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HomeMy WebLinkAbout14 SECOND READING 1397Agenda Item 14 Reviewed: AGENDA REPORT City Manager Finance Director N/A MEETING DATE: NOVEMBER 15, 2011 TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER FROM: PATRICIA ESTRELLA, CITY CLERK SERVICES SUPERVISOR SUBJECT: SECOND READING AND ADOPTION OF CODE AMENDMENT 11- 002 (ORDINANCE NO. 1397), CLARIFYING THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN SUMMARY: At the request of the City Council, staff prepared 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 requested that the Planning Commission consider verbatim City Council minutes of March 15, 2011 and Ordinance No. 1397, and provide a recommendation on the proposed ordinance to the Tustin City Council. Between September 13 and October 11, 2011, the Tustin Planning Commission held a workshop and two public hearings on the matter. On October 11, 2011, the Tustin Planning Commission adopted Resolution No. 4183 recommending that the Tustin City Council adopt Ordinance No. 1397, as amended. RECOMMENDATION: Have second reading by title only and adoption of Ordinance No. 1397 (roll call vote). FISCAL IMPACT: Ordinance No. 1397 is aCity-initiated project. There are no direct fiscal impacts anticipated as a result of adopting this ordinance. BACKGROUND: On November 1, 2011, the City Council had first reading by title only and introduction of the following Ordinance: 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 Patri~(a Estrella 'L City Clerk Services Supervisor ORDINANCE NO. 1397 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, APPROVING CODE AMENDMENT 11- 002 AMENDING VARIOUS SECTIONS OF THE TUSTIN CITY CODE TO CLARIFY THE MEANING OF LEGAL NONCONFORMING USES AND STRUCTURES IN THE CITY OF TUSTIN The City Council of the City of Tustin does hereby ordain as follows: Section 1. Section 1112 of Chapter 1, Article 1 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall have the meaning set forth in Section 9297. Section 2. Section 1122a of Chapter 1, Article 1 of the Tustin City Code is hereby amended as follows: a Any violation of the Tustin City Code is a public nuisance. Except as provided in Section 9273(e), nonconforming uses or structures that have been determined not to be legal nonconforming pursuant to Section 9273 of this Code are illegal and are declared a public nuisance, and shall be altered to conform with all applicable standards and regulations, and shall be subject to actions and penalties allowed by this Code. If any ambiguity or conflict arises concerning the legal or illegal status of a nonconforming use or structure within the Tustin City Code, the provisions of Section 9273 shall prevail. Section 3. Section 3914 of Chapter 9, Article 3 of the Tustin City Code is hereby amended as follows: 3914 REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES (a) Any lawfully established sexually oriented business lawfully operating on or before February 17, 1998, that is in violation of Sections 3912 and/or 3913, shall be deemed legal nonconforming uses. A legal nonconforming use will be permitted to continue for a period of one (1) year, with a possible extension of one (1) year to be granted by the planning commission. Said extension may only be granted if the planning commission finds an extreme financial hardship exists which is defined as the recovery of the initial financial investment in the legal nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such legal nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within five hundred (500) feet of one another and otherwise in a permissible location, the sexually oriented business which was first lawfully established and continually operating at the particular location is the conforming use and the later established business(es) is legal nonconforming. Ordinance 1397 Page 2 (b) A lawfully established sexually oriented business lawfully operating as a conforming use is not rendered a legal nonconforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within five hundred (500) feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (c) Any sexually oriented business subject to the provisions of this Section shall apply for the permit provided for by Section 3916 within thirty (30) days of the effective date of Ordinance No. 1204 and shall comply with all applicable regulations contained within thirty (30) days of the effective date of such ordinance. Section 4. Section 7271 e(1) of Part 1, Chapter 2, Article 7 of the Tustin City Code is hereby amended as follows: e Removal (1) In the event that the Director determines that a lawfully established newsrack does not comply with the provisions of this section, he or she shall use reasonable efforts to provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the Director to (a) remove the newsrack if it has no permit or (b) to revoke the permit and cause the removal of the legal nonconforming newsrack, and of the right of the permittee to request, in writing, a hearing before the Director within fifteen (15) days from the date of the notice. If the newsrack is one which has not been authorized by the Director and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack. Section 5. Section 9227b2.