that with a presentation to the Planning Commission. Mayor Pro Tem Nielsen: With verbatim minutes? Okay. I've got no problem with that. Mayor Amante: On this item? Councilmember Murray: On this item? Community D®velopment Director Elizabeth Binsack: Con'ect. Mayor Pro Tem Nielsen: Yes. Mayor Amante: is that a motion? Page 7 of 9 Mayor Pro Tem Nielsen: Yes, that's a motion. Councilmember Murray: Second. Mayor Amante: Alright, we have a motion. Is that a second, Mr. Murray? Counciimember Murray: Yes. Cauncilmember Gavello: Can 1 hear the motion? Sorry. Mayor Amante: Yes, I'm going to try to repeat it to the best of my ability and Mr. Nielsen will correct me where i misspeak. The motion by the Mayor Pro Tem and seconded by Councilmember Murray is that we send the staff recommendation down to the Planning Commission so they can begin their discussion with a verbatim transcript of the discussion of Council on this item only. Counciimember Gavello: To the Chair. Mayor Amante: Yes. Councilmember Gavello: Can I ask Councilmember Nielsen a question? Mayor Amante: Absolutely. Councilmember Gavello: Are we in agreement that this is not the basis for it? Mayor Pro Tem Nielsen: Well what will happen, as I understand it, Mr. Mayor, is that, and Councilmember Gavello, is that staff recommendation, like with any Planning Commission pack, will go down as is. But what will happen is you'll have in that pack the discussion that we've had and the points that we've made on this particular item. So they°il have not only the staff recommendation but they'll have what we have discussed and the input that we have as well. Mayor Amante: In essence what you're doing is, you're not burdening them with having to go and review our meeting to see this. They have a transcript of what our comments were so they get the benefit or the burden, depending on how you look at it, of whatever our thinking is. Mayor Pro Tem Nielsen: And it's verbatim minutes, exactly what we said. Councilmember Gavello: Like we used to get from them. Got it. Mayor Pro Tem Nielsen: Okay. Mayor Amante: Okay, any further questions or discussion? Co~nclimember Gomez: And they will get a red lined copy? Is that what you're saying? As we were presented with? Mayor Amante: They will get what you've been presented and they will get our commentary. Councilmember Gomez: Okay. Page 8 of 9 Mayor Amante: That's a motion and a second. Further discussion? All those in favor? All Councilmembers: I. Mayor Amante: Okay, that passes 5-0. Page 9 of 9 ATTACHMENT C Tustin City Code Section 9273 and 9298 9273 -NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this Section, uses of land, buildings, or structures existing at the time of the adoption of this Chapter 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 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 nonconforming use is discontinued or abandoned, any subsequent 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 nonconforming use of a nonconforming building may be changed to another use of the same or more restrictive classification upon the securing of a use permit. If the nonconforming use is replaced by a more restrictive nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any 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. (Ord. No. 157, Sec 6.1) (b) Any building or structure, existing at the date of adoption of this Chapter, which is 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 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 Planning Department of the City of Tustin may send, by certified mail, return receipt requested, to the owner, as shown on the last equalized assessment roll, 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 statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use. Said statement shall be filed with the Planning 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. (Ord. No. 310, Sec. 1) (c) A 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. (Ord. No. 310, Sec. 2) (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become 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 nonconforming. (Ord. No. 319, Sec. 3) (e) Any use of land, building, or structure which is legal and conforming to all provisions of this Zoning Code, as of the date of adoption of this "ordinance," and made "non-conforming" either in design or arrangement due to acquisition of public right-of- way by the City, shall be exempt from a nonconforming status and the provisions of Section 9273, Nonconforming Structures and Uses, unless it is established by the Department of Community Development that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. (Ord. No. 1013, Sec. 2, 1-3-89) 9298 -INTERPRETATION AND ENFORCEMENT a Continuity of Law Except as specifically provided herein, this chapter shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving, alteration or enlargement of any building or improvement; provided however, in any instances where this chapter imposes greater restrictions upon the erection, construction, establishment, moving, alteration or improvement of buildings or the use of any building or structure that is imposed or required by an existing law, ordinance or regulation, the provisions of this chapter shall control. (Ord. No. 157,. Sec. 12.1) 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. (Ord. No. 175, Sec. 10; Ord. No. 1366, Sec. 21, 11-17-09) 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. (Ord. No. 175, Sec. 11; Ord. No. 1366, Sec. 22, 11-17-09) d Procedures Any building or structure erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this chapter and any use of land or buildings operated or maintained contrary to the provisions of this chapter are hereby declared to be public nuisances. The City Council may commence the necessary action or proceedings for the abatement, removal and enjoining thereof in the manner prescribed by law in the courts which may have jurisdiction to grant such relief as will accomplish such abatement and restraint. The remedies provided for in this section shall be in addition to any other remedy or remedies or penalties provided in this chapter or any other law or ordinance. (Ord. No. 157, Sec. 13.2) e Appeals Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. (Ord. No. 157, Sec. 13.3; Ord. No. 1366, Sec. 23, 11-17-09) f Consistency With All Laws Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued under this Code, including without limitation any accessory or ancillary use, shall be consistent with applicable state and federal law. Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. (Ord. No. 1322, Sec. 2, 12-4-06) ATTACHMENT D City Council Resolution No. 11-19 RESOLUTION NO. 11-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF .;, u 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 Council held a noticed de nova public hearing on an appeal of the Planning Commission's December 14, 2010, determination regarding the property located at 520 Pacitic Street; C. That at said public hearing, the City Council directed staff to draft a code amendment to amend the term "nonconforming" as set forth in the Tustin City Code (TCC) and other Zoning Documents to clarify; provide consistency with prior practice; and reduce ambiguity throughout the Code. It. 