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03-ATTACHMENT D
Attachment D The Public Hearing opened at 7:55 p.m. Bree Dewey stepped forward representing the Orange County Health Care Agency to assist in addressing Commission questions. Stated "sharps" would be defined in Draft Ordinance No. 1407 as needles. Addressed issues regarding proper disposal of sharps. Stated the AMA has no regulation over body art facilities. Michael Marsh stepped forward in favor of Code Amendment 2011-06. Mr. Marsh has been a practicing tattoo artist for 13 years, and he addressed Commission questions and provided suggestions to improve Draft Ordinance No. 1407. Mr. Marsh's recommendations generally included transportation of contaminated instruments in a moist towel as opposed to being submerged in water, mandatory use of an ultrasonic cleaner, use of disposable cups rather than reusable, and removing the option to use break -away needles to reduce the risk of contamination and needle -sticks. The Public Hearing closed at 8:04 p.m. The Planning Commission took consideration of Mr. Marsh's recommendations. Further Commission recommendations generally included technical clarification/definition for increased consistency in Draft Ordinance No. 1407. Motion: It was moved by Puckett, seconded by Kozak, to approve Resolution No. 4181 as amended, and requested that the amended Resolution be brought back at the next regular meeting for formal adoption by Consent Calendar. Motion carried 5-0. Continued to the 5. DRAFT ORDINANCE NO. 1397 CLARIFYING THE regular Planning MEANING OF LEGAL NONCONFORMING USES AND Commission meeting STRUCTURES IN THE CITY OF TUSTIN. on October 11, 2011 At the request of the City Council, staff prepared draft Ordinance No. 1397 to provide clarity, provide consistency and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. The Tustin City Council has requested that the Planning Commission consider verbatim City Council minutes of March 15, 2011 and draft Ordinance No. 1397, and provide a recommendation on the proposed ordinance to the Tustin City Council. Resolution No. 4183 has been prepared for Planning Commission consideration and action in this regard. Minutes — Planning Commission September 27, 2011 — Page 5 ENVIRONMENTAL DETERMINATION: The Planning Commission should consider the Initial Study and the Negative Declaration provided as Exhibit 1 to Planning Commission Resolution No. 4183 and recommend it to the Tustin City Council as adequate for Code Amendment 11-002 (Ordinance No. 1397). RECOMMENDATION: That the Tustin Planning Commission adopt Resolution No. 4183, recommending that 1) the Tustin City Council find that the Negative Declaration is adequate; and, 2) recommending that the Tustin City Council adopt Ordinance No. 1397, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. Ogdon Presented the staff report for Code Amendment 2011-02. Staff addressed Planning Commission questions and concerns. Commission questions/concems generally included the intention to reduce ambiguity throughout Ordinance No. 1397 and the City code, code changes affecting plans in progress, differentiation between the zoning code and building code, and addressed recommendations within a supplemental letter from CPF. The Public Hearing opened at 9:03 p.m. The following members of the public stepped forward: Linda Jennings Deborah Rosenthal Markus Brown Whitney Hodges Bret Fairbanks Public comments and concerns were generally against adoption of Code Amendment 2011-02 as it stands; however, many believed it would be acceptable pending further study and modification. Further concerns and recommendations generally included, preservation of historic structures, burden of proof on the homeowner, a clearer differentiation between the application of the zoning code and building code, and proposal for modification of assessed market valuation to fair market valuation. The Public Hearing closed at 9:43 p.m. Minutes — Planning Commission September 27, 2011 — Page 6 The Planning Commission recessed at 9:45 p.m. and reconvened at 9:57 p.m. The Commission entered discussion regarding Code Amendment 2011-02 and requested that staff incorporate Commission and public comments and concerns into draft Ordinance No. 1397 and bring it back for consideration at the next regular meeting on October 11, 2011. Motion: The Planning Commission reached a consensus to continue the item to the next regular Planning Commission meeting scheduled for Tuesday, October 11, 2011. None REGULAR BUSINESS STAFF CONCERNS: 6. REPORT OF ACTIONS TAKEN AT THE SEPTEMBER 20, 2011, CITY COUNCIL MEETING. The Director noted she was available to answer any questions the Planning Commission had regarding the September 20, 2011, City Council meeting. COMMISSION CONCERNS: Eckman Reminded the citizens of Tustin about the Construction and Business License Fee Waiver Policy; • Encouraged supporting local non-profit organizations through Tustin Tiller Days which is approaching this weekend; • Inquired regarding traffic control at the location of Tustin Ranch Road and Pioneer due to intense school traffic. Moore 0 Thanked Chair Thompson for his efforts to summarize a variety of issues discussed this evening; • Thanked staff for their work. Kozak 0 Thanked staff for their work. and appreciated the public input on this evening's items; • Stated draft Ordinance No. 1397 is a step forward in terms of clarification of nonconforming uses, it's nearing completion, and he looks forward to hearing the item at the next meeting; • Reminded the audience that Tustin Tiller Days is approaching; • Inquired regarding a proposal for the former Rite -Way Cleaner site. Puckett 0 Thanked staff for their hard work; • Attended the reopening of Tustin Centennial Park; Minutes — Planning Commission September 27, 2011 — Page 7 AGENDA REPORT MEETING DATE: SEPTEMBER 27, 2011 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: CODE AMENDMENT 11-002 (DRAFT ORDINANCE NO. 1397), CLARIFYING THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN RECOMMENDATION: That the Tustin Planning Commission adopt Resolution No. 4183 (Attachment A) recommending: 1) That the Tustin City Council find that the Negative Declaration prepared for Code Amendment (CA)11-002 (Draft Ordinance No. 1397 — as amended) is adequate; and, 2) That the Tustin City Council adopt Draft Ordinance No. 1397 -- as amended, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. SUMMARY: At the request of the City Council, staff prepared Draft Ordinance No. 1397 to provide clarity, provide consistency and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. The Tustin City Council has requested that the Planning Commission consider verbatim City Council minutes of March 15, 2011 (Attachment B) and Draft Ordinance No. 1397, and provide a recommendation on the proposed ordinance to the Tustin City Council. Resolution No. 4183 has been prepared for Planning Commission consideration and action in this regard. BACKGROUND: On December 14, 2010, the Tustin Planning Commission considered an appeal of a Community Development Department code enforcement action involving potentially illegal alterations and additions to a single family residentially zoned property. The matter was appealed and heard by the Tustin City Council on March 1, 2011. "451&2 Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 2 City Council deliberations at that time focused largely upon understanding and interpreting Tustin City Code Section 9273, the City of Tustin's regulations for nonconforming structures and uses. At the conclusion of the matter, the City Council directed staff to draft a code amendment to provide clarity, provide consistency, and reduce ambiguity of the term "nonconforming" throughout the Tustin City Code (TCC). As directed, Draft Ordinance No. 1397 was presented to the City Council on March 15, 2011 (Agenda Item No. 17). Draft Ordinance No. 1397 proposes: - clarifying language wherever the term "nonconforming" was used in the Tustin City Code, including a new definition and clarifying that illegal structures or uses are a public nuisance that should be corrected In (Article 1 — Administration and Article 9 — Land Use); - clarifying that only lawfully established sexually oriented businesses are considered legal nonconforming (Article 3 — Business Regulations); - clarifying that only lawfully established newsracks are considered legal (Article 7 — Public Facilities); and, - clarifying that only lawfully established structures, uses, lots, wireless facilities, and signs are considered legal nonconforming (Article 9 — Land Use). Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. On March 15, the City Council passed Resolution No. 11-19 by a vote of 5-0, and directed that the Commission receive and consider Draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on Draft Ordinance No. 1397 (Agenda Item #17) so that the Commission would be aware of the City Council's concerns, and provide a recommendation on the proposed ordinance to the Tustin City Council. Nonconforming Structures, Uses and Lots Document On September 13, 2011, the Tustin Planning Commission conducted a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots (input from that meeting is discussed at the end of this report). As part of the Commission's agenda packet, a document entitled Nonconforming Structures, Uses and Lots: A Discussion of the Intent, Application, and Practice of Ca/ifomis Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots was provided to the Tustin Planning Commission. The document provides clarity regarding the application of nonconforming provisions and court precedence in California, including: NONCONFORMING STRUCTURES, USES AND LOTS I =-W`- Amok •n:�a.wwe.ew. wr w..a nr.:.,e w+.a-4 +wF* ltlu.gr.Vv..ndiau. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 3 That a legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning -Code, the Zonin-g. May, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. Legal nonconforming Is sometimes referred to with the term °grandfathered.° A structure, use or lot that is out of conformance with the adopted code is not considered to be nonconforming when it was illegally established. An illegal structure, use, or lot is caused by the actions of a past or current owner, tenant or property manager, jand not a governmental action. Because the structure, use or lot was not lawfully established, it is ineligible for the privileges afforded to a lawfully established nonconforming structure, use, or lot. Specifically, illegal structures, uses or lots may not remain in their current state indefinitely, but are required to be brought into immediate compliance with current code standards. Illegal nonconformities can pose life -safety concerns to the property owner, neighbors and to others, Including safety personnel such as fire and police respondents. As a general rule, adopted codes presume detrimental to the public interest (health, safety, nonconformity needs to be brought Into confo 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 existing, lawfully established nonconforming structures that exceed the new height limit may continue to exist but will be brought Into conformance or eliminated over that a legal nonconformity is morals or welfare), and that the rmance with the current code at Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 4 time. Any change in the premises which tends to give permanency to or expands the nonconformance would not be consistent with this purpose. Description of City Code Enforcement Efforts When Illegal Structures, Uses, or Lots are Discovered Illegal structures, uses and lots come to the attention of City staff in a number of ways. The most common method is when a property owner approaches staff to propose an alteration of or addition to an existing structure (this includes when an owner desires to rebuild a structure damaged in a disaster). Another is when a real estate professional, mortgage lender, or prospective buyer contacts the City and requests documentation that room additions, etc. have been added legally. Another is when a property owner is seeking Mills Act property tax relief for a historic property and invites staff to the site. Illegal structures, uses and lots also come to the attention of the City's Code enforcement staff through complaints. Except for proactive neighborhood improvement efforts conducted in cooperation with the Tustin Police Department, City code enforcement is nearly always performed on a complaint basis only. Potentially unauthorized structures, uses or lots are brought to the attention of code enforcement staff through complaints and referrals from the following sources: Neighbor complaints a Orange County Fire Authority or other County agency staff Tustin Police Department referral City plan check or building inspectors OC Health Department • City Business License staff • County fictitious business name clerk ® Real estate professionals including requests by lending institutions • The property's owners • Tenants • Utility providers • Code Enforcement • Staff inspection following fires and other disasters ® Others When a potentially unauthorized structure, use or lot is identified, staff will confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. 