Chapter 17.80
DISCRETIONARY PERMITS AND PROCEDURES*
Sections:
17.80.040 Processing procedures.
17.80.060 Action by approving authority.
17.80.070 Notices and public hearings.
17.80.090 Discretionary permit to run with the land.
17.80.100 Revocation of discretionary permits.
17.80.110 Expiration of use permit or variance for failure to exercise rights.
17.80.130 Expiration by nonuse.
17.80.160 Minor modifications to use permits.
* Prior legislation: Ord. 93-6.
17.80.010 Purpose.
A. Discretionary Actions. All permits included within Section 17.80.020 are discretionary permits. A discretionary permit is a permit issued or approved by the city of Dinuba as the result of an application wherein the city retains the right to either approve or disapprove. This section provides the procedures and requirements for processing discretionary permit applications and the criteria and conditions considered to be necessary so that an appropriate decision regarding each such application may be made by the appropriate approving authority. A discretionary permit may have more restrictive site development standards than stated in a zoning ordinance in order to make the required findings per Section 17.80.050. Conversely, a discretionary permit may have less restrictive site development standards if allowed by the zoning ordinance for a planned unit development or a precise plan and if the required findings per Section 17.80.050 can be made.
B. Who May File.
1. An application related to a specific parcel of property may be made by the owner of the property or by a lessee or an agent with the written consent of the owner.
2. The city council or planning commission may initiate an application for any permit provided for in this title.
C. Applicability. Discretionary permits are applicable to the subject property and all rights granted by the approval of a discretionary permit remain with the property and all conditions and requirements of a discretionary permit are passed on to the new property owner when there is a change of ownership.
D. Enforceability. All conditions, requirements and standards, indicated graphically or in writing as part of any approved discretionary permit granted by authority of these regulations shall have the same force and effect as the zoning code. Any use or development established as a result of an approved discretionary permit but not in compliance with all such conditions, requirements, or standards shall be in violation of this zoning code and Chapter 17.98 shall be applicable. (Ord. 2008-05 § 1 (part), 2008)
17.80.020 Types of permits.
A. Administrative Site Plan. Certain uses listed in this title are permitted only when subject to review and approval by the director. Buildings, structures and land shall be used, designed, erected, structurally altered or enlarged for the purposes so listed in the district in which such building or land is located only after review and approval by the director as provided in this chapter and after applying for and securing all the necessary permits and licenses.
The purpose of site plan review is to enable the city to make a finding that the proposed development is in conformance with the intent and purpose of this title and to guide issuance of permits. More specifically, site plan review is necessary to ensure that all improvements, including, without limitation, structures, parking areas, walks, refuse containers, landscaping and street improvements, are properly related to the site and surrounding sites and structures; to avoid unsightly or monotonous site development; and to encourage originality in site design and development in a manner which will enhance the physical appearance and attractiveness of the community.
The following shall be submitted to the director of development services (referred to elsewhere in this chapter as the “director”) for review:
1. All new multiple-family residences;
2. All additions to existing multiple-family residences;
3. All renovations to multiple-family residences which involve facade or exterior work;
4. All new or exterior renovations to commercial buildings;
5. All new or exterior renovations to industrial buildings.
B. Use Permit. In certain zones, conditional uses are permitted subject to the granting of a use permit. Because of their unusual characteristics, conditional uses require special consideration so that they may be located properly with respect to the objectives of the zoning ordinance and with respect to their effects on surrounding properties. In addition, in order to achieve these purposes, the planning commission is empowered to grant or deny applications for use permits and to impose reasonable conditions upon the granting of use permits, subject to appeal to the city council.
C. Variance. The planning commission may grant variances in order to prevent unnecessary hardships that would result from a strict or literal interpretation and enforcement of certain regulations prescribed by this title. A practical difficulty or unnecessary hardship may result from the size, shape or dimensions of a site or the location of existing structures thereon, from geographic, topographic or other physical conditions on the site or in the immediate vicinity, or from population densities, street locations or traffic conditions in the immediate vicinity.
