HomeMy WebLinkAboutRes No 804PLANNING COMMISSION RESOLUTION NO. 804
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF PALM DESERT RECOMMENDING THAT
THE CITY COUNCIL APPROVE AN AMENDMENT TO
THE MUNICIPAL CODE SECTION 25.76.
CASE NO. ZOA 04-82
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on
the 1st, day of June, 1982, hold a duly noticed public hearing to consider amendments to
Section 25.76.
WHEREAS, said amendment complies with the requirements of the City of Palm
Desert Procedures to Implement the California Environmental Quality Act, Resolution
No. 80-89", in that the Director of Environmental Services has determined the project to
be a Class 5 Categorical Exemption;
WHEREAS, at said public hearing upon hearing and considering the testimony and
arguments, if any, of all interested persons desiring to be heard, said Planning Commission
did find the following facts to justify their recommendations as described below:
1. That the Zoning Ordinance Amendment is consistent with the objectives of the
Zoning Ordinance.
2. That the Zoning Ordinance Amendment is consistent with the adopted General
Plan and affected Specific Plans.
3. That the Zoning Ordinance Amendment would better serve the public health,
safety, and general welfare than the current regulations.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of
Palm Desert, as follows:
1. That the above recitations are true and correct and constitute the findings of
the Commission
2. That the Planning Commission does hereby recommend to the City Council
approval of a Zoning Ordinance Text Amendment to rescind the present
Zoning Ordinance Chapter 25.76 - Nonconforming Lots, Buildings, Uses and
Land and replace same with Exhibit "A" attached hereto.
PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert
Planning Commission, held on this 1st day of June, 1982, by the following vote, to wit:
AYES: KRYDER, MILLER, RICHARDS, WOOD
NOES: NONE
ABSENT: CRITES
ABSTAIN: NONE
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GEORCft D. KRYDI Chairman
ATTEST:
A ON A. DIAZ, S: cretary
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PLANNING COMMISSION RESOLUTION NO. 804
EXHIBIT "A"
CHAPTER 25.76
NONCONFORMING LOTS, BUILDINGS AND USES
SECTIONS:
25.76.010 PURPOSE
25.76.020 NONCONFORMING LOTS, BUILDINGS & USES
IN RESIDENTIAL ZONES.
25.76.030 NONCONFORMING LOTS, BUILDINGS AND USES
IN NONRESIDENTIAL ZONES.
25.76.040 RECONSTRUCTION OF NONCONFORMING BUILDING
PARTIALLY DESTROYED.
25.76.050 NONCONFORMING USES AND NONCONFORMING BUILDINGS.
25.76.060 OUTDOOR STORAGE IN NONRESIDENTIAL ZONES
25.76.070 PUBLIC ACQUISITION
25.76.080 NOTICE OF HEARING: APPEAL
25.76.010 - Purpose. Where lots, buildings or uses legally existing on December 11,
1975, are not in conformity with the provisions of this title, it is the intent and purpose of
this chapter to declare such lots, buildings, uses and land to be nonconforming, for the
purpose of protecting the public health, safety and general welfare. (Ord. 99 S I (part),
1975: Exhibit A S25.40).
25.76.020 - Nonconforming Lots, Buildings and Uses in Residential Zones.
A. All nonconforming uses within any single family residential zone shall be
terminated or made to conform within five years. The five year period shall be measured
from December 11, 1975, the date of original adoption of the city's zoning ordinance or
from the date such use became nonconforming, whichever came later.
B. A nonconforming building within a residential zone shall be permitted to expand
providing the expanded area conforms to this chapter.
C. A nonconforming lot may be developed, if it has been legally created and the
construction proposed is conforming.
26.76.030 - Nonconforming Lots, Buildings and Uses in Nonresidential Zones.
A. Nonconforming use limits other uses - While a nonconforming residential use
exists on any lot, no new use may be established thereon, even though such new use would
be a conforming use.
B. Nonconforming use of conforming building - The nonconforming use of a building
existing on December 11, 1975, may be continued; provided such nonconforming use shall
not be expanded or extended into any other portion of the conforming building, and if such
nonconforming use is discontinued, and future use of such building shall conform to the
provisions of this chapter.