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 when it was added to the site, and whether it was lawfully established. Staff often considers the following when attempting to develop a ))hole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: Planning Commission Report September 27, 2011 Ordinance No, 1397 Page 5 Building permits, Occupancy Permit, Variances, or other official records. a 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 Sanbom fire insurance maps • Subdivision maps • Written historiestletters from current and prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • Request an independent licensed/qualified architect experienced to perform a site assessment. City staff will always assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that ? may assist City staff in determining whether a particular structure, use or lot is or is legal. If, at the conclusion of staff review, the potentially unauthorized structure, use or lot is determined to have been lawfully established, pertinent Information would be added to the City's records documenting that fad, and the matter would be dosed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner will be officially requested to correct the gym. When informed by staff that a structure, addition or alteration appears to be illegal, an owner will often pursue the matter further. Sometimes an owner will request another inspection of a potentially unauthorized structure by a City building inspector to ascertain whether the potentially unauthorized building improvements were done consistent with the Building Code adopted at the time of construction. A building inspector would typically visit Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 6 the site to observe major life/safety related discrepancies in the workmanship and materials used to determine whether the work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made (e.g. the addition did not have a foundation; electrical, water, sewer and gas installation was hazardous; required fire separation between units or floors was not installed, etc.). Note. a structure built consistent with the Building Code adopted at the time of construct►on is evidence, considered with the whole record, that a stfucture may have been lawfully established at the time. Compliance with the Building Code means that the structure was constructed in conformance with the Building Code using conventional building methods, not that the structure was built legally. (A structure may be built in compliance with the Building Code, for instance, but in violation of other codes, like fire codes, or Zoning Code requirements such as setbacks) However, it is also possible that the opposite would occur, e.g. City inspection of a potentially unauthorized structure could result in the identification of tell-tale Building Code inconsistenciesMoladons 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 inspectionfinvestigative routines. Current owners of the property may not �.. . have personally caused the illegal structure to be built. In fact, the owner „m , may have purchased the property with an understanding that the property and structures were legal. While some owners may have bought the property unaware of an illegal structure or use, --- even an innocent current property owner, bears the responsibility for ensuring that their structure, use or lot was lawfully established and Is lawfully operated. In response to the City's request to correct an illegal structure, some owners work with staff to legalize it "after the fact." -- Others may work with staff to remove the illegal structure. Under California law, affected owners may have legal recourse against a prior owner, a professional property inspector, real estate agent, or a property title company for a failure to disclose the potentially illegal nature of a structure, use or lot Planning Commission Detennination of December 14, 2010, City Council Determination of Manch 1, 2011 and Manch 15, 2011 December 14, 2010 Planning Commission (Board of Appeals) Determination On December 14, 2010, the Tustin Planning Commission (acting as the Board of Appeals) considered an appeal of a Community Development Department code enforcement action. The appeal involved a staff determination that Tustin Zoning and Building Code violations existed at the site involving the illegal addition of two units to a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 7 single family residentially -zoned (R-1) property (that also contained a lawfully constructed single family residence and garage), along with other alterations and additions made in violation of the code. On the advice of City Attorney Holland, the Board of Appeals reversed the Community Development Director's zoning determination and ruled that the two units were nonconforming and could continue to exist on the site. In addition, the Board of Appeals directed the owner to comply with the requirements of a previously issued Notice and Order "to the extent such corrections are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The Planning Commission's (Board of Appeals') decision on matters involving the Building Code violations was final and not appealable. However, the Board of Appeals' determination on the zoning matter was appealed by a City Council member and heard by the Tustin City Council on March 1, 2011. !March 1, 2011 City Council Determination City Council deliberations on March 1, 2011 were focused largely upon understanding and interpreting the City of Tustin's regulations for nonconforming structures and uses. The City's current nonconforming provisions (TCC 9273 and 9298) do not use the term "legal" or "lawfully established" with the tern "nonconforming" (Attachment C). However, the current Tustin Code did not always refer to the term "nonconforming" without a qualifier. The City's first Zoning Code, adopted in 1947 (Ordinance No. 47) introduced regulations for nonconforming uses and structures utilizing the term "lawfully nonconforming" and also identified and determined what land use designations would regulate the future built environment for the City of Tustin. Ordinance No. 157 was adopted in 1961, and modified the nonconforming code provisions by dropping the term "lawfully" to only use the term "nonconforming." That wording continues to this date. Although the 1961 nonconforming code did not include the word "lawfully" from the term "lawfully nonconforming", various provisions of the 1947, 1961, and the current Zoning Code clearly requires the lawful establishment of uses and structures, and consider any use of land, structural alterations or modifications, etc., operated and/or maintained contrary to the Zoning Code to be considered public nuisances. Also, TCC Section 9298 was also amended by Ordinance No. 157. Section 9298 states that the Zoning Code as amended "shall not be interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving, alteration or enlargement of any building or improvement" except where "greater restrictions" There appears to be no debate that the current ordinances require uses, structures or lots established since the adoption of Ordinance 157 in 1961 to have been lawfully established to be considered legal nonconforming. The Issue that has arisen, and concerning which clarity may be added to the ordinance, Is whether uses, buildings and structures established prior to 1961 must have been lawfully established to qualify for legal nonconforming status. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 8 applied. Section 9298f also states: "Any use or activity that is illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City which further clarifies that illegal structures, uses, and lots are prohibited. Thus, the 1961 deletion of the term "lawfully" arguably was not Intended to alter the interpretation and application of nonconforming regulations to anything other than a legally established structure, use or lot. The nonconforming provisions were amended again in 1989 (Ordinance No. 1013) to state that any structure or use "which is legal" but made nonconforming by the adoption of amendments to the code, is considered legal nonconforming (TCC Section 9273(e)). The November 14, 1988 staff report requesting Planning Commission support of Ordinance No. 1013 stated: "Under the current provisions of the Tustin City Code related to Non- conforming Uses and Structures (Section 9273), a property which was at one time legal and conforming to all the development standards, but, for some reason no longer satisfies minimum zoning code requirements would be considered legal non -conforming." Taken in its entirety, Sections 9273 and 9298 can be construed to mean that only legal or lawfully established structures, uses and lots are legal nonconforming, whether established before or after 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, it was Ordinance No. 157's omission of the term "lawfully" from the City's nonconforming regulations that provided the basis for City Attorney Holland's opinion at the Planning Commission's (Board of Appeals) appeal hearing on December 14, 2010. To summarize City Attorney Holland's opinion, the term "nonconforming" as previously used in the City's nonconforming regulations was modified by Ordinance No. 157 for those structures, uses or lots that existed when Ordinance 157 was adopted to no longer be limited to only legally established structures, uses or lots. Specifically, adoption of Ordinance No. 157 could be interpreted to mean that both legal and illegal structures, uses, and lots existing prior to 1961 should be granted the rights previously afforded only to legal nonconforming structures, uses, and lots; i.e. both nonconforming legal and illegal structures, uses or lots may continue indefinitely. At the conclusion of the appeal hearing on March 1, 2011, the Tustin City Council concurred with the City Attorney Holland's reasoning and conclusion and voted 4-1 to uphold the Board of Appeals' zoning determination that the two units were nonconforming and could continue to exist on the site. However, The City Council also emphasized that the owner must comply with the Board of Appeals direction that the owner comply with the requirements of a previously issued Notice and Order "to the extent such corrections. are reasonably determined by the Building Official to be necessary or appropriate to ensure that the health and safety of the occupants of the nonconforming buildings are adequately protected." The determination does not affect enforcement of the Califomia Building and Safety Code, so even illegal "nonconforming" structures (established prior to 1981) would continue to be Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 9 required to comply with the current Building Code to address life -safety Issues. However, the City Council's March 1, 2011 determination has implications that go far beyond simply classifying two illegal units at 520 Pacific Street as nonconforming; if followed in other decisions, or if courts were to agree the existing Code has that meaning, it could have the effect of conferring nonconforming status to all legal and illegal structures, uses and lots in the City established prior to 1961. If established prior to 1961, owners of Illegal structures, sexual"dented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc. may argue that their facilities should be considered nonconforming and allowed to continue indefinitely, citing the determination of the appeal of 520 Pacific Street. Since the determination, several property owners that are the subject of active code enforcement for illegal construction have indicated that their additions occurred prior to 1961 and should be allowed to remain. Again, the implications are far-reaching. Of the 34 Orange County cities, only four cities have adopted ordinances that do not use the term "legally" or "lawfully" with the term "nonconforming" (Tustin, Dana Point, Santa Ana, La Habra). As the result of a survey, staff has determined that all Orange County cities pursue similar illegal zoning and building code violation code enforcement. If clarification of the matter does not occur, the code could be interpreted as allowing pre - 1961 illegal structures, uses and lots to continue to exist indefinitely within Tustin, subject to the limits placed on nonconforming structures. Members of the City Council discussed some of these implications at the March 1, 2011 meeting. The discussions concluded that the City's nonconforming provisions were confusing as written and should be reviewed for possible amendment to provide clarity in the matter. As previously noted, the Tustin City Council directed staff to prepare a code amendment for the City's nonconforming provisions that would clarify, provide consistency, and to reduce ambiguity throughout the City to be brought before the City Council on March 15, 2011. March 15, 2011 City Council Determination As directed, Draft Ordinance No. 1397 was presented to the Tustin City Council on March 15, 2011 (Agenda Item No. 17) to clarify, provide consistency, and to reduce ambiguity in the regulation of nonconforming structures, uses and lots. Pursuant to TCC Section 9295c, an amendment of the Zoning Code may be initiated by the City Council filing a resolution with the Planning Commission of the intention thereof. . Following discussion, the City Council passed Resolution No. 11-19 (Attachment D) by a vote of 5-0, directing that the Planning Commission receive and consider Draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on Draft Ordinance No. 1397 so that the Commission would be aware of the Clty Council's concerns in the matter, and provide a recommendation on the proposed ordinance to' the Tustin City Council. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 10 Code Amendment 11-002 (Draft Ordinance No. 1397- as Amended) Draft Ordinance No. 1397, as amended, is intended to clarify the City's nonconforming provisions. The ordinance was drafted to clarify and reintroduce the term "Legal Nonconforming" in order to more clearly exclude illegal structures, uses and lots from being considered nonconforming, no matter when the structure, use or lot was established. Also, every reference in the Tustin City Code to the term "nonconforming" that does not clearly refer to a legal or lawfully established structure, use, or lot is proposed to be modified to include the words "legal" or "lawfully established" to ensure that the term is no longer ambiguous. In addition, the City Attorney has proposed additional modifications noted in the draft to provide additional clarity of interpretation and application. Adoption of the currently proposed Draft Ordinance No. 1397 would clarify that the City's nonconforming responsibilities and privileges are intended to only apply to a lawfully established structure, use or lot anywhere in the City. If adopted, Draft Ordinance No. 1397 would, as a practical matter, limit the effect of the City Council's March 1, 2011 determination to apply nonconforming status to on/v the two illegal units which were the subject of the appealed matter at 520 Pacific Street, as approved in City Council Resolution No. 11-18. If adopted, Draft Ordinance No. 1397 would clarify that all other structures, uses, and lots in the City that were established or enlarged illegally are not legal nonconforming, and are not allowed to continue indefinitely. If adopted, only lawfully established structures, sexually oriented businesses, massage businesses, bars, massage technicians, tattoo parlors, news racks, wireless communication facilities, signs, lots, etc., would be legal nonconforming. The Tustin City Council adopted Resolution No. 11-19 directing that the Planning Commission consider Draft Ordinance No. 1397 along with City Council input at that time (see verbatim minutes provided as Attachment B, and that the Planning Commission provide the City Council with a recommendation on Draft Ordinance No. 1397 (Attached to Resolution No. 11-19 as Attachment D). It should be noted that City Council did not have the benefit of much of the information contained in this report when considering and discussing the matter on March 15, 2011. In addition, Ordinance No. 1397 has been subsequently been amended and refined. Califomia Preservation Foundation Input The City of Tustin has been recognized by the State of Califomia as a Certified Local Goverment (CLG). The Certified Local Goverment 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 CI -Gs have an opportunity to tap into. Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 11 Following City Council action on March 15, 2011, a representative of the California Preservation Foundation (CPF) contacted Community Development Department staff and expressed an interest in reviewing and commenting on the City's Draft Ordinance No. 1397. The CPF representative was provided a copy of Draft Ordinance No. 1397 (Exhibit 2 of Attachment A) for review and comment. On May 5, 2011, the CPF representative and City staff discussed the ordinance by conference call, and on August 25, 2011 City staff outreached and met with the CPF representative and discussed Draft Ordinance No. 1397 with the goal of ensuring that the ordinance would not negatively Impact historic resources. CPF concurred with staffs initial draft of Draft Ordinance No. 1397 and the Community Development Departments methods for researching historic structures, uses, and lots (discussed above), but suggested the following to strengthen the ordinance and approach. 