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 CITY COUNCIL AGENDA ITEM NO. 22



Meeting Date: September 24, 2002

Subject/Title: Continued Discussion on Temporary Tent Sales

Submitted by: Mitch Oshinsky, AICP, Community Development Director

Approved by: John Stevenson, City Manager


RECOMMENDATION 
That Council provide direction to staff as to how to regulate temporary tent sales.

PREVIOUS ACTION
Council directed staff to return with survey information from nearby cities and a legal opinion.

BACKGROUND
SUMMARY of SURVEY

As of the writing of this report, we were able to get information back from 12 cities. Most cities require approval at the administrative level with a Temporary Use Permit. 

Tent sales are allowed on property other than that of the seller with approval letter from the property owner. The majority of the cities do not regulate the type of product sold, only that they have a business license in the city.

The length of temporary Tent Sales averaged 3 day. Some cities had no time limit but were on a case-by-case basis.

Pleasanton and Walnut Creek only allow a shopping center or business to have a tent sale four times per year once per quarter. 

Attached is a spreadsheet showing the responses. 

Additional survey information obtained after the writing of this report, will be distributed at the Council meeting on 9/24.

ALTERNATIVES

Based on the Council discussion on 9/10, I have made some changes to the five provisions below for Council consideration on how to proceed. These provisions provide for limits on temporary sales, but also allow them under certain circumstances. 

Staff seeks Council direction on whether any of these five, or any other provisions are acceptable. The provisions are: the following temporary uses may be permitted, subject to issuance of a Temporary Use Permit:

1. Outdoor retail sales within nonresidential zones only for merchandise customarily sold on the premises by a permanently established business physically located and doing business at the same location as the temporary use. Such sales of merchandise are limited to 4 events per calendar year, not exceeding 4 consecutive days per event.

2. Outdoor retail sales within nonresidential zones of merchandise not customarily sold on the premises, when such sales are associated with a permanently established business physically located and doing business in the City of Brentwood at a different location than the temporary use. The entity conducting the temporary sale shall dedicate all retail sales tax collected at such sale to accrue to the City of Brentwood. Such sales of merchandise are limited to 4 events per calendar year, not exceeding 4 consecutive days per event.

2A. Outdoor retail sales within nonresidential zones of merchandise not customarily sold on the premises when the sale will be by an existing Brentwood business, or when the sale will be held by an out of town business on a site located in the City of Brentwood (with written permission of the property owner). The entity conducting the temporary sale shall dedicate all retail sales tax collected at such sale to accrue to the City. Such sales are limited to 4 events per calendar year, not exceeding 4 consecutive days per event.

3. Outdoor retail sales within nonresidential zones of merchandise not customarily sold on the premises, when it is determined by the City Council or Council Committee, that the business conducting the sale has provided a significant amenity of community-wide benefit to the City. The entity conducting the temporary sale shall dedicate all retail sales tax collected at such sale to accrue to the City of Brentwood. Such sales are limited to 4 events per calendar year, not exceeding 4 consecutive days per event.

4. Outdoor retail sales within nonresidential zones of merchandise not customarily sold on the premises, when it is determined by the City Council or Council Committee that the business conducting the sale is actively pursuing a bona fide opportunity to do business in the City at a permanent location. The entity conducting the temporary sale shall dedicate all retail sales tax collected at such sale to accrue to the City of Brentwood. Such sales are limited to 4 events per calendar year, not exceeding 4 consecutive days per event.

The following language is also suggested for incorporation within the ordinance: 

City sponsored and/or civic events including but not limited to Cornfest, fairs, festivals, concerts, arts and crafts shows, the snow park, Halloween event, downtown barbeque, and parades are permitted subject to a Temporary Use Permit.

The City Attorney will provide a legal opinion to the City Council.

FISCAL IMPACT
As provided above, retail sales taxes would accrue to the City from any sales.