All variance applications are processed in compliance with the provisions of Section 17.80.040(C). The power to grant variances is subject to appeal to the city council.
When a variance application is approved, the approved plot plan shall be a precise plan of development, and establishment, maintenance, and operation of the use or uses permitted by the approval of the application shall be in compliance with the information shown on the plot plan, as approved.
A variance may be revocable, may be granted for a limited time period or may be granted subject to such conditions as the planning commission may prescribe.
The planning commission may deny a variance application. (Ord. 2008-05 § 1 (part), 2008)
17.80.030 Applications.
A. Filing Fee. The city council shall, by resolution, establish or change from time to time the filing fees requested upon the filing of applications pursuant to this title. Such filing fees shall be for the purpose of defraying, in part, the expense of staff review and analysis, postage, posting, advertising or other costs incidental to the proceedings.
B. Application Package Requirements. The applicant shall file with the city planning office a completed application in a form provided by the city. The applicant will provide, at a minimum, the following information:
1. Name and address of the applicant;
2. Statement that the applicant is the owner of the property or is the authorized agent of the owner;
3. Address and legal description of the property;
4. The purposes of the discretionary permit application and the general description of the uses proposed.
In addition to the application and fee, the application shall be accompanied by fifteen copies of each of the following: a site plan, floor plans, elevations and grading plan of the project drawn to scale and dimensioned, each of which shall be on paper which is at least eighteen inches by twenty-four inches. The following information shall also be submitted:
1. Lot or site dimensions;
2. Information on all buildings and structures, including floor plans and proposed uses within each room of each structure;
3. The architectural elevations of all sides of all structures depicting design, color, materials, textures, ornament or other architectural features;
4. Setbacks and spaces between buildings;
5. Walls and fences and their location, height and materials;
6. Off-street parking and off-street loading areas, including the stall striping, aisles and driveways, and internal circulation pattern;
7. Pedestrian, vehicular and service points of ingress and egress and internal circulation pattern;
8. The location, dimensions and designs of all signs, including the types of illumination, if any, including hooding devices;
9. Location and general nature of exterior lighting, including hooding devices, if any;
10. Any existing or proposed easements across the site;
11. The name of all adjacent streets, roads or alleys, showing rights-of-way and dedication widths, reservation widths, and all improvements in the public right-of-way, including locations of sidewalks, parkways, curbs, gutters, street widths to centerline and dedications existing and proposed;
12. Landscape and irrigation plans as set forth in Chapters 17.64, 17.71, and 17.82;
13. Refuse enclosures, including trash and recycling facilities, location, type and material;
14. Existing utilities to the site;
15. Composition of material comprising exterior surfaces;
16. Adjacent public rights-of-way, including median island detail where applicable;
17. Proposed surfacing of all paved areas;
18. Existing topography and proposed grading and drainage of the site;
19. Phasing of the project, if any, must be shown on the site plan itself;
20. Both existing and proposed roof mounted equipment and screening, if any;
21. Adjacent land uses;
22. Water courses;
23. Provisions for draining of surface waters;
24. Such other data pertaining to site development as may be required to make the required findings.
C. If the application is found to be accurate and complete, it shall be formally accepted. The date of formal acceptance shall be noted on the application. Acceptance of the application shall not constitute an indication of approval.
D. Not in Scope. In cases where the director considers the reasons and conditions set forth in the application not within the scope of the discretionary permit procedure, the applicant shall be so informed, whereupon, if the application is filed and the fees are accepted, the application shall be signed by the applicant to the effect that he was so informed. (Ord. 2008-05 § 1 (part), 2008)
17.80.040 Processing procedures.
A. Combined Application. At the discretion of the director, different types of permits may be combined in one application and processed with one application number and one fee so long as all applicable permit processing requirements, including all required findings, are satisfied.
1. When a permit requiring a public hearing is combined with one not requiring a public hearing, the combined application shall require a public hearing.