1. Formalize the City's investigative procedures through an adopted/approved policy to ensure implementation of a standardized approach by current and future staff and the affected public, including but not limited to a review of the following criteria: Building permits, Occupancy Permit, Variances, or other official records. • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records • Sewer connection records • Other utility records (electrical, gas, etc.) • Business license records • Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps • Subdivision maps • Written historiesJletters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants • Other documents as may be available • Physical inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below). • As needed, request an Independent licensed/qualified architect experienced to perform a site assessment. City Response — Staff believes that this was an outstanding suggestion and addresses some of the concerns previously raised by the City Council. Because code enforcement investigative procedure is administered at the department level, a Community Development Department policy memo reflecting the above approach has been prepared for concurrence by the Planning Commission and City Council (Attachment E). Staff will also be developing a list of professional consultants that Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 12 can be called upon (on a rotating basis) to assist in any site assessment that may be needed in the future. 2. Include language in the ordinance that clarifies that staff has discretion to find that any one or a combination of the criteria described above provide sufficient proof that the potentially unauthorized use or structure is lawfully established. City Response - Proposed language was added by staff and the City Attorney's Office to Draft Ordinance No. 1397 clarifying that staff (Community Development Director) would have the discretion to determine that a potentially unauthorized structure, use, or lot was lawfully established after consideration and review of the available whole record of information. Only if the Director makes a finding that the available evidence indicates the use and/or the structure, use or lot is or is not legal nonconforming would a potentially unauthorized structure, use or lot be determined illegal, declared a public nuisance, and be subject to enforcement action. Analysis This report discusses a broad number of issues related to how nonconforming provisions apply to both legal and illegal structures, uses and lots. Staff believes that a careful analysis of the information provided supports the conclusion that there is an immediate need to amend the Tustin City Code to ensure the proper clarity separating lawfully established nonconforming structures, uses, and lots from illegally established structures, uses and lots. The following points summarize the most critical reasons that the Planning Commission should consider supporting Draft Ordinance No. 1397. 1. Unlike legal nonconforming structures that were lawfully constructed for continuous use, or adaptive reuse where a nonconforming structure was lawfully altered to support the establishment of a conforming use, illegal conversions do not meet the code. As a result, illegal structures, uses and lots pose serious safety risks to the health, safety and welfare of inhabitants of the property, neighbors, and safety personnel. 2. Bootlegged structures are rarely constructed to meet code requirements. Left unresolved, illegal structures, uses, or lots threaten the public's health, safety and welfare. 3. Because illegal structures, uses or lots must be made safe, certain building upgrades and improvements are necessary. This is opposite the intent of nonconforming provisions, i.e. that the structure, use or lot may continue indefinitely. Staffs experience is that the owner's cost of hiring a professional architect, structural engineer, and licensed contractor to legalize a bootlegged structure or use, may exceed the value of keeping the illegal structure. Sometimes removal Is the better option when faces with the expense of bringing a bootlegged building up to code. Staff believes that the current interpretation that an older illegal Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 13 structure, use or lot is nonconforming presents a confused/mixed message that the property is nonconforming but can't continue indefinitely as it currently exists. 4. Illegal structures, uses, and lots impact the quality of life in a neighborhood by creating unplanned impacts to the public infrastructure (i.e. increased school and park attendance [no fees paid], water and sewer impacts [sizing may not be adequate and no fees paid], increased on -street parking, etc.) and may cause housing overcrowding. Some uses can have deleterious effects on sensitive uses such as the elderly, children, etc. 5. Staff has encountered actual code enforcement cases (summarized in the document entitled Single family residence 4 Illegal Units` Nonconforming Structures. Uses j w- and Lots. A Discussion of the Intent, Application, and Practice of Celdbmis Land Use and Planning Law Governing Nonconforming Structures, Uses and Lots) where it appears that a property owner j illegally constructed four additional -- - - - 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 flour units were illegally constructed prior to 1961, staff would arguably lack the authority under the Zoning Code to treat the uses as illegal even though the Planning Commission and City Council had specifically denied that use of the property. Enthrc ement of City Codes may be limited to enforcement of building and hazardous buildings codes. Illegal actions should not be rewarded by the passage of time. 6. City Code Enforcement staff have handled numerous cases in the past where owners or tenants have added Illegal uses to a property in violation of State and local law including illegal auto repair, prostitution, conversion of a single family home to an apartment or boarding house (including bedroom use of the attic, basement, garage, etc.), commercial food preparation, industrial business (with hazardous materials stored on the site), illegal meat processing, motorcycle manufacturing and street testing, and Intensification and upgrading of commercial and industrial buildings to accommodate assembly uses without meeting the code. If the illegal use has operated prior to 1961 and continuously since without illegal expansion, it could be entitled to remain at the site as nonconforming. The issue is made more complicated when one considers the number of potential uses that are prohibited by federal and state law that also may have operated at the site since before 1961. 7. 30 of 34 Orange County cities have adopted ordinances that use the term "legal" or "illegal" along with the term "nonconforming" to clarify the legal status of a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 14 structure, use, or lot. The cities of Tustin (until March 1, 2011), Santa Ana and La Habra have historically interpreted the code to apply only to legal or lawfully established structures, uses, or lots. This practice is consistent with the key terms and key concepts summarized in the document entitled Nonconforming Structures, Uses and Lots. A Discussion of the Intent, Application, and Pracdce of Calftmla Land Use and Planning Law Goveming Nonconiorming Structures, Uses and Lots and consistent with the planning practice utilized in other Orange County cities. Tustin's march 1, 2011 approach makes It unique in allowing illegal structures, uses, and lots to remain indefinitely, subject only to the limits placed upon legal nonconforming structures, uses and lots. 8. The Tustin City Code continues to refer only to the term "nonconforming" and does not currently differentiate between legal or illegal structures, uses or lots. If an argument can successfully be made that a structure, use, or lot established before 1961 is nonconforming, what about those established in 1962 or 2001? The code is ambiguous and should be clarified. PLANNING COMMISSION WORKSHOP INPUT On September 13, 2011, the Tustin Planning Commission conducted a Workshop on the Intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots. In addition, the Planning Commission was provided a copy of the verbatim minutes from the City Council's March 15, 2011 meeting as well as a copy of City Council Resolution No. 11-19 directing the Planning Commission to consider Draft Ordinance No. 1397. The report and workshop were generally well received by the Planning Commission. Six members of the public also spoke during the workshop. Staff has prepared the following responses to several of the questions and issues raised at that time: A concem was articulated with the prior City Attomey's interpretation of the application of nonconforming provisions. The City Attorney's Interpretation was rendered In regards to a speck case involving an appeal at 520 Pacific Street. That matter has been decided by the Tustin City Council and is final. The City Council specifically requested the matter be analyzed and an ordinance amendment be considered. Draft Ordinance No. 1397 has been prepared to provide clarity, consistency, and reduce ambiguity related to future determinations regarding nonconforming uses and structures in the City of Tustin. • Requested clarfncation regarding projects in progress and how these properties are affected when a zoning ordinance change occurs. Sometimes, code amendments occur while a project is in the process of being reviewed. Once a Zoning Code Amendment, Zoning Map Change or Subdivision Ordinance Amendment is adopted, projects In progress (in plan check, where a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 15 permit has been Issued, etc.) may typically continue to completion, even though the project would be nonconforming immediately upon completion. Owners of such projects always have the option of revising the project to be conforming to the newly adopted code. Any project that is not pursued to completion (i.e. permits have expired, etc.) would not be allowed to later complete the project using the previous code. An example of this situation is the City Council's 2006 adoption of Ordinance No. 1313 prohibiting additional self -storage warehouse uses in the City of Tustin. Ordinance No. 1313 found that the City had experienced an overconcentration of such uses, and amended the Zoning Code to remove "self -storage mini warehouses" as a permitted use everywhere in the City. Consequently, all existing self storage uses in the City were made nonconforming through the adoption of Ordinance No. 1313. Two self -storage projects were in the process of being reviewed at the time the ordinance was adopted, and both were allowed to be constructed as legal nonconforming uses. A goal of nonconforming regulations is to eventually correct or replace a nonconforming use with a conforming use. Under the current provisions of the Tustin City Code, if an existing self -storage use in Tustin is ever destroyed by more than 50%, it would not be allowed to be replaced. e Requested clarification regarding the application of the 50% replacement rule. As noted above, a community goal is the eventual correction or replacement of all nonconforming structures, uses, and lots. The nonconforming provisions of the Tustin City Code have established a maximum value for improvement of a nonconforming structure (50% of the assessed value of the structure). Planning staff does not keep a running tab of permitted minor repairs, re -roofs, etc., occurring over time at any particular property. However, deferred maintenance of a nonconforming structure by an owner may compound the cost of any work needed to repair a damaged nonconforming structure. The 50% rule is typically considered following a disaster such as a fire, when an owner will submit Information that can be used by staff to determine whether the nonconforming building or use may be replaced. If the value of the improvements needed to restore the damaged nonconforming building exceed the threshold of 50% of the building's assessed value (as reflected on the County Assessor Tax Roll), the nonconforming structure and/or use (or portion thereof) may not be repaired, but must be replaced with a conforming structure or use. o Requested clarification on the impacts to public services caused by nonconforming structures and uses. Lawfully constructed nonconforming structures, uses and lots do not typically have an impact on public services. It is assumed that all public service impacts have been addressed at the time of original construction/establishment of a Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 16 lawfully established structure or use, or are continuously funded through a fair - share payment of required property taxes, flees and assessments. Citizens who reside in legal units correctly assume the structures have been constructed in accordance with the code and are safe. Illegal structures, however, are constructed without meeting building and safety codes, creating a hazard to the life safety of building occupants, neighbors and other citizens, but also fire and police personnel who may not realize that they are at risk when they stand on or enter Into an unsafe illegal structure that is on fire. Also, public services (i.e. sewage treatment, road repair, police/fire protection, school attendance, library services, etc.) are made available to all, regardless of whether one lives in a legal or illegal unit. However, only law-abiding owners pay for these services. Owners of illegal units add citizens to the community without paying their fair share of the cost to provide services to those citizens, while continuing to receive a financial benefit from the rental of those illegal units. Illegal unit owners not only do not pay for the initial costs of service at the time of construction of the illegal units, they also do not pay for any public impacts on roads, parks, schools, water and sewer systems and other infrastructure that may result over time. The unfunded cost for these services may eventually become a financial burden upon a community. All citizens would suffer with the loss or reduction of public services. The overall health of a community and positive quality of life is dependent its citizens acting in a law abiding and responsible manor most of the time. • Suggestion that staff work with the State Historic Preservation Office regarding this issue. As previously noted the report Nonconibnning Structures, Uses and Lots..., the City of Tustin has been recognized by the State of California as a Certified Local Government (CLG). State Historic Preservation Office certification of the City recognizes that the City is independently competent, experienced and fully responsible for deciding matters involving the stewardship, preservation and protection of the City's qualified historic resources. When necessary, the City of Tustin utilizes a wide range of resources for expert technical advice, including recognized historic architect John Loomis of 3& Street Architects to ensure that properties are modified in a manner that Is consistent with the City's Residential Design Guidelines, the Secretary of Interior's Guidelines for Rehabilitating Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 17 Historic Structures, so as to prevent or reverse inappropriate