C. Nonconforming use of a nonconforming building - The nonconforming use of a
nonconforming building may be continued but may not be expanded or extended within
such building.
D.'Change in status of nonconforming use - If a nonconforming use is discontinued
for a period of six months or is succeeded by another and conforming use, it is evidence
that the nonconforming use has ended and any vested right to the continuance of such use
is terminated.
E. Nonconforming buildings - A nonconforming building may be expanded provided
the expansion conforms to the requirements of this chapter.
26.76.040 - Reconstruction of Nonconforming Building Partially Destroyed. A
nonconforming building which is destroyed to the extent of not more than fifty percent of
its reasonable replacement value at the time of its destruction may be restored and the
occupancy or use of such building or part thereof which existed at the time of such partial
destruction may be continued subject to all other provisions of this part.
26.76.050 - Nonconforming Uses and Nonconforming Buildings. Resulting from
reclassification - the foregoing provisions e2-this part shall apply to buildings, land and
PLANNING COMMISSION RESOLUTION NO. 804
uses which hereafter become nonconforming due to any reclassification of zones under
this chapter.
26.76.060 Outdoor Storage in Nonresidential Zones. Notwithstanding any other
provision of this zoning ordinance, the outdoor storage of materials and goods associated
with a lawful use carried on within a building shall be permitted, provided that said
outdoor storage is effectively screened from view by a wall, fence or landscaping buffer.
26.76.070 - Public Acquisition. Whenever any lot, any building, any structure, or
any use is rendered nonconforming within the meaning hereof solely by:
1. Dedication to, or purchase by, the City for any public purpose; or,
2. Eminent domain proceedings.
Which result in the acquisition by the city of a portion of such property, the same shall
not be deemed nonconforming within the meaning of this article. Provided however that if
subsequent to such acquisition , the buildings and/or structures located upon such lot are
wholly destroyed, no reconstruction shall take place unless compliance is had with all
applicable provisions of this chapter. In the event, however, subsequent to such
acquisition, the buildings and/or structures located upon such lot are destroyed to the
extent of not more than fifty percent of their reasonable replacement value, at the time
of their destruction, the provisions of Section 26.76.040 of this chapter shall apply to any
reconstruction of said buildings and/or structures.
26.76.080 - Notice and Hearing: Appeal.
A. Notice of Nonconformity - The owner or occupant of property that is
determined to be a nonconforming lot, building or use under Chapter 25.76, shall receive a
notice, in writing, of that determination. The notice shall state the grounds for the
decision, and shall require the nonconforming lot, building, use or land to be abated within
a time determined by the city staff to be reasonable. The letter shall advise that if the
nonconforming lot, building or use is not abated within the time specified, the abatement
work will be completed by the city and the costs thereof will be charged against the
property or its owner. The notice shall furthermore provide that any person having any
record title or legal interest in the building or lot, may request a hearing, provided the
request is made in writing, as provided in this code, below, and filed with the city within
thirty (30) days from the date of service of such notice. The notice shall finally provide
that failure to request a hearing will constitute a waiver of all right to an administrative
hearing and determination of the matter.
B. Service of Notice of Nonconformity - The notice and order, and any amended or
supplemental notice and order shall be served upon the record owner, and posted on the
property. One copy thereof shall be served on each of the following persons, if known to
the city or disclosed from public records:
record.
1. The holder of any mortgage or deed of trust or other lien or encumbrance of
2. The owner or holder of any lease of record;
3. The holder of any other estate or legal interest of record in or to the building, or
the land on which it is located. The failure of the city to serve any person required herein
to be served, shall not invalidate any proceedings hereunder as to any other person duly
served or relieve any such person from any duty or obligation imposed on him by the
provisions of this section.