MEMORANDUM



OFFICE OF THE CITY ATTORNEY


DATE: September 16, 2002

TO: Mayor and City Councilmembers

FROM: Dennis Beougher

SUBJECT: Temporary Use Permits

During the September 10th City Council meeting, two questions were raised as follows: (1) whether the City Council can permit temporary uses; and (2) whether if temporary uses are permitted subject to certain conditions, whether the temporary user permit process can exclude permit holders whose business is beyond a certain radius from the City’s border.

Temporary Uses

A temporary use permit is exactly analogous to a conditional permit, as currently drafted by the Brentwood Municipal Code. A conditional use permit is a permit issued to a landowner by an administrative agency allowing a particular use or activity not allowed
as a matter of right within a zoning district. (A conditional use permit is distinguished from a temporary use permit by the time for the permitted use. A conditional use permit runs with the land subsequent land owners compared to a specified time permit for a temporary use permit, not to exceed one year.) This is exactly how a temporary use permit is currently administered. 

A temporary use permit process is an administrative method of proving zoning relief and flexibility from the strict terms of a comprehensive zoning ordinance. Conditional use permits, as well as temporary use permits, are now well recognized by zoning administrators and the courts as necessary and proper zoning flexibility devices. The purpose of a conditional use permit, as well as temporary use permit, has been stated in follows:

“The device of providing for the issuance of a special use permit is well recognized as a legitimate zoning procedure. It permits the inclusion in the zoning pattern of uses considered by the legislative body to be essentially desirable to the community, but which because of the nature thereof or their concomitants (noise, traffic, congestion, effect on values, etc.), mitigate against their existence in every location in a zone, or any location without restrictions tailored to fit the special problems which the uses present.” Upton v. Gray (1969) 269 Cal.App.2d 357 

Based on this understanding, as each case is unique, there are no uniform terms for a special use permit, such as a conditional use or a temporary use permit. 

The power and authority of cities to grant a conditional use permit, if reasonable, is a valid exercise of the police power. Cal. Constitution Article XI, §7. In addition, cities are authorized to hear and decide applications for conditional use permits when the zoning ordinance provides therefore and establishes criteria for determining such matters. Gov. Code §65901. Cities are required to establish through its zoning ordinance, criteria or standards for granting a conditional use/temporary use permit. The local criteria for granting a conditional/temporary use permit vary from general to specific. General provisions are the most typical. One reason for not detailing standards for conditional use permits may be that, if the standards are met, the conditional/temporary use must be issued.

Normally, the general welfare is sufficient basis for denial of a conditional/temporary use permit. The rationale of the line of cases is that it is near impossibility to devise standards to cover all possible situations in which a use permit can be issued. 

There is also the nuisance standard or in other words, a use will not be permitted if it is creates noise, dust, odors, or other undesirable characteristics. Any use found to be objectionable or incompatible with the character of the city and its environs due to noise, dust, odors, or other undesirable characteristics may be prohibited.


Limited Temporary Use Permit to Certain Businesses

It was suggested in one of the proposed ordinance amendments to prohibit the issuance of a temporary permit to a business if the business was located more than 25 miles from its borders. It would appear to me to be very difficult to regulate as the applicant could be the current business/land owner who is applying for another business entity who wants to use the current business/land owners property, as the owner has a right to apply for certain number of temporary uses per year.

In addition, the approval/denial of a permit should relate to land use issues and its related findings concerning the proposed use’s possible impacts upon dust, odor, traffic, or general welfare. Location of the ownership of the business does not generally relate to any land use issues or general welfare issue. On the other hand, concerning certain consumer products that require costly warranty work or protection, such as automobiles, recreational vehicles, spa, the City could find given the nature of warranties and the need for convenient redress of any warranty complaint that a business requesting a permit shall be located within a 25 mile radius for these types of business would be a reasonable basis to protect the general welfare of its citizens. It would be a difficult provision to regulate as the property owner/current business could be the applicant rather than the business beyond the 25 mile radius.

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