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CITY COUNCIL AGENDA ITEM NO. 24
Meeting Date: November 12, 2002
Subject/Title: Public Hearing to Amend the Temporary Use Provisions of the Zoning Ordinance
Submitted by: Mitch Oshinsky, AICP, Community Development Director
Approved by: John Stevenson, City Manager
The Planning Commission and staff recommend that the City Council introduce and waive first reading of an Ordinance to amend the Temporary Use Provisions of the Zoning Ordinance.
On September 24, 2002, the City Council directed staff to amend the Temporary Use Provisions of the Zoning Ordinance dealing with outdoor retail sales.
In following through with Council’s direction to amend the Temporary Use Provisions, and upon reviewing the existing Zoning Code provisions, they are dated, spread through different sections of the Code, and do not provide clear criteria on which to evaluate such uses. Therefore, in tandem with Council’s direction I am proposing a comprehensive revision of the Temporary Use provisions to bring them up to date, make them more user friendly, and clearer.
The first matter is the Code has Temporary Use standards in both Sections 17.650 and 17.850. This is confusing and duplicative. The attached Ordinance shows that all text dealing with Temporary Uses in Section 17.650 will be stricken. Section 17.850 then becomes the single source of Temporary Use regulations.
Much of the changes to Section 17.850, as shown in the attached Ordinance, are housekeeping items to provide better organization and flow to the Section, so it will be more user friendly, and in keeping with modern Zoning Code standards.
Key areas to focus on include Section 17.850.004, where any temporary use proposed on City property requires City Council approval. It also grants authority to approve Temporary Use Permits (TUPs) to the Community Development Director, and allows the Director to refer any TUP to the Planning Commission. A decision of the Director can be appealed to the Commission, and the Commission’s decision may be appealed to Council.
Section 17.850.005, lists the types of Temporary Uses permitted. Subsections 2 and 3 contain the issues that the Council focused on. Section 17.850.006 provides criteria for approval, and Section 17.850.007 lists conditions that can be imposed to avoid negative impacts.
On October 15, 2002, the Planning Commission held a public hearing and adopted a resolution recommending City Council approval of the amended Temporary Use Code Sections. During the Planning Commission hearing, it was decided to delete the word “permanently” established business. . . from Section 17.850.005.2., because the Commission felt that no business is necessarily permanent. There was discussion about adding “6 months” vs. “permanent,” but it was decided that would be unduly restrictive and arbitrary. Since the Commission hearing, one of the Commissioners contacted me to explain it has since occurred to him that the use of the word “permanent” was misconstrued. He was thinking of “permanent” in terms of “time” not in terms of “moveability” which is what he now thinks it was referring to.
Given that assumption, he feels it would be helpful to make that distinction to the Council. That would allow the use of the word permanent in Sections 17.850.005.2. and 3. He believes this would also avoid the issue of “time in city” which would appear to be a much more arbitrary, and, perhaps, unenforceable standard.
I think this is something for the Council to consider, however, I also believe that the way the two Sections were revised and recommended by the Commission (as shown in the attached Ordinance) is just fine without the word “permanent” being included at all. This way, there is no misinterpretation possible.
Clarification of the Code could result in greater economic development opportunities through temporary uses, which could generate retail sales taxes.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING SECTIONS 17.650 (ACCESSORY, TEMPORARY AND SERVICE USES) AND 17.850 (TEMPORARY USE PERMIT) OF THE BRENTWOOD MUNICIPAL CODE.
