Chapter 2.4 PLANNING AGENCY

CHAPTER 4
PLANNING AGENCY

2.4.002 Planning Agency Established.

a. Pursuant to Government Code Sections 65100 et seq., the City of Oakley planning agency is established.

b. The City of Oakley planning agency consists of the following divisions:

1) City Council;

2) Planning Commission;

3) Community Development Department;

4) Zoning Administrator;

c. The composition, manner of appointment, functions, duties, and powers of, as well as the hearing and decision provisions applicable to, each division of the planning agency shall be as set forth in this chapter and Chapter 2.3 of this Code.

2.4.004 Planning Commission.

The method of selection, terms of office, powers and duties, and other such matters related to the Planning Commission shall be as provided for in Chapter 2.3 of this Code.

2.4.006 Community Development Department.

a. Designation. The Community Development Department shall be a department of the City.

b. Community Development Director. The Community Development Director shall be the chief administrative officer of the Community Development Department and shall also serve as secretary to the Planning Commission.

c. Composition. The Community Development Department shall consist of the Community Development Director and employees as authorized by the City Council.

d. Powers and Duties. The planning department shall:

1) Perform the duties required for the proper preparation and administration of the general plan, as provided by statute and ordinance;

2) Perform the duties required for the proper preparation and administration of specific plans and regulations, as provided by statute and ordinance;

3) Provide administrative support and professional advice to the Planning Commission, City Council, and Zoning Administrator;

4) Perform special studies and surveys as directed by the City Council;

5) Based upon the general plan and other information available to it, evaluate applications or requests for entitlements made pursuant to this chapter and the City’s Zoning and Subdivision Ordinances and estimate whether the proposed entitlement would generate 100 or more or less than 100 peak hour trips.

2.4.008 Zoning Administrator.

a. Designation. The Community Development Director is designated as the Zoning Administrator, except that the Director may appoint in writing one or more deputy zoning administrators, and may assign to each deputy zoning administrator one or more of the Zoning Administrator’s powers and duties as set forth in Section 2.4.018. The Director may further assign deputy zoning administrators to act on matters within limited or specified geographical areas, including special districts, school districts, and within the geographical boundaries of agencies and authorities governed by the City Council.

b. Powers and Duties. Unless otherwise provided by this code, the Zoning Administrator and any deputy zoning administrators, consistent with the scope of and to the extent specified by the Community Development Director, shall:

1) Hear and decide all applications for variance permits, including off-street parking and loading requirements, highway setback requirements, and sign requirements. Further, the Zoning Administrator shall review and decide all sites, development, elevations, off-street parking and loading and landscaping plans and drawings, and plans and drawings for relocation, size and design of signs. If matters covered by this subsection are requested with the filing of a tentative minor subdivision map, the entire application shall be considered by the division charged with reviewing the map;

2) Hear and decide all requests for conditional use permits (also referred to as land use permits);

3) Be part of the review process for subdivision maps, as specified in the Subdivision Ordinance;

4) Hear and decide all applications or request for proposed entitlements estimated to generate less than 100 peak-hour trips;

5) Hear and make recommendations regarding proposed development agreements when such agreements are processed separately from the development project applications; and

6) Hear and act on such other matters as specifically assigned by ordinance, resolution or order.

c. Referrals. The Zoning Administrator or any deputy zoning administrator may on his or her own motion, without prior notice or hearing refer any of the matters covered by subsection (b) of this section to the Planning Commission for hearing, consideration, and initial decision.

2.4.010 Application.

a. Generally. Application for rezoning, conditional use, variance, special permits, or any other matter designated to come before the planning agency shall be made to the Community Development Department.

b. Application Qualifications.

1) A qualified applicant is any person or firm, or authorized agent, having any one of the following:

a) A freehold interest in the subject land,

b) A possessory interest entitling the applicant to exclusive possession, or

c) A contractual interest that may become a freehold or exclusive possessory interest and is specifically enforceable.

2) Proof of such an interest may be required.

3) A person acting as agent for a qualified applicant must attach a copy of written authority to act.

c. Fees. In accordance with Section 2.4.024, fees shall be paid with the submission of an application for filing of a request for rezoning, conditional (land) use permit, variance permit, development plan permit, other special permit, and planned unit district rezoning or final development plan approval.