or inconsistent alterations and restore the architectural integrity of historic resources. © Suggested removing the burden of proof from property owners to the City. The burden of proof should remain with a property owner. Owners have an interest and capability of maintaining their structure, use or lot. The City does not. Further, owners have the obligation to comply with all laws and regulations. City staff will assist an owner in reviewing official and unofficial records to determine the legal status of a potentially unauthorized structure, use or lot. And, once a "whole record" (discussed above) is available, the Director of Community Development is responsible for making the official determination whether sufficient evidence exists to establish the legality of a potentially unauthorized structure, use or lot (appealable to the Zoning Administrator, Planning Commission and City Council). • The issue of nonconforming needs to be addressed to eliminate circumstances like the situation with J. C. Dugard. Agreed. Requested consistency with regard to terminology. Specifically noted the term "bootlegged" may not have been clearly defined. The term was referenced on page 12 of the document Nonconforming Structures, Uses and Lots ... and states: "An illegal structure, sometimes referred to as a "bootlegged structure," is a building constructed without permission of the City and without required plan check or building inspector oversight." • Requested clarification on the difference between the zoning code and building code in regards to nonconforming structures. In regards to the zoning code, page 3 of the September 13, 2011 Planning Commission workshop staff report and page 4 of the document Nonconforming Structures, Uses and Lots ... states: "a legal nonconforming structure, use or lot is caused by a governmental action that changes the Zoning Code. the Zoning Map, or the Subdivision Ordinance. All legal nonconforming structures, uses or lots were lawfully established under the codes at the time, but due to the adoption of a new ordinance or map revision, the property no longer conforms to the policies and standards of the code in which the property resides. Footnote #2 at the bottom of page 4 of the document Nonconforming Structures, Uses and Lots ... states: "Under the Building Code, a lawfully constructed building Is not affected by subsequent Building Code updates that may occur in future Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 18 years." To summarize, Building Code revisions over the years do not cause a structure, use or lot to be considered nonconforming. Requested clarification of what value staff places on the various pieces of evidence considered by staff in determining whether a potentially unauthorized structure, use or lot is legal or illegal. The various pieces of evidence considered by staff (identified on page 23 of the document Nonconforming Structures, Uses and Lots...) are not weighted, giving the greatest amount of flexibility to the Director of Community Development and any subsequent appeal body, when considering the breadth of evidence in the "whole record" when determining the legal or illegal nature of a potentially unauthorized structure, use or lot. However, strong consideration would be given to the following two pieces of evidence: o Building permits, occupancy permits, Variances, or other official records are available. o A building inspected by a qualified individual and determined to have been built consistent with the adopted building and zoning codes existing at the time of construction. Note: Illegal structures can be built by a qualified person in compliance with the codes adopted at the time. Thus additional evidence may be needed to reach a conclusion. However, it is much more likely that an inspection would prove beyond doubt that an illegal building does not most the codes adopted at the time of construction. Absent the above, staff would give careful consideration to the whole record, including any available evidence identified on page 23, and any other pertinent information that is provided by the owner and/or another interested party. • Requested clarification regarding the use of the document Nonconforming Structuress, Uses and Lots ... as a possible Guidelines document to be referenced in Draft Ordinance No. 1397. Staff intended the document: Nonconforming Structures, Uses and Lots ... to provide information to the Planning Commission and City Council on the intent, application and practice of California Land Use and Planning Law governing nonconforming structures, uses and lots. Staff believes that the list of available evidence to be considered when establishing the whole record of a potentially unauthorized structure, use or lot would be valuable when discussing the matter with an affected property owner. However, staff believes that the list is best included in the Community Development Department policy memo provided as Attachment E to this report rather than referencing the document Nonconforming Structuress, Uses and Lots ... within the ordinance itself. Adoption as part of Draft Ordinance No. 1379 would possibly complicate flexibility and future revision of the list of evidence. The Community Development Department policy memo Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 19 provides the greatest flexibility in allowing the list to remain a "living document" that would enable future revision of the list. ENVIRONMENTAL ANALYSIS Proposed Code Amendment 11-002 is considered a "project" by the California Environmental Quality Act ("CEQAJ (Pub. Resources Code §21000 et. seq.). City staff prepared an Initial Study for Code Amendment 11-002 (Draft Ordinance No. 1397) that determined that the proposed project could not have a significant effect on the environment, and a Negative Declaration (ND) will be prepared. A Notice of Intent to Adopt a Negative Declaration was published and the draft Negative Declaration and Initial Study were made available for a 20 -day public review and comment period from September 1, 2011 to September 21, 2011, in compliance with Sections 15072 and 15105 of the State CEQA Guidelines. The Planning Commission should consider the Initial Study and the Negative Declaration provided as Exhibit 1 to Planning Commission Resolution No. 4183 and recommend it to the Tustin City Council as adequate for Code Amendment 11-002 (Draft Ordinance No. 1397). PUBLIC NOTICE, CHAMBER OF COMMERCE, TUSTIN PRESERVATION CONSERVANCY REVIEW A public notice was published in the Tustin News on September 1, 2011, informing the public of proposed Code Amendment 11-002 (Draft Ordinance No. 1397). A copy of the staff report and proposed Draft Ordinance No. 1397 was also forwarded to the Chamber of Commerce and Tustin Preservation Conservancy prior to the Planning Commission's hearing on the matter. CONCLUSION On March 15, 2011, the City Council directed staff to revise the Tustin City Code as it relates to the term "nonconforming" to clarify, provide consistency, and to reduce ambiguity throughout the City Code and also directed that the Planning Commission consider the matter. Code Amendment 11-002 (Draft Ordinance No. 1397 — as amended) was prepared for this purpose. As directed, the Planning Commission should consider the information presented in this report, the verbatim minutes of the City Council meeting on March 15, 2011 and proposed Draft Ordinance No. 1397. At the conclusion of its deliberations, the Planning Commission should adopt Resolution No. 4183 (Attachment A) recommending: 1) that the Tustin City Council find that the Negative Declaration prepared for Code Amendment (CA) 11-002 (Draft Ordinance No. 1397 — as amended) is adequate; and, 2) that the Tustin City Coundl adopt Draft Ordinance No. 1397 — as amended, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. Dana L. Ogdon, AIC Elizabeth A. Binsadc Assistant Director Director of Community Development Planning Commission Report September 27, 2011 Ordinance No. 1397 Page 20 orOwnceno1387 (Public Heeelnp).doc Attachments: A. Planningg Commission Resolution No. 4183 Exhibit 1. Initial Study and Negative Declaration for Draft Ordinance No. 1397 Exhibit 2. Draft Ordinance No. 1397 — as amended. B. Verbatim City Council minutes of March 15, 2011 C. Tustin City Code Section 9273 and 9298 D. City Council Resolution No. 11-19 E. Community Development Department Policy Memo formalizing the Department's code enforcement investigative procedures pertaining to potentially unauthorized structures, uses, and lots. ATTACHMENT A Planning Commission Resolution No. 4133 Exhibit 1. Initial Study and Negative Declaration for Ordinance No. 1397 Exhibit 2. Ordinance No. 1397 (with modifications suggested by the California Preservation Foundation). RESOLUTION NO. 4183 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE TUSTIN CITY COUNCIL FIND THAT THE NEGATIVE DECLARATION IS ADEQUATE, AND ADOPT ORDINANCE NO. 1397 (CODE AMENDMENT 11-002) AMENDING VARIOUS CODE SECTIONS TO PROVIDE CLARITY, CONSISTENCY, AND REDUCE AMBIGUITY RELATED TO NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN. The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That on March 15, 2011, the Tustin City Council unanimously adopted Resolution No. 11-19 directing that the Tustin Planning Commission receive and consider draft Ordinance No. 1397, and a verbatim transcript of the City Council's deliberations on draft Ordinance No. 1397 so that the Commission would be aware of the City Council's concerns, and provide a recommendation on the proposed ordinance to the Tustin City Council. B. That Code Amendment 11-002 (Ordinance No. 1397) is considered a "project" by the California Environmental Quality Act ("CEQA") (Pub. Resources Code §21000 at. seq.). C. That City staff prepared an Initial Study for Code Amendment 11-002 (Ordinance No. 1397) that determined that the proposed project could not have a significant effect on the environment, and a Negative Declaration (ND) will be prepared. D. That a Notice of Intent to Adopt a Negative Declaration was published and the draft Negative Declaration and Initial Study were made available for a 20 -day public review and comment period from September 1, 2011 to September 21, 2011, in compliance with Sections 15072 and 15105 of the State CEQA Guidelines. E. That on September 13, 2011, the Planning Commission held a public workshop on the intent and practice, of California Land Use and Planning Law governing nonconforming structures, uses, and lots. F. That on September 27, 2011, a public hearing on Code Amendment 11-002 (Ordinance No. 1397) was duly called, noticed, and held by the Planning Commission. G. The Planning Commission considered the Initial Study and the Negative Declaration (Exhibit 1) and finds it adequate for Code Amendment 11-002 (Ordinance No. 1397). H. That Code Amendment 11-002 (Ordinance No. 1397) is necessary to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin (Exhibit 2). Resolution No. 4183 Page 2 That Code Amendment 11-002 (Ordinance No. 1397) is consistent with the goals, policies, and general plan land use programs specified in the Tustin General Plan for the City of Tustin, including the following land use goals and policies: LU Goal 1: Provide for a well balanced land use pattern that accommodates existing and future needs for housing, commercial and industrial land, open space and community facilities and services, while maintaining a healthy, diversified economy adequate to provide future City services. LU Goal 2: Ensure that future land use decisions are the result of sound and comprehensive planning. LU Goal 3: Ensure that new development is compatible with surrounding land uses in the community, the City's circulation network, availability of public facilities, existing development constraints, and the City's unique characteristics and resources. LU Goal 4: Assure a safe, healthy, and aesthetically pleasing community for residents and businesses; II. The Planning Commission hereby recommends that the City Council approve Code Amendment 11-002, by adopting Ordinance No. 1397, to provide clarity, consistency, and reduce ambiguity related to nonconforming uses and structures in the City of Tustin. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 27"' day of September, 2011. JEFF R. THOMPSON Chairperson ELIZABETH A. BINSACK Planning Commission Secretary Resolution No. 4183 Page 3 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4183 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 27th day of September, 2011. ELIZABETH A. BINSACK Planning Commission Secretary EXHIBIT 1 INITIAL STUDY AND NEGATIVE DECLARATION FOR CODE AMENDMENT 11-002 (ORDINANCE NO. 1397) This document has not been photocopied to reduce reproduction costs. Please see City Council report Attachment A. E�CFIBIT CODE AMENDMENT 11-002 (ORDINANCE N0. 1397) ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING CODE AMENDMENT 11- 002 AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: I''Legal Nonconformin�t" shall have the meaning set forth in Section 9297, Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance Except as provided in Section 9273(e) nonconforming uses or structures that have been determined not to be legal nonconforming c�ursuant to Section 9273 of this Code are illegal and are declared a ublic nuisance and shall be altered to conform_ with all applicable standards and regulations, and shall be subject to actions and penalties allowed by this Code If any ambiguity or conflict arises concerninci he legal or ille al status of a nonconforming use or structure within the Tustin City Code the provisions of Section 9273 shall prevail. Section 3. Section 3914 of Chapter 9, Article 3 of the Tustin City Code is hereby amended as follows: 3914 REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES (a) Any lawfully established sexually oriented business lawfully operating on or before February 17, 1998, that is In violation of Sections 3912 and/or 3913, shall be deemed legal nonconforming uses. A ;'e',;t, l nonconforming use will be permitted to continue for a period of one (1) year, with a possible extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the initial financial investment in the legal nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such ienaLl nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at the particular location Is the conforming use and the later established business(es) Is e nonconforming. Ordinance 1397 Page 2 (b) A lawfully established sexually oriented business lawfully operating as a conforming use is not rendered a ,; , nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30) days of the effective date of such ordinance. Section 4. Section 7271e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the Director to (a) remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the legal nonconforming newsrack, and of the right of the permittee to request, In writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack is one which has not been authorized by the Director and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack. Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code Is hereby amended as follows: (c) Any existing lawfully established and developed parcel which is legal and conforming or legally non -conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of-way by a public agency would result in densities exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shall not be considered. I 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 herby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this SestieRsection, a lawfully established structure or , , or, stmatuFeS 8AB&IO at the tifAe of !he Ordinance 1397 Page 3 ay be continued, although the particular structure or us, - "does not conform is he- GhaWercurrent a licable re ulations for the district in which the particular bu4dj4g o�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;-buiI"g or structure than is legally e pied -authorized at the time of -the structure or use first becomes legal nonconforming admen -ef -t tis- _ , If any legal nonconforming structure or use Is discontinued or abandoned, any subsequent use of such land or build -structure shall conform to the regulations specified for the district In which such land or lau4d ig-structure is located. If no structural alterations are made therein, a legal_nonconforming use of a-nGAeonferf►;n94xW4*t9-may be changed to another use of the same or more restrictive classification upon the securing of a use permit. If the le al nonconforming use is replaced by a more restrictive legal. nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any legal nonconforming use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or building-struope.is located. (b) f 11 Any lawfully established b644iR!9--eFL--structu adoption, which Is legal nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration Is in compliance with the regulations set forth in this Chapter for the district in which such buildiRgor structure is located; provided, however, that any such nonconforming burg- er 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 bui ng!6-structure's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. F (.1, The Ptawtin part Community Development Dement of the City of Tustin may send, by first class and certified mail, return receipt requested, to the currentowner of any nonconforming ! ugd:^�struaure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth the information required under subsection [b) 3Q 3 The statement required under subsection tb1[21 shall contain all available evidence Pertaining to the following i as to structures on the Premises all structures on the premises, all available evidence thatt1 j the structures were established consistent with all codes regulations and re uirements anplignble to the premises at the time of construction includin co ies of all ermits issued by covernmental a encig and 2 any enlargement, extension reconstruction or alteration made to each buildin cl or structure was made in compliance with the provisions of the Tustin City Code that were a )Plica )le to the Premises at the time of such enlar ement extension reconstruction or alteration or such alteration made the use or structure more conforming with the rules and regulations of the Tustin City Code; and 3) each structure has been continuously used and maintained since establishment and 4 Ordinance 1397 Page 4 that any maintenance reoair or replacement of the building or structure or oortions thereof were consistent with subsection (b)(1) above the time the use was first established the use was consistent with all codes, regulations and requirements a licable to the remises and 2 the use has been continuously maintained since established- and 3 that the use has not been enlarged or extended since the use first became nonconforming. _ 4 Seidl`—The statement shall be filed with the Piannin 9ePa"Me►t90mmun Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon In the event of any failure to duly file such a statement as herein provided, said buitdiRg�,-structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. available includinq but not limited to the evidence contained in the statement Provided by the owner, and shall within sixty (60) days of submittal of the owner's statement, send to the owner a written Preliminary determination of conforming or nonconforming status. The Preliminary determination shall include a findina that the available evidence indicates the use and/or the building and/or structure is or is not le al nonconforming. The burden of proof to establish the lawful and continuing existence of the structure and/or use at the time the use or structure first became legal nonconforming and for all periods of time as required under this Section rests with the current owner. or of mailing of the relimina det%aring on the Dreliminary determination before the Zoninq Administrator by submitting a written request identifying the prelimbgoLdpLermination. and submitting therewith a hearing fee in such amount as the City Council may establish by resolution. The hearing shall be set within thirty (30) calendar days and occur within ninety (90) calendar days of the receipt of the request for hearing and notice of the hearing. shall be mailed at least ten 10 calendar days prior to the hearing to the owner and to any other individual(s) re uesting the hearing. The owner and each individual requesting the hearing shall have the opportuniN to present evidence and witnesses regardina the nonconforming status. The hearing may be continued from time to time by the Director. Within thirtv (301 calendar days of the conclusion of the hearing, the Director shall send to the owner and a iy individual re uestin the hearing a written final determination of conforming or nonconforming status that shall include a finding that the available evidence indicates the use and/or the building and/or structure is or is not legal nonconforming. If no hearing is timely requested, the Preliminary determination shall be deemed final. accordance with Section 9294. (c) A lewal ,nonconforming bulldirgstructure, destroyed to the extent of more than fifty (50) percent of its r asaeabl+e the building's assessed value at the time of its destruction by fire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations then existing !n7for the district wherein it is located. Ordinance 1397 Page 5 (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter are, or become nonconforming due to any reclassification of districts under this Chapter, provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered C i aJ .nonconforming. (e) Any use of land, building; -or structure which is legal and GGRfQFFAinr. fn �� �r � vvrri vrr����ar, 3fovisiQ -Gf this Toning _! ode as of the . f ..i km4- of thi6 " " made "non -conforming either in design or arrangement due to acquisition of public right-of-way by the City, shall be exempt from a ROF;GGAfGFFniR@ status and the the rovisions of this section, and any other provision of the Tustin City Code regulating legal nonconforming uses, buildings or structures, unless it is established by the DepaFtment of -Community Development Department that such use;-bu+k4ng or structure creates a nuisance or is a threat to the health, safety, welfare or well being of cif.. rc.-i -4sthe occupants or the public. determination pursuant to this Section 9273 all nonconforming structures and/or uses determined not to be legal nonconforming shall be ille al and such structures and/or uses area Public nuisance that shall either be altered to conform with all applicable standards and re_ulationsor shall be discontinued and removed. Section 7. Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established ,wireless communication facilities for which applications for the modifications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to legal nonconforming wireless communication facilities that are �,,^ 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 �etal, nonconforming wireless communication facilities shall not increase the nonconformities. Section S. Section 9297 of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming° shall mean a use or structure whenever established, that was lawfully established and continuously used or occupied under previous regulations but that does not meet existing standards Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "Legal Nonconforming sign-S�" means a sign that was lawfullyerected a[tjr which does not comply with the most current adopted sign restrictions and regulations. Ordinance 1397 Page 6 Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: C. Legal Nonconforming OgRsS_igns. A leg n 4wfu4y-4R eXtisteeGi---Wfef to the adQptiGR-def-th66%,T aPA be -f #aine"ut legal nonconforming sign shall be made to conform to all provisions of this Chapter if the Director determines that any of the following events occur. 1. A Regal enonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered If the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety (90) days, it shall be presumed that such use has been abandoned In accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A ` nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, including destruction by an act of God. Section 11. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this _ day of 2011. JERRY AMANTE, MAYOR PAMELA STOKER, City Clerk Ordinance 1397 Page 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1397 PAMELA STOKER, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1397 was duly and regularly introduced and read at the regular meeting of the City Council held on the _ day of . 2011, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the _ day of 2011, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk Published: ATTACHMENT B Verbatim city Council minutes of March 15, 2011 Agenda Rom Ila. 7 . Mayor Amants: What's the pleasure of the Council? Mayor Pro Tem Nielson: May I ask a couple of clarifying questions? Mayor Amante: Mr. Mayor Pro Tem. Mayor Pro Tem Nielsen: Pro:edureily, Elizabeth, I guess would be the best here. Procedurally, whenever this passes and We recommended or whatever format We recommended, it goes back to the Planning Commission and comes back to us for final approval. Is that correct? Community Development Director Elizabeth Sinsac k: That's correct. Mayor Pro Tem Nieleen: Okay, maybe I'm out of line here, but I just went to ask, procedurally, does it usually start at the Planning Commission and come to us? Or Is this a city staff or coundimember related? Community Development Director Elizabeth ®Insack: Through the Chair, the Tustin City Code allows the Council, when it desires, to have Its laws amended. You can actually Initiate an ordinance amendment. This Is an example of an ordinance. It could be modified at the Planning Commission meeting after public hearing and Input. Mayor Amante: Mr. Nielsen, remember that when we met last, among all the other arguments my colleagues made up here Is "Well there's a better way for us to do this than to apply it to Mr. Fairbanks, who's been through so much". Well we could amend the law and dear it up that for elghty-three (83) years that non -conforming has meant non -conforming. That's what this ordinance does. It does what we requested. Staff brought you badk an ordinance that dears it Up. Mayor Pro Tem Nielsen: There's numerous ways in order to try to dear that up, just trying to get some clarification questions answered. So whatever the. If it passes, whatever we're doing goes back to the Planning Commission for their input on it and then it comes back to us. That's really all I was trying. Community Development Director Elizabeth ®insack: They would be making a recommendation to the City Council. Mayor Pro Tem Nielsen: Okay, thank you. Coundimember Gavello: To the Chair. Mayor Amante: Ms. Gavello. Page 1 of 9 Counallmember Gavello: I don't like the way it currently reads, the way It is. So I don't want to send it back to the Planning Commiselon cause We nothing that I would approve when it came back to us. So were going to be wasting a lot of staff a time and the Planning Commission's time because we're setting a direction. So, the way this is worded doesn't work for me at all as far as what we're asking. Ire going to drive staff absolutely crazy as far as the work load. Ire going to drive our residents crazy. I can't see a win-win 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 It is cause We nowhere dose to what I would ever approve. So I don't want to go forward with this. We demanding too much of the residents and is requiring a lot of the staff as far as work involved with all these homes. So there what i would like to do and that's what I'm leaning on. So that would be my motion. Wlayor Aments: Ms. Gaveilo, actually, well is there a second for Ms. Gavello's motion? Councilmember Gomez Second. Mayor Aments: Now we have a second. Let me give you some discussion on It. What ire actually doing is putting Into language in your code wheys been the practice In the city for eighty-three (83) years. So If there a huge burden on staff and a huge burden on the citizens, it has been on every citizen and every staff member since the city was Incorporated. Mayor Pro Tem Nielsen: Okay, let me kind of say where I am on this. Legal non -conforming is okay and there's a lot of language in here. What it does, it has, In my views, some over draconian language In some of this stuff. Let me kind of give you some speciflc examples here. In section one, It has the definition of legal non -conforming but it also has a language that if Ira not brought Into legal conforming status that it shall be removed. That seems a bit draconian. If It has no vested rights, it could be brought up to code. There better. There's language here that basically puts the complete burden of proof on any sort of non -conforming basis completely on the home owner. Mayor Amants: Where should the burden be? Mayor Pro Tem Nielsen: Wap, in my view, if we're looking at this, either equal burden or being more specific on what that burden is going to be. Mayor Aments: So the citizens should prove that, In tact, that Ire nonm:onbrming and the burden should be on the taxpayers. Mayor Pro Tem Nielsen: That's not what i said. We're talking about proof. We're not talking about the City has In conjunction with homeowners can have a certain level of evidence that show that. I don't have a problem but I'm not convinced and don't agree with the fact that it should be completely on a homeowner that may have bought their home in 1950, 1980. A home that has been built in the 1920's and trying to buy permits and inbnnation. And trying to go through what Mr. Fairbanks has gone through seems to be a very, very pmMed way or a very, very inefflclant way to go about it. Page 2 of 9 Mayor Amants: Well If the burden then is to be shared, let's say, for Instance, the taxpayer finds some evidence that starts to support their burden. Should they have a right to a hearing on that evidence? Cause I did tonight. I found evidence presented to me by staff this afternoon and I brought it forward and said 'Gee, I think we ought to reopen. I have some evidence so i can meet my burden which you would like to shift to the taxpayers.' I didn't get the benefit of that. I'm trying to understand where you want the burden to be. DRayor Pro Tem Nlelsen: Well, what we're talking about is evidentiary burden, okay. if a home owner, who wants to enjoy the peaceful, tranquil use of their property, and looks to either sell It, refinance it and going through that process has to prove has complete burden on them for proof of legal non -conforming. Where is that line drawn? Where is the burden of proof drawn? My point is that it shouldn't be entirely on the homeowner. it