2. Action by the planning commission on a permit application shall take precedence over action by the director.
B. Administrative Site Plan Actions.
1. Within sixty days after submission, the director, on behalf of the city, shall review the site plan to determine compliance with this title. If it is determined that the site plan cannot be approved without granting a variance or use permit, or amending this title, the applicant shall be notified in writing and no action on the site plan shall take place until proper application for a variance, use permit or amendment has been filed and acted upon as prescribed by this title.
2. The director may require the submittal of additional information or revised plans. Within thirty days from the receipt of an application the applicant shall be notified in writing of any revisions or additional information required and shall submit such information. Failure to submit required information may be cause for site plan disapproval.
3. Within thirty days after the acceptance of the site plan, the director shall approve, approve with conditions or disapprove the site plan.
4. In making his determination, the director shall consider and, when appropriate, make findings consistent with Section 17.80.050. In making these findings, the director shall determine that approvals will be consistent with the established legislative policies relating to traffic safety, street dedications and street improvements, environmental quality, and to zoning, fire, police, building and health codes.
5. In reaching a determination with regard to a site plan review, the director shall state those conditions which he has determined are necessary to protect the public health, safety and general welfare of the community and those conditions as may be required by the city municipal code or any federal, state or other local law, rule, regulation or court decision in accordance with this section.
6. All conditions of site plan approval shall be fully complied with prior to the issuance of any certificate of occupancy. It is unlawful for any person to construct, occupy or maintain any building, facility or site without fully complying with all of the conditions of site plan approval or any other applicable requirement of this chapter.
7. The director’s decision shall be final unless appealed to the planning commission. Appeals shall be processed in accordance with Section 17.80.080.
8. When, in the opinion of the director, the site plan submitted is of such consequence, magnitude or involves potential public controversy, the director may refer such to the planning commission for public hearing. The referral shall be placed on the agenda of the next available planning commission meeting following the director’s decision.
9. The approved site plan, with any conditions shown thereon or attached thereto, shall be dated and signed by the director, with one copy mailed to the applicant and one copy filed with the building official.
10. Revisions by the applicant to an approved site plan shall be resubmitted in the manner required for drawings first submitted. Minor modifications, as determined by the director, shall be approved as a change to the site plan. Any other change shall be processed as an original filing.
C. Actions Requiring a Public Hearing.
1. For applications requiring a public hearing, the director shall investigate the facts bearing on the case and prepare a report thereon which shall be submitted to the planning commission.
2. A public hearing shall be scheduled at the earliest available appropriate date of a regularly scheduled meeting of the approving authority. (Ord. 2008-05 § 1 (part), 2008)
17.80.050 Findings.
A. For All Discretionary Permits. The following findings shall be made by the approving authority prior to the approval of any discretionary permit:
1. General Plan. The use or project proposed is consistent with the general plan.
2. Zoning Code. The use, activity or improvement(s) proposed is consistent with the provisions of the zoning code.
3. CEQA. The approval of the permit application is in compliance with the requirements of the California Environmental Quality Act.
4. Compatibility. The location, size, design and operating characteristics of the proposed use will not create conditions or situations that may be incompatible with other permitted uses in the vicinity.
5. General Welfare. The approval of the permit application will not result in conditions or circumstances contrary to the public health and safety and the general welfare.
6. Site Characteristics. That the site for the proposed use is adequate in size and shape to accommodate such use and all yards, spaces, walls and fences, parking, loading, landscaping and other features required by this chapter to adjust such use with the land and uses in the neighborhood.
7. That the site for the proposed use relates to streets and highways adequate in width and pavement type to carry the quantity and kind of traffic generated by the proposed use.