C. Method of Service; Effective Date of Service - Service of the notice shall be
made upon all persons entitled thereto, either personally, or by mailing a copy of such
notice and order by certified mail, postage pre -paid, return receipt requested, to each
such person at this address as it appears on the last equalized assessment role of the
county or as known to the city. If no address of any such person so appears, or is known to
the city, then a copy of the notice shall be so mailed, addressed to such person at the
address of the lot or building involved in the proceedings. The failure of any such person
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PLANNING COMMISSION RESOLUTION NO. 804
to receive such notice shall not affect the validity of any proceedings taken under this
section. Service by certified mail in the manner herein provided shall be effective on the
date of mailing.
D. Proof of Service - Proof of service of the notice shall be certified to at the
time of service by written declaration, under penalty of perjury executed by the persons
effecting such service, declaring the time, date and manner in which service was made.
The declaration, together with any receipt card returned and acknowledgment of receipt
by certified mail shall be affixed to the copy of the notice and retained by the city staff.
E. Request for Hearing - Any person entitled to notice under 25.76.070(B) above,
may within 30-days of receipt of said notice, request a hearing. The request for hearing
shall be in writing, and shall contain the following information:
a. A brief statement setting forth the legal interest of each of the persons
requesting the hearing in the building, land, or lot involved.
b. A brief statement in ordinary and concise language, of the specific city
action protested, together with any material facts claimed to support the contentions of
the persons requesting the hearing.
c. A brief statement, in ordinary and concise language, of the relief sought,
and the reasons why it is claimed the protested city action should be reversed, modified or
otherwise set aside.
d. The signatures of all parties requesting the hearing, and their official
mailing addresses.
e. The verification, by declaration under penalty of perjury, of at least one
person who is requesting the hearing, as to the truth of the matters stated in the request
for hearing.
F. Abatement Hearing Board Established - In order to provide for final
interpretation of the provisions of this chapter, and to conduct hearings provided for
below, there is hereby established an Abatement Hearing Board, hereinafter referred to as
the "BOARD", consisting of three (3) members. One such member shall be a member of
the City Council. A second member shall be a member of the Planning Commission. A
third member shall not be an employee of the city. The Director of Environmental
Services shall be an ex-officio member of, and shall act as secretary to the Board. The
Board shall be appointed by the City Council and shall hold office at its pleasure. The
Board shall adopt reasonable rules and regulations for conducting its business, and shall
render all decisions and findings, in writing, to the person requesting a hearing, with a
copy to the Director of Environmental Services. Copies of all rules and regulations
adopted by the Board shall be delivered to the Director of Environmental Services, who
shall make them freely accessible to the public.
G. Notice of Hearing; Form - As soon as practicable, after receiving the written
request for hearing, the Board shall fix a date, time, and place for the hearing by the
Board. Such date shall be not less than ten (10) days, nor more than sixty (60) days from
the date the request for hearing was filed. Written notice of the time and place of the
hearing shall be given at least ten (10) days prior to the date of the hearing, to each
person requesting a hearing by the Secretary of the Board, either by causing a copy of
such notice to be delivered to the persons requesting the hearing personally, or by mailing
a copy thereof, postage pre -paid, addressed to the person requesting the hearing at his
address shown on the request for a hearing. The notice to the person requesting the
hearing shall be substantially in the following form, but may include other information:
"You are hereby notified that a hearing will be held before the Abatement Hearing
Board at on the day of , 198_, at the hour of ,
upon the notice served upon you. You may be present at the hearing. You may be, but
need not be, represented by counsel. You may present any relevant evidence and will be
given full opportunity to cross-examine all witnesses testifying against you. You may
request the issuance of subpoenas to compel the attendance of witnesses, and the
production of books, documents or other things by filing an affidavit therefore with the
Abatement Hearing Board".
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PLANNING COMMISSION RESOLUTION NO. 804
H. Hearing Procedures - The following procedures shall apply to the conduct of the
hearing:
1. The hearing shall take place before the three members of the Abatement
Hearing Board, who shall act as hearing examiners to conduct the hearings.
2. A record of the entire proceeding shall be made by tape recording, or by
any other means of permanent recording, determined to be appropriate by the Board.
3. The proceedings at the hearing shall also be reported by a stenographic
reporter, if requested by any party thereto. A transcript of the proceedings shall be made
available to all parties, upon request and upon payment of the fee prescribed therefor.