should be a shared burden. Mayor Amante: And N i. Councllmember Gavello: Point of order, point of order to the Chair. Mayor Amants: Excuse me. Councilmember Gavello: No, point of order takes precedence. Mayor Amants: Excuse me a moment. I'm In. Councilmember Onvello: No, I know. Point of order is. Mayor Aments: What would you like Ms. Gavello? Councilmember Gavello: In a point of order, I can interrupt The decorum states that each c ounciimember Is entitled to speak one time It they'd like lo speak. if Counciimember Gomez would like to speak or counciimember Murray would like to speak before another colleague gets more time to speak, that is allowed. Thera my point of order. Mayor Amants: Alright, thank you. Well I'm having a discussion with the Mayor Pro Tem. Councilmember Gavello: But it's not a discussion. Point of order. Mayor Amante: Well. Councilmember Gavello: We can vote on it Point of order. I make a motion that the other council members are entitled to speak before you get to speak again. Mayor Aments: Well I'm sorry. I have the floor. I'm having a conversation with my colleague. I don't think he's offended. Are you offended Mr. Mayor Pro Tem by my questions? I'm trying to understand, Me. Gavello, what the Mayor Pro Tem is asserting. if he's asserting that the burden should be shared, which is not the way the law works, by the way, it places burdens on parties. But If, In fact, the burden should be shared, then my question is let's say the taxpayer, through one of its elected, provides evidence, should he be entitled to reopen a hearing and have his Page 3of9 evidence heard and weighed? Is that the way you would have it work? Cause N there the case, then I would like a motion for reconsideration. Mayor Pro Tem Nielsen: Well, my point being is that there°s no procedural issues that I see here. Other than, the only procedural seems to be placing the complete burden of proof on the homeowner, the complete burden of proof. And where, frankly, the City has been Involved In eliminating that proof particularly with the 1959 permits, those have been destroyed. So It just seems to me that the more conservative approach is more of a joint effort to be able to have resources to get that proof to present as whether We legal non -conforming or not legal non- conforming. Otherwise, the whole burden of proof fails upon the home owner and then Ire, to me, It appears to be more like in the case of we'll say Mr. Fairbanks where he had, what he thought, was reasonable pry Okay, so it has to be more, in my view, an equal sharing of that burden Instead of placing the entire burden upon the homeowner. Mayor Amants: Now the taxpayer must prove that, in fact, It was non -conforming, illegally non- confomring. Mayor Pro Tem Nielsen: Well, hopefully We a more positive thing to prove that it is legally conforming. Mayor Arnants: Oh, I see, so its the taxpayers burden to cavy the burden of the applicant. I got It. Councllmember Murray: To the Chair. Councllmember Gomes: Mr. Mayor. MayorAmants: Nis. Gomez. Councllmember Gomes: Okay, my, problem with this ordinance Is the fact that it seems like at any point of time, the City can send a letter to a resident and ask them to prove something. Okay, that to me I have a problem with. Okay. Secondly, again to Councilmember Nieisen's point about the burden of proof, let me just give you a couple of examples. Okay. There's a major university in Southern California that shell go nameless whose records were all destroyed. Okay. That major university basically told their graduating students come back and tell us what degree you got and we'll give you a diploma. I am not kidding. Okay. Another example, there is a warehouse, a federal warehouse, that burnt down. That had most of the records of our World War II veterans. Our World War II veterans are dying at the rate of 800 to 1000 per day. Now, in order for them to get their benefits, it takes the federal government anywhere from eight to fourteen months because they have to piece together these records from several other sources because that one warehouse burnt down. Now my father did not get his benefits. He died while he was waiting for his benefits. My godfather was in the some situation. luckily, because he was wounded, he got a letter from President Roosevelt. He kept that letter and he sent that letter with his benefit package. When the federal government saw the letter from Roosevelt, they approved his benefris without doing the research. Okay. This Is what happens to people when records are destroyed. It's a very unfortunate situation for many, Page 4 of 9 many of our veterans and It has made me very angry over the course of the last several years. But this Is what happens. And so now you're putting the burden of prof. we put the burden of proof on our veterans who did not get their benefits because the federal government destroyed or records were destroyed. I won't say the federal government did it but it was a result of. Okay. This is a problem for me so I have a challenge here. Okay. I think we need to figure out a better way to do this than putting the burden of proof on the citizens. There has to be some balance. I don't know what the balance is but we got to figure it out. in respect for our citizzens, In respect for our ordinances and our laws, we want to uphold the laws but It's got to be something reasonable. Thank you. Councllmember Murray: To the Chair. Mayor Amante: Mr. Murray. Councllmember Murray: It's quite obvious with all of us here today, quits obvious with the council, that this matter has taken on a very sensitive tone, a very Important tone and It's definitely something that we need to address. But you know, maybe I'm losing, I don't see the big picture or something but I don't see the urgency or exigency in trying to make this happen so expeditiously that we're not thoughtful about ft. And we're not taking everything that we need to Into consideration. I'm sure there are best practices out there and other policies in other locations that have gone through similar kinds of challenges that we have been facing regarding this topic and non -conforming. Why don't we just take a step back and look at what we have here drafted, send ft back to staff, let them take a look at ft and try and refine this a little bit, with some of the Input from the community, from some of the Input from other practitioners. I mean We Important to do this right. It's been hanging around a long time. Let's be thoughtful about it and try and address it the right way. I just don't see the need to get everything done tonight. Mayor Amante: Well the recommendation of the staff in your agenda Is that the Council adopt a resolutlon to Initiate a code amendment to provide clarity, to provide consistency with prior practice for eighty three years and reduce the ambiguity of the term anon-conbmdng° throughout the code and to, here's the action part, direct the Planning Commission to consider sold code amendment for recommendation to the City Council. That means you're sending ft down to the Commission. You're asking them to snub it, look at it, weigh what's bebre you, hear testimony from members of the public, hear lawyers present their arguments, hear people talk about where the burdens ought to be and who ought to be charged with the object of proving or disproving a fact. And then they'll make a recommendation, after all the hearings, back to Council and we'll have, again, another full hearing on this Issue and the opportunity br the public to address it and br all the council members to weigh in. So I think what you're trying to get to, Mr. Murray. and what Council are asking br in order to weigh and evaluate ft Is exactly what staff is recommending. You have to send them something to work from. You can't just give them no assignment. You're sending them an assignment and asking them to have hearings and to scrub It. Maybe they'll come back and agree with the Mayor Pro Tem. Maybe they'll agree with me that the burden not be shared but that ft be on the applicant because that's where the burden generally is. Maybe they'll come up with some hybrid as councilwoman ®avello suggests but until you send ft to the Commission b consider. you'll never know. Page 5 of 9 Councllmember Gavello: To the Chair. Mayor Amants: RAs. Gavello. Councllmember Gavello: There's a motion and a second. Can we vote on it? And then we can see If we come to an agreement. Then I can decide If I want to do a substitute motion. 80 can we try that? Mayor Amente: I don't know. is there a motion? Councllmember Gavello: I did. Yes, there's a motion and a second. I did move it probably about twenty minutes ago. I moved to deny It. Mayor Amants: Me. Gavello, whoa, let me ask, Is there a motion? Councilmember Gavello: I stili have the Chair. Mayor Amante: Does anyone remember? Where's the motion? Councilmember Gavello: To the Chair. I made a motion that we deny this the way Its read cause ire so far out. Mayor Amants: That failed to get a second. Counclimember Gavello: No, it did get a second. Mr. Mayor, it did get a second. Mayor Amente: Who seconded it? Councllmember Gomes: I did. Mayor Amants: I'm sorry. I didn't hear Ms. Gomees second. So there's a motion and a second to deny the staff recommendation. Any further discussion on It? Mayor Pro Tem Nielsen: Okay, fere clarify this a little bit for procedural points. N this is denied, then nothing goes to the Planning Commission. Mayor Amante: That's right. You put it in the crib. There the motion and there's a second. Any further discussion? All those In favor. Councllmamber Gavello: I. {Councilmember Gomez: I. Mayor Amants: Oppose. Councilmember Nielsen: No. Councilmember Murray: No. Mayor Amante: No. Page 6 of 9 Counalimember Gavello: To the Chair, I have a substitute motion. Mayor Amente: No, that motion already died. Do you have another motion? Councilmember Gavello: Yeah, I'll make a substitute motion. Mayor Amants: Ire not a substitute. The motion is dead. Councllmember Gavello: We a new motion, sorry. I'll make a new motion. I say we continue the Item. I don't want to. I really don't want to send this back the way it is to the Planning Commission because ire so far away from what I heard from my colleagues what we want. This Is so far away. I don't even want them to start with this. So I'm either going to say that we send it to them but not using this as the basis because It's very far away from what I'd want to do. We car! send It to the Planning Commission to start reviewing and looking at things. That I would make a motion for to start but I'd rather have them do it fresh. Mayor Pro Tem Nielsen: Mr. Mayor, If I could darty a little bit. Mayor Amante: Are you clarifying her motion? Mayor Pro Tem Nielson: No, I'm asking staff something. Mayor Amante: Well let me we If her motion has a second. is there a second for Pis. Gaveilo's motion to send this down for general discussion to the Planning Commission with no direction and no language to work from? That dies for a lack of second. Mr. Mayor Pro Tem. Mayor Pro Tem Nielsen: Me. Binsack, if I could ask you a couple of questions. If we could add this, this is staff recommendation, correct? Community Development Director Elizabeth Blnsacic Correct. Mayor Pro Tem Nielsen: Okay, If we could do that with comments that have been made by city council members on direction they would like to we this go and they're going to have a public hearing at the Planning Commission level. is that something there workable? Community Development Director Elizabeth Binsack: We can do that,. We can ask the clerk to provide verbatim minutes and include that with a presentation to the Planning Commission. Mayor Pro Tem Nielsen: With verbatim minutes? Okay. I've got no problem with that. Mayor Amante: On this item? Councitmember Murray: On this Item? Community Development Director Elizabeth Blnsack: Correct. Mayor Pro Tem Nielsen: Yes. Mayor Amants: Is that a motion? Page 7 of 9 Mayor Pro Tem Nielsen: Yes, that's a motion. Councllmember Murray: Second. Mayor Amants: Alright, we have a motion. Is that a second, Mr. Murray? Councllmembar Murray: Yes. Councilmember Gavello: Can I hear the motion? Sorry. Mayor Amante: Yes, I'm going to by to repeat it to the best of my ability and Mr. Nielsen will correct me where I misspeak. The motion by the Mayor Pro Tem and seconded by Counciimember Murrey is that we send the staff recommendation down to the Planning Commission so they can begin their discussion with a verbatim transcript of the discussion of Council on this item only. Councllmember Gavello: To the Chair. Mayor Amante: Yes. Councllmember Gavello: Can I ask Councilmember Nielsen a question? Mayor Amante: Absolutely. Councilmember Gavello: Are we in agreement that this is not the basis for It? Mayor Pro Tem Abelson: Well what will happen, as I understand it, Mr. Mayor, is that, and Counclimember Gavello, is that staff recommendation, like with arty Planning Commission pack, will go down as Is. But what will happen is you'll have In that pack the discussion that we've had and the points that we've made on this particular Item. So they'll have not only the staff recommendation but they'll have what we have discussed and the Input that we have as well. Mayor Amente: in essence what you're doing is, you're not burdening them with having to go and review our meeting to see this. They have a transcript of what our comments were so they get the benefit or the burden, depending on how you look at It, of whatever our thinking is. Mayor Pro Tem Nielsen: And It's verbatim minutes, exactly what we said. Councilmember Gavello: Like we used to get from them. Got IL Mayor Pro Tem Nlelssn: Okay. Mayor Amants: Okay, any further questions or discussion? Counellmember Gomes: And they will get a red lined copy? Is that what you're saybig? As we were presented with? Mayor Amante: They will get what you've been presented and they will get our commentary. Councilmember Gomez: Okay. Page 8 of 9 Mayor Amante: There a motion and a second. Further discussion? All those In favor? ►411 Counciimembers: 1. Mayor Amante: okay, that passes 5-o. Page 9 of 9 ATTACHMENT C Tustin City Code Section 9273 and 9298 9273 - NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this Section, uses of land, buildings, or structures existing at the time of the adoption of this Chapter may be continued, although the particular use, or the building or structure does not conform to the regulations specified by this Chapter for the district in which the particular building or structure is located or use is made; provided, however, no nonconforming structure or use of land may be extended to occupy a greater area of land, building or structure than Is occupied at the time of the adoption of this Chapter. If any nonconforming use is discontinued or abandoned, any subsequent use of such land or building shall conform to the regulations specified for the district in which such land or building is located. If no structural alterations are made therein, a nonconforming use of a nonconforming building may be changed to another use of the same or more restrictive classification upon the securing of a use permit. If the nonconforming use is replaced by a more restrictive nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or building is located. (Ord. No. 157, Sec 6.1) (b) Any building or structure, existing at the date of adoption of this Chapter, which is nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in. compliance with the regulations set forth in this Chapter for the district in which such building or structure is located; provided, however, that any such nonconforming building or structure may be maintained, repaired or portions thereof replaced, so long as such maintenance, repairs or replacements do not exceed fifty (50) percent of the building's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. The Planning Department of the City of Tustin may send, by certified mail, return receipt requested, to the owner, as shown on the last equalized assessment roll, of any nonconforming building or structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth a detailed description of said use. Said statement shall be filed with the Planning Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which It is located within thirty (30) days after such failure. (Ord. No. 310, Sec. 1) (c) A nonconforming building, destroyed to the extent of more than fifty (50) percent of its reasonable value at the time of its destruction by fire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations existing In the district wherein it is located. (Ord. No. 310, Sec. 2) (d) The provisions set forth in (b) and (c) above, shall apply to structures, land and uses which hereafter become nonconforming due to any reclassification of districts under this Chapter; provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered nonconforming. (Ord. No. 319, Sec. 3) (e) Any use of land, building, or structure which is legal and conforming to all provisions of this Zoning Code, as of the date of adoption of this "ordinance," and made "non -conforming" either in design or arrangement due to acquisition of public right-of- way by the City, shall be exempt from a nonconforming status and the provisions of Section 9273, Nonconforming Structures and Uses, unless It is established by the Department of Community Development that such use, building or structure creates a nuisance or Is a threat to the health, welfare or well being of City residents. (Ord. No. 1013, Sec. 2,1-3-89) 9298 - INTERPRETATION AND ENFORCEMENT a Continuity of law Except as specifically provided herein, this chapter shall not be Interpreted to repeal, abrogate, annul or in any way affect any existing provision of any law or ordinance or regulations or permits previously adopted or issued relating to the erection, construction, moving, alteration or enlargement of any building or improvement; provided however, in any instances where this chapter Imposes greater restrictions upon the erection, construction, establishment, moving, alteration or Improvement of buildings or the use of any building or structure that Is imposed or required by an existing law, ordinance or regulation, the provisions of this chapter shall control. (Ord. No. 157, Sec. 12.1) b Criteria for Determination Whenever the Director of Community Development, or Planning Commission of the City of Tustin is called upon to determine whether or not the use of land or any structure in any district Is similar In character to the particular uses allowed in the district, the Director or Commission shall consider the following factors as criteria for their determination: (1) Effect upon the public health, safety and general welfare of the neighborhood Involved and the City at large. (2) Effect upon traffic conditions. (3) Effect upon the orderly development of the area in question and the City at large, in regard to the general planning of the whole community. (Ord. No. 175, Sec. 10; Ord. No. 1366, Sec. 21,11-17-09) c Responsibility of Enforcement It shall be the duty of the Director of Community Development or designee to enforce the provisions of this chapter pertaining to the use of land or buildings in the erection, construction, reconstruction, moving, alteration, or addition to any buildings or structures. Any permit or license of any type issued by any department or officer of the City of Tustin Issued In conflict with the provisions of this chapter is hereby declared to be null and void. (Ord. No. 175, Sec. 11; Ord. No. 1366, Sec. 22, 11-17-09) d Procedures Any building or structure erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this chapter and any use of land or buildings operated or maintained contrary to the provisions of this chapter are hereby declared to be public nuisances. The City Council may commence the necessary action or proceedings for the abatement, removal and enjoining thereof In the manner prescribed by law in the courts which may have jurisdiction to grant such relief as will accomplish such abatement and restraint. The remedies provided for in this section shall be in addition to any other remedy or remedies or penalties provided in this chapter or any other law or ordinance. (Ord. No. 157, Sec. 13.2) e Appeals Any person may appeal any decision of the Director of Community Development in accordance with Section 9294 of this Code. (Ord. No. 157, Sec. 13.3; Ord. No. 1366, Sec. 23,11-17-09) f Consistency With All Laws Notwithstanding any provision of this Code to the contrary, any use, entitlement, authorization, license, or permit allowed or Issued under this Code, including without limitation any accessory or ancillary -use, shall be consistent with applicable state and federal law. Any use or activity that is Illegal under local, state, or federal law shall be deemed a prohibited use in all districts within the City. (Ord. No. 1322, Sec. 2,12-4-06) ATTACHMENT D City Council Resolution No. 11-19 RESOLUTION NO. 11-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, INITIATING A CODE AMENDMENT (DRAFT ORDINANCE NO. 1397) TO AMEND THE TERRA "NONCONFORMING" AS SET FORTH IN THE TUSTIN CITY CODE TO CLARIFY, PROVIDE CONSISTENCY, AND REDUCE AMBIGUITY THROUGHOUT THE CODE; AND DIRECTING THE PLANNING COMMISSION TO CONSIDER SAID CODE AMENDMENT . FOR RECOMMENDATION TO CITY COUNCIL. The City Council does hereby resolve as follows: I: The City Council finds and determines as follows: A. That, pursuant to Tustin City Code Section 9295c the City Council may initiate a code amendment of the Tustin City Code by filing a resolution of the City Council's Intention with the Planning Commission; B. That on March 1, 2011, the City Council held a noticed de 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 salol public hearing, the City Council directed staff to daft a code amendment to amend the term "nonconforming" as set forth in the Tustin City Code (TCC) and other Zoning Documents to clarify; provide consistency with prior practice; and reduce ambiguity throughout the Code. II. The City Council hereby Initiates a code amendment for Draft Ordinance No. 1397, attached hereto in Exhibit A, to amend the term "nonconforming" as set forth In the Tustin City Code to mean structures and uses which were legally erected, established, and which have been lawfully and continuously maintained, but which no longer conform to the regulations and requirements of the zoning district; and directs the Planning Commission to consider said code amendment for recommendation to City Council. 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 151' day of March, 2011. ATTEST: W510RAN"#Rd%"% . STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, Califomis, 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 r passed and adopted at a regular meeting of the Tustin City Council, held on the 15th day of March, 2011, by the following vote: COUNCILMEMBER AYES: Amante, Nielsen, Ganello, Gomez, Murray (5) COUNCILMEMBER NOES: None (p) COUNCILMEMBER ABSTAINED: None (p) COUNCILMEMBER ABSENT: None (p) WE r%&1 kqW W City Clerk 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 CRY of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: 1=1 Nonconformino" shall mean a use or structure that wes lawfully established or bulk under previous regulations but does not meet o tng gkodards,e al uses or arugWres hMM no.yLqa jjghtsjlleaai uses or structures are a Public nuisance that shall either be brought into legal conforming status or shall be removed Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code Is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance. Nonconforming uses or structures that have not been lawfully established •1 E=. W i LeA Lo •111lill1lil ' OUT -7- 1 - - W •1• 0 W! lc 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 Section 3912 andfor 3913, shall be deemed 12gg nonconforming uses. A lei„! nonconforming use will be permitted to continue for a period of one (1) year, with a possible Resolution 11-19 Page 3 of 9 extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the Initial financial investment In the ggal nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such J@W nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. if two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawful established and continually operating at the particular location is the conforming use and the later established businesses) is legal nonconforming. (b) A lawfully established sexually oriented business lawfully operating as a conforming use Is not rendered a -WA&I nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license Is submitted after a permit and/or license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30) days of the effective date of such ordinance. Section 4. Section 7271 e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the Intent of the Director to (a) remove the newsrack If it has no permit or (b) to revoke the permit and cause the removal of the legal nonconformfng newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack Is one which has not been authorized by the Director and ownership Is not known, nor apparent after Inspection, a notice complying with this section shall be affixed to the newsrack. Resolution 11-19 Page 4 of 9 Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code Is hereby amended as follows: (c) Any met--lawFul @blished and developed parcel which is legal and conforming or legally non -conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of-way by a public agency would result in densities exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shall not be considered legal nonconforming pursuant to Section 9227b2 and Section 9273 of the Zoning Code with regard to density only, provided that all other provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Article 9. of the Tustin City Code is hereby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES This section shall ORRIV to 811 structures and uses that were lawfully (a) Except as otherwise provided in this Section, lawfully established uses of land, buildings, or structures 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 teAal 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 how nonconforming use Is discontinued or abandoned, any subsequent use of such land or building shall conform to the regulations specified for the district in which such land or building is located. If no structural alterations are made therein, a eMl 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 mal 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 nonconformina 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,he date which is mal nonconforming either In use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is In compliance with the regulations set forth in this Chapter for the district In which such building or structure is located; provided, however, that any such e a 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 Tustln. The Community Development Department of the City of Tustin may send, by certified mall, return recelpt requested, to the current owner-, as shown on the last equalized assessment fG11 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 providing to the regulations spedfled for the district in which such land or building Ij located: 3) that no structural alterations or expansions. or chances in use were made without the prior authorization of the City. and that no alterations Code. Sold statement shall be filed with the 12laAA!ng DepadmentCommunity Development Department of the City of Tustin within thirty (30) days from the date of such demand. Upon any failure to duly file such a statement as herein provided, said building, structure and use shall conform to all regulations of the zone in which It is looted within thirty (30) days after such failure. The burden of proof to establish the lawful and continuing existence of the structure and use at the time of the enactment of the ordinance and for all Redods of time as required under this Section rests with the current owner. Resolution 11-19 Page 6 of 9 (c) A al nonconforming building, destroyed to the extent of more than fifty (50) percent of Its reasonable value at the time of its destruction by tire, explosion or other casualty or act of God, may be restored or used only in compliance with the regulations exsting in the district wherein it Is located. (d) The provisions set forth In (b) and (c) above, shall apply to structures, land and uses which hereafter become legal nonconforming due to any reclassification of districts under this Chapter, provided, however, that public uses, public utility buildings and public utility uses existing at the time of the adoption of this Chapter, or existing at the time of reclassification of districts, shall not be considered legal nonconforming. (e) Any use of land, building, or structure which is legal end GeRfe—iRg to a1i PFevisions 17A the ZeRinq f as e4 the date Gf adeptlen Gf this q „ 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 the provt ionunless it is established by the Dei eftme e€ -Community Development Department that such use, building or structure creates a nuisance or is a threat to the health, welfare or well being of City residents. Section 7. Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established wireless communication facilities for which applications for the modffic:atlons were submitted on or after the adoption date of Ordinance No, 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to leg�i nonconforming wireless communication facilities that are legal nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. Modifications to Is nonconforming. wireless communication facilities shall not increase the nonconformides. Section S.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: Resolutlon 11-19 Page 7 of 9 Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "Leg—al Nonconforming sign-Sicn " means a sign that was lawfully erected 4ege4y—which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: c. Legal Nonconforming sijasSigns. A legally established, AGAGGROOFFAiRS sign lawfully in existenGe PFIQF W the adGpti9iq date of this eFdinanGe May Famain and be maintained, b legal nonconforming sign shall be made to conform to all provisions bf this Chapter N the Director determines that any of the following events occur. 1. A lea nonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A gapll nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illuminstlon of the sign. 4. A L" nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety (90) days, it shall be presumed that such use has been abandoned in accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A kMaj nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, Including destruction by an act of God. Section 11. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that It would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Resolution 11-19 Page 8 of 9 PASSED AND ADOPTED at a special meeting of the City Council of the City of Tustin held on the _ day of 2011. ATTEST: PAMELA STOKER, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) JERRY AMANTE, Mayor I, Pamela Stoker, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1397 was duly passed and adopted at a special meeting of the Tustin City Council, held on the day of _ 2011, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER, City Clerk Resolution 11-19 Page 9 of 9 ATTACHMENT E Community Development Memo formalizing the enforcement investigative to potentially unauthorized lots. Department Policy Department's code procedures pertaining structures, uses, and DATE: AUGUST 30, 2011 Inter -Com TO: DISTRIBUTION T uSTN nn� BUILDING OUR FUTURE HONORING OUR PAST FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: INVESTIGATIVE PROCEDURES PERTAINING TO POTENTIALLY UNAUTHORIZED STRUCTURES, USES AND LOTS The purpose of this memorandum is to formalize the Department's investigative procedures pertaining to potentially unauthorized structures, uses, and lots, to ensure implementation of a standardized approach by current and future staff and the affected public. A "potentially unauthorized" structure, lot and/or use is one in which an existing structure, building, sign, development, lot, or use may not conform to one or more of the regulations currently applicable to the district in which the structure, building, sign, development, lot, or use is located. When a potentially unauthorized structure, use or lot is identified, staff shall confirm that the concern exists by visiting the site or by viewing plans, aerial photographs, etc. If a violation appears to exist at the site, staff shall perform much more exhaustive research into the history of the potentially unauthorized structure, use or lot, to attempt to determine when it was added, enlarged, extended, modified or altered at the site, and whether it was lawfully established. Staff shall consider the following when attempting to develop a "whole record" by which to determine whether a potentially unauthorized structure, use or lot is legal or illegal: • Building permits, Occupancy Permit, Variance, Conditional Use Permit, or other official records • County Tax Assessor records • Property Title Reports and/or Record of Deed • Historic photographs, aerials • Historic phone books • Water billing records 4 Sewer connection records • Other utility records (electrical, gas, etc.) Business license records o Historic newspaper records • Historic surveys or registers • Historic Sanborn fire insurance maps o Subdivision maps Code Enforcement Investigative Procedures Page 2 of 2 a Written histories/letters from prior owners, residents, etc. • Other evidence presented by the owner and/or occupants va Other documents as may be available Zoning Map and Zoning Code City Council/Planning Commission minutes, Resolutions, Ordinances and/or policies n Physical Inspection of the construction methodology, materials, etc. to determine whether the structure complied with building codes at the time of construction (see discussion below) • As needed, request an independent licensed/qualified architect experienced to perform a site assessment. An inspection of a potentially unauthorized structure by a City Planner and Building Inspector should also be accomplished to ascertain whether the potentially unauthorized building Improvements were done consistent with the Building Code adopted at the time of construction. A building inspector's visit should observe major life/safety related discrepancies In the workmanship and materials that could be used to determine whether the potentially unauthorized work would have been in compliance with the Building Code requirements adopted at the time that the improvements were made. City staff shall assist an owner in reviewing City records when available. In some cases, an owner may have additional official or unofficial records that may assist City staff in determining whether a particular structure, use or lot is or is not legal. If, at the conclusion of staff review, the potentially unauthorized structure is determined to be lawfully established, pertinent Information shall be added to the City's records documenting that fact, and the matter officially closed. However, if staff review concludes that a structure, use or lot appears to be illegal, cannot be permitted, has not been constructed using conventional construction methods, etc., the property owner shall be officially requested to correct the concern. We appreciate your effort in complying with this new procedure. If you have any questions, please contact Dana Ogdon orJustina Wiilkom. DISTRIBUTION: Planners All Building Personnel Code Enforcement Officers &."%ad.,a Code Amendment 1 1-002 (Draft Ordinance No. 1397) Clarifying the Me.ming of Nui7c-onfo�-niing Uses and 5truct(ires in dIC City of IM01) Code Amendment 1 1-002 (Draft Ordinance No. 1397) On September 13, 201 1, the Tustin Planning Commission conducted a Workshop on the intent and practice of California Land Use and Planning Law governing nonconforming structures, uses, and lots. Code Amendment I I -002 (Draft Ordinance No. 1397) The community's vision for its built environment is defined by its adopted codes and land use regulations. The Zoning Map, Zoning Code, Building Code, and Subdivision Ordinance are the regulatory tools used to accomplish these goals. As the community's vision for its built environment evolves and codes change, some structures, uses, and lots are no longer in conformance — considered nonconforming. Code Amendment 11-002 (Draft Ordinance No. 1397) The community's vision for its built environrn t .is fint r-finprl by itc nrinnt co es and Ianc The Zoi ig Code and Sub ulatory tools us As the c fr, environs some structur in conformance — considered nonconforming. Code Amendment I I -002 (Draft Ordinance No. 1397) The comm env ironrY and lanaA The Zoi`� and Sub tools us As the c environs structur conformanc codes ig Code, ;ulatory some in orming. Code Amendment 11 -002 (Draft Ordinance No. 1397) The comm environmm, and lana . The Zoi and Sub tools us As the c environs structur conformani codes ig Code, ;ulatory some in orming. Code Amendment 1 1-002 (Draft Ordinance No. 1397) The comm environmlp,�: and lancf' The Zoi� and Sub• tools us - 4Ra, Asthe c environs structur conformani codes ig Code, ulatory some in �Torming. Code Amendment I I -002 (Draft Ordinance No. 1397) The comm conformani Worming. Code Amendment 11-002 (Draft Ordinance No. 1397) Code Amendment 11-002 (Draft Ordinance No. 1397) co Code Amendment 1 1-002 (Draft Ordinance No. 1397) 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. Nonconformities are typically allowed to continue unaltered indefinitely. Any change that gives permanency to, or expands the nonconformity would not be consistent with this purpose and is typically prohibited. Exceptions Right -of -Way Takings 10/18/2011 gpµ�qaCfi X55 CCX' }:.X XF Exceptions Adaptive Reuse Exceptions Approved Exceptions 10/18/2011 10/18/2011 Code Amendment I I -002 (Draft Ordinance No. 1397) On December 14, 2010, the Tustin Planning Commission considered an appeal involving two illegal structures. City Attorney Holland opined that a 1961 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. Code Amendment 1 1-002 (Draft Ordinance No. 1397) On C( r TCC Section 9298 (196 1) — the Zoning lin g Code "shall not be interpreted to repeal, ng two abrogate, annul or in any way affect any Ci existing provision of any law or or ordinance or regulations adopted or 'm the C issued relating to the erection, t for th construction, moving, alteration or !gal sti enlargement of any building or hat tir improvement" except where "greater g. This ops, restrictions" are applied. ,cactice and application of the City's nonconforming provisions. Code Amendment I I -002 (Draft Ordinance No. 1397) On T .. _ ..... _ _ king C( )g two ill( Ci or TCC Section 9298f (196 1) —"Any use or n the activity that is illegal under local, state, or Ci federal law shall be deemed a prohibited for t use in all districts within the City." ,al sti at tir . This opiI ctice and appilLdLiuii ui Lilt %_ILy 11UH UMur-ming provisions. Code Amendment I I -002 (Draft Ordinance No. 1397) On T .. ..... — -- ging C( ,g two C TCC 9273(e) (1989) —Any structure or or use "which is legal" but made ithe Ci nonconforming by the adoption of or th amendments to the code, is considered -1 sti legal nonconforming. t tir This opiN nice and ap, provisions. Code Amendment I I -002 (Draft Ordinance No. 1397) On T .. ...... — - ging C( .g two III( Cl' Taken in its entirety, Sections 9273 and or 9298 mean that only legal or lawfully the C established structures, uses and lots are 'r th legal nonconforming, regardless of sti whether they were established before or tir after 1961. -his opiN ce and ap, provisions. Code Amendment 1 1-002 (Draft Ordinance No. 1397) On rr Cr ill( C or C th st OF ,irng `g two Taken in its entirety, Sections 9273 and 9298 mean that only legal or lawfully established structures, uses and lots are legal nonconforming, regardless of whether- they were established before or after 1961. opil and ak, provisions. '1' Code Amendment 11-002 (Draft Ordinance No. 1397) the ,r- -his ce At the request of the City Council, staff prepared Draft Ordinance No. 1397 to provide clarity, provide consistency and reduce any ambiguity related to any nonconforming structures, uses and lots in the City. The City Council requested that the Planning Commission consider- verbatim City Council minutes of March 15, 201 1 and Draft Ordinance No. 1397, and provide a recommendation on the proposed ordinance to the Tustin City Council. 10/18/2011 Illegal Structures/Uses Illegal structure, use or lot is caused by the actions of a past owner, tenant, or property manager — not a government action. Illegal structures, uses or lots must be corrected immediately — may not continue indefinitely. Illegal structures, uses or lots pose life -safety concerns to building occupants, neighbors, and safety personnel. 10/18/2011 W O UM C: V • O � s E V) 4-) 4-) 4-J s � a -v E u u 'V O EU � O > N s br0 > 0 p -y Mu s �. CL �O m O .- W UM C: V • � E 4-d 4-) 4-) cit o - s tt V) E E u 'V O. � O > L s L. > 0 p � V)O A-) s �. �O O N E cit L s O �cit , u 'V . 0 p � V)O A-) s �. �O O a�.0�sbpE 'v X _ s 4-J 41 Illegal Structures/Uses Illegal Stl-uctures do not typically meet the Building Code. Public services (i.e. sewage treatment, road re air school attendance " LT -1 library services, etc. ) can -W' e be negatively impacted. A 0-- ", Illegal units can change? the nature of a I - neighborhood ... for example, from single family to multiple family Illegal Structures/Uses Budding pernnts.Occupi[ICY PermltVal'Lances,or other official records. County Tax Assessor records Pro pertyTitie Re poi is and/or Record of Deed Historic photographs, aerials Historic phone books Water billing records Sewer connection records Other utilityrecords (elecaical.gas.eec.) Business license records Historic newspaper records Historic surveys or registers Historic Sanborn fire insurance maps Subdivision Wraps Written histories/letters f ont current and prior ovmers, residents. etc. Other evidence presented by the owner and/or occupants Other documents as may be ay.iilable Physical inspection of the consuuction methodology. matei ials,etc. to determine whether the structure complied with budding codes at dle ante of cons❑ uCoon . Request an independent hcensed/qualified archiiect experienced to pei form a site assessment. n� Illegal Structures/Uses Staff would give careful consideration to the whole record, including any available evidence identified above, and any other pertinent information that is provided by the owner and/or another- interested party. However, strong consideration would be given to the following two pieces of evidence: Building permits, occupancy permitsNariances, or other official records as available. A building inspected by a qualified individual and determined to have been built consistent with the adopted building and zoning codes existing at the time of construction. Note: Illegal structan-es can be built by a qualified person in compliance with the codes adopted at the time. Thus additional evidence may be needed to reach a conclusion. Illegal Structures/Uses What if illegal structures are determined nonconforming under- the Zoning Code? Illegal construction must meet the Building Code. The Building Code is a State Law — the City must enforce the requirements established by the State. The California Historic Building Code allows the City the opportunity to accept solutions that are reasonably equivalent to the Building Code. If the improvements needed to make an illegal structure comply with the Building Code have a value greater than 50% of the assessed valuation of the structure, the nonconforming structure must be removed. Illegal Structures/Uses What if the City were to change the zoning code to legalize illegal units throughout the City? Illegal construction must meet the Building Code. The Building Code is a State Law — the City must enforce the requirements established by the State. The California Historic Building Code allows the City the opportunity to accept solutions that are reasonably equivalent to the Building Code. If the improvements needed to make an illegal structure comply with the Building Code have a value greater than 50% of the assessed valuation of the structure, the nonconforming structure must be removed. Illegal Structures/Uses Illegal Structures/Uses 10/18/2011 11.�; lk� Illegal Structures/Uses 11.�; lk� Illegal Structures/Uses w Illegal Structures/Uses Illegal Structures/Uses �cort Agency N N b�0 .� L O O U Z IRN M M Z a) V r•� 0 .4-J c� L Jc 0 L. cn F - .E �1 0 L NEW% - Illegal Structures/Uses Single family residence 4 Illegal Units r ss 1 Or e I 1G5 R I ILI. Illegal Structu res/Uses 10/18/2011 10 Illegal Structures/Uses �cort Agency Illegal Structures/Uses Illegal use nonconforming? t I R44 Illegal Structures/Uses Illegal use nonconforming? El Code Amendment 11-002 (Draft Ordinance No. 1397) City Attorney Holland's opinion - that based upon current Code language - both legal structures, uses or lots existing prior to 1961 should be considered nonconforming and allowed to remain indefinitely. Illegal structures and uses exist in the City. The current interpretation that some (pre -1961) can continue to exist indefinitely is problematic. The Tustin City Code language that resulted in the prior- City Attorney's opinion is still the Code language, and has been since 1961. Code Amendment 1 1-002 (Draft Ordinance No. 1397) On March 1, 201 1, the City Council directed staff to prepare draft Ordinance No. 1397 to clarify, provide consistency and to reduce ambiguity in the regulation of nonconforming structures uses and lots. On March 15, 201 1, the City Council requested that the Planning Commission consider draft Ordinance No. 1397, along with their verbatim minutes of March 15, 201 1, and provide a recommendation on the matter. t SR IW Code Amendment 11-002 4'.E' (Draft Ordinance No. 1397) Recommendation: Adopt Resolution No. 4183 recommending that the City Council adopt Ordinance No. 1397 clarifying that only legal uses and structures may be considered nonconforming.