WHEREAS, the Municipal Code in Sections 17.650 and 17.850 contains provisions for the regulation of temporary uses; and
WHEREAS, it is the City's goal to encourage and facilitate economic development, and civic and cultural events; and
WHEREAS, temporary use provisions can provide flexibility for certain temporary business and civic and cultural events; and
WHEREAS, the current temporary use provisions are bifurcated in two separate Code Sections; and
WHEREAS, this bifurcation can be confusing and may lead to the omission of certain relevant information to the reader of the Code; and
WHEREAS, the City Council has studied and deliberated the issue of outdoor temporary retail sales; and
WHEREAS, the City has surveyed other cities throughout the State and local area as to how they regulate temporary outdoor sales; and
WHEREAS, on September 24, 2002, after consideration of the survey data, and input from the public and staff, the City Council directed staff to process an amendment of the Municipal Code provisions for temporary uses; and
WHEREAS, on October 15, 2002, the Planning Commission held a public hearing on the proposed amendment and adopted a resolution recommending to the City Council that Sections 17.650 and 17.850 of the Brentwood Municipal Code be amended; and
WHEREAS, this action has been reviewed per the California Environmental Quality Act (CEQA). Pursuant to Section 15061(a)(3) of CEQA this activity is covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Also, this project can be considered Categorically Exempt from CEQA per Section 15304 (e) for minor temporary uses of land having negligible or no permanent effects on the environment, including carnivals, sales of Christmas tees, etc. In addition, pursuant to Sections 15168(c) and 15162 of the CEQA Guidelines, the project is within the scope of development evaluated in the Brentwood General Plan Program EIR. No substantial changes have occurred to the circumstances under which that EIR was certified and no new information, which was not known and could not have been known at the time that the EIR was certified as complete, has become available relating to the environmental effects of this project. Therefore, the Program EIR for the General Plan is adequate for the approval relating to the project; and
WHEREAS, a Notice of Public Hearing was legally advertised in the Ledger Dispatch according to City policies and Government Code Section 65091; and
WHEREAS, the City Council held a public hearing on the proposed amendment on November 12, 2002, for the purpose of reviewing the code amendment and the Planning Commission and staff recommendations; and
WHEREAS, after close of the public hearing, the City Council considered all public comments received both before and during the public hearing, the presentation by City staff, the staff report, the recommendations, and all other pertinent documents and associated actions regarding the proposed ordinance amendment; and
WHEREAS, the City Council of the City of Brentwood makes the following finding per the Brentwood Municipal Code associated with this amendment:
This amendment is consistent with the General Plan and other applicable City plans, and is appropriate to the public interest, in that it will help achieve a number of General Plan Goals and Policies, and help support economic development and civic and cultural events.
NOW, THEREFORE, the City Council of the City of Brentwood hereby amends Sections 17.650 and 17.850 of the Brentwood Municipal Code as follows:
(Deleted text stricken added text underlined)
ACCESSORY, TEMPORARY AND SERVICE USES
17.650.001 Title and purpose of provisions.
A. Title. The provisions of this chapter shall be known as the "accessory, temporary and service uses regulations" of this title.
B. Purpose. The purpose of these provisions is to allow and regulate certain uses accessory to principle uses and temporary and service uses within the various zones. (Ord. 408 (part), 1987)
17.650.002 Applicability of provisions.
A. In addition to the principal uses expressly included therein, each use category shall be deemed to include such temporary or permanent activities as are customarily associated with, and are appropriate, incidental and subordinate to, such principal use; are located on the same lot as such principal use except as expressly provided otherwise in this chapter and meet the further conditions set forth herein.
B. Within the city, zoning notwithstanding, certain facilities and activities are required to serve the city and the surrounding unincorporated area and the region. These uses are normally of a public or public utility nature and are either essential services or do not lend themselves to specific zone designation. (Ord. 408 (part), 1987)
17.650.003 Accessory uses permitted.
Accessory uses shall be permitted as follows:
A. Uses accessory to a residential use as follows:
1. Home occupations subject to obtaining a home occupation permit pursuant to Chapter 17.840;
2. The storage within a dwelling of materials, possessions, supplies, equipment and other material objects normally found within a home;
3. The placement upon the premises of a dwelling equipment or goods such as toys, play equipment, yard or lawn furniture, minor yard maintenance tools and equipment and similar objects;
4. Rooming and boarding, defined as the renting of a room with or without table board to an individual for a duration of not less than thirty consecutive calendar days, shall be permitted as follows:
a. Occupancy to be limited to four paying guests,
b. Occupancy in excess of four guests may be permitted subject to obtaining a conditional use permit,
c. Rooming and boarding shall be conducted only by a person or persons residing on the premises,
d. Off-street parking shall be provided in compliance with Chapter 17.620,
e. The use of signs in conjunction with rooming and boarding shall be prohibited,
f. Rooming and boarding shall be subject to all other applicable city ordinances;
5. Transient housing, defined as the renting of a room to transient guests for periods of less than thirty days shall, subject to conditional use permit approval, be permitted in the R-2, R-3 and A zones as follows:
a. A conditional use permit shall be granted only for the rental of not more than two rooms,
b. Transient housing shall be conducted only by a person or persons owning the dwelling and residing therein as their principal place of residence,
c. Any conditional use permit issued for transient housing shall be nontransferable,
d. A conditional use permit issued for transient housing shall be issued for periods not to exceed two years,
e. Off-street parking shall be provided in compliance with Chapter 17.620,
f. The use of signs in conjunction with transient housing shall be prohibited,
g. Transient housing shall be subject to all other applicable city ordinances.
B. Uses accessory to a nonresidential use as follows:
1. Operation of an employee cafeteria by a firm engaging in a principal use on the same lot;
2. Subject to conditional use permit approval a residential occupancy in connection with a principal use on the same lot, where residency is required on the premises for protective, conference, or comparable technical purposes;
3. Operation of administrative office services for a use on the same lot;
4. Wholesale sale, or retail sale to the buyer's custom order, of goods produced by a principal industrial use on the same lot;
5. Sale of goods on the same lot as a principal community service use, but only if such goods are available only to persons regularly participating in the principal activity;
6. The storage of the inventory of any retail or wholesale business, warehouse, parts house, industry or other commercial activity when such storage is the principal activity of the use or is incidental to the use and enclosed entirely within a building.
C. Signs pursuant to Chapter 17.640.
D. Subject to conditional use permit approval any other use not specifically permitted or determined by the zoning administrator to be similar to a use permitted within the zoning in which it is proposed. (Ord. 408 (part), 1987)
17.650.004 Temporary uses permitted.
Temporary uses shall be permitted as follows:
A. Within any zone subject to approval of a temporary use permit pursuant to Chapter 17.850:
1. Temporary construction yards and grading and demolition activities which are necessary and incidental to the development of facilities on the same lot, or on another of several lots being developed at the same time,
2. A real estate sales office which is necessary and incidental to, and located on the same site as, a subdivision being developed into five or more lots;
B. Within any commercial or industrial zone subject to approval of a temporary use permit pursuant to Chapter 17.850:
1. Christmas tree sales lots,
2. Parking lot sales events,
3. Grand openings,
4. Circus, carnivals and similar entertainments,
5. Permitted uses involving temporary outdoor display or sales,
6. Construction office and storage yard,
7. Similar temporary uses which are to be constructed for a period of less than one year,
8. Temporary signs pursuant to Section 17.640.007. (Ord. 408 (part), 1987)
17.650.005 17.650.004 Service uses permitted.
Within any zone, service uses shall be permitted as follows:
A. Essential service facilities to include the construction, extension, maintenance and operation of underground or overhead installations and incidental appurtenances, equipment and accessories thereto for the normal and regular distribution and supply within and for the benefit of properties within the city, such as electric, gas, telephone, telegraph, water, sewer and storm drain facilities, including electric distribution lines having fifty kv power or less, and gas, telephone and similar essential-service lines, poles, pipes, conduits, cables, mains, drains, fire alarm boxes, police call boxes, traffic signals, hydrants and other similar equipment and accessories in connection therewith, but not including facilities listed as requiring conditional use permit approval in Section 17.680.003.
B. Subject to conditional use permit approval, essential service facilities to include underground or aboveground public utility electric transmission lines, and towers for transmission of electricity, telephone, telegraph, television, radio and other communications messages, such as high tension power lines and towers; underground or aboveground facilities for the transmission, storage or collection of petroleum, water, gas and sewage; public utility, office buildings, service or maintenance structures and yards, reservoirs, tanks, and substations; and routes of proposed reservoirs, tanks and substations; and routes of proposed electric transmission lines.
C. Subject to conditional use permit approval, airports and helicopter ports, cemeteries and hospitals. (Ord. 408 (part), 1987)
TEMPORARY USE PERMIT
17.850.001 Title and purpose of provisions.
A. Title. The provisions of this chapter shall be known as the "temporary use permit procedure regulations" of this title.
B. Purpose. The purpose of these provisions is to prescribe those short-term activities which may be appropriate when regulated, to list those temporary uses permitted, and to provide the procedure for the accommodation of short term or temporary uses in order to review operating characteristics, site or design requirements, and any potential adverse effects on adjacent properties, by means of administrative review, and where necessary, the imposition of special conditions of approval. (Ord. 408 (part), 1987)
17.850.002 Applicability of provisions.
This procedure shall apply to those uses for which a temporary use permit is required by the zoning ordinance. (Ord. 408 (part), 1987)
17.850.003 Temporary use defined.
A temporary use is a short term use of property for a period of twelve months or less. use established for a fixed period of time with the intent to discontinue such use upon the expiration of the permitted time period. Such temporary uses include but are not limited to, seasonal fruit stands, Christmas tree lots, parking lot sales, grand openings, circus, carnivals and other promotional uses involving temporary outdoor display or sales; construction offices or storage yards; temporary sales or rental offices; temporary signs such as subdivision signs, excluding individual real estate signs; and other similar uses. (Ord. 408 (part), 1987)
Temporary use permits applications shall be prepared and submitted pursuant to Chapter 17.800. may be approved, amended, conditioned, or denied by the Director, pursuant to the provisions of this Chapter. The Director may refer any such permit to the Planning Commission. Decisions of the Director may be appealed to the Commission, and decisions of the Commission may be appealed to the City Council, pursuant to Chapter 17.880 (Appeal). Any Temporary Use proposed on City property requires the approval of the City Council.
