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Home My WebLink About03-ATTACHMENT CAttachment C MINUTES WORKSHOP ~~~` TUSTIN PLANNING COMMISSION SEPTEMBER 13, 2011 6:00 p.m. CALL TO ORDER ROLL CALL: Present: Chair Thompson Chair Pro Tem Puckett Commissioners Eckman, Kozak, Moore Given PRESENTATION: NONCONFORMING STRUCTURES, USES, AND LOTS; RECOMMENDATION FOR DRAFT ORDINANCE NO. 1397 At the request of the City Council, staff prepared draft Ordinance No. 1397 to provide clarity, consistency, and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. Draft Ordinance No. 1397 has been prepared for the Planning Commission's consideration. A recommendation on the proposed ordinance to the Tustin City Council will be required. RECOMMENDATION: That the Planning Commission: Conduct a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots. 2. Provide input and direction on draft Ordinance No. 1397. Based upon input from the Commission, staff will prepare and return at the September 27, 2011 meeting with a Resolution for formal action by the Tustin Planning Commission. Binsack and Ogdon Gave the presentation on Nonconforming Structures, Uses, and Lots. Planning Commission comments and concerns generally included: Eckman Understood the information presented and had no questions regarding Draft Ordinance No. 1397 nor the presentation. Workshop Minutes -Planning Commission September 13, 2011 -Page 1 • Wanted to gain a better understanding of maintenance Moore requirements of nonconforming structures; • Requested clarification regarding projects in progress and how these properties are affected when a zoning ordinance change occurs. Kozak Requested additional examples of nonconforming with regard to commercial properties, and would like staff to identify the impact on public services. • Suggested removing the burden of proof from property owners, and for staff to work with the State Historic Preservation Office regarding the issue. • Understood the issue of nonconforming needs to be Puckett addressed; stated the situation with J.C. Dugard would not have happened if similar issues were addressed earlier. Thompson Requested consistency with regard to terminology; • Would like to gain an understanding in the difference between the building code and zoning code; • Consideration of records and how each criteria may be ~° understood and how it is weighted; :>~=~ • Requested clarification regarding the application of nonconforming guidelines and whether they should be referenced in the Ordinance. The following members of the public stepped forward: Bret Fairbanks Whitney Hodges Sharon Teter Llyn Smith Brian Sjoberg Maureen Lee Public comments and concerns generally included placing the burden of proof of permit on the property owner, exceptions for historic structures, and the requirements of homes outside of the overlay district. Workshop Minutes -Planning Commission September 13, 2011 -Page 2 7:30 p.m. ADJOURNMENT: `-~-~ The next Workshop of the Planning Commission will be scheduled when items are set for presentation. K.. J .T MPSO Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Workshop Minutes -Planning Commission September 13, 2011 -Page 3 AGENDA REPORT MEETING DATE: SEPTEINBER 13, 2011 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: NONCONFORMING STRUCTURES, USES, AND LOTS; RECOMMENDATION FOR DRAFT ORDINANCE NO. 1397 REC{)NII1ilENDATION: That the Planning Commission: 1. Conduct a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots (see Attachment A). 2. Provide input and direction on draft Ordinance No. 1397 (Attachment B). Based upon input from the Commission, staff will prepare and return at the September 27, 2011 meeting with a Resolution for formal action by the Tustin Planning Commission. SUMMARY: At the n:quest 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 D) and draft Ordinance No. 1397 -Attachment Band provide a recommendation on the proposed ordinance to the Tustin City Council. 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. 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 784518.2 Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 2 directed staff to draft a code amendment th 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 establlshed 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 verbatjm transcript of the City Council's deliberations on draft OrcJinance 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 orcJinance to the Tustin City Council. P/arming Commission Workshop In preparation for consideration of Draft Ordinance No. 1397, staff prepared the document entitled Nonconforming Structunss, Uses and Lots: A Discussion of the Intent, Application, and Pracfice of California Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots. Staff proposes a workshop on the matter prior to the Planning Commission's regular meeting on September 13, 2011, to present the information contained in this document and to answer specific questions that the Planning Commission might have regarding this matter. The document provides clarity regarding the application of nonconforming provisions and court precedence in California: i NONCONF+DRMING STRUCTURES, j USES AND LaTS ~.~ .,~. ~~ t I nGuuvbn MGM Herne Mww°[ah ad haauce r~: ,,er,,,,.a l,nE U...M Plane.l,.. Gar.rniev= "'"~.y y.netuM Wnrntl wU. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 3 That a legal nonconforming structure, use or lot is caused by a governments/ action that changes the Zoning Code, the Zoning IVlap, or the Subdivision Ordinance. All legal nonconforming structures, uses or /ots 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 cede 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 cument owner, tenant or properly manager, and not a governmental action. Because the structure, use or lot was not /awfully 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. The following discussion further describes illegal structures, uses, and lots. • As a general rule, adopted codes presume that a legal nonconformity is detrimental to the public interest (health, safety, morals or weffare), and that the nonconformity needs to be brought into conformance with the current code at some point in time. For example, a community that finds that an existing code allows structures to be built too tall may adopt a code amendment to lower the height limit of new construction. The code looks to the future and assumes that Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 4 existing, lawfully established nonconforming structures that exceed the new height limit may continue to exist but will be brought into conformance or eliminated over 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 VlThen //legal Structures, Uses, or Lots era 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 th 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 Courrty 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. ff 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 Planning Commission Report September 13, 2011 Draft Ordinance Plo. 1397 Page 5 when it was added to the site, and whether it was considers the following when attempting to develop determine whether a potentially unauthorized strudune, ~ lawfully established. Staff often a "whole record" by which to ise or lot is legal or illegal: • Building permits, Occupancy Permit, Variances, or other official recorrJs. • 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 recorrJs • 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 occxtpants • Other documents as maybe 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. City staff will always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofiidal nec:orrJs 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 conoem. been lawfully established, pertinent information would be added to the City's reoords documenting that fad, and the matter would be dosed. However, if staff review concludes that a structure, use or cannot be permitted, has not been constructed using conventional etc., the Property owner will be ofi9dally requested to correct the lot appears to be illegal, construction methods, Planning Commission Report September 13, 2011 Drag Ordinance No. 1397 Page 6 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 th 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 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 hazarrdous; required fire sepan~tion befinreen units or floors was not installed, etc.). Note: a structure built consistent with the Building Code ac~pt+ed 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 conver-tional 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 file codes, or Zoning Code -aquirements such as setbacks.) Mowever, it is a/so possible that the opposite would occur, e.g. City inspection of a potentially unauthorized sdvcture could result in the identification of telHta/e Building Code inconsistenciesliiio/atrons 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 inspectionrnvestigative routines. Current owners of the property 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, to 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 profiessional property inspector, real estate agent, or a property title company for a failure to disclose the potenrtially illegal nature of a structure, use or lot. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 7 Planning Commission Determination of December 14, 2010, City Council Determination of IlWarch 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 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 Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 8 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" 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 clarfies 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 1961. 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, lt was Ordinance No. 157's omission of the term "lawfully" from the City's nonconforming regulations that provided the basis for City Attomey Holland's opinion at the Planning Commission's (Board of Appeals') appeal hearing on December 14, 2010. To summarize City Attomey 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 bts. Specfically, adoption of ' There appears to be no debate that the current ordinances require uses, structures or lots established since the adoption of Ordinance 157 in 1981 to have been lawfully established to be considered legal nonconbrming. The issue that has arisen, and concerning which clarity may be added to the ordinance, is whether uses, buildings and structures established prior to 1981 must have been lawfully established to qualify for legal nonconforming status. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 9 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 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 confierring nonconforming status to all legal and illegal structures, uses and lots in the City established prior fo 1961. If established prior to 1961, owners of illegal structures, sexually-oriented businesses, massage businesses, bars, massage technicians, tattoo pariors, 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 arefar-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 cede 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 shouk! be reviewed for possible amendment to provide clarify 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. Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 10 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 E) 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 conoems in the matter, and provide a recommendation on the proposed ordinance to the Tustin City Council. Draft Ordinance No. 1397 Draft Ordinance No. 1397 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 mod~ed to include the words "legal" or "lawfully established" to ensure that the term is no longer ambiguous. In addi5on, the City Attorney has proposed additional mod cations noted in the draft to provide additional clarity of interpretation and application. Adoption of the currently proposed Ordinance No. ~ 1397 would clarify that the City's nonconforming responsibilities and privileges are intended to only apply to a lawfully esthblished structure, use or lot anywhere in the City. If adopted, 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 o~ 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, 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 indefinite/y. 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 Ordinance No. 1397 along with City Council input at that time Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 11 (see verbatim minutes provided as Attachment D, 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 E). 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. 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. Following City Coundl 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 (Attachment B) 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 Ordinance No. 1397 with the goal of ensuring that the ordinance would not negatively impact historic resources. CPF concurred with staffs initial draft of Ordinance No. 1397 and the Community Development Departmerrt'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, induding 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 peed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license reoorrJs Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 12 +~ 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 documerrts 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/qualfied architect experienced to pertorm a site assessment. Citv 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 F). Staff will also be developing a list of professional consultants that 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. Citv Response -Proposed language was added by staff 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 record of information (the originally proposed code amendment, as considered by the City Council on March 15, 2011, is shown in red underiine/strikethrough; language to address recent CPF suggestions is shown in blue). 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 th enforcement action. Analysis This report discusses a broad number of issues related to the how nonconforming provisions apply th 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 Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 13 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 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 cede. 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 cede 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 structure, use or lot is noncor-f+~rming presents a confused/mixed message that the property is nonconforming but cant continue indefinitely as it cunantly 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 enforcement cases (summarized in the document entitled Nonconforming Structures, Uses and Lots: A Discussion of the /nfient, Application, and Practice of Cal~mia Land Use and P/arming Law Governing Nonconforming Structures, Uses and Lots) where it appears that a property owner illegally constructed four additional Planning Commission Report September 13, 2011 Draft Ordinance No. 1397 Page 14 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 1968 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 prvpe-ty. 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 hazarclous mathrials stored on the site), illegal meat processing, motorcycle manufacturing and street testing, and inthnsification and upgrading of commeraal and industrial buildings to accommodate assembly uses without meeting the cede. 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 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 Nonconfom-ing Strucfures, Uses and Lots: A Discussion of the /ntent, Application, and Practice of Calif+omia Land Use and Planning Law Governing Nonconforming Shuctures, 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 Report September 13, 2011 Draft Ordinance No. 1397 Page 15 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. 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 Ordinance No. 1397. At the conclusion of its deliberations, the Planning Commission should provide input and direction on draft Ordinance No. 1397. Based upon input received at the meeting, staff will prepare and return at a future meeting with a Resolution for formal action by the Tustin Planning Commission. aid. i~ Dana L. Ogdon, AICP Assistant Director r Elizabeth A. Binsack Director of Community Development ordl~mneena1397.doo Attachments: 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 B. Draft Ordinance No. 1397 (with modfications suggested by the California Preservation Foundation). C. Tustin City Code Section 9273 and 9298 D. Verbatim Cry Council minutes of March 15, 2011 E. City Council Resolution No. 11-19 F. Community Development Department Policy Memo formalizing the Department's code enforcement investigative procedures pertaining to potentially unauthorized structures, uses, and lots. ATTACHIwAENT A NONCONFORM/NG STf~UCTUI-~L'S, ~.ISES AND L+D 7"S: A 1]ISCUSS/ON OF TIME /NTEN T, APP~LICA T/OJU-, AND PISA C T/C,~" OF CAL/F014N1A LAND [lS~E AND PLANN/NG LAW GOVERNING NONCDNFORM/NG STI4UCT~JJ4ES, (USES AND LOTS This document has not been photocopied to reduce reproduction costs. Please see City Council report Attachment F. ATTACHMENT B DRAFT ORDINANCE NO. 139T 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 14AEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Sectbn 1. Section 1112 of Chapter 1, Article 1 of the Tustin Cily Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: 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. shall be altered to conform with all applicable standards and, regulations. and shall L. _..L!