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CITY COUNCIL AGENDA ITEM NO. 12

Meeting Date: January 22, 2008

Subject/Title: Introduce and waive the first reading of an ordinance to approve a rezone (RZ 07-04) that amends the Brentwood Municipal Code by establishing Chapter 17.910 for the purpose of regulating Zoning Approval Certificates and by making a minor modification to Chapter 17.840 related to Home Occupation Use Permits, and adopt a resolution that amends the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule by establishing a fee for Zoning Approval Certificates and by increasing the fee for Home Occupation Use Permits.

Prepared by: Erik Nolthenius, Principal Planner

Submitted by: Howard Sword, Community Development Director


RECOMMENDATION
1. Introduce and waive the first reading of an ordinance to approve a rezone (RZ 07-04) that amends the Brentwood Municipal Code by establishing Chapter 17.910 for the purpose of regulating Zoning Approval Certificates and by making a minor modification to Chapter 17.840 related to Home Occupation Use Permits.

2. Adopt a resolution that amends the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule by establishing a fee for Zoning Approval Certificates and by increasing the fee for Home Occupation Use Permits.

PREVIOUS ACTION
At its regular meeting of November 20, 2007, the Planning Commission voted 4-0-1 (Commissioner Bristow absent) to recommend that the City Council approve the requested rezone, by passing Resolution No. 07-078.

BACKGROUND
Staff has developed a draft ordinance to establish a process for Zoning Approval Certificates (Certificates). The creation of this ordinance was spurred in large part by the approval of the Downtown Specific Plan (Specific Plan), which requires Certificates for all new businesses within its boundary in order to ensure compliance with the various requirements of both the Specific Plan and the Brentwood Municipal Code (BMC). One of the primary goals of the process as a whole is to preserve certain building and land uses for their intended purpose.

The draft ordinance was considered by the Land Use and Development Committee (Vice Mayor Brockman, Council Member Becnel, Planning Commission Chairman Cushing, and Planning Commissioner Bristow) at its September 20, 2007 meeting. The Committee was supportive of the ordinance, both as a concept and in its actual draft form. The recommendation from the Committee was to forward the ordinance to the Planning Commission for formal consideration at a public hearing.

At its regular meeting of November 20, 2007, the Planning Commission considered the requested rezone as a public hearing item. No public comments were made and, after a short discussion, the Commission voted 4-0-1 (Commissioner Bristow absent) to recommend approval of the requested rezone to the City Council, as prepared by staff.

PROJECT DESCRIPTION:
This rezone includes amending the BMC in two ways. The first is to establish a new chapter (17.910) for the purpose of regulating Certificates. This chapter will be located in Article XI of the Zoning Ordinance (Administrative Procedure and Permit Regulations), which includes regulations for such things as conditional use permits, variances, and appeals, and will follow the chapter related to outdoor dining and display uses that was recently amended by the City Council. Highlights of the new chapter are as follows:

• The general purpose is to ensure that each new business operating in the City is appropriately zoned for its location and complies with all applicable provisions of the Zoning Ordinance.

• Certificates will be required for all businesses operating in Brentwood, and will be required prior to establishing a business, prior to making any tenant improvements within existing space, or prior to changing a business location.

• Certificates will be processed administratively by Planning Division staff after receiving the required application form, filing fee, and applicable plans.

• Building permits will not be issued for non-residential projects unless and until a Certificate has been approved for the specific use at the specific location.

• Certificates will lapse after one (1) year, unless the approved use has commenced.

The second amendment makes a minor modification to Chapter 17.840 related to Home Occupation Use Permits. The current ordinance requires home occupations to have business licenses and to be restricted to an initial approval period of one year, with subsequent renewals not exceeding three years (Section 17.840.006.E). The recommendation is to modify this section of the ordinance to delete any reference to an approval period, since business licenses are required to be renewed on an annual basis.

ENVIRONMENTAL DETERMINATION:
This rezone is exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15061(b)(3) of the CEQA Guidelines, in that CEQA applies only to projects which have the potential for causing a significant effect on the environment, and there is no possibility that the rezone may have a significant effect on the environment.

ANALYSIS:
Given the fact that the Certificate process is already a requirement of the Specific Plan, staff believes it is appropriate at this time to amend the BMC in the same manner to ensure citywide consistency. Many other cities utilize similar processes to verify that uses comply with the applicable zoning requirements. This rezone will facilitate another step in completing the City’s One Stop Permit Center, as Certificates will be processed through the center in an “over the counter” or administrative fashion.