2.4.012 Rezoning.

a. Application Requirements. The application form for rezoning shall include, but is not limited to, a map description of the subject property, names of adjoining streets and property owners, zoning and general plan designation of subject and adjoining property, zoning history of subject property, a brief description of the justification for the request, and a statement of how the request conforms to, and is consistent with, the applicable general and specific plans. The Community Development Department may adopt a form that shall be used for applications.

b. Renewed Application After Denial. If any application for rezoning involving reclassifying certain land(s) from one zoning district to another is not granted, no new application therefore shall be made or accepted within one year after final action on the earlier application, unless:

1) Less intensive land uses are allowable in the newly proposed zoning district than in the earlier one; and

2) The Community Development Director finds that the circumstances have materially changed since the earlier application was first filed. For the purposes of this section, "materially changed circumstances" means:

a) A change in zoning districts or land uses on or near the land(s); and/or

b) A change in the land area of which reclassification is proposed; and/or

c) An amendment to the general plan that may affect the property.

c. Notice Requirements. The Community Development Department shall schedule and give notice of hearing for zoning and applications for rezoning as required by Government Code Sections 65854 and 65091.

d. Standards. An application for rezoning is a request for change of the land use district applicable to the subject property or to amend the uses permitted in the land use district. Before ordering such change, the planning agency shall determine that:

1) The change proposed will substantially comply with the general plan;

2) The uses authorized or proposed in the land use district are compatible within the district and to uses authorized in adjacent districts; and

3) Community need, but not necessarily future financial success, has been demonstrated for the use proposed.

2.4.014 Variance, Conditional Use, and Special Permits.

a. Application Requirements. Except as waived by the Community Development Director, the application form for a conditional use, variance or special permit shall include, but is not limited to, the following:

1) A plot plan drawn to scale indicating dimensions and area of the subject property;

2) Locations of existing and proposed improvements on the subject property;

3) Names of adjoining property owners;

4) Names of adjoining streets;

5) Locations of existing improvements on adjacent properties;

6) A statement of how the request is consistent with and will further the goals and objectives of the general plan, including but not limited to, its community facilities element; and

7) When extreme grades exist on the subject property, the direction of slope and other facts necessary to accurately depict the request exception in relation to the subject and adjacent properties. The Community Development Department may adopt a form to be used for applications.

b. Renewed Application After Denial. If any application for a conditional use permit, variance, or special permit is denied (unless the denial is without prejudice to re-filing), no new application shall be made or accepted within one year after the effective date of denial, unless:

1) The applicant shows material change in the circumstances upon which the denial was based; and

2) The Community Development Director accepts the new filing on those grounds. If the Community Development Director rejects the new application, he or she shall communicate the reasons therefore to the applicant. For the purposes of this section, "materially changed circumstances" means that:

a) The proposed use or variance is significantly different from that for which the applicant originally applied; and/or

b) The lot involved has been diminished or enlarged, with the result that the proposed use or variance would be more compatible with the revised lot than the originally proposed use or variance was with the lot’s initial form; and/or

c) The zoning classification for the lot has changed, significantly affecting the land.

c. Notice Requirements.

1) Mail – Addresses. Except as provided by Section 2.4.016, the Community Development Department shall schedule a hearing before the appropriate division, and mail notice thereof pursuant to Government Code Section 65905. The mail notice shall be given, by postage prepaid first-class United States mail, to all owners of real property within 300 feet of the subject land, using addresses from the last equalized assessment roll, or from such other records (as the assessor’s or tax collector’s) as contain more recent addresses in the opinion of the Community Development Director.

2) Contents. The notices shall state the time, date, and place of the hearing, the general nature of the application, and the street address of any of the property involved, or its legal or boundary description if it has no street address. Substantial compliance with the foregoing provisions for notice is sufficient, and a technical failure to comply shall not affect the validity of any action taken pursuant to the procedures set forth in this section.

