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MEETING DATE: 9/3/13
ITEM NO: 8
COUNCIL AGENDA REPORT
AUGUST 29, 2013
MAYOR AND TOWN COUNCIL
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 /ohe
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.
Reviewed by:
Sandy L. Baily, Director of Community Developmentrjl7i, /
Assistant Town Manager Il i�l -Town Attorney Finance
N:\DEV \TC REPORTS @013 \CUPCOMPLAINTPROCESS.docx
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MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
August 29, 2013
DISCUSSION:
A concern with the current CUP interpretation/compliance process is the inability for the
complaining parties to have a public voice regarding this issue. Most CUP compliance issues are
remedied through staff working with the business operator to resolve the issue. As discussed at
previous Council meetings regarding code compliance, there are no known jurisdictional models
that provide a public hearing process for community input unless the jurisdiction's staff finds the
violation is so significant that they result in a revocation hearing.
In considering this matter and Council's direction, following are some alternatives for Council
consideration as a means to allow an opportunity for public involvement regarding code
enforcement and CUP enforcement matters.
1. Status Quo/No Change
Pursuant to Section 29.20.315 of the Town Code, the grounds for modifying (without an
application) or revoking an approval is as follows:
(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.
Pursuant to Section 29.20.310 of the Town Code the Planning Commission on its own
motion or on recommendation from the Director of Community Development and 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 their concerns about an existing CUP
and request that the CUP be considered for revocation or modification. This process
opens the entire CUP for review, does not likely address staff interpretation on issues,
and is constrained by vested property rights.
2. Town Code Amendment to Request an Interpretation of a Condition of Approval
The Town Code could be amended to:
1) Allow a member of the public and/or the business owner a process to request that the
Connnunity Development Director's interpretation of a condition of approval be
reviewed by the Planning Commission; or
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
August 29, 2013
2) Allow a formal appeal process to the Planning Commission, including public notice,
of the Con umrmity Development Director's interpretation of a condition of approval.
Either of these options would allow both the business owner or a member of the public an
opportunity to request an interpretation by the Planning Commission if they disagreed
with staff s interpretation. The interpretation would be considered by notice to the parties
involved and the appeal process would be considered through a notified public hearing
process which would allow neighborhood and community input. Either of these options
would only focus on interpreting specific condition(s) of approval and would not open
the entire CUP for discussion. Pursuant to Town Code, any decision of the Planning
Commission is appealable to Town Council.
3. Require all CUPS to be Reevaluated. for Compliance within Six Months /One Year
For some of the 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. The basis for this evaluation is to ensure the
conditions imposed are mitigating potential impacts and in some cases, to ensure
compliance. When applied, the condition is only 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 a report to the Planning Corrnnission or at a noticed public hearing by
the Planning Commission. The cost for the reevaluation has been covