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Conditional Use Permit Complaint Processw" F MEETING DATE: 2/18/14 ' I 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 N: \DEV\TC REPORTS \2014 \CUPCOMPLAINTPROCESS.dmx 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 PAGE 3 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: PAGE 4 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. N: \DEV\TC REPORTS\ 2014 \CUPCOMPLAINTPROCESS.attA.docx ATTACHMENT 1 THIS PAGE INTENTIONALLY LEFT BLANK