8. That the proposed use will not be detrimental to the character of the development in the immediate neighborhood.
9. That the conditions stated in the resolution are deemed necessary to protect the public health, safety and general welfare. Such conditions may include:
a. Special yards, spaces and buffers;
b. Fences and walls;
c. Surfacing of parking areas subject to specifications;
d. Requiring street dedications and improvements (or bonds) subject to the provisions of the site plan review of this title, including service roads or alleys when practical;
e. Regulation of points of vehicular ingress and egress;
f. Regulation of signs;
g. Requiring landscaping and the maintenance thereof;
h. Requiring the maintenance of the grounds;
i. Regulation of noise, vibration and odors;
j. Regulation of time for certain activities;
k. A bond for the removal of such use within a specified period of time;
l. Such other conditions as will make possible development in an orderly and efficient manner; and
m. Authorization for staff to bring back discretionary permits for a planning commission review after a specified period of time.
B. New Use Allowed. Where the enabling ordinance authorizes a discretionary permit to allow a principal use not specifically identified as permitted or prohibited, the following additional finding shall be made in addition to subsection (A) of this section:
1. The proposed use is consistent with the purpose and intent of the (name) district/planning area.
C. Variances.
1. The planning commission may grant a variance to a regulation prescribed by this title with respect to fences and walls, site area, width, frontage, coverage, front yard, rear yard, side yards, height of structures, distances between structures or landscaped areas or in modified form if the planning commission makes the following findings:
a. That strict or literal interpretation and enforcement of the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the objectives of the zoning title;
b. That there are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property which do not apply generally to other properties classified in the same zone;
c. That strict or literal interpretation and enforcement of the specified regulation would deprive the applicant of privileges enjoyed by the owners of other properties classified in the same zone;
d. That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same zone;
e. That the granting of the variance will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity.
2. The planning commission may grant a variance with respect to off-street parking facilities if the planning commission makes the findings prescribed in subsection (A) of this section and finds that the granting of the variance will not result in the parking of vehicles on public streets so as to interfere with the free flow of traffic.
3. The planning commission shall announce its recommendation by resolution within forty days after the conclusion of the public hearing. Such resolution shall set forth the findings of the planning commission deemed necessary to protect the health, safety and welfare of persons in the neighborhood and in the community as a whole. (Ord. 2017-03 § 2 (part), 2017: Ord. 2008-05 § 1 (part), 2008)
17.80.060 Action by approving authority.
A. A discretionary permit may be denied, may be revocable, may be granted for a limited time period, or may be granted subject to such conditions as the approving authority may prescribe. The planning commission may grant conditional approval for a use permit subject to the effective date of a change of zone or other ordinance amendment.
B. For items requiring a public hearing by the planning commission, the planning commission shall announce its recommendation by resolution within forty days after the conclusion of the public hearings. Such resolution shall set forth the findings of the planning commission and any recommended conditions, deemed necessary to protect the health, safety and welfare of persons in the neighborhood and in the community as a whole including, but not limited to:
1. Regulation of time for certain activities to be conducted on the site;
2. Special yards, spaces and buffers;
3. Fences and walls;
4. Requiring street dedications and improvements, including service roads to alleys when practical, and the requiring of drainage, sewer and water connection fees when applicable;
5. Regulation of points of vehicular ingress and egress;
6. Requiring the undergrounding of utilities;
7. Regulation of time period within which the proposed use shall be developed;
8. A bond, deposit of money, recorded lien secured by deed of trust, or letter of credit for the completion of street and site improvements and other facilities or for the removal of such use within a specified period of time, to assure conformance with the intent and purposes set forth in this chapter;
9. Such other requirements which reasonably may be required by the decision maker.
C. Action in Writing.
1. The determination on each application, including any required findings and any other reasons that serve to explain the determination, and all conditions of approval, shall be in writing.
2. A copy of the written determination shall be forwarded to the applicant following the date of final determination and shall be made available, at cost, to any person desiring a copy of such determination. (Ord. 2008-05 § 1 (part), 2008)
17.80.070 Notices and public hearings.
A. Administrative Approvals.
1. In the event an application is approved by the director, the owners of property within a radius of three hundred feet from the exterior boundaries of the property described in the application shall be notified in writing of the decision.