__L a_ _ .. ._. ._ _ 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 befor+~ February 17, 1998, that is In vlolation of Sections 3912 and/or 3913, shalt be deemed legal .nonconforming uses. A legal nonconforming use win 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. Sad extension may only be granted if the planning commission ftnds an extreme financial hardship exisffi which is defined as the recovery of the initial financial investment in the legal .nonconforming use, unless sooner terminated for any reason or voluntarily dtscorrtinued for a period of thirty (30) days or more. Such le al nonconforming uses shall not be Increased, enlarged, extended or altered except that the use may be changed to a oonforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise In a perrrtsslble location, the sexually oriented business which uses or suuctures are a public nuisance that shall either be brounht into leo__al conforming status or shall be removed. Ordinance 1397 Page 2 was first lawfully established and continually operating at the particular location is the conforming use and the later established business(es) is fecal nonconforming. (b) A lawfully established _sexually oriented business lawfully opereflng 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 tot within flue 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 7271e(1) of Part 1, Chapter 2, Art(de 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a iawfuil established newsreck does not comply with the provisions of this secflon, 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 newsredc which is in violation, the intent of the Dlrec~or to (a) remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the IeQal nonconforming newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fffteen (15) days from the date of the notice. if the newsreck 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 affbced to the newsredc. Section 5. Sectlon 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (c) Any e~ist+~--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 to densptes exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shop not be considered le awl nonconforming pursuant to Section 9227b2 and Section 9273 of the 2oning Code wpt~ regard to density only, provided that ail other Provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Amide 9 of the Tustin City Code is hereby amended as follows: Or)Inance 1397 Page 3 9273 LEGAL NONCONFORMING STRUCTURES AND USES This section shall a F to aII structures and uses that were lawful) 11..L~J __ ____i__. _a_ ~ . .. legal status of a ootentially unauthorized nonconformin^ structure or use and. pursuant to Section 9273(b if there is no substantial or reliable evidence that the nonconforming uses or structures have been lawfully established.. such nonconformin uses or structures are ills al declared a ublic nuisance shall be altered to conform with all applicable standards and regulations, and shall be .~..L.__a a_ __a~___ _._ . ... .. ._ _ - (a) Except as otherwise provided in this Section, lawfully established uses of land, buildings, or structures mat- --t++~a ~ . C p~~¢ may be corrtinued, 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 bullding 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 regulatbns specified for the district in wh~h such land or bullding is located. ff no structure) alterations are made therein, a legal nonconforming use of a-r+~snfer-~en~uiid;~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 dlsoorrtinued 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 lawful~l established building or structur+e;--~istir~g ~ ~~e-.-data~# '~^"}~~;~*~t-apte~ which is IecLal _nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargemerrt, extension, reconstruction or atberetion is in compliance with the regulations set forth In this Chapter for the district in wh~h 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 bu8ding's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. rtment of the City of the current eFw-c~;- any nonconforming nonoonforming use __ ._ status of a nonconformin use or structure either within this Cha ter or elsewhere within the Tustin Ci Code this Section shall revail. building or structure, or of any property upon which any prior Ordinance 1397 Page 4 exists, a demand that said owner shall famish to the City of Tustln a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and rovidin substantial evidence that all strurti,rPC nn tha niure conrormrna wim the rules and re ulations of the,Tustin City Code. Said statement shall be filed with the Phu„;, ;~u~n#Community Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly ftle 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 continuin existence of the structure and use at the time of the enactment of the ordinance and for ali eriods of time as re aired under this Section rests with the current owner. (c) A legal nonconforming building, destroyed to the extent of more than ftfty (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 to 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 redassffication of districts under this Chapter, provided, however, that public uses, publ~ utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of disMcts, shall not be considered legal nonconforming. (e) Any use of land, building, or structure which is le~al~d-c~€sre:-+~--t~~au provisions-e€ #hisr~~eni+~-God~~s-e#~th~~ate~~e~ier+ ~~~~er~+~-~ made "non-conforming" either in design or arrangement due to acquisition of public right-of-way by the Cily, shall be exempt from a~-nfer~-in~states--~.nd _~e ~s ~-fin ~~-~Jeiasenfing-~~-~+~--~sesthe rovision, unless it Is established by the ~~r~~n~;~~~ommunity Development De_ nartment 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 modiftc~ttions to lawful) -established wireless communic~ion facilities for which applications for the modiftcaftons were submitted on or after the adoption date of Ordinance No. 1192 shall be r+equlned to comply with the regulations and guidelines contained herein. Modifications to lecal nonconfortning wireless communication facilities that are Iecaai nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commisslon approval of a conditional use pemtit as established by Tustin City Code Section 9291. Modifications to IeQai .nonconforming wireless communication facilities shall not increase the nonconfortnities. Ordinance 1397 Page 5 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: Section 9. Section 9402 of Chapter 4, Amide 9 of the Tustin City Code is hereby amended as follows: °Le~c al__ Nonconforming sigr~~Sgn_" means a sign that was lawfullk_erected le~a4ly which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Art(de 9 of the Tustin City Code is hereby amended as follows: c. Legal Nonconforming sig~sSipns. A , legal nonconforming sign shall be made to conform to ali provisions of this Chapter ff 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 IecLnonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be strudurelly altered ff the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A lepal._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 _nonconfomting 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 osier of a court of law, for a period of ninety (90) days, it shall be presumed that suds use has been abandoned in acx:ordance with Section 9405d. All other provisions of tiie 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, Inducting destruction by an act of God. Section 11. ff any section, subsection, sentence, clause, phrase, or portbn of th~ ordinance Is for any reason held th be invalid or unconstitutional by the decision of any court of competent jurisdiction, such derision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that ft would have adopted this ordinance and each section, subsection, sentence, clause, phrese, or portion thereof irrespective of the fact that any one or more c;ommurn uevelo ment ursuant to Section 9273 have no vested ri hts. Ille al uses or structures area ublic nuisance that shall either be brou ht into le al conforming status or shall be removed Ordinance 1397 Page 6 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 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN 1 CERTIFICATION FOR ORDINANCE NO. 1397 PAMELA STOKER, City Clerk and ex-offtcio 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 ftve; 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 lts 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 C TI~STIN CITY +C+C3DE ~ECTI®N 9273 AND 9298 9273 - NONDONFORMING 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 tlme of the adoption of this Chapter. ff 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. ff 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. ff the nonconforming use Is replaced by a more restrictjve nonconforming use, the occupancy thereafter may not revert to a less restrictjve use. ff 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 am~ngement, 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 valuatlon, 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 regulatlons 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 (s located. (Oni. 