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 forth 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. C1 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. ATTEST: ~: ~ { -~t~ ~ PAMELA STOK , City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) s _~£ 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 dull . -- passed and adopted at a regular meeting of the Tustin City Council, held on the 15t" dad of March, 2011, by the following vote: `~'~ COUNCILMEMBER AYES: Amante, Nielsen, Gavello, Gomez, Murray (S) COUNCILMEMBER NOES: None (0) COUNCILMEMBER ABSTAINED: None (0) COUNCILMEMBER ABSENT: None (0) .1 ,~-- t .~ ,. ~° r PA ELA STOK , City Clerk Resolution 11-19 Page 2 of 9 EXHIBIT A 'p"' ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY 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 Chapter 1, Article 1 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 lawful 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. 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 concerning the legal or illegal status of a nonconforming use or structure within 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 3 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 nat rendered a legal nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or 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 and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. ,3 (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 section 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 ~x-isti~-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 Code 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 Code is hereby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES This section shall apply to all structures and uses that were lawfully there is no substantial evidence that the nonconforming uses or structures ~ ~ have been lawfully established such nonconforming uses ar 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 illegal 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 anv 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 ~xi g--a~th~i~-c~t ~;e;._~t~.; ~~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 subsequent use of such land or building shall conform to the regulations specked for the district in which such land or building is located. If no structural alterations `' are made therein, a legal nonconforming use o--n rmi 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 legal 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, ~~~-iat~t~ ~., t-e-of e~-s-o~~-~~j~=-{~~~ r, 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 nni-~,g-D-G~~~~~Community Development Department of the City of Tustin may send, by certified mail, return receipt requested, to the current ~ e~°~s-s~-i-ow€~--tl-~s~-e~rI-i~s~ss~r~ owner of any r 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 statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and providing 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 Code. Said statement shall be filed with the i~ ~e~aCommunity 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 4:~~ 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 legal 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 L+ er'x i'ka~a o r- S.':-a ~~ .5 ~~ ac.-.rf-i~ut~a r~ made "non-conforming" either in design or arrangement due to acquisition of public right-af-way by the City, shalt be exempt from e ~t~uet~r-es-a~ N se~s-the provision, unless it is established by the I~epa~rtt -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 le al nonconforming wireless communication facilities that are legal 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. Mod cations 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 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 legat conforming status or shall be removed. Resolution 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 Nonconforming ~;i~ Sian " 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. d fegekl-sta ` e~;-~~.r sigma--;~~~ ~u~~-~~~-~-~ --~rio~' ~°.~--;~ - r-~-d-a~ ~?~~s--4}r~e~-c~ tee' -r~a~~d;-~r~~~-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. -~~ E-! 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location ar method of illumination of the r= 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 Cod. 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. ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) JERRY AMANTE, Mayor 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 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: COUNClLME BER ABSENT: PAMELA STOKER, City Clerk Resolution 11-19 Page 9 of 9 ATTACHMENT E Community Development Department Policy Memo formalizing the Department's code enforcement investigative procedures pertaining to potentially unauthorized structures, uses, and lots. TUSTI~1 Inter-Com DATE: AUGUST 30, 2011 TO: DISTRIBUTION BULLRING OUR FUTURE HONORING OUR PAST FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: INVESTIGATIVE PROCEDURES PERTAINING TO POTENTIALLY UNAUTHORIZED STRUCTURES, USES AND LOTS The purpose of this memorandum is to formalize the Department's investigative procedures pertaining to potentially unauthorized structures, uses, and lots, to ensure implementation of a standardized approach by current and future staff and the affected public. A "potentially unauthorized" structure, lot and/or use is one in which an existing structure, building, sign, development, lot, or use may not conform to one or more of the regulations currently applicable to the district in which the structure, building, sign, development, lot, or use is located. When a potentially unauthorized structure, use or lot is identified, staff shall confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff shall perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine when it was added, enlarged, extended, modified or altered at the site, and whether it was lawfully established. Staff shall consider the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: • Building permits, Occupancy Permit, Variance, Conditional Use Permit, or other official records • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps Code Enforcement Investigative Procedures Page 2 of 2 • Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Zoning Map and Zoning Code • City Council/Planning Commission minutes, Resolutions, Ordinances and/or policies • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below) • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. An inspection of a potentially unauthorized structure by a City Planner and Building Inspector should also be accomplished to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector's visit should observe major life/safety related discrepancies in the workmanship and materials that could be used to determine whether the potentially unauthorized work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made. City staff shall assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is not legal. If, at the conclusion of staff review, the potentially unauthorized structure is determined to be lawfully established, pertinent information shall be added to the City's records documenting that fact, and the matter officially closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner shall be officially requested to correct the concern. We appreciate your effort in complying with this new procedure. If you have any questions, please contact Dana Ogdon or Justina Willkom. DISTRIBUTION: Planners All Building Personnel Code Enforcement Officers 5:\Cdd\pOLICIES\mde enforcement procedures,doc