2. All notices required by this section shall also be sent in the manner prescribed above to the members of the planning commission and the city council.
B. Actions Requiring a Public Hearing. Discretionary permits processed per this section that require a public hearing with public notification shall follow the procedures given in accordance with Section 17.04.060. However, the failure of any person or entity to receive notice shall not constitute grounds for any court to invalidate the action of the approving authority. (Ord. 2008-05 § 1 (part), 2008)
17.80.080 Appeals.
A. Appeal of Administrative Actions.
1. No decision of the director shall be effective until a period of thirty days has elapsed following the written notice of his decision. During this period, any property owners notified, any member of the planning commission or the city council, or the applicant may file an appeal to the commission. The appeal shall be filed in writing and set forth the reason for such appeal.
2. An appeal and required fee shall be filed with the city, and shall state specifically wherein it is claimed that the director’s decision is not supported by the evidence in the record.
3. The planning commission shall hear the appeal within forty days after the date of filing of such appeal. Notice of the planning commission’s hearing shall be in conformance with Section 17.04.060.
4. The planning commission shall consider all of the factors set forth in Section 17.80.050 in developing its recommendation.
5. No decision of the planning commission shall be effective until a period of fifteen days has elapsed following the written notice of its decision.
6. During this period any property owners notified or the applicant may file an appeal to the city council. The appeal shall be filed in writing and set forth the reason for such appeal.
7. If an application is disapproved by the director, or by the planning commission if appealed, or by the city council if an appeal is taken from the planning commission’s decision, a record of such disapproval shall be made and kept on file.
B. Appeal of Actions Taken by Planning Commission. Any person aggrieved by a final decision of the planning commission made under this title may appeal the decision to the city council within fifteen days of the date the decision is final. Actions of the planning commission that are recommendations only shall not be considered final decisions.
1. The city council shall hear such appeal of the planning commission’s decision within forty days after the date of the filing of such appeal. Notice of the city council hearing shall be in conformance with Section 17.04.060.
2. The applicant shall be notified in writing at the address shown on the application of the director’s decision; of the planning commission’s decision if such an appeal is made; or of the city council’s decision if an appeal is taken from the planning commission’s decision.
3. The city council may affirm, reverse or modify a decision regarding a discretionary permit. If modified, the city council shall, on the basis of the record transmitted by the planning commission and such additional evidence as may be submitted, make the findings prerequisite to the granting of a discretionary permit prescribed in Section 17.80.020.
4. A discretionary permit shall become effective immediately when granted or affirmed by the city council.
C. City Council Review of Planning Commission Action.
1. Within fifteen days of the date an action under this title by the planning commission is final and in the absence of an appeal being filed, the city council may, on its own motion, but with not less than four affirmative votes, order a review of the action by the council.
2. The council may determine by resolution that the public interest and welfare require a further hearing and order a hearing to be conducted by the council at a time fixed in the resolution. The time fixed for the hearing shall be within thirty days after the commission’s decision was filed with the city clerk. Notice of such hearing shall be given in the manner set forth in this chapter.
3. At its hearing, the council may affirm, modify or reverse the commission’s decision. (Ord. 2008-05 § 1 (part), 2008)
17.80.090 Discretionary permit to run with the land.
A use permit granted pursuant to the provisions of this chapter shall run with the land and shall continue to be valid upon a change of ownership of the site or structure which was the subject of the use permit application. (Ord. 2008-05 § 1 (part), 2008)
17.80.100 Revocation of discretionary permits.
A. Reasons for Revocation. Any discretionary permit granted pursuant to this title may be revoked:
1. If any of the conditions or terms of such permit are violated;
2. If the use or its operation violates any applicable provision of the Dinuba Municipal Code or any state or federal law;
3. If, in granting the permit, the planning commission or city council considered information provided by, or on behalf of, the permittee which was materially erroneous or misleading, regardless of fault; or
4. If the use is conducted so as to be detrimental to the public health, welfare or safety or so as to be a nuisance.
B. Revocation Hearing. The planning commission shall hold a hearing on any proposed revocation after giving written notice to the permittee at least ten days prior to the hearing. At the conclusion of the hearing, if the commission finds that any one of the grounds listed above exists, the commission may revoke the permit and terminate all rights granted thereunder and order the cessation of any use and may further order the removal of any structure or portion thereof which has been permitted by said permit. The decision of the planning commission may be appealed to the city council.