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 redassification 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. (Onl. 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 Er~foroement 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 Coundl may commence the necessary ad3on 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 derision of the Director of Community Development in acxordance with Section 9294 of this Code. (OrcJ. 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 andllary use, shall be consistent with applicable state and federal law. Any use or adtvity 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) ATTACWMENT Q VERBATIM CITY COUNCIL MINUTES O~ MARCH 15, 20'11 era a Item d 17 Mayor Amante: What's the pleasure of the Coundl? Mayor Pro Tarn Nlelsen: May I ask a couple of darifying questions? iWayor Amante: Mr. Mayor Pro Tem. Mayor Pro Tmrr Nlelsen: Pn~cadurally. Eifzabeth, I guess would be the best here. Procedureliy, whenever this passes and it's recommended or whatever format trs recommended, it goes bads to the Planning Commission and comes bads to us for final approval. Is that correct? Community Development Director Elbwbatlt 8lrtsack: That's correct. Mayor Pro Tam Nlelsen: Okay. maybe I'm out of line here. but i just want to ask, procedurally, does n usually start at the Planning Commission and Dome to us? Or Is this a diy staff or coundimember related? Community Development Director Eibut~ Blnsack: Through the Chair, the Tustin City Code allows the Coundl, 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 meetlng after public hearing and Input. Mayor Anranta: Mr. Nielsen, remember that when we met last, among all the other arguments my cotleagues made up here Is'Wetl there's a better way for us to do this than to apply it to Mr. Fairbanks, who's been through so much". Well we could amend the law and dear n up that for eighty-three (83) years that non-contomdng has meant non-corifomning. That's what this ordinance does. n does what we requested. Stall brought you bads an ordinance that dears n up. iYlayor Pro Tem Nlelsen: There's numerous ways in order to try to dear that up. just trying th get some clarification questions answered. So whatever the, ff it passes, whatever we're doing goes bads to the Planning Commission for their Input on K and then it comes bads to us. That's really all 1 was trying. Community Development Dlr~ector Elt~rabstlt Blnsack: They would be making a recommendation bo the qty Coundl. Mayor Pro Tem Nlelsen: Okay, thank you. Coundlmembsr t~avello: To the Chair. Mayor Amante: Ms. Gavelb. Page 1 of 9 Gouncllmember Daveilo: i don't Tike the way it currently reads the way K Is. So i don't want to send it book to the Planning Commission cause fYs nothing that i would approve when it came back to us. So we're going to be wasting a lot of staff s time and the Planning Corratdssion's time because we're setting a dlredton. So. the way this Is worried doesn't work forme at aU as tar as what we're asking, IYs going to drive staff absolutely crazy as tar as the work toad. IYs going to drive our residents crazy. I can't see a winavin on this at all for anyone. What i would do is the way this is done right now is I would move to deny this the way i< is cause it's nowhere dose to what I would ever approve. So I don't waM to go forward with this. It's demander too much of the residents and is requiring a lot of the staff as far as work Involved with all these homes. So thaYs what I would Ifke to do and that's what I'm feening on. So that would be my motion. IYlayor Amant+s: Ms. Oavelio~ adualty, well is there a second for Ms. Oavello's motion? Councilmembar Gomez: Second. Mayor Amante: Now we have a second. Let me give you some dlscussfon on it. What ft's actualty doing Is putting Into language In your code whaYs been the practice In the dty for eighty-three (83) yeare. So tt thaYs a huge burden on staff and a huge burden on the dtizens~ it has been on every dozen and every staff member since the dty was incorporated. Mayor Pro Tam 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 R does, it has. In my vtews~ some over dreoonian language to some of this stuff. Let me kind of glue you some spedflc examples here. In section one. n has the deflnition of legal non-conforming but it also Fres a language that tf tYs not brought Into legal conforming status that R shall be removed. That seems a bft dreconlan. ff n has no vested rlghts~ n could be brought up to code. ThaYs better. There's language here that basioalty puts the complete burden of proof on any sort of non-conforming heals oompletety- on the home owner. Mayor Amante: Where should the burden be7 Mayor Pro Tam Nteleen: Weli~ in my view. if we're looking at this. either equal burden or being more specific on what that bunion is gdng to be. Mayor Aman~: So the dozens should prove that, In fad, that IYs non-coMbrming and the bunion should be on the taxpayers. Mayor Pro Tem Nielsen: ThaYs not what I Bald. We're talking about proof. We're not tapcing about the Cfly has In oonjundfon with homeownere can have a certain level of evidence that show that. 1 don't have a problem but I'm not cornrinced and don't agree with the flact that R should be completely on a homeowner that may have bought their home In 191,0. 1860. A home that has been built In the 1920's and frying to buy permits and information. And trying to go through what Mr. Fahbanks has gone through seems th be a very. very United way or a very. very ineffident 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 ftnds some evidence that starts to support their buMen. 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 I brought it forward and said 'Gee, I think we ought to reopen, i have some evidence so I can meet my burden wh~h you would Ifke tD shift to the taxpayers,' I didn't get the beneftt of that I'm trying to understand where you want the burden th be. IYAlayor Pro Tam Nlelaen: Well, what we're talking about Is evidentiary burden, okay. ff a home owner, who werrts to enjoy the peac~tirl, tranquil use of their property, and looks to either sell ft, refinance n and going through that pr+xess has m prove has complete burden on them for proof of legal non-conforming. Where is that fJrre drawn? Where is the bonier of proof drawn? MY point is that ft shouldn't be entirely on the homeoMrnrer. It should be a shared buMen. Mayor Amante: And if I. Councllmember Osvelio: Point of order, point of order to the Chair. Mayor Amante: Excuse me. Councllmember ~3avello: No, point of order takes precedence. Mayor Amante: Excuse me a moment I'm In. Councllmember Oavello: No, i know. Point of order is. Mayor Amante: What would you like Ms. Gavelio? Councllmemf~er Gavello: In a point of osier, i can Interrupt The decorum states that each coundlmember is entitled b speak one time K they'd Ifke th speak. If Coundimember Gomez would Ilke to speak or coundlmerrther Murray would Ifke b speak before another colleague gets more time to speak, that is a0owed. That's my point of order. Mayor Amante: Alright, thank you. Well I'm having a discussion with the Mayor Pro Tem. Councllmember Oavello: But INs not a discussion. Print of order. Mayor Amante: Well. Councilmember Oavello: We can vote on it Point of order. I make a motion that the other coundl members are entitled to speak beforee you get to speak again. Mayor Amante: Well I'm sorry, I have the floor. I'm Imving a conversation with my colleague. i don't think he's offended. Are you ofttended Mr. Mayor Pro Tem by my qu~iions? I'm trying b understand, Ms. Gevello, whet 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 shaved, then my question Is let's say the taxpayer, through one of Its elected, provides evklence, should he ba entitled to reopen a hearing and have his Page 3 of 9 evidence heard and weighed? Is that the way you would have it work? Cause if that's the lose, then I would like a motion for reconside~stton. Mayor Pro Tem Nlelaen: Well, my point being Is that there's no procedure) Issues that 1 see here. Other than. the only procedures seems b be pladng the complete burden of proof on the homeowner, the complete bunion of proof. And where, franidy, the Clty has been Involved In eliminating that proof particularly with the 1959 permits, those have been destroyed. 