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HomeMy WebLinkAboutORD 309s ORDINANCE NO: 309 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING THE MUNICIPAL CODE SECTION 25.76. CASE NO. ZOA 04-82 WHEREAS, the City Council of the City of Palm Desert, California, did on the 15th, day of July 15, 1982, hold a duly noticed public hearing, to consider amending the Municipal Code Section 25.76. WHEREAS, the Planning Commission, by Resolution No. 804, has recommended approval; and, WHEREAS, said application has complied with 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 is a Class 5 categorical exemption; and, WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said City Council did find the following facts and reasons to exist to approve the amendments to Section 25.76. 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. 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 City Council of the City of Palm Desert, as follows: I. That the above recitations are true and correct and constitute the considerations of the council in this case. 2. That the City Council does hereby approve the 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. 3. The city clerk is directed to publish this ordinance once in the Palm Desert Post, a newspaper of general circulation, published and circulated in the City of Palm Desert, and shall certify to the passage of adoption of this ordinance, and the same shall be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this 15th day of July, 1982, by the following vote to wit: AYES: McPherson, Newbrander, Puluqi, Snyder, Wilson NOES: None ABSENT: None ABSTAIN: None ATTEST: W SHEILA R. GILLIG' N, City City of Palm Desert, Califo /pa ORDINANCE NO.309 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 §1(part), 1975: Exhibit A §25.40). 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 destroved. 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 -2- ORDINANCE NO.309 reclassification - the foregoing provisions of this part shall apply to buildings, land and 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: A. Dedication to, or purchase by, the city for any public purpose; or, B. 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: 1. The holder of any mortgage or deed of trust or other lien or encumbrance of record. 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 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. -3- ORDINANCE NO.309 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: 1. A brief statement setting forth the legal interest of each of the persons requesting the hearing in the building, land, or lot involved. 2. 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. 3. 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. 4. The signatures of all parties requesting the hearing, and their official mailing addresses. 5. 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 , 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". 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- ORDINANCE NO.309 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. 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. - 5 - ORDINANCE NO.309 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. /pa 4 MEM