(c) of Part 2, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (c) Any lawfully established and developed parcel which is legal and conforming or legally non-conforming as of the date of the adoption of this subsection, and with the acquisitions of public rights-of-way by a public agency would result in densities exceeding the density permitted by the Zoning Code or would result in an increased nonconformity with regard to density shall not be considered legal nonconforming pursuant to Section 9227b2 and Section 9273 of the Zoning Code with regard to density only, provided that all other provisions of the Zoning Code are satisfied. Section 6. Section 9273 of Part 7, Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: 9273 LEGAL NONCONFORMING STRUCTURES AND USES (a) Except as otherwise provided in this section, a lawfully established structure or use, may be continued, although the particular structure or use does Ordinance 1397 Page 3 not conform to current applicable regulations for the district in which the particular 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 or structure than is legally authorized at the time the structure or use first becomes legal nonconforming. If any legal nonconforming structure or use is discontinued or abandoned, any subsequent use of such land or structure shall conform to the regulations specified for the district in which such land or structure is located. If no structural alterations are made therein, a legal nonconforming use may be changed to another use of the same or more restrictive classification upon the securing of a use permit. If the legal nonconforming use is replaced by a more restrictive legal nonconforming use, the occupancy thereafter may not revert to a less restrictive use. If any legal nonconforming use is wholly discontinued for any reason except pursuant to a valid order of a court of law for a period of one (1) year, it shall be conclusively presumed that such use has been abandoned within the meaning of this Chapter, and all future uses shall comply with the regulations of the particular district in which the land or structure is located. (b) (1) Any lawfully established structure which is legal nonconforming either in use, design, or arrangement, shall not be enlarged, extended, reconstructed, or structurally altered, unless such enlargement, extension, reconstruction or alteration is in compliance with the regulations set forth in this Chapter for the district in which such structure is located; provided, however, that any such legal nonconforming 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 structure's assessed valuation, as shown on the last equalized assessment roll of the City of Tustin. (2) The Community Development Department of the City of Tustin may send, by first class and certified mail, return receipt requested, to the current owner of any nonconforming structure, or of any property upon which any prior nonconforming use exists, a demand that said owner shall furnish to the City of Tustin a statement, under oath, on a form submitted for said purpose, setting forth the information required under subsection (b)(3). (3) The statement required under subsection (b)(2) shall contain all available evidence pertaining to the following: (i) as to structures on the premises, all structures on the premises, all available evidence that: 1) the structures were established consistent with all codes, regulations and requirements applicable to the premises at the time of construction, including copies of all permits issued by governmental agencies; and 2) any enlargement, extension, reconstruction or alteration made to each structure was made in compliance with the provisions of the Tustin City Code that were applicable to the premises at the time of such enlargement, extension, reconstruction or alteration, or such alteration made the use or structure more conforming with the rules and regulations of the Tustin City Code; and 3) each structure has been continuously used and maintained since establishment; and 4) that any maintenance, repair or replacement of the structure or portions thereof were consistent with subsection (b)(1) above. Ordinance 1397 Page 4 (ii) as to uses at the premises, all available evidence that: (1) at the time the use was first established, the use was consistent with all codes, regulations and requirements applicable to the premises; 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) The statement shall be filed with the Community Development Department of the City of Tustin within thirty (30) days from the date of such demand. In the event of any failure to duly file such a statement as herein provided, said structure and use shall conform to all regulations of the zone in which it is located within thirty (30) days after such failure. (5) The Director of Community Development shall review the evidence available, including but not limited to the evidence contained in the statement provided by the owner, and shall, within sixty (60) calendar days of submittal of the owner's statement, send to the owner a written preliminary determination of conforming or nonconforming status. The preliminary determination shall include a finding that the available evidence indicates the use and/or the structure is or is not legal nonconforming. The burden of proof to establish the lawful and continuing existence of the structure and/or use at the time the use or structure first became legal nonconforming and for all periods of time as required under this Section rests with the current owner. (6) The owner or any other individual may, within twenty (20) calendar days of mailing of the preliminary determination, request a hearing on the preliminary determination before the Zoning Administrator by submitting a written request identifying the preliminary determination, and submitting therewith a hearing fee in 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) requesting the hearing. The owner and each individual requesting the hearing shall have the opportunity to present evidence and witnesses regarding the nonconforming status. The hearing may be continued from time to time by the Director. Within thirty (30) calendar days of the conclusion of the hearing, the Director shall send to the owner and any individual requesting the hearing a written final determination of conforming or nonconforming status that shall include a finding that the available evidence indicates the use and/or the structure is or is not legal nonconforming. If no hearing is timely requested, the preliminary determination shall be deemed final. (7) A final determination by the Zoning Administrator may be appealed in accordance with Section 9294. (c) Notwithstanding Sections 9273(a) and 9273(b), legally established structures and uses listed in the City's Historical Resources Survey may be enlarged, extended, reconstructed, or structurally altered in accordance with the provisions of Sections 9264(b) and 9271 p of this Chapter. (d) A legal nonconforming structure, destroyed to the extent of more than fifty (50) percent of its replacement 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. Ordinance 1397 Page 5 (e) The provisions set forth in (b) and (d) above, shall apply to structures, land and uses which are, or 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. (f) Any use of land or structure which is made "non-conforming" either in design or arrangement due to acquisition of public right-of-way by the City, shall be exempt from the provisions of this section, and any other provision of the Tustin City Code, regulating legal nonconforming uses or structures, unless it is established by the Community Development Department that such use or structure creates a nuisance or is a threat to the health, safety, welfare or well being of the occupants or the public. (g) Except as provided in Section 9273(d), following a final nonconformity determination pursuant to this Section 9273, all nonconforming structures and/or uses determined not to be legal nonconforming shall be illegal, and such structures and/or uses are a public nuisance that shall either be altered to conform with all applicable standards and regulations, or shall be discontinued and removed. Section 7. Section 9276c(5) of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended as follows: (5) All modifications to lawfully established wireless communication facilities for which applications for the modifications were submitted on or after the adoption date of Ordinance No. 1192 shall be required to comply with the regulations and guidelines contained herein. Modifications to legal nonconforming wireless communication facilities that are legal nonconforming with respect to any provision of Ordinance No. 1192 must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. Modifications to legal nonconforming wireless communication facilities shall not increase the nonconformities. Section 8. Section 9297 of Part 7 of Chapter 2, Article 9 of the Tustin City Code is hereby amended by adding the definition of "Legal Nonconforming" as follows: "Legal Nonconforming" shall mean a use or structure, whenever established, that was lawfully established and continuously used or occupied under previous regulations, standards, and/or requirements but that does not meet existing zoning codes, regulations, and/or standards. Section 9. Section 9402 of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: "Legal Nonconforming Sign " means a sign that was lawfully erected which does not comply with the most current adopted sign restrictions and regulations. Section 10. Section 9405c of Chapter 4, Article 9 of the Tustin City Code is hereby amended as follows: Ordinance 1397 Page 6 c. Legal Nonconforming Signs. A legal nonconforming sign shall be made to conform to all provisions of this Chapter if the Director determines that any of the following events occur. 1. A legal nonconforming sign shall not be changed to another nonconforming sign. 2. A legal nonconforming sign shall not be structurally altered so as to extend its useful life. A sign shall be considered to be structurally altered if the construction materials are physically replaced with new materials. The replacement of face copy in a cabinet type sign does not constitute structural alteration. 3. A legal nonconforming sign shall not be expanded or altered so as to change the size, shape, position, location or method of illumination of the sign. 4. A legal nonconforming sign shall not be re-established after discontinuance of the use for ninety (90) days or more. If any use is wholly discontinued for any reason, except pursuant to a valid order of a court of law, for a period of ninety (90) days, it shall be presumed that such use has been abandoned in accordance with Section 9405d. All other provisions of the enforcement Section 9405e shall apply. 5. A legal nonconforming sign shall not be re-established after damage or destruction of more than fifty (50) percent of its replacement value, including destruction by an act of God. Section 11. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this 15~' day of November, 2011. JERRY AMANTE, MAYOR ATTEST: 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 1st day of November, 2011, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the 15~' day of November 2011, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: PAMELA STOKER, City Clerk