9o n just suns b me that the nwne conservative approach is more of a joint effort b be able b have resources b get that proof b present as whether ft's legal non-conforming or not legal non- conlbrming. Otherwise, the whole burden of proof falls upon the home owner and then k's, b rrro, ft appears b be more Ilke In the case of we'll say Mr. Fairbanks where he had, what he thought. was reasonable proof. Okay, so k has b 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, n was non-conforming, INegaily non- conforming. Mayor Pro Tem Nielsen: Well, hopefi,Ny its a more positive thing b prove that it Is legally corforming. Mayor Amante: Oh, I see, so It's the taxpayers burden b carry the bunion of the applicant. I 8~ K• Councllmember Murray: To the Chair. Councllmember Gomez: Mr. Mayor. Mayor Amantae: Ms. Gomez. Counclimember Gomez: Okay, my problem with this ordinance is the fad that it seems like at any point of time, the City can send a letter b a resident and ask them b prove something. Okay. that b me I have a problem with. Oksy. Secondly, again b Counclmember Ntelsen's point about the burden of proof, let me Just give you a krouple of examples. Okay. There's a major university In Southern Califomfe that shall go nameless whose records were all destroyed. Okay. That me)or university basically bid their greduating students come bads and tell us what degree you got and we'll give you a dipbma. 1 am not kidding. Okay. Another example, there Is a warehouse, a f~ederai warehouse, that burnt down. That had most of the records of our World War II veterans. Our World War II veterans are dying at the rate of 800 b 1000 per day. Flow, fn oMer for them b get their benefits, K takes the federal government anywhere from eight b fourteen months because they have b piece together these records from several other sources because that one warehoiree bumf down. Now my father did not get his benefits. He died while he was waiting 1br his benefits. My godfather was in the same actuation. Luckily, bek~use he was wounded, he got a letter from President Roosevelt. He kept that letter and he sent that fetter with his benefit package. When the federei government saw the letter from Roosevelt, they approved his benefits without doing the res~rch. Okay. This is what happens to people when records are desboyed. it's a very uMbrtunate situation for many. Page 4 of 9 many of our veterens and n has made me very angry over the course of the last several years. But this is what happens. And so now you're puttlng the burden of proof, we put the burden of proof on our veterens who did not get their benefits because the federel government destroyed or reoords ware destroyed. I won't say the federei government did tt but n was a resuR of. Okay. This Is a problem forme so I have a challenge here. Okay. i think we need to figure out a better way to do this than puffing the burden of proof on the dtlzens. There has to be some balance. I don't know what the balance is but we got m figure it out. In respect fbr our citizens, in respect for our ordinances and our taws, we want to uphold the taws but iNs got to be something reasonable. Thank you. Councllma~mber Murray: To the Chair. IlVieyor Aman~: Mr. Murray. Councllmember Murray: It's quite obvious wtlh all of us here today, quite obvious with the council, that this matter fray 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 bo make this happen so expeditiously that we're not thoughtful about h. And we're not taking everything that we Head to into oonslderetlon. I'm sure there are best preotlces out there and other poltdes In other locations that have gone through similar Idnds of challenges that we have been fadng regarding this topic and non-conforming. Why don't we just take a step back and look at what we have here drafted, send ft bads to stag, let them take a look at K and try and reftne this a little bit, with some of the input from the communtly, from some of the Input from other predttloner8. t mean ft's Important to do this right. It s been hanging around a long time. Let's be thoughtful about ft and try and address ft the right way. f Just don't see the need to get everything done tonight. Mayor Amante: Weil the recommendatlon of the staff in your agenda is that the Coundi adopt a resolution th inltlate a code amendment to provide darlty, to provide consistency with prior practice for eighty-three years and reduce the ambtgufty of the term 'non-oonfomdng° throughout the code and to, here's the action part, direct the Planning Commission th cbrrefder said code amendment for recommendation to the City Coundl. That means you're sending ft down to the Commission. You're askng them tD scrub it, look at it, weigh what's before you, hear testimony from membere of the pubis, hear lawyers present their arguments, freer people • talk about where the burdens ought bo be and who ought to be charged with the object of proving or dtsprovfng a fad. And then they'll make a recommendatlon, after all the hearings, bads th Coundl and we'll have, again, another full hearing on this issue and the opportunity fbr the public to address it and for all the coundl members to weigh In. So I think what you're trying to get to. Mr. Murray, and what Coundl are askng for in order to weigh and evaluate n is exactly what staff is reoommending. You have tD send them something bo 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 bads and agree with the Mayor Pro Tem. Maybe they'll agree with me that the burden not be shared but that it be an the appUc:ant because that's where the burden generally Is. Maybe they'll Dome up with some hybrid as coundlwonren t3aveilo suggests but urrttl you send it b the Commission b oonslder, you'll never know. Page 5 of 9 Councilmambsr Oaveilo: To the Chair. Mayor Arnanta: Nis. Gavello. Councilmamber EE~aavello: There's a motbn and a second. Can we vote on it? And then we can see ff we come to an agreement. Then I can dedale ff i want tD do a substitute motion. So can we try that? Mayor Atnante: I don't know. is there a motion? Councllmember t3avello: I did. Yes. there's a motion and a second. I did move h probably about twenty minutes ago. i moved to deny ff. Mayor Amante: Ms. Gavello, whoa, let me ask, Is there a motion? Councllmember Oavello: i still have the Chair. Mayor Amante: Does anyone remember? Where's the motion? Councllmember Oavello: To the Chair. I made a motlon that we deny this the way its read cause It's so far out. Mayor Amante: That felled b get a second. Councllmember Gavallo: No, h did get a second. Mr. Mayor. n did get a second. Mayor /4manba: Who seconded ft? Councllmember Oomsz: I did. Mayor Aman~s: 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 it? Mayor Pro Tem Nielsen: Okay, let's darffy this a Iltde bit for procedure) polMs. ff this Is denied, then nothing goes do the Planning Commission. Mayor Amante: That's right. You put R in the crib. That's the motion and there's a second. Any further discussion? All those in favor. Councllmember Gavello: I. Councllmember Oomez: I. Mayor Amanbe: Oppose. Councllmember Nielsen: No. Councllmemltier Murray: lVo. Mayor Amants: No. Page 8 of 9 Councllmsmber Oavello: To the Chair, i have a substitute motbn. Mayor Amante: No, that modon already died. Do you have another motion? Councllmember Oa-vsllo: Yeah, I'ii make a substittute motion. Mayor Amante: IYs not a substitute. The motion is dead. CounGilrnember [,taavallo: ft's a new motion, sorry. I'll make a new motion. I say we coMtnue the item. I don't want to, i r+eally don't want to send this bads the way it is to the Planning Commission because it's so far away from what I heard from my colleagues what we went. This Is so far away. (don't even want them to start with this. 3o I'm either going bo say that we