3) Revocations. Notice of hearings on revocations shall be given in the same manner as for applications.

d. Variance Permits Standards. An application for a variance permit is an application to modify zoning regulations as they pertain to lot area, lot building coverage, average lot width, lot depth, side yard, rear yard, setback, auto parking space, building or structure height, or any other regulation pertaining to the size, dimension, shape, or the placement of a building or structure on a lot or parcel. The division of the planning agency hearing the matter either initially or on appeal shall find the following conditions that must exist prior to approval of an application:

1) That any variance authorized shall not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and the land use district(s) in which the subject property is located;

2) That because of special circumstances applicable to the subject property because of its size, shape, topography, location, or surroundings, the strict application of the respective zoning regulations is found to deprive the subject property of rights enjoyed by other properties in the vicinity and within the identical land use district; and

3) That any variance authorized shall substantially meet the intent and purpose of the land use district(s) in which the subject property is located. Failure to so find shall result in a denial.

e. Conditional Use Permit Standards. An application for a conditional use permit is an application to establish a conditional land use within a land use district that does not allow establishment by right, but that does allow the granting of a land use permit after a public hearing. The division of the planning agency hearing the matter either initially or on appeal shall find the following before granting the permit:

1) That the proposed conditional land use shall not be detrimental to the health, safety, and general welfare of the City;

2) That it shall not adversely affect the orderly development of property within the City;

3) That it shall not adversely affect the preservation of property values and the protection of the tax base within the City;

4) That it shall not adversely affect the policy and goals as set by the general plan;

5) That it shall not create a nuisance and/or enforcement problem within the neighborhood or community;

6) That it shall not encourage marginal development within the neighborhood;

7) That special conditions or unique characteristics of the subject property and its location or surrounding are established. Failure to so find shall result in a denial.

f. Special Permit Standards. An application for a special permit shall be primarily governed by the Code provision authorizing its issuance, but in the absence of specified standards, either the standard prescribed for variance or conditional use permits shall apply, whichever is deemed more appropriate.

g. Termination. Conditional use, variance and special permits and licenses issued pursuant to this chapter or the Zoning Ordinance shall terminate as provided in subsections (h) through (j) of this section.

h. Exercise and Use.

1) A permit issued under provisions of this section shall be deemed to be exercised, used, or established when, within one year of the granting, or within the time otherwise specified on the permit, a building permit is issued by the Building Department for the purpose and location described on the permit, as long as that building permit does not expire. If no building permit is required under the building code to establish such variance, use, or other matter granted, then the permit shall be deemed to be exercised, used, or established when the permittee demonstrates clear and visible evidence of beginning and continuing to exercise the rights granted by the variance, use, or other matter.

2) Upon a showing of good cause therefore, the Community Development Director may extend, for a maximum of one additional year, the period of a permit in which is to be exercised, used, or established.

3) A time period stated in the permit shall govern over this provision.

i. When Void – Time Extension. If a use is established according to the terms and conditions of a permit, and the use is discontinued for any reason for a period of six months, the permit shall become void and the use shall not be resumed. Upon application during the six-month period by the owner and upon a showing of good cause, the Community Development Director may grant an extension not to exceed a total of six months.

j. Previously Expired. Any permit previously issued that expired, was revoked, or became void under any provision of law then in effect shall not be revived by any of the provisions of this chapter.

k. Revocation Generally. Conditional use, variance, and special permits are subject to revocation in the manner and for causes as provided in subsections (l) through (p) of this section.

l. Causes for Revocation. A permit may be revoked if the permittee or his/her successors or assigns has committed or allowed the commission of any of the following acts relating to the premises, or any portion thereof, covered by the permit:

1) Continued violation of the terms, limitations, or conditions of the permit after notice of the violation;

2) Violation of requirements of this code relating to the premises or activities authorized;

3) Failure to abate a nuisance after notice;

4) Any suspension or revocation of a license required for the conduct of the business on the premises covered by the permit;

5) Any act or failure to act resulting in the conviction of a permittee, operator, or employee of a violation of Federal, State, or Local law in connection with the operation of the permittee.

m. Hearing Notice. Unless otherwise required by this chapter, hearing on revocation shall be scheduled by the Community Development Department before the division of the planning agency having authority to initially grant the type of permit involved. If within the last two years, the City Council has made a decision on a permit pursuant to subsections (o) and (p) of this section, the hearing on revocation of that permit shall be scheduled by the Community Development Department before the Council. The Department shall give notice of the hearing on revocation in the same manner as on an initial hearing to grant such a permit.

n. Revocation Hearing – Procedure. The hearing shall be conducted according to any rules of procedure adopted for initial hearing, except that the Department shall have the burden of proving the charges and shall open and close the hearing.

o. Revocation Hearing – Decision. The division of the planning agency hearing the revocation shall make its findings and render its decision in writing. The decision may order additional terms, limitations, or conditions; a specified probationary period for correction or implementation of new requirements; a future review at a time specified; a combination of the foregoing; or revocation.

p. Appeal from Revocation. If the permittee is dissatisfied with the decision, he or she may appeal as provided in Section 2.4.020. The appeal shall be on the record only consisting of the application, a transcript of all testimony, and map, plans, or other exhibits offered in evidence. The appellant, in addition to payment of the fee on appeal, shall deposit with the Community Development Department the estimated cost of preparing the record on appeal, any unused portion of which shall be refunded. The record on appeal shall consist of one original and sufficient copy to provide one copy for the appellant and one copy for each member of the division hearing the appeal.