The attached implementation ordinance has been prepared to set forth the process by which the City will review and approve Zoning Approval Certificates and impose the fee needed to process the applications for them. The attached fee resolution amends the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule to include a fee for Certificate applications, which will recover related City expenses needed to process them, as well as an increase in the Home Occupation Use Permit fee to cover staff time for processing those applications.

In order to determine the administrative cost involved in processing applications for Certificates, staff has prepared a list of the staff positions that would review and approve the applications, as well as the hourly billing rate for each of the positions, and is recommending that the fee be set at $182.00, as described in Exhibit “A” to the attached resolution. Staff has prepared a similar list for the Home Occupation Use Permit fee increase, as described in Exhibit “B” to the attached resolution, and is recommending that the fee be increased from $50.00 to $117.00 for new applications that are submitted after the effective date of the fee increase. These fees shall then be automatically adjusted on July 1st of each year by an amount equal to the percentage of increase or decrease in the Consumer Price Index for this region, as last computed before July 1st. The City’s goal is that all City services are covered by the applicable fees that are established for them.

FISCAL IMPACT
No commitment of funding is required. The implementing ordinance establishes an administrative fee to be collected for processing Zoning Approval Certificate applications and an increased administrative fee to be collected for processing Home Occupation Use Permit applications. Although home occupation permits will no longer need to be renewed every three years, General Fund revenue is anticipated to increase slightly on a fiscal year basis, given the fees that will be collected for zoning certificates. Staff estimates this annual revenue increase to be approximately $1,000 - $2,500.

Attachments:
1. Ordinance
2. Resolution

CITY COUNCIL ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A REZONE (RZ 07-04) AMENDING THE BRENTWOOD MUNICIPAL CODE BY ESTABLISHING CHAPTER 17.910 FOR THE PURPOSE OF REGULATING ZONING APPROVAL CERTIFICATES AND BY MAKING A MINOR MODIFICATION TO CHAPTER 17.840 RELATED TO HOME OCCUPATION USE PERMITS.

WHEREAS, the City of Brentwood has initiated a rezone to amend the Brentwood Municipal Code by establishing Chapter 17.910 for the purpose of regulating Zoning Approval Certificates and by making a minor modification to Chapter 17.840 related to Home Occupation Use Permits; and

WHEREAS, the establishment of a Brentwood Municipal Code (BMC) chapter related to Zoning Approval Certificates is necessary in order to ensure that each new business operating in the City is appropriately zoned for its location and complies with all applicable provisions of Title 17 of the BMC; and

WHEREAS, the minor modification to Chapter 17.840 of the Zoning Ordinance is necessary in order to ensure consistency between the procedure for approving home occupation use permits and the annual renewals that are required for all business licenses; and

WHEREAS, the Land Use and Development Committee reviewed a draft of Chapter 17.910 at its September 20, 2007 meeting, made no significant changes, and recommended that it be forwarded to the Planning Commission for consideration at a formal public hearing; and

WHEREAS, the Planning Commission held a public hearing on November 20, 2007 regarding the proposed Municipal Code text amendment and reviewed the staff report, considered all comments made by the public, and considered all other documents as part of the project; and

WHEREAS, the Planning Commission recommended that the City Council approve the requested rezone on a 4-0-1 vote by passing Resolution No. 07-078; and

WHEREAS, a duly noticed public hearing for this project was advertised in the Brentwood Press on January 11, 2008; and

WHEREAS, on January 22, 2008 the City Council held a public hearing on the proposed rezone; and

WHEREAS, the City Council has reviewed and given consideration to all written material and oral testimony presented before and during the hearing.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood does hereby ordain as follows:

Section 1. The foregoing recitals and staff report statements are found and determined to be true and correct.

Section 2. No text amendment shall occur which is inconsistent with the City’s General Plan and in making this decision, the City Council considered the consistency of the proposed action to the General Plan and whether the proposed action is inappropriate or otherwise contrary to the public interest.

Section 3. The rezone is consistent with the requirements of the Downtown Specific Plan, specifically Section 2.1.4, which details the steps necessary to obtain project approval for downtown properties.

