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Meeting Date: April 13, 2004

Subject/Title: An amendment to the Brentwood Municipal Code (Section 17.850 of the Zoning Ordinance) Relating to Temporary Use Permits.

Prepared By: Tim Nielsen, Planning Technician

Submitted by: Mitch Oshinsky, Community Development Director

Approve Rezone 04-02 amending Brentwood Municipal Code Section 17.850 as described below.

On November 26, 2002, the City Council approved an amendment of the code section for Temporary Use Permits. The amended code provides that: “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” require a TUP and Business License. Council added provisions to this amendment that require: “Any Temporary Use proposed on City property requires the approval of the City Council.” On October 15, 2003, City Council directed staff to amend the provisions of the Temporary Use Permit Ordinance to allow more TUP approvals to be handled administratively. On March 16, 2004, the Planning Commission recommended that City Council approve this ordinance amendment.

In following through with the City Council’s direction to amend the Temporary Use Provisions, and upon reviewing the existing Zoning Code Provisions, several key items should be considered. Based on an amendment made in 2002, the Zoning Ordinance currently requires every temporary use located on City-owned property to obtain City Council approval. We have begun to see a number of routine TUP applications requiring Council action; this would conceivably require dozens of uses, of varying purposes and sizes, to obtain City Council approval year after year. Most of these uses are routine, characterized by few attendees and occur on an annual basis. Many of these temporary uses can be reviewed and approved by staff based upon prior experiences with the applicant. Commonly proposed uses included in this proposed revision are a few minor changes that clearly define the intent of the ordinance.

The key areas of focus are Section 17.850.004, where any temporary use proposed on City property requires City Council approval and the addition of a new Section 17.850.006 that defines uses that are exempt from the TUP Ordinance. The suggested changes include:

- Requiring City Council approval only if the proposed temporary use requires closure of public a right-of-way.
- Expanding the list of uses which require a Temporary Use Permit
- Defining which uses are exempt from the TUP process, including City-managed or co-managed events.

During calendar year 2003, twelve temporary use permits required and obtained City Council approval due to their location on City-owned property. Of these twelve events, seven required closure of a portion of a public right-of-way. These seven events were the Cornfest, the Art and Wine Festival, the Homecoming Parade, the Hometown Halloween event, the Holiday Parade, a Catholic Church festival, and the Catholic Church processional. Under the proposed Ordinance revisions, these seven events would still be required to obtain City Council approval because they involve the closure of portions of public right-of-way.

The other five events were located on City-owned property and did not require closure of right-of-way. While few in number last year, the number of these smaller, low-impact events is only expected to increase as the population of Brentwood and the number of local charities grows. In allowing such events to be reviewed and approved by staff, the Temporary Use Permit process will be more streamlined and more responsive to future applicants with short event time lines.

Although the Chief of Police and the City Engineer are able to order the closure of City streets, all of our larger annual Temporary Uses such as Cornfest, the Art and Wine Festival, and Homecoming require City Council approval and will continue to require Council approval to close portions of City right-of-way.

The Code currently allows the Community Development Director to also refer any TUP to the Planning Commission, and that provision is proposed to remain and be used in the event of unusual circumstances surrounding a future proposed temporary use.

There have also been questions as to which events require Temporary Use Permits. As the ordinance is currently written, it could be interpreted to require all City-managed sporting events, fairs, youth events, and park dedications to obtain Temporary Use Permit approval. This requirement delays the event process by requiring uses that could be handled administratively to obtain City Council approval. To prevent future confusion and promote efficiency for minor events, an “exemptions section” has been added to define specific uses that are exempt from the requirements of the Temporary Use Permit ordinance.

To clarify the proposed amendments, any Temporary Use Permit request that requires closure of a portion of a City street will be required to go before City Council for approval of that permit. Any use that requires approval of a Temporary use Permit that is located on City property, but does not require closure of any City right of way would be handled administratively.

Streamlining the approval process and clearly defining which events do not need to obtain a TUP would allow a more efficient and applicant-friendly system, fostering greater economic development opportunities through temporary uses and supporting community-oriented and charitable events which benefit the City of Brentwood. The proposed amendment clarifies regulations pertaining to temporary uses and will save staff time and the financial resources of the City to administer this ordinance.