17.850.005 Procedure Permitted Temporary Uses.
A. Applications for a temporary use permit shall be processed pursuant to Section 17.800.010.
B. Following a determination that an application is complete the zoning administrator shall deny, approve or conditionally approve the application.
The following temporary uses may be permitted, subject to issuance of a Temporary Use Permit, and obtaining a City Business License:
1. Retail sales of agricultural produce at produce stands or in a certified farmers market ;
2. Outdoor retail sales within nonresidential zones for merchandise customarily sold on the premises by an 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.
3. Outdoor retail sales within nonresidential zones of merchandise not customarily sold on the premises, when the sales will be by an established business physically located and doing business in Brentwood. 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.
4. Christmas tree or pumpkin sale lots(however, a permit shall not be required when such sales are in conjunction with an established commercial business holding a valid business license, or produce stands or farmer’s markets), provided such activity shall be limited to 45 days of operation per calendar year.
5. Circuses, rodeos, carnivals, pony riding.
6. Construction yards, corporation yards, offices or storage yards.
7. Temporary subdivision home sales or rental offices.
8. Trailer coaches or mobile homes on active construction sites for use as a temporary living quarters for security personnel.
9. 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.
10. Similar temporary uses which, in the opinion of the Director are compatible with the provisions of this Chapter.
17.850.006 Criteria for approval.
When evaluating a request for a temporary use permit, consideration shall be given to traffic, circulation, parking, visibility, harmful effects on adjoining property if any, and any other relevant impacts or considerations of the proposed use. The proposed use may be reasonably conditioned to mitigate identified impacts or to ensure the public health, safety or welfare. (Ord. 408 (part), 1987)
17.850.007 Time limits Conditions of approval.
A. All temporary use permits shall have a termination date assigned which is consistent with this title, other regulations of the municipal code or other regulations of the state or county, but in no case shall the termination date exceed a period of twelve months beyond the date of issuance.
B. The zoning administrator may, under special circumstances, grant a six-month maximum time extension for a temporary use. If, however, the use will clearly need time in excess of twelve months or a six month extension, then the applicant shall obtain a conditional use permit.
C. Uses which continue beyond or are intended to exist in excess of twelve months but are not considered permanent uses shall be considered interim uses and shall require conditional use permit approval.
In approving an application for a Temporary Use Permit, the Director may impose conditions deemed necessary to ensure that the permit will be in accordance with the criteria for approval required by Section 17.850.006, above; and that the temporary use or structure will not adversely affect adjacent properties, or the public health, safety or welfare. These conditions may involve any pertinent factors affecting the operation of such temporary event, or use, and may include but are not limited to:
1. Unless an alternative time period is specified above in Section 17.850.005. (Permitted temporary uses), provision for a fixed period not to exceed 1 year for all temporary uses or structures, or for a longer or shorter period of time as determined by the Director. The Director may grant time extensions, and regulate operating hours and days. Periodic City sponsored and/or civic events outlined in Section 17.850.005.9, above, are not subject to the fixed time limitations of this Section as determined by the Director.
2. Provision for parking facilities, including vehicular ingress and egress.
3. Regulation of potential nuisance factors such as, but not limited to, light and glare, noise, vibration, smoke, dust, dirt, and odors.
4. Regulation of temporary structures and facilities, including placement, height and size, location of equipment, buffer areas and setbacks.
5. Provision for sanitary facilities.
6. Provision for waste collection and disposal.
7. Provision for security and safety measures.
8. Regulation of signs.
9. If requested, submission of a performance bond or other surety devices, satisfactory to the City Engineer, to ensure that any temporary facilities or structures used will be removed from the site within a reasonable time following the event and that the property will be restored to its former condition.
10. Submittal of a site plan.
11. Any other conditions determined by the Director to ensure the operation of the proposed temporary use in an orderly, efficient, safe, compatible, harmonious, and nuisance free manner.
17.850.008 Appeal. Condition of site following temporary use
Action of the zoning administrator may be appealed pursuant to Chapter 17.880.
Each site occupied by a temporary use shall be left free of debris, litter, or any other evidence of the temporary use upon completion or removal of the use.
A Temporary Use Permit may be revoked or modified by the Director if any one of the following findings can be made:
1. That circumstances have changed so that one or more of the provisions of this Chapter 17.850 are not being met or complied with.
2. That the Temporary Use Permit was obtained by misrepresentation or fraud.
3. That one or more of the conditions of approval of the Temporary Use Permit have not been met.
4. That the use is in violation of any statute, ordinance, policy, law or regulation.
THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 12th day of November 2002, by the following vote:
And was adopted at a regular meeting of the Brentwood City Council on the _____ day of ___________, 2002, by the following vote:
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