C. City Council Revocation. The city council, on its own motion, at a public hearing, with or without a recommendation from the planning commission, may revoke any conditional use permit for noncompliance with the conditions set forth in granting such permit. (Ord. 2008-05 § 1 (part), 2008)
17.80.110 Expiration of use permit or variance for failure to exercise rights.
A. All rights granted by approval of a use permit or variance shall expire and the permit or variance shall be null and void if not exercised within the time specified in the approval or, if no time is specified, within one year of the effective date of approval.
B. A right granted by a variance or use permit requiring a building permit shall be deemed exercised when the permit has been secured, continuous on-site construction activity such as the pouring of a foundation, installation of utilities or other similar substantial improvements has commenced and the construction is being diligently pursued to completion. Grading of a site shall not constitute construction activity.
C. A right not requiring a building permit shall be deemed exercised when the activity permitted has commenced to the extent authorized by the variance or conditional use permit. (Ord. 2008-05 § 1 (part), 2008)
17.80.120 Extension of time.
Upon a showing of good cause by the applicant prior to expiration of the approval of the discretionary permit, the body which rendered the original decision on a discretionary permit may grant a one-year extension of time within which to exercise the rights granted. A maximum of three time extensions may be rendered, at which time the approval will be considered null and void. (Ord. 2008-05 § 1 (part), 2008)
17.80.130 Expiration by nonuse.
Any use permit or variance shall expire and become null and void when the use permitted by the permit or variance is discontinued for a continuous period of one year. The nonrenewal of a business license establishes a presumption that the activity for which it was issued has been discontinued. (Ord. 2008-05 § 1 (part), 2008)
17.80.140 Reapplication.
A. Administrative Actions. No person, including the original applicant, shall reapply for a similar use on the same land, building or structure within a period of one year from the date of the final decision on such previous application unless such decision is a denial without prejudice.
B. Application—Resubmittals. If an application for a use permit has been denied wholly or in part by the planning commissioner or city council, or if an application for zoning has been denied wholly or in part by the city council, no new application for substantially the same use permit or zoning shall be resubmitted for a period of one year from the effective date of the final denial of the application, unless the planning commission or city council, for good cause, grants permission to do so.
C. The planning commission or the city council may initiate a rezoning without restriction by this section.
D. An application for the same variance, once denied, may not be resubmitted unless the city council or planning commission, for good cause, grants permission to do so. (Ord. 2008-05 § 1 (part), 2008)
17.80.150 Building permit.
Before a building permit shall be issued for any structure or sign proposed as part of an approved site plan, the building official shall determine that the proposed building location, facilities and improvements are in conformity with the approved site plan. Before a building may be occupied or a sign erected, the building official shall certify that such improvements have been made in conformity with the plans and conditions approved by the city. (Ord. 2008-05 § 1 (part), 2008)
17.80.160 Minor modifications to use permits.
A. Minor Modifications. Minor modifications to approved plans or building details of an approved conditional use permit may be authorized by the zoning director when such modifications: do not alter the boundaries of the property; do not conflict with specific requirements of the ordinance codified in this section or conditions of the approved conditional use permit; do not significantly decrease the width or depth of any yard, setback or buffer area; do not significantly alter points of access to the property or the internal arrangement of site plan elements; and do not have an appreciable effect on surrounding properties.
B. Amendment to Conditional Use Permit. Any change to an approved conditional use permit other than a minor modification as described in subsection (A) of this section shall require an amendment subject to the same procedures and requirements as a new application. (Ord. 2012-03 § 2 (part), 2012)