WHEREAS, the Municipal Code in Section 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 of the Municipal Code can provide parameters to conduct certain temporary business and civic and cultural events; and

WHEREAS, the current temporary use provisions of the Municipal Code require City Council approval for all uses proposed on City-owned property; and

WHEREAS, this requirement can be time-consuming and is not necessary to ensure a well planned and properly regulated event; and

WHEREAS, there are several other minor changes that need to be made to the ordinance, in order to improve the clarity and ease future interpretation of the ordinance; and

WHEREAS, on October 15, 2003, the City Council directed staff to process an amendment of the Municipal Code provisions for temporary uses; and

WHEREAS, on March 16, 2004, the Planning Commission held a public hearing on the proposed amendment to Section 17.850 of the Municipal Code and adopted a resolution recommending to the City Council that Section 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; and

WHEREAS, a Notice of Public Hearing was legally advertised in the Brentwood News according to City policies and Government Code Section 65091; and

WHEREAS, the City Council held a public hearing on the proposed amendment on April 13, 2004, for the purpose of reviewing this code amendment and the 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 helping to support economic development and civic and cultural events.

NOW, THEREFORE, the City Council of the City of Brentwood hereby amends Section 17.850 of the Brentwood Municipal Code as follows:

(Deleted text stricken added text underlined)

Chapter 17.850
17.850.001 Title and purpose of provisions.
A. Title. The provisions of this chapter shall be known as the "temporary use permit 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 use established for a fixed period of time with the intent to discontinue such use upon the expiration of the permitted time period. (Ord. 408 (part), 1987)

17.850.004 Application.
Temporary use permits may be approved, amended, conditioned, or denied by the Community Development Director, pursuant to the provisions of this Chapter. The Community Development Director may refer any such permit to the Planning Commission. Decisions of the Community Development 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 requesting the closure of City right-of-way requires the approval of the City Council, except those street closures permitted to be exercised by the Chief of Police, City Engineer, and the Director of Public Works as provided in Brentwood Municipal Code, Title 10 and other provisions of City policy, regulations, and the Municipal code.

17.850.005 Permitted Temporary Uses.
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 per business conducting the sale, 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 per business conducting the sale, 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, bike rodeos, carnivals, pony riding animal rides, petting zoos.

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 temporary living quarters for security personnel.

9. City sponsored and/or civic Community events including but not limited to Cornfest fairs, festivals, concerts, car shows, races, rallies, runs, marathons, arts and crafts shows egg hunts the snow park, Halloween holiday events, downtown barbeque and parades, and processions.

10. Events proposing pyrotechnics.

11. Similar temporary uses which, in the opinion of the Community Development Director are compatible with the provisions of this Chapter.

12. Notwithstanding any other provision of this Chapter, the City Council shall review the issuance of a Temporary Use Permit for the following events: Cornfest, the Art and Wine Festival, Homecoming Parade, and Hometown Halloween.

17.850.006 Exemptions.

The provisions of this Chapter shall not apply to arts and crafts fairs, health and safety fairs, business fairs, athletic field rentals, sport tournaments and contests, block parties, food and clothing giveaways, park dedications, music recitals, art shows and receptions, City building and gazebo rentals, community meetings and other similar uses that typically occur at community facilities. All City-managed or co-managed events are exempt from the requirements of obtaining a Temporary Use Permit. These exemptions shall apply to all of the events listed above, except as noted in 17.850.005 (12).

17.850.006 17.850.007 Criteria for approval.
When evaluating a request for a temporary use permit, consideration shall be given to traffic, circulation, parking, visibility, effects of noise and light, other 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 17.850.008 Conditions of approval.

In approving an application for a Temporary Use Permit, the Community Development 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 Community Development Director. The Community Development 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 Community Development 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. The Brentwood Police Department may close the event due to failure to satisfy conditions of this Permit

8. Regulation of signs.

9. If requested, submission of a performance bond or other surety devices, satisfactory to the City Engineer Community Development Director, 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 Community Development Director to ensure the operation of the proposed temporary use in an orderly, efficient, safe, compatible, harmonious, and nuisance free manner.

12. Provide a Certificate Of Insurance Acceptable to the City Attorney.

17.850.008 17.850.009 Condition of site following temporary use.

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.

17.850.009 17.850.010 Revocation

A Temporary Use Permit may be revoked or modified by the Community Development Director when it is determined that any of the following occurs:

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 13th day of April 2004, by the following vote:

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