Section 4. The rezone will facilitate implementation of the City’s One Stop Permit Center by providing applications for both Zoning Approval Certificates and Home Occupation Use Permits, as well as by ensuring consistency between home occupations and business license renewals.

Section 5. This project has been processed in accordance with all applicable provisions of the California Environmental Quality Act (CEQA) and represents the independent judgment of the City of Brentwood, as the rezone is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines, since CEQA applies only to projects which have the potential for causing a significant effect on the environment and there is no possibility the rezone may have a significant effect on the environment.

Section 6. The text amendment is consistent with the public interest and the City’s General Plan, as it does not conflict with any stated goals, policies, or objectives.

Section 7. The text amendment will provide a procedure for the City to ensure that businesses are properly located with respect to zoning requirements and will clarify renewal procedures for home occupation use permits.

Section 8. Section 17.840.006.E of the Brentwood Municipal Code is deleted and replaced with the following:

E. A business license shall be required for a home occupation.

Section 9. Chapter 17.910 of the Brentwood Municipal Code is hereby established as follows:

CHAPTER 17.910
ZONING APPROVAL CERTIFICATE

17.910.001 PURPOSE
17.910.002 ZONING APPROVAL CERTIFICATE REQUIRED
17.910.003 ZONING ADMINISTRATOR AUTHORITY
17.910.004 PROCEDURES – APPLICATION, DECISION, EFFECTIVE DATE, APPEAL
17.910.005 ISSUANCE OF BUILDING PERMIT OR BUSINESS LICENSE
17.910.006 EXPIRATION OF ZONING APPROVAL CERTIFICATE
17.910.007 ENFORCEMENT AND PENALTIES

17.910.001 PURPOSE

A. To ensure that each new business operating in the City is appropriately zoned for its location and complies with all applicable provisions of this title.

B. To ensure that the City has a record of each new business operating in the City.

C. To ensure that any business located in the City not conducted pursuant to Chapter 17.840 of the Brentwood Municipal Code (Home Occupation Use Permit) applies for and receives a Zoning Approval Certificate prior to commencement of said business, regardless of whether any type of permit or discretionary approval is needed.

17.910.002 ZONING APPROVAL CERTIFICATE REQUIRED

A Zoning Approval Certificate is required for all businesses operating in Brentwood, in the following circumstances:

A. Prior to establishing a business; or

B. Prior to making any tenant improvements within existing space; or

C. Prior to changing a business location.

17.910.003 ZONING ADMINISTRATOR AUTHORITY

The Zoning Administrator shall be the applicable authority for issuing Zoning Approval Certificates.

17.910.004 PROCEDURES – APPLICATION, DECISION, EFFECTIVE DATE, APPEAL

A. Application – Application for a Zoning Approval Certificate shall be made on a form prescribed by the Community Development Department, which shall include certain information relative to the business (location, name, number of employees, square footage, days and hours of operation, and a detailed description), and shall be accompanied by the required fee, plans and additional information as necessary, in the opinion of the Zoning Administrator, to demonstrate conformity with this title. The Zoning Administrator shall check the application and all data submitted with it and shall issue a Zoning Approval Certificate if it is found that all provisions of this title will be complied with. The application shall include the signature of the property owner.

B. Decision – The Zoning Administrator shall grant or deny an application based on whether or not it complies with all applicable requirements of Title 17 (Brentwood Municipal Code). If an application is granted, the Zoning Administrator may attach conditions as necessary to ensure consistency with the provisions of this title. If an application is denied, no new application for the same, or substantially the same, Zoning Approval Certificate shall be filed within one (1) year of the date of denial of the initial application, unless the denial is made without prejudice.

C. Effective Date – A Zoning Approval Certificate is effective upon issuance.

D. Appeal – Any interested person may appeal the Zoning Administrator’s decision within ten (10) calendar days following said decision, in accordance with Chapter 17.880 of this title.

17.910.005 ISSUANCE OF BUILDING PERMIT OR BUSINESS LICENSE

A. No building permit shall be issued until the Zoning Administrator has approved a Zoning Approval Certificate for the use which is the subject of the building permit.

B. Issuance of a business license does not infer that an application for a Zoning Approval Certificate will be granted, pursuant to and consistent with Chapter 5.04 of the Brentwood Municipal Code.