send it to them but not using this as the b~is because it's very far away from what I'd want to do. We can send it b the Planning Commission th 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 Nlelsen: Mr. Mayor, ff t could darHy a little bff. Mayor Amante: Are you darifying her motion? Mayor Pro Tem Nlelsen: No, I'm asking staff something. Mayor Amante: Well fat me see If her motion has a second. Is there a second for Ms. Gaveifo's motion bo send this down fbr general discussion to the Planning Commtaston with no direction and no language to work from? That dies for a lads of second. Mr. Mayor Pro Tem. Mayor Pro Tem Nlelsen: Ms. Binsadt, ff i could ask you a couple of questions. ff we could add this, this is staff recommendation, correct? Community Development Dlr~sctor Elizabeth Binsaclc Correct. Mayor Pro Tem Nielsen: Okay, ff we could do that with comments that have been made by city coundl members on dlrectlon they would like to see this go and they're going to have a publ~ hearing at the Planning Commisslon level. Is that something that's workable? Community Development Dlr~ector Elizabeth Blnsack: We can do that. We can ask the dark to provide verbatim minutes and indude that with a presentatlon tD the Planning Commission. Mayor Pro Tem Nlelsen: Wffh verbatim minutes? Okay. Pve got no problem with that. Mayor Amante: On th~ item? Coundlmember Murray: On this Item? Community Development Director Elizabeth Binsack: Correct. Mayor Pro Tem Nlelaen: Yes. Mayor Amarrte: Is that a motion? Page 7 of 9 iylayor Pro Tem Nielsen: Yes, that's a motion. Councllmamber Murray: Second. Mayor Arnanbe: Alright, we have a motion. is that a second, Mr. AAurrey? Councilmember Murray: Yes. Councilmember Oavello: Can t hear the motion? Sorry. Mayor Amante: Yes, I'm going to try to repeat n th the best of my abUity and Mr. NteNen will correct me where I misspeak. The motion by the Mayor Pro Tem and seconded by Coundlmember Nlurrey la that we send the staff recommendation down to the Planning Commission so they can begin their discussion with a verbatim trenscript of the discussion of Coundl on this Item only. Coundlmember Oavallo: To the Chair. Mayor Amante: Yea. Counclimember Oavello: Can I ask Coundimember Nielsen a question? Mayor Arnan~: Absolutely. Counollrnsmbar Oavello: Are we In agreement that this is not the basis for It? Mayor Pro Tem Nleleen: Well what will happen, as I understand it. Mr. Mayor, is that, and Coundimember Gavello, Is that staff recommendation, Ilke with any Planning Commission pads, will go down as is. But what will happen Is you'll have to that pads the discussion that we've had and the points that we've made on this partk:ular item. So they'll 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 trot 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 krok at it, of whatever our thinking Is. Mayor Pro Tem Nleleen: And it's verbatim minutes, exactly what we said. Coundimen~ber Oavello: Like we used to get from them. Got it. Mayor Pro Tem Nleleen: Okay. Mayor Amante: Okay, arty further questlons or discwssion? Coundlmember Oomeoe: And they will get a red Itned copy? Is that what you're saying? As we were presented with? Mayor Amante: They wiA get what you've bin presented and they will get our commentary. Coundlmember Gomez: Okay. Page 8 of 8 t~yor Amante: That's a motion and a second. Further discussion? All those to favor? All Councllmembers: I. Mayor Amante: Okay that passes 5-0. Page 9 of 9 ATTACHMENT E CITY CQUNCIL RESOLUTI+QN NO. 11-19 `~' ,,. RESOLUTION NO. 11-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, INITIATING A CODE AMENDMENT (DRAFT ORDINANCE NO. 1397) TO AMEND THE TERM "NONCONFORMING" AS SET FORTH IN THE TUSTIN CITY CODE TO CLARIFY, PROVIDE CONSISTENCY, AND REDUCE AMBIGUITY THROUGHOUT THE CODE; AND DIRECTING THE PLANNING COMMISSION TO CONSIDER SAID CODE AMENDMENT FOR RECOMMENDATION TO CITY COUNCIL. The City Council does hereby resoh-e as follows: 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 novo public hearing on an appeal of the Planning Commission's December 14, 2010, determination regarding the property located at 520 Pacific Street; C. That at said public hearing, the City Council directed staff to draft a code amendment to amend the berm "nonconforming" as set forth in the Tustin City Code (1'CC) and. other Zoning Documents to clarify; provide consistency with prior practice; and reduce ambiguity throughout the Code. II. The City Council hereby initiates a code amendment for Dnsit Onilnance 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 nequiremerrts of the zoning district; and dlr+ects the Planning Commission to consider said code amendment for recommendation to City Council. w Y^ :f$: 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 15s' day of March, 2011. ATTEST: P ELA STOK , City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I ~,: ,,, ~~:_ I, Pamela Stoker, City Clerk and ex-offlclo Clerk of the Clty Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin Is five; that the above and foregoing Resolution No. 11-19 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 15"' day of March; 2011, by the following vote: ,y; COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PA ELA STOK , City Clerk Amante, Nielsen, Gavello, Gomez, Murray (5 None (0) None None (0) (0) -~ .~ ~~ Resolution 11-19 Page 2 of 9 EXHIBIT A ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO 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 deflnition of "Legal Nonconforming" as follows: Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby .~ amended as follows: 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 Ieaa1 nonconforming uses. A lei( nonconforming use will be permitted to corrtlnue for a period of one (1) year, with a possible Resolution 11-19 Page 3 of 9 a Any violation of the Tustin City Code is a public nuisance. 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 discorrtinued 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. ff 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 lawful 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 confomting 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 ~~ •„f shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Or+dlnance 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 cromply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the pemtittee or owner. The notice shall specify the nature of the violation, the location of the newsreck which Is In violation, the intent of the Director to (a) remove the newsreck 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 dath of the notice. ff 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 newsradc. ~" Resolution 11-19 Page 4 of 9 Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin Clty Code is hereby amended as follows: (c) Any extstir~-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 acquis~ions 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 °x-a 5 :(- • (a) Except as otherwise provided In this Section, lawfully established uses of land, buildings, or structures 6~apte~-nay be continued, although the particular use, or the building or structure does not conform to the regulations spedfied by this Chapter for the district in which the particular bullding or structure is located or use is made; provided, however, no lei nonconforming structure or uae of land may be extended to occupy a greater area of land, bullding or structure than is occupied at the time of the adoption of #his Chapter. If any ~I nonconforming use is discontinued or abandoned, any subsequent use of such land or bullding shall conform to the regulations specified for the district in which such land or building Is located, If no structural atberations are made therein, a Ida nonconforming use may be changed to another use of the same or more restrictive Resolution 11-19 Page 5 of 9 classification upon the securing of a use permit. If the legal nonconforming use is replaced by a more restrictive legal nonconforming use, the ~-~ occupancy thereafter may not revert to a less restrictivve use. ff any legal , nonconforminc 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, 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 1s in compliance with the regulations set forth in this Chapter for the district In which such building or structure is located; provided, however, that any such legal nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. The Community Development Department of the City of Tustin may send, by certified mail, return receipt requested, to the curre owner of any nonconforming building or structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use and nfovidino Code. Said statement shall be filed with the ~g mun Develo ment De artme 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 araof to establish the lawful and ~m , Resolution 11-19 Page 6 of 9 (c) A Iega1 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 uvherein it is located. (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become lecal nonconforming due to any redassiflcation 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 leoal nonconforming. creates a residents. s it is established that such use, b health, welfare of the went ling or structure III being of City 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 modiflcations to lawfully established wireless communication fadlities for which applications for the modffications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines corrtained herein. Modifications to lei noncorrForming wireless communication facilities that are Ieaal 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 le a nonconforming wireless communication fadlitles shall not increase the nonconformities. Section 8.Sectlon 9297 of Part 7 of Chapter 2, Artide 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: ~: ~~ ~,; ;fa Resolution 11-19 Page 7 of 9 (e) Any use of land, building, or stn~cture which is Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "L~ce al Nonconfom-fng ~sig~-Sian " means a sign that. wes ~wFull~r 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: Nonconforming signs I ns. , conform to all provisions of tl of the following events occur. shall be made to termines that any 1. A leoal nonconforming sign shall not be changed to another nonconforming sign. 2. A al nonconforming sign shall not be structurally althred so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A ~ 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 osier 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 leg~j 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 derision 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, sentencx;s, clauses, phrases, or portions be declared Invalid or unconstitutional. ;~~ ~" _-? ~ : ~;~ ~~, ~;~''~ ,, Resolution 11-19 Page S of 9 ~S PASSED AND ADOPTED at a special mewing of the City Coundl of the C' of Tustin _~, ~ held on the day of 2011. ATTEST: JERRY AMANTE, Mayor PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-offido Clerk of the Clty Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Councll of the City of Tustin is five; that the above and forgoing Ordinance No. 1397 was duly passed and adopfied at a spedal meeting of the Tustin City Coundl, held on the day of `~~~ 2011, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILIVIEMBERABSTAlNED: COUNCILMEMBER ABSENT: PAMELA STOKER, City Clerk °; Resolution 11-19 Page 9 of 9 ATTACHMENT F COIVIMUNITY DEVELOPMENT DEPARTMENT POLICY MEMO FORMALIZING THE DEPARTMENT'S CODE ENFORCEMENT INVESTIGATIVE PROCEDURES PERTAINING TO POTENTIALLY UNAUTHORIZED STRUCTURES, USES, AND LOTS Inter-Corn DATE: AUGUST 30, 2011 TO: DISTRIBUTION ~.. ~ ~ Iln,w, BUILDING OUR FLrIURE HONO81Na OL1A 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/qualfied architect experienced to pertorm 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 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 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 orJustina Willkom. DISTRIBUTION: Planners All Building Personnel Code Enforcement Officers ~~~ 10/18/2011 Purpose of the Workshop Consider intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots. Provide input and direction to staff on draft Ordinance No. 1397 for formal action by the Planning Commission on September i7, zoss. 10/18/2011 Background On December 14, zoso, the Tustin Planning Commission considered an appeal involving two illegal structures. CityAttorney Holland opined that a ig61 ordinance omitted the word "lawfully" from the City's nonconforming regulations, and that for the appeal before them, both legal and illegal structures, uses or lots existing prior to that time should be considered nonconforming. This opinion deviated from the City's prior practice and application of the City's nonconforming provisions. On March s, zoss, the Tustin City Council concurred with CityAttorney Holland's conclusion in regards to the appeal before them, but also requested staff to prepare a code amendment that would clarify the matter in the future. On March 15, 2011, staff presented to the City Council draft Ordinance No.1397 to clarify, provide consistency and to reduce ambiguity in the regulation of nonconforming structures uses and lots. City Council requested that the Planning Commission consider draft Ordinance No. 1397, along with their verbatim minutes of March 15, zoss, and provide a recommendation on the matter. 10/18/2011 Nonconforming Structures, Uses, and Lots • Purpose • Introduction • What is Nonconforming? • What is Not Nonconforming? • How Are Nonconforming Provisions Applied? How Illegal Structures, Uses, and Lots Are Identified and Addressed • Actual Case Example • Conclusion structures, uses, an conformance. NONCONFORMING STRUCTURES, USES AND LOTS _~.. ~~ • Oixw4en elrM I~rtm4 evp8catwn,.nd haatlnr nl V C.LIaN.I.M Urt+nl Flrmryl.r GVrn~.nq No~nvnlwmiry Snvnwe4 Uwr nd tvll. s environment L onger in s 3 10/18/2011 4~ The community's vision for its built environment is defined by its adopted codes and land use regulations. The Zoning Code, Building Code, and Subdivision Ordinance are the regulatory tools used to accomplish these goals. ,4s the community's vision for its built environment evolves and codes change, some structures, uses, and lots are no longer in conformance. 6 10/18/2011 ilt environment nd land use and Subdivision Is used to built environment evolves and codes change, some structures, uses, and lots are no longer in conformance. 1 10/18/2011 environment land use ~d Subdivision used to ilt environment evolves and codes change, some structures, uses, and lots are no longer in conformance. 10/18/2011 vironment id use subdivision d to e, some structures, uses, and lots are no longer in conformance. 10/18/2011 i~t environment - -5~~-~.od use bdivision en structures, uses, conformance. t0 .~ ~ - ~ ~ .,~ ~~ ,some ots are no longer in 10/18/2011 structures, use conformance. environment 10/18/2011 structures, use conformance. environment 10/18/2011 To ensure that a community's vision is fully accomplished, regulations are adopted to ensure that nonconformities are brought into conformance or removed over time. Nonconformitiessre typically allowed to continue unaltered indefinitely. Any change that gives permanency to, or expands the nonconformity would not be consistent with this purpose and are typically prohibited. 10/18/2011 ^ To ensure thata community'svision is fully accompli ensur~`~ into c ^ Nonca co nti n ^ Any cf expan~- dopted to ;brought ~r time. to icy to, or Id not be consistentwith this purpose and are typically prohibited. 1 10/18/2011 To ensure that a community's vision is fully accomp ensure' into c+d opted to rought rtime. Nonca contin 5wed to Any cf~ icy to, or expanc~~ rY,~ ~~,t~v,~~Y~.~, r~~~y ~vtld not be consistent with this purpose and are typically prohibited. 2011 Front Setback 1927 Front Setback House Nonconfsimhy Street ~+ 10/18/2011 10/18/2011 10/18/2011 10/18/2011 ~: _1si 2~ 10/18/2011 ,~,1r ....+~i~ 10/18/2011 Freeway ~~~ ~~ ~~ m ~' ~~ r~i New Offramp ~ ~ ~ Remnant ~ Parcel 35 16 O 10/18/2011 ~eu~ 10/18/2011 10 10/18/2011 zo 10/18/2011 ~o 10/18/2011 ~o 10/18/2011 ~o 10/18/2011 Interior ~ ~ , ei ~~ x. '~ ~ ~a 24 1 10/18/2011 11 10/18/2011 ILLEGAL UNITS `ALL OVER' COSTA MESA February 28, 2011 ~ FRANK MICKADEIT ~ ORANGE COUNTY REGISTER COLUMNIST How many so-called "granny hats" and "spare bedrooms" arc actually converted garages hke the one in Costa Mesa where 17-yearold Luke Upton died Thursday mommg? "Tltis is all over Costa Mesa," says Councilman Jim Righeimer, who went out to the scene with city fire and building officials on Saturday "Staff is very good (about enforcing building codes) when inty know about it, but you have so many people in the community honing a blind tye " Dteember 13, 20101 PAUL EAKMS I LGNG BEACH PRESS TELEGRAM STAFF WRYER emouonal moment, when three sisters who were killed m a fire m an illegally converted garage were remembered Family and fnends of the sisters, Jasmine, Jocelyn and Stephanie Aviles, were at the meehng, where the council unanimously voted to name a sechon of Long Btach's municipal code that addresses illegal garage conversions efitt the mrls The nrdmanr~ w.ll M Le....,.. "~ Following the Dec 14, 2007, fire, the city cracked down on illegal conversions Firc officials said Tuesday that since 2007 Long Beach has cited more than 550 illegal conversions with fines totaling almost 5200,000 10/18/2011 `• i • i • ~ ~ ~ , f~ "This is all over Costa Mesa," says Councilman hm Righnmer, who went out to the scene with cnty fire and bwldmg officnals on Saturday. "Staff is very good (about enforcing bwldmg codes) when thty know about it, but you have so many people in the community coming a blind eye " TANG BE emotional moment, when Unree snsters wl were killed in a fire in an nllegelly conva garage were remembered Family and fnends of the sisters, Jasmine Jocelyn and Stephanie Aviles, were at ~n meeting, where the councnl unennmously to name a section of Long Beach's manic code that addresses illegal garage convey. after the gnrls The ordinance will be knor "Aviles Law " Following the Dec. 14, 2007, fire, the cnty cracked down on illegal wnversions Fire officials sand Tuesday that since 2007 Loy Beach has cited more than 550 illegal conversnons wrath fines totaling almost 5200,000. 