Such fees may be established by the Board, but shall, in no event, be greater than the cost
involved.
4. The Board may grant continuances for good cause shown.
5. In any proceedings under this chapter, the Board, or any Board Member, has
the power to administer oaths and affirmations and to certify to official acts.
6. The Board and its representatives shall proceed with reasonable dispatch to
conclude any matter before it. Due regard shall be shown for the convenience and
necessity of any parties or their representatives.
7. The Board may obtain the issuance and service of a subpoena for the
attendance of witnesses, or the production of other evidence at a hearing upon the request
of a member of the Board, or upon the filing of an affidavit therefore, which states the
name and address of the proposed witness; specifies the exact things sought to be
produced and the materiality thereof in detail to the issues involved; and states that the
witness has the desired things in his possession or under his control. The subpoena need not
be issued, when the affidavit is defective in any particular.
8. Hearings need not be conducted according to the technical rules relating to
evidence and witnesses.
9. Oral evidence shall be taken only on oath or affirmation.
10. Hearsay evidence may be used for the purpose of supplementing or
explaining any direct evidence, but shall not be sufficient, in itself, to support a finding
unless it would be admissible over objection in civil actions in courts of competent
jurisdiction in this state.
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PLANNING COMMISSION RESOLUTION NO. 804
11. Any relevant evidence shall be admitted, if it is the type of evidence on
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 might make
improper the admission of such evidence over objection in civil actions in courts of
competent jurisdiction in this state.
12. Irrelevant and unduly repetitious evidence shall be excluded.
13. In reaching a decision, official notice may be taken, either before or after
submission of the case for decision, of any fact which may be judicially noticed by the
courts of this state, or of official records of the Board or Departments and ordinances of
the City of Palm Desert, or rules and regulations of the Hearing Board.
14. The Board, may inspect any buildings or lots, involved in the hearing during
the course of the hearing, provided that notice shall be given to the parties before the
inspection is made, the parties are given an opportunity to be present during the
inspection, and the Board shall state for the record upon completion of the inspection, the
material facts observed and the conclusions drawn therefrom. Each party then shall have
a right to rebut or explain the matters so stated by the Board.
15. The hearing shall be open to the public.
16. The city shall have the burden of proof, and shall first present its evidence.
The party requesing the hearing may then cross-examine the witnesses presented on
behalf of the city. The person requesting the hearing may then present evidence. The city
may then cross-examine the witnesses presented on behalf of person requesting the
hearing.
17. Upon receipt of all the evidence the Board shall then retire to deliberate
and shall render a decision not less than five (5) days after the date of the hearing. The
city has the burden of persuasion by a preponderance of the evidence; which burden shall
be taken into consideration by the Board in rendering its decision.
18. The decision of the Board shall be in writing and shall contain findings of
fact, a determination of the issues presented, and shall also contain the requirements to
be complied with by the person requesting the hearing. A copy of the decision shall be
delivered to the person reequesting the hearing, personally, or sent to him by certified
mail, postage prepaid, return receipt requested. The effective date of the decision shall
be as stated thereon.
I. Rights of Parties at the Hearing - Each party shall have these rights, at the
hearing:
1. To call and examine witnesses on any matter relevant to the issues of the
hearing.
2. To introduce documentary and physical evidence.
3. To cross-examine opposing witnesses on any matter relevant to the issues
of the hearing.
4. To impeach any witness, regardless of which party first called him to
testify.
5. To rebut the evidence against him.
6. To represent himself, or to be represented by anyone of his choice,
including an attorney at law, who is lawfully permitted to do so.
J. Appeal to City Council - The decision of the Board may be appealed to the
City Council within ten (10) days of the date of service of the decision of the Board. The
Council shall hear the appeal as soon as practicable. The appeal shall not be de novo, and
shall be based only on the hearing transcript, the evidence presented at the hearing, those
matters officially noticed, and the written decision of the Board. Any action of the Board
shall be stayed pending the outcome of the appeal. The decision of the City Council shall
be final.
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