17.910.006 EXPIRATION OF ZONING APPROVAL CERTIFICATE

A Zoning Approval Certificate will lapse after one (1) year from its effective date, unless the approved use has commenced. Any expiration shall require the filing of a new application in accordance with the provisions of this chapter.

17.910.007 ENFORCEMENT AND PENALTIES

All Zoning Approval Certificates shall be subject to Chapter 17.890 of the Brentwood Municipal Code (Enforcement and Penalties), including revocation.

Section 10. That this Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the Ordinance in accordance with that law. Further, the City Clerk is directed to cause Sections 8 and 9 of this Ordinance to be entered in the City of Brentwood Municipal Code. This Ordinance shall take effect and be in force 30 days following its adoption.

Section 11. That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the Council declares that it would have adopted each provision of this Ordinance irrespective of the validity of any other provision.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 22nd day of January 2008, by the following vote:
CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING THE ZONING APPROVAL CERTIFICATE FEE AND INCREASING THE HOME OCCUPATION USE PERMIT FEE, AND AMENDING THE 2007-2008 COST ALLOCATION PLAN AND MASTER FEE SCHEDULE.

WHEREAS, the City Council has adopted an ordinance requiring a fee to be paid for processing Zoning Approval Certificate applications for all businesses located within the city; and

WHEREAS, the current fee for processing Home Occupation Use Permit applications is insufficient to recover staff time spent processing those applications; and

WHEREAS, Government Code Sections 65104, 65909.5, 66104, and 66451.2 allow the City to establish fees to offset the City’s administrative costs in processing permits, licenses, subdivision maps and other entitlements; and

WHEREAS, Chapter 17.910 of the Brentwood Municipal Code provides for the payment of a fee in conjunction with processing Zoning Approval Certificate applications; and

WHEREAS, the Cost Allocation Plan currently requires a fee of $50.00 to process Home Occupation Use Permit applications; and

WHEREAS, the City has prepared an analysis of the cost to review applications and collect an applicable fee for Zoning Approval Certificates required by Chapter 17.910, as described in Exhibit “A”; and

WHEREAS, the City has prepared an analysis of the increased cost needed to review applications and collect an applicable fee for Home Occupation Use Permits required by Chapter 17.840, as described in Exhibit “B”; and

WHEREAS, the fees established herein are adopted and implemented by the City Council; and

WHEREAS, a duly noticed public hearing for this project was advertised in the Brentwood Press on January 11, 2008; and

WHEREAS, on January 22, 2008 the City Council held a public hearing on the proposed implementing ordinance and the adoption of a related fee for Zoning Approval Certificates, as well as the increased fee for Home Occupation Use Permits; and

WHEREAS, the City Council has reviewed and given consideration to all written material and oral testimony presented before and during the hearing.

NOW, THEREFORE, the City Council of Brentwood does hereby resolve as follows:

Section 1. Findings

The City Council makes each of the following findings:

A. The purpose of the Zoning Approval Certificate fee is to ensure that each business operating in the City of Brentwood is appropriately zoned for its location and complies with all applicable provisions of Title 17 of the Brentwood Municipal Code.

B. The Zoning Approval Certificate fee helps to implement Section 2.1.4 of the Downtown Specific Plan, which details the steps necessary to obtain project approval for downtown properties.

C. Based upon the data and analysis referenced herein, there is a reasonable relationship between the use of the Zoning Approval Certificate implementation fee authorized by this resolution and the time spent processing applications for Zoning Approval Certificates. The fee established herein is adopted and implemented by the Council in reliance on the analysis prepared by the City.

D. No environmental review is required for approval of this resolution, as the related rezone (RZ 07-04) has been determined to be exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15061(b)(3) of the CEQA Guidelines.

E. After considering the analysis set forth in Exhibit “A” describing the method to determine the Zoning Approval Certificate fee, the Council approves and adopts the analysis, and incorporates such herein.

F. The analysis set forth in Exhibit “A”, the City staff report and the testimony received during the public hearing establish that there is a reasonable relationship between the Zoning Approval Certificate fee’s use and the type of application on which the fee is imposed.

G. Based upon the data and analysis referenced herein, there is a reasonable relationship between the use of the Home Occupation Use Permit implementation fee authorized by this resolution and the time spent processing applications for Home Occupation Use Permits. The fee established herein is adopted and implemented by the Council in reliance on the analysis prepared by the City.

H. After considering the analysis set forth in Exhibit “B” describing the method to determine the increased Home Occupation Use Permit fee, the Council approves and adopts the analysis, and incorporates such herein.

I. The analysis set forth in Exhibit “B”, the City staff report and the testimony received during the public hearing establish that there is a reasonable relationship between the Home Occupation Use Permit fee’s use and the type of application on which the fee is imposed.

Section 2. Definitions:

For the purpose of this resolution, the terms defined in Chapter 17.910 and Chapter 17.840 of the Brentwood Municipal Code are incorporated by reference herein.

Section 3. Fees Imposed:

A. Chapter 17.910 of the Brentwood Municipal Code sets forth the requirement to pay the applicable fee for processing Zoning Approval Certificate applications, the amount of which is set forth herein.

B. The Zoning Approval Certificate fee shall on July 1st of each year be automatically adjusted by an amount equal to the percentage of increase or decrease in the Consumer Price Index for this region, as last computed before July 1st.

1. As of the effective date of this resolution, the fee for processing a Zoning Approval Certificate application is $182.00, as described in the attached Exhibit “A”.

2. The Zoning Approval Certificate fee may also be adjusted if the City updates or modifies the Cost Allocation Plan and conducts a public hearing to implement a new or revised fee or fees based upon such update or modification.

3. The Zoning Approval Certificate fee shall be determined on the basis of the fee schedule in effect at the time the application is submitted to the City for review. The fee shall be payable in full at the time the application is submitted.

C. Chapter 17.840 of the Brentwood Municipal Code sets forth the requirement to pay the applicable fee for processing Home Occupation Use Permit applications, the amount of which is set forth herein.

D. The Home Occupation Use Permit fee shall on July 1st of each year be automatically adjusted by an amount equal to the percentage of increase or decrease in the Consumer Price Index for this region, as last computed before July 1st.

1. As of the effective date of this resolution, the fee for processing a Home Occupation Use Permit application is $117.00, as described in the attached Exhibit “B”.

2. The Home Occupation Use Permit fee may also be adjusted if the City updates or modifies the Cost Allocation Plan and conducts a public hearing to implement a new or revised fee or fees based upon such update or modification.

3. The Home Occupation Use Permit fee shall be determined on the basis of the fee schedule in effect at the time the application is submitted to the City for review. The fee shall be payable in full at the time the application is submitted.
Section 4. Effective Date of Fees:

The fees provided for in Chapter 17.910 and Chapter 17.840 of the Brentwood Municipal Code shall be effective on March 24, 2008, at least sixty (60) days after the adoption of this resolution. The effective date of this resolution shall be concurrent with the effective date of the Zoning Approval Certificate and Home Occupation Use Permit implementing ordinance.

Section 5. Severability:

All portions of this resolution are severable. Should any portion of this resolution be judged to be invalid and unenforceable, the remaining provisions shall be and continue to be fully effective, and the fees shall be fully effective except as to the portion that has been judged to be invalid.

Section 6. Cost Allocation Plan Amendment:

The City of Brentwood 2007-2008 Cost Allocation Plan and Master Fee Schedule is hereby amended to add the Zoning Approval Certificate fee and increase the Home Occupation Use Permit fee.

PASSED AND ACCEPTED by the City Council of the City of Brentwood at its regular meeting of January 22, 2008, by the following vote:

EXHIBIT “A”

Zoning Approval Certificate Implementation Administrative Cost

Task Staff Position
Assigned to
Perform Task Hourly
Billing
Rate Hours
Required
To
Perform
Task Administrative
Cost

1. Initial contact and review of the application for completeness
Associate Planner
$129.77

0.25

$32.44

2. Evaluation of the application
Associate Planner
$129.77

1.0

$129.77

3. Fee collection and filing of the application

Administrative Assistant II
$77.66
0.25
$19.42
TOTAL 1.5 $181.63

EXHIBIT “B”

Home Occupation Use Permit Revised Administrative Cost

Task Staff Position
Assigned to
Perform Task Hourly
Billing
Rate Hours
Required
To
Perform
Task Administrative
Cost

1. Initial contact and review of the application for completeness
Associate Planner
$129.77

0.25

$32.44

2. Evaluation of the application
Associate Planner
$129.77

0.5

$64.89

3. Fee collection and filing of the application

Administrative Assistant II
$77.66
0.25
$19.42
TOTAL 1.0 $116.75
 
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