10/18/2011 -- ~~ ';~ i. ~,~ ~a ~; Councilman Jim Righnmcr, who wend oud to the scene with city fire and building ofiic~als on Saturday. "Staff ~s very good (about enforcing bwlding codes) when thty know about it, but you have so many people in the commumty fuming a blind rye." ;had sister Ily coi garage were remembered Family and fnends of the sisters, Jasn Jocelyn and Stephanie Aviles, were a meeting, where the council unanimou to name a section of Long Beech's mr code that addresses rllegal garage con after the gels. The ordinance will be I "Aviles Law " Following the Dec 14, 2007, fire, the cracked down on illegal conversions. officials said Tuesday that since 2007 Beach has cited more than 550 ~Ilegal conversions with fines totaling almost 5200,000. 10/18/2011 the scene vr?z -- .ih on Saturday. "Staff is very good (about enforcing bwlding codes) whrn 1hty know about it, but you have so many people in the commwtity twning a blind tye " 10/18/2011 ----..~ ~.,~~ .W."'° •••°~•~ ~""~•` ~~~ °" meeting, where the council unantmou community fuming a blind tye." to name a secnon of Long Beach's mu - --' ~ _ code that addresses illegal garage con after the girls The ordinance will be M "Aviles Law " Following the Dec. 14, 2007, fire, the crocked down on Illegal converswns I officials said Tuesday that since 2007 Beach has cited more than 550 Illegal conversions with fines totaling almost " 5200,000. 10/18/2011 10/18/2011 10/18/2011 Dec 14, 2007, fire, the city i on illegal conversions. Firc Tuesday that since 2007 Long 10/18/2011 ax 10/18/2011 ~~ 10/18/2011 Garage apartment Attic/basement apartment Auto repair in residential zone Rooming house in single family zone Sexually oriented business without permit Industrial building used as residence Etc. ~~ 3I~ 12 10/18/2011 Illegal deed or conveyance of a portion of a legal lotto another party. Sale of an apartment as Illegal lot sale spurs a condominium , lawsu;t without proper approvals ~°: ~~~°~ . r . A Colorado native with dreams of living simply on a piece of rural land is instead living m a mghtmare of financial complicatiorw because Lanmer Co~mty says he purchased an illegal lot Legal nonconformitiessre typically permitted to continue to the end of their economic life when they are voluntarily replaced with a conforming structure, use, or lot. Except health and safety concerns maybe required to be replaced immediately. Except zoning ordinance may compel the elimination of a nonconformity over a reasonable period of time - "sunset clause." z5 z6 13 10/18/2011 Nonconformitieseuentually replaced with conforming structures, uses, and lots. ~~ Nonconformitiesrnay not typically be enlarged or altered unless the alteration brings the property into conformance (except recognized historic structures). a Nonconforming structures may be repaired but extensive repairs are typically not allowed (may not exceed 50% of the building's assessed valuation). A legal nonconforming use may be replaced by the same/similar nonconforming use. z, 1 10/18/2011 C ~, 10/18/2011 N o:~' Ilsw a~tbn Rear setback ad~tiona to Rear setback C O proposed to aka historic aroa meet eurrerN homes c~ zo be IMdtt at the o ^ requtremerrt ~ 1 hfatorie ' ; buildb~g s I f _ _ _~: .r setback _._ __I 1 _ Ikwteordorr~ tiaxo~dormMg akb yid aide yard aetbsek soffiaek tntsrbr side brteeiw skla setback area ~ setback eras k 1 ~ ~ Z; ~ ~, front tb Front tb k se ack aroa ~ i ' ~ ~ se ac area 1 .~. ~. ~ rypicol 1 Historic 5ldewalk 37dewapt noncon- nonrnn- ;~~, forming forming buildin Street Street building c g C~~ a7 10/18/2011 N Maybe identified by: • Property owner ^ Neighbor complaint ^ Fire, Health Department, Police referral • Mortgage lender, real estate inquiry ^ Utility providers ^ County fictitious business name clerk ^ Tenants ^ City business license staff ^ Code enforcement officers • Others Ito ~s). z, a8 14 10/18/2011 "Whole record" considered for potentially unauthorized structures. Building permits • Tax records • Utility billing • Historic photographs • Business license records ^ Evidence presented by the owner/occupants • Historic surveys, photos, phone books, etc. • Title reports, etc. ag Physical inspection (staff Compliance with the codes Conventional workmanship rted by legal precedent. 30 15 10/18/2011 ^ Physical inspection (staff and/or third party review) Compliance with the codes adopted at the time Conventional workmanship/building techniques Appropriate application/use of materials, hardware, and infrastructure (sewer connections, etc.) If structure determined legal, records updated, case closed. If structure determined illegal, owner required to correct violation. This investigative process is followed by other Orange County cities, supported by legal precedent. 30 10/18/2011 Physical inspection precedent. 3a 10/18/2011 Tustin's nonconforming provisions have historically applied only to those structures and uses that were "lawfully" established. TCC g~g8 states that the Zoning Code "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." Although Ordinance No.157 (1961) omitted the term "lawfully," TCC gzg8f states: "Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or issued underthis 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." 31 A staff report fora 1989 amendment to the nonconforming provisions states that the City's "current provisions...related to nonconforming uses and structures" applied only to "legal" structures, uses and lots. Orange County cities, California Planning Law, existing City Code, court rulings, support the City's past practice that nonconforming provisions apply only tolegal/lawfully established structures, uses, and lots. 31 16 10/18/2011 Implications All structures existing priorto 1g61would be allowed to continue indefinitely. Implications 34 17 All uses existing priorto 1961 would be allowed to continue indefinitely. 10/18/2011 On March s, zo1s, theTustin City Council concu rred with City Attorney Holland's conclusion in regards to the appeal before them but also discussed some of the implications. Council requested staff to prepare a code amendment that would clarify the matter in the future. Ordinance No.1397 provides: 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 i -Administration and Article g -Land Use); Clarifying that only lawfully established sexuallyoriented businesses are considered legal nonconforming (Article 3 -Business Regulations); m Clarifying that only lawful) established newsracks are considered legal (Artic e7-Public Facilities; and, Clarifying that only lawfully established structures, uses, lots, wireless facilities, and signs are considered legal nonconforming (Article g-Land Use). City's investigative procedures also formalized. a Provides for Com. Dev. Dir. review of the "whole record" when determining legal status of potentially unauthorized structure, use, or lot. Process is sensitive to and respectfu I of designated historic structures. Decision is appealable. ^ Zoning Administrator ^ Planning Commission ^ City Council City Attorneys Kendig and Bobak have provided additional clarifying language to Ordinance No. 1397• 18 10/18/2011 City Council requested that the Planning Commission consider draft Ordinance No.1397, along with their verbatim minutes of March 15, zoss, and provide a recommendation on the matter. Provide input and direction on draft Ordinance No. 1397. Staff will return at the September i7, zoss meeting with a Resolution forformal action by the Tustin Planning Commission. 37 19