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HomeMy WebLinkAboutPlanning Comm Reports/1992/06/03 (4) FROM: MEMORANDUM planning commission ~~ Bruce Boogaard, City Attorney\~~ TO: DATE: May 29, 1992 RE: Information Item No.3: Procedures for evaluating conditional use permits and variances. Attached please find a copy of a proposed ordinance providing procedures for evaluating conditional use permits (CUP's) and variances. Currently, no written procedure exists for considering violations of either. This proposed ordinance codifies existing procedure. Under the proposed ordinance, the planning director investigates evidence to determine whether probable cause exists that a CUP or variance involves the following: 1) the permit was obtained by fraud; 2) the permit has not been used as specified in section 19.14.260; 3) the property has been abandoned; 4) the conditions of a permit have been violated; 5) the permit is being exercised in excess of the use right granted; 6) the permit is being exercised in a manner detrimental to the public health, safety and welfare. The planning director issues a recommendation to the body which issued the CUP or variance ("permitting Authority"). The Permitting Authority gives notice and holds a hearing subject to certain due process requirements. The Permitting Authority issues a written decision and may decide to do any or all of the following: 1) maintain the existing permit; 2) modify or delete any provision or condition; 3) establish any new condition or provision; 4) revoke the permit; 5) establish a fine to be paid in lieu of the above. An interested party or the planning director may appeal the decision within ten days. Final appeal may be obtained from the city council. codification of the City's procedures is important in maintaining consistent enforcement of the City's zoning laws. ( ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING SECTION 19.14.270 TO THE MUNICIPAL CODE OF THE CITY OF CHULA VISTA ADOPTING PROCEDURES FOR EVALUATING CONDITIONAL USE PERMITS AND VARIANCES. THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS: SECTION I: That section 19.14.270 is added to the Chula vista Municipal Code to read as follows: Sec. 19.14.270 Procedures for evaluating conditional use permits and variances: A. The planning director shall investigate evidence presented to him or her to determine whether probable cause exists that any of the following has occurred or is substantially likely to occur regarding any variance or conditional use permit: 1. Fraud: That the variance or conditional use permit approval was obtained by fraud; 2. Non-Use: That the uses and privileges authorized by the variance or conditional use permit have not been initiated in the manner and within the twelve (12) months specified in section 19.14.260, and no extension of time has been granted; 3. Abandonment: That the property or any structure thereon subject to the variance or conditional use permit has been abandoned or the use authorized has ceased for a period exceeding twelve (12) months; 4. Violation of Conditions: That the variance or conditional use permit is being or has been exercised contrary to the conditions of said permit, or in violation of any applicable licenses, permits, regulations or laws; 5. Violation of Use: That the variance or conditional use permit is being or has been exercised in excess of the use right granted. 6. Public Health, Safety and Welfare: That the use for which the variance or conditional use permit was obtained is being or has been exercised so as to be detrimental to the public health, safety, or general welfare or so as to constitute a public nuisance. If probable cause exists that any of the foregoing has occurred or is substantially likely to occur the planning director shall issue i a recommendation as to what action should be taken. The recommendation shall be submitted to the individual or body which issued the conditional use permit or variance (hereinafter referred to as "Permitting Authority"). B. The Permitting Authority shall hold a public hearing to consider the planning director's recommendation regarding the conditional use permit or variance. C. Notice of any public hearing to consider violations of variances and conditional use permits shall be given consistent with the procedures set forth in section 19.12.070. The notice shall contain the following information: 1. The date, time, and place of the public hearing; 2. The identity of the Permitting Authority; 3. A general explanation of the matter to be including the nature of the planning recommendation; considered director's 4. A general description, either in text or by diagram, of the location of the property. D. Procedures for Public Hearing: The following procedures shall be followed for public hearings provided for in this section: 1. Recommendation and Reports: The planning director's recommendation and any accompanying staff reports, if any, shall be made available to the public prior to commencement of the public hearing provided for herein. 2. Recordation: The public hearing shall be recorded by either a recording device or stenographer. 3. Testimony: Any witness offering evidence or testimony may be placed under oath and subject to cross-examination at the request of the Permitting Authority or any party interested in the matter which is the subject of the hearing. 4. Relevancy: Evidence or testimony must be relevant or material to the fact or facts at issue. Any relevant evidence may be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which would otherwise make improper the admission of such evidence in civil actions. All irrelevant and unduly repetitious evidence may be excluded. 5. Hearsay: Hearsay evidence shall be admissible, but the fact that evidence is hearsay may affect the weight given I to the evidence in reaching any a determination of any question of fact. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but may not be sufficient by itself to support a decision unless it would be admissible over objection in civil actions. 6. Privileges: The rules regarding privileges shall be effective to the extent they are raised and otherwise required by law to be recognized at the hearing. 7. Procedural Compliance: The hearing need not be conducted under rules relating to evidence. Failure of the Permitting Authority to strictly enforce rules of evidence and reject certain matters which may be irrelevant or immaterial shall not be sufficient to constitute reversible error on the part of the Permitting Authority if basic procedural due process is granted to all affected parties and a fair hearing has been conducted. Errors which do not affect substantial rights will be disregarded and no presumption of prejudicial error is raised by the failure to strictly adhere to procedural requirement E. The Permitting Authority, after public hearing, shall make a finding or findings whether any or all of the factors articulated in subsection (A) apply to a conditional use permit or variance. F. Based on its findings, the Permit Authority may do any one or a combination of the following: 1. Maintain the existing variance or conditional use permit without modification; 2. Modify or delete any provision or condition of the variance or conditional use permit; 3. Establish any new condition or provision; 4. Revoke the variance or conditional use permit; 5. Establish any fine or charge which may be paid in lieu of revocation, modification, or imposition of a condition. G. written Decision: The Permitting Authority must issue a written decision explaining the factual basis for its decision. Notice of the Permitting Authority's written decision and action shall be mailed to the affected party and any interested party requesting such notice consistent with section 19.12.070. Said notice shall be filed with the city clerk. H. Right of Appeal: Within ten (10) days after the notice