Conditional Use Permit Complaint Processw" F MEETING DATE: 2/18/14
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08 °AjOg COUNCIL AGENDA REPORT ITEM NO:
DATE: FEBRUARY 11, 2014
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: UPDATE ON CONDITIONAL USE PERMIT COMPLAINT PROCESS
RECOMMENDATION:
Provide direction to staff regarding Conditional Use Permit compliance process.
BACKGROUND:
On September 4, 2012, Town Council held a Study Session to review the Town's code
enforcement policies and practices. At this meeting, staff presented an overview of the Town's
current code enforcement program's process, along with data collected from code enforcement
activities over the last two fiscal years. Staff also presented information about the Town's
Conditional Use Permit (CUP) process and explained how these permits are addressed through
the Administrative Citation Policy.
On April 1, 2013, Town Council considered an update on this matter and the following is a
summary of individual Council member's comments regarding community participation in code
compliance for CUPS:
• Mediation should not be considered for CUP compliance.
• If there is a question of compliance, the existing CUP should not be entirely opened for
review unless the applicant has filed to amend the CUP.
• Consider requiring all CUPs to be reevaluated for compliance within six months /one
year.
• Consider allowing the public to set revocation hearings.
• Set a defined amount of time to abate a CUP violation equally.
• If abatement isn't reached, CUP compliance should be determined by the Planning
Commission.
PREPARED BY: SANDY L. BAILY,
Director of Community Development
Reviewed by: & Assistant Town Manager blown Attorney Finance
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PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
February 11, 2014
On September 3, 2013, Town Council considered an update on this matter and directed staff to
analyze and report back to Council regarding the following three issues:
• Recommendations as to how complainants could be advised of their Town Code rights
regarding the process to bring a CUP before the Planning Commission for revocation or
modification.
• Guidance as to how to handle not opening up an entire CUP for review as there could be
instances where it may be difficult or impossible not to do so.
• Guidance on whether or not the Planning Commission should have the option of
requiring a periodic review of a CUP.
DISCUSSION:
The following is a response to each of the issues outlined above.
1. Modification/revocation process for approved CUPS: Pursuant to Section 29.20.310
of the Town Code (Attachment 1), the Planning Commission on its own motion, on
recommendation from the Director of Community Development, or if requested by Town
Council, can hold a public hearing to consider modifying or revoking any zoning
approval. Therefore, currently any concerned citizen can go before the Planning
Commission and Town Council to voice his/her concerns about an existing CUP and
request that the CUP be considered for revocation or modification subject to the
determinations required under Section 29.20.315 of the Town Code (Attachmentl).
Staff' anticipates that the majority of public inquiries and complaints for an approved
CUP will be a result from researching the business's Conditions of Approval on the
Town's website and/or by submitting a Code Compliance Complaint Form. Therefore,
staff' recommends that the code enforcement and pending CUP web pages clearly define
the public steps to request a modification or revocation of an approved CUP. As a
reminder, this modification/revocation process opens the entire CUP for review.
2. Limiting scope of CUP review: As discussed in the previous report on this matter, staff
suggested an option that a CUP could be opened for reevaluation by the Planning
Commission within six months /one year of commencement to only consider selected
issues which were identified during the approval process. This was anticipated to work
as a precursor to setting the application for consideration of modification or revocation if
needed. Town Council raised a justifiable concern that due to the number and types of
conditions of approval, it could be difficult if not impossible to determine what
conditions relate to the selected issues to be considered. If this was the scenario for a
CUP being evaluated, then the entire CUP would need to be opened for discussion. To
open the CUP for discussion, the Planning Commission would need to direct staff to
schedule the Conditional Use Permit for modification or revocation as required by
Section 29.20.3 10 of the Town Code. The intent of evaluating a CUP has been to ensure
the conditions imposed are mitigating potential impacts and in some cases, to ensure
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MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
February 11, 2014
compliance. The intent of the evaluation has not been to reopen the entire CUP for
discussion on whether or not the business should cease or significantly change its
operation. Based on Council's concerns, staff suggests that Council confirm the intent of
CUP evaluation by direction to staff or by Council policy and that the evaluation not be
limited to selected issues as previously suggested by staff.