2.4.016 Administrative Decisions.

a. Decisions without Public Hearing. Unless otherwise required by this chapter, the Zoning Administrator may, without public hearing, decide applications for:

1) Variance permits pursuant to Section 2.4.008 (b)(1); and

2) Minor subdivisions pursuant to Section 2.4.008 (b)(3), including applications for improvement exceptions.

b. Notice. Before the Zoning Administrator decides any application without hearing, the Community Development Department shall mail or deliver notice of intent to decide the application pursuant to Government Code Section 65091 and the notice provisions of Section 2.4.014(c). The notice shall state the following: the last day to request a public hearing on the application, which shall be no less than 10 days after date of mailing or delivery; the general nature of the application, including any subdivisions exception requested; and the street address, if any, of the property involved or its legal or boundary description if it has no street address.

c. Hearing Required. If, within 10 calendar days after mailing or delivery of the notice of intent, a written request for public hearing is filed with the Community Development Department, the Department shall schedule a public hearing on the application in accordance with applicable provisions of this chapter and mail notice thereof to the applicant, the owner, and any other persons requesting a hearing.

2.4.018 Hearings.

a. Rules and Burden of Proof. Hearings shall be conducted in accordance with rules that may be adopted by the respective divisions of the planning agency, within the intent expressed by Government Code Sections 65800, 65802, and 66451. The applicant shall have the burden of producing evidence to convince the agency hearing the matter that all standards are met and the intent and the purpose of the applicable plan will be satisfied. Failure to satisfy this burden shall result in a denial.

b. Hearing – Approval Conditions. In approving a subdivision, parcel map, conditional use, or special or variance permit, the division of the planning agency deciding the matter, initially or on appeal, may limit or condition the approval so as to assure the intent and purpose of applicable standards and regulations will be met and the goals and objectives of the general and specific plans will be achieved. The conditions of approval may include, but are not limited to, dedication, improvements, dimensional restrictions, site plan approval, architectural standards, access control, time limit, supplemental review, phasing of improvements, planting, or screening.

c. Hearing – Decisions Generally. All decisions shall be made in writing and filed with the Community Development Department. A decision of any division of the planning agency, except a general or specific plan matter or a matter requiring adoption of an ordinance, shall be final when filed with the Community Development Department, unless an appeal is filed within the time allowed. Acceptance of the decisions shall constitute an agreement on behalf of the applicant, the owner, and their heirs, successors, and assigns to comply with all the terms and conditions and statutes. A true copy of the permit shall be delivered by the seller to the buyer of the entire parcel or any portion of the property affected by the permit.

d. Hearing – Decision Time Limits. Decisions shall be rendered after the closing of the hearing by divisions of the planning agency on or before the times specified:

1) Zoning Administrator, thirty (30) calendar days;

2) Community Development Department, thirty (30) calendar days;

3) Planning Commission, forty-five (45) calendar days;

4) City Council, ninety (90) calendar days.

e. Subdivision Hearing and Decisions Time Limits. Notwithstanding the time limits specified in subsection (e) of this section, unless the time limits specified by the Subdivision Map Act and this chapter have been waived or the proposed subdivision map is being considered in conjunction with or is conditioned upon the obtaining of a zoning variance, final development plan, or rezoning, all hearings and decisions of the divisions of the planning agency regarding the approval of subdivision maps, whether initial or on appeal, will be done on or before the times specified in Chapter 3 of the Subdivision Map Act, Government Code Section 66541 et seq. The foregoing shall not apply to initial or appellate decisions on parcel maps and tentative maps therefor.

f. Subdivision Hearing Notice. Whenever a public hearing is held concerning a tentative, parcel, or final subdivision map or the kind, nature, or extent of the improvements required for a subdivision, or a reversion to acreage, the Community Development Department shall schedule a hearing before the appropriate division and give published and mailed notice thereof pursuant to Government Code Sections 66451.3 and 66451.4.

(Sec. 2, Ordinance No. 06-21, adopted July 13, 2021)

2.4.020 Appeals.

a. General. Appeal from any decision of a division of the planning agency shall be governed by the provisions of this section and Chapter 1.8 of this Code.

b. Notice. Appeals of planning decisions shall be to the divisions of the planning agency division and within the time prescribed below. One may appeal a decision of a division of the planning agency to the appellant division indicated below by filing with the City Clerk a written notice of appeal that specifies the grounds for appeal and by paying the fees prescribed by Section 2.4.024.

Division Decision Appealed From	Time	Division Appealed To
Zoning Administrator or Community Development Department	15 calendar days	Planning Commission
Planning Commission	15 calendar days	City Council

c. Appeals from Administrative Decisions. An appeal may be taken to the Planning Commission from the whole or any portion of an administrative determination or decision made by the Zoning Administrator or his/her designee.

d. Appeals from Decisions of the Planning Commission. An appeal may be taken to the City Council from the whole or any portion of a decision made by the Planning Commission, regardless of whether the Commission is exercising original or appellate jurisdiction.

e. No Appeal from Ministerial Actions. No right to appeal decisions shall exist when the decision or action is ministerial and does not involve the exercise of judgment or deliberation.

f. Who May Appeal.

1) Any person interested in or affected by a decision or determination of the Zoning Administrator or Planning Commission, including without limitation applicants and members of the City Council of the City of Oakley, may appeal the applicable decision or determination. Any interested or affected person, other than a Council Member, must additionally (1) have appeared, either in person or through a representative explicitly identified as such, at a public hearing connected to the decision or determination being appealed or (2) have informed the City in writing of the nature of his/her concerns before that hearing.

2) Any member of the City Council of the City of Oakley shall not be charged any fee for the processing or noticing of the appeal. If a Council Member appeals a decision, there shall be a presumption applied that the appealed action has significant and material effects on the quality of life within the City of Oakley. Notwithstanding any other provision of the Municipal Code, a Council Member shall not be required to state any other reason in his/her written appeal. No inference of bias shall be made because of such an appeal.

3) A representative of the City government presenting departmental recommendations at a hearing is prohibited from appealing a decision reached at such a hearing.

g. Filing of Appeals.

1) Notice of Appeal and Filing Fee. All appeals of decisions of the Zoning Administrator or the Planning Commission shall be made by filing a notice of appeal clearly identifying the determination or decision from which the appeal is taken and stating the grounds for the appeal, including a statement of the reasons that the person satisfies the requirements of subsection (f) of this section. The notice shall further include any information required and may include any explanatory materials the appellant chooses to include. The notice of appeal shall be accompanied by the payment of a filing fee in such amount as established from time to time by resolution of the City Council.

2) Time Limit On Notice Of Appeal. The notice of an appeal to the Planning Commission or to the City Council must be filed, together with payment of the filing fee, within 15 calendar days of the action that is the subject of the appeal. Appeals beyond 15 calendar days shall not be accepted.

3) Filing Notice of Appeal. The notice of an appeal shall be filed with the City Clerk.

4) Effect of Appeal. In the event of an appeal, the action that is the subject of the appeal shall not be effective until final action by the appellate body.

h. Review by Planning Commission.

1) Schedule of Hearing; Notice. Upon receipt of the notice of appeal and payment of the filing fee, the City Clerk shall schedule the matter for hearing at the next available regular meeting of the Planning Commission to be held within 30 calendar days after the date on which the notice of appeal is filed. The City Clerk shall provide notice of the hearing to the appellant and applicant and to other City residents, as provided for in Sections 2.4.014(c) and Section 2.4.016(b). In the event that no regular meeting of the Planning Commission is scheduled within 30 calendar days of the appeal, the City Clerk shall schedule the matter for the first regular meeting to occur after that 30-day period.

2) Conduct of Hearing by Planning Commission. The Planning Commission shall hold the appeal hearing at the date, time, and place stated in the required notice. The Planning Commission shall conduct a de novo review on the appeal. No public hearing shall be required unless the administrative determination or decision was made in connection with a proceeding that required a public hearing; however, nothing herein shall prevent the Planning Commission, in its discretion, from receiving from any person testimony or other evidence pertaining to the subject matter of the appeal. At the hearing, the Commission may consider only those issues involving matters that are the specific subjects of the appeal. Any hearing may be continued, if prior to the adjournment or recess of the hearing, a clear announcement is made specifying the date, time, and place to which said hearing will be continued. If the Commission continues the hearing, it shall re-open and close the hearing at a regular meeting scheduled within 30 calendar days after opening the hearing. In the event that no regular meeting of the Planning Commission is scheduled within 30 calendar days of the opening of the hearing, the Commission shall re-open and close the hearing at the first regular meeting to occur after that 30-day period.

3) Decision by Planning Commission.

a) Action by Commission. By a majority vote of those voting, the Planning Commission may affirm, reverse, or modify the determination or decision that is the subject of the appeal, based upon findings of fact about the particular case. A tie vote shall mean that no action was taken and shall result in the affirmation of the action being appealed. The findings shall identify the reasons for the action on appeal and verify the compliance or non-compliance of the subject of the appeal with the relevant provisions of the Municipal Code and other applicable law. The Commission may also refer the matter back to the original maker of the determination or decision for such further action as may be directed by the Commission. The Commission may condition its affirmation, as provided for in Section 2.4.018(c).

b) Time of Decision by Commission. The Commission shall make its decision within 45 calendar days of the close of the hearing, as provided for in Section 2.4.018(e). A decision being appealed shall be deemed affirmed if any of the following occur:

1) The appeal is not heard within 30 days of the filing of the appeal or the first regular meeting of the Commission after that 30-day period;

2) A continued hearing is not re-opened and closed at a regular meeting of the Commission scheduled 30 days after the opening of the hearing or at the first regular Council meeting after that 30-day period; or

3) The Commission does not decide the appeal within 45 days of closing the hearing.

i. Review by City Council.

1) Initial Procedure Upon Receipt Of Notice Of Appeal. Upon receipt of the notice of appeal and payment of the filing fee, the City Clerk shall place the matter on the agenda of the next regular meeting of the City Council to notify the Council of the appeal and to allow the Council to decide how to process the appeal. The Council may, upon motion, by a majority vote of those voting, select one of the methods of deciding the appeal provided for in this ordinance. The Council may also continue its consideration of the preferred method of deciding the appeal to its next regularly scheduled meeting, in which case the City Clerk shall provide notice to the appellant and applicant of the subsequent appearance of the appeal on the Council’s agenda. If the Council takes no action on the appeal at the meeting at which the appeal first appears on the agenda, or at the meeting to which it continues its consideration, the Council shall subsequently hold a de novo public hearing on the appeal at the time, place, and date set by the City Clerk.

2) Schedule of Hearing; Notice. The City Clerk shall provide notice to the appellant and applicant of the first appearance of the appeal on the City Council’s agenda. If the Council will be conducting a de novo public hearing on the appeal, the City Clerk shall schedule the matter for hearing at a regular meeting of the Council to be held within 30 calendar days after the date on which the appeal first appeared on the Council’s agenda, unless the Council continues its consideration to the next regularly scheduled meeting, in which case, the hearing will be held within 30 calendar days of the latter meeting. The City Clerk shall give notice of the hearing to the applicant and appellant and other City residents as provided for in Section 2.4.014(c) and Section 2.4.016(b). In the event that no regular meeting of the City Council is scheduled within 30 calendar days of the first or second appearance of the appeal on the Council’s agenda, which ever is applicable, the City Clerk shall schedule the matter for the first regular meeting to occur after that 30-day period.

3) Conduct of Hearing by City Council. The City Council shall hold the appeal hearing at the date, time, and place stated in the required notice. The Council may receive from any person testimony or other evidence pertaining to the subject matter of the appeal. At the hearing, the Council may consider only those issues involving matters that are the specific subjects of the appeal, unless a Council Member filed the appeal and is not the applicant, in which case the City Council may consider any issue concerning the application. Any hearing may be continued, if prior to the adjournment or recess of the hearing, a clear announcement is made specifying the date, time, and place to which said hearing will be continued. If the Council continues the hearing, it shall re-open and close the hearing at a regular meeting scheduled within 30 calendar days after opening the hearing. In the event that no regular meeting of the City Council is scheduled within 30 calendar days of the opening of the hearing, the Council shall re-open and close the hearing at the first regular meeting to occur after that 30-day period.

4) Decision by City Council.

a) Action by Council. By a majority vote of those voting, the City Council may affirm, reverse, or modify the determination or decision that is the subject of the appeal, based upon findings of fact about the particular case. A tie vote shall mean that no action was taken and shall result in the affirmation of the action being appealed. The findings shall identify the reasons for the action on appeal and verify the compliance or non-compliance of the subject of the appeal with the relevant provisions of the Municipal Code and other applicable law. The Council may also refer the matter back to the original maker of the determination or decision for such further action as may be directed by the Council. The Council may condition its affirmation, as provided for in Section 2.4.018(c).

b) Time of Decision by Council. The Council shall make its decision within 90 calendar days of the close of the hearing, as provided for in Section 2.4.018(e). If the appeal does not appear on the agenda of the first City Council meeting after it is filed, or if the City Council does not decide on a method for deciding the appeal at either that meeting or one to which it continued the decision, a de novo public hearing will be held. If a public hearing is selected or required, the decision being appealed shall be deemed affirmed if any of the following occur:

1) The appeal is not heard within 30 days of its first or second appearance on the Council’s agenda, which ever is applicable;

2) A continued hearing is not re-opened and closed at a regular meeting of the Council scheduled 30 days after the opening of the hearing or at the first regular Council meeting after that 30-day period; or

3) The Council does not decide the appeal within 90 days of closing the hearing.

5) Alternative Methods Of Deciding Appeal; Time of Decision. If the Council initially votes not to resolve the appeal by conducting a de novo public hearing, it shall select one of the following methods for deciding the appeal by a majority vote of those voting. If the Council selects either of the first two options, it may take the actions described therein at the meeting at which the appeal first appeared on the agenda or at the meeting to which it continued its consideration of the preferred method of deciding the appeal. Otherwise, the Council shall take action on the appeal within the time period prescribed in subsection (i)(4)(b) of this section.

a) The Council may vote to affirm the action of the Planning Commission without public hearing and without reviewing the record created by the Commission’s hearing on the matter.

b) The Council may vote to refer the matter back to the Planning Commission for further proceedings.

c) The Council may vote to affirm, deny, or affirm with conditions the decision of the Planning Commission without a public hearing after reviewing a transcript of the Commission’s hearing and the entire record.

d) The Council may by a majority of those voting appoint an independent hearing officer to recommend a decision, including any findings or conclusions required for that decision, which the Council may then adopt or, after a review of the record, reject in favor of its own findings, conclusions, and decision.

j. Review By Independent Hearing Officer.

1) If by majority vote, the City Council decides to appoint an independent hearing officer to conduct a hearing on an appeal and to recommend a decision by the Council, the hearing officer shall conduct the hearing in the same manner as provided for the Council in this Ordinance. However, the hearing officer shall conduct a hearing on the appeal within 90 calendar days of the Council’s vote and shall make a recommendation to the Council within 30 calendar days of the close of the hearing. The City Council shall vote on the hearing officer’s recommendation at the next regularly scheduled meeting within 30 calendar days after the hearing officer makes a recommendation.

2) If the applicant is also the appellant, the appellant shall bear the costs incurred by the hearing officer in conducting a hearing and making a recommendation to the Council. Otherwise, the appellant shall not be responsible for the costs of the hearing officer.

k. Effect of Denial. When an application for a permit is denied on appeal, no application for the same or substantially same permit or a permit for the same use on the same property shall be filed for a period of one year from the date of denial, unless the permit was denied without prejudice.

l. Relationship of appeals procedure under this chapter to other sections of the Municipal Code. Any appeal of a determination or decision of the Zoning Administrator or Planning Commission shall be processed in accordance with the provisions of this chapter and not in accordance with the appeal provisions adopted in Chapter 1.8 of this Code. Furthermore, to the extent that any provision of this chapter and other provisions of this Code conflict, this chapter shall prevail, but only in relation to appeals of decisions and determinations by the planning agency.

m. Reconsideration. Anyone who may appeal a decision may also, within the same time allowed for the appeal, file a written motion for reconsideration that alleges pertinent factual or legal matters that were not brought to the attention of the division that made the decision. Such motion shall be decided by the division that made the decision at its next regularly scheduled meeting. The division shall base its decision on the information presented in writing. If the motion is denied, the time to appeal shall be extended only the number of days required to hear and decide the motion. If the motion is granted, persons recording their appearance at the initial hearing shall be given mailed notice of the time of a new hearing.

n. Decision. A decision of any division of the planning agency shall be final upon the expiration of the time herein allowed for appeal; however, if an appellant has perfected an appeal, that portion of the decision appealed from is suspended pending final disposition.

o. Tentative Maps. The appropriate appellate division, as indicated in subsection (b) of this section, shall set appeals of tentative map decisions, but not parcel maps and tentative maps therefore, for hearing. Such hearing shall be held and the appellate division shall render its decision on the appeal as provided in Chapter 3 of the Subdivision Map Act, Government Code Sections 66451 et seq. The decision shall comply with the provisions in the Subdivision Map Act, particularly Government Code Sections 66473, 66473.5, and 66474, and shall include any findings required by the Map Act. The above mentioned time limits shall not apply if the appellant has waived them, or if a tentative map is being considered in conjunction with or is conditioned upon the obtaining of a necessary zoning variance, rezoning, or the approval of a final development plan.

2.4.022 Conditional Zoning.

a. Authority. On the Planning Commission’s recommendation, the City Council may impose conditions on the zoning reclassification of property.

b. Conditions. The conditions imposed shall be those only that the Council determines, after considering the Commission’s recommendations, to be necessary either to avoid circumstances inimical to the public health, safety, or general welfare or to fulfill public needs reasonably expected to result from the allowable uses and/or development. The conditions shall also be reasonably designed and reasonably related to the necessities of each case considering all the relevant facts. Further, the conditions shall relate to special problems of the property if rezoned, such as water supply, sewers, utilities, drainage, grading or topography, access, pedestrian or vehicular traffic, or proposed physical developments affecting nearby properties.

c. Operativeness. The ordinance reclassifying property shall not be operative until the conditions have been satisfied or assurance provided by way of contract, with adequate surety, as found and declared by Council resolution.

2.4.024 Fees.

a. Fees Required. Each person who applies for, requests, receives, or appeals a land use permit or other entitlement or service furnished by the Community Development Department shall, at the time of such application, request, receipt, or appeal, pay the applicable fee or fees established by the City Council.

b. Environmental Impact Reports.

1) Environmental Impact Reports (EIR) prepared by City staff shall be charged at cost against money deposited in advance by the applicant. Environmental impact reports prepared by consultants engaged by the City will be charged against money deposited in advance by the applicant and shall include an additional nonrefundable 25% of the consultant’s fee for Community Development Department costs in support thereof. If the cost exceeds the applicant’s deposit, the applicant shall pay the excess costs to the City upon initial hearing on the proposed action. If the cost is less than the deposit, any excess shall be refunded to the applicant.

2) The Community Development Director may waive part or all of the fee for a planned unit district final development plan EIR if he/she finds, in accordance with California Environmental Quality Act Guidelines, that the preliminary development plan EIR is appropriate for final development plan consideration.

c. Late Filing. Whenever the Community Development Director determines that a person has begun an illegal land use without first applying for and obtaining all required permits or entitlements, he or she shall apply as soon as practicable and pay a fee of one and one-half times the normal fee, but he or she shall remain subject to other penalties and enforcement procedures.

d. Refunds. If an application, filing, or appeal is withdrawn before any required notice is given, but after processing work has begun, the Community Development Director shall authorize a partial or complete refund of required fees that exceed the cost of the work performed. Once any required notice is given, no refund may be granted.

e. Public Service Activities. The Community Development Director may waive the fees required by this section for applications filed by community interest, nonprofit groups receiving substantial funding support from public entities for public service activities that are determined by the Director to be for the welfare of the City because they relieve the City of directly performing them.

f. Bond Processing Fee. Whenever an applicant elects to post a faithful performance bond in lieu of improvements required in conditions of approval, he or she shall pay an additional nonrefundable 5% of estimated improvement costs in cash, check, or money order for administrative costs in connection with bond processing; such payment shall not be less than $100 nor more than $500.

g. Building Permit Process Fee. The Community Development Department shall charge for those services rendered, prior to approval of land use entitlements and through occupancy, to ensure compliance with all conditions of project approval. The fee will be $10 per permit or 40% of the building permit fees, which ever is greater. The fee shall be collected by the Building Department at the time of collection of other building permit fees.

CHAPTER 4PLANNING AGENCY