3. Requirement for periodic CUP review: For some CUP applications, Town staff or the
deciding body has included a condition of approval to initially reevaluate the CUP within
six months or one year from when the business commences operation. As noted above,
the basis for this evaluation has been to ensure the conditions imposed are mitigating
potential impacts and in some cases, to ensure compliance. When applied, the condition
has been for a one -time review. In cases where there was still a concern with the use
during its reevaluation, the requirement for reevaluation has been extended for another
period. In addition, the review was either done by staff with an informational report to
the Planning Commission or at a noticed public hearing by the Planning Commission.
The cost for the reevaluation has been covered by the Town.
In considering this matter, the following are alternatives for Council consideration for
review of a CUP:
1) Status quo /no change. The deciding body continues to determine whether or not to
include as a condition of approval that the CUP be revaluated within six months or
one year from operation commencement on a project by project basis. The deciding
body would also determine whether or not it should be a full hearing or just an
informational item to the deciding body, or
2) Require all CUPS to be reviewed except those that were approved on the consent
calendar, and/or
3) Require all CUPS that include alcohol to be reviewed, and/or
4) Require review if a certain amount of complaints are received in writing by separate
individuals within a certain period (e.g., six consecutive months).
As noted in the previous report on this matter, the Town receives approximately 20 CUP
applications a year. The majority of these applications are consent items or
noncontroversial and operate without incident. Due to staff workload and the number of
hearings already before the Planning Commission, staff does not recommend requiring
that all CUPS have a condition to be reevaluated before the Planning Commission. In
addition, CUP reevaluations could potentially deter CUP applicants, especially applicants
for small independent businesses, as this could create an uncertainty with their business
planning.
CONCLUSION:
Staff is seeking Council comment and direction regarding the Conditional Use Permit
compliance process. Staff recommends the following for each of the items noted above:
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MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
February 11, 2014
1. Direct staff to provide the modification/revocation process for approved CUPs on the
Town's CUP and code enforcement websites.
2. Confirm the intent of CUP evaluation by direction to staff or by Council policy and that
the CUP evaluation not be limited to selected issues.
3. The deciding body continues to determine on a case by case basis whether or not to
include as a condition of approval that the CUP be revaluated within six months or one
year from operation commencement.
ENVIRONMENTAL ASSESMENT:
The recommended action is not a project defined under CEQA, and no further action is required
at this time.
FISCAL IMPACT:
If Town Council were to direct that CUPS require review(s) after approval, the work required for
monitoring the review dates, preparing these reviews and conducting public hearings will require
a commitment of staff time and public hearing costs.
Attachments:
Excerpt from Town Code
Sec. 29.20.310. Revocation or modification of a zoning approval.
The Planning Commission on its own motion or on the recommendation of the
Planning director, may, and if requested by the Council shall, hold a hearing to consider
modifying or revoking any zoning approval that has been granted pursuant to this chapter or
any prior ordinance. Notice of the hearing shall be given in the same manner as for the
hearing of an application for zoning approval. Written notice of the hearing shall also be
mailed to any principals making use of, or relying upon, any such zoning approval not less
than five (5) days prior to the date of the hearing.
Sec. 29.20.315. Grounds for revocation.
(a) After the hearing the Planning Commission may revoke or modify a zoning approval if it
finds that one (1) or more of the following grounds exist:
(1) That the zoning approval was obtained by fraud;
(2) That any person making use of, or relying upon the zoning approval is violating or
has violated any conditions of such zoning approval or of section 29.10.095, or the
use for which the zoning approval was granted is being, or has been, exercised
contrary to the terms or conditions of such approval; or
(3) That the use for which the approval was granted is so exercised as to be
detrimental to the public health or safety, or to be a nuisance.
(b) When the Council holds a hearing to consider revocation of a building permit under
section 6.20.230 of this Code, it may at the same time itself exercise the powers of the
Planning Commission under this section. In such case it shall comply with the notice
requirements of both this section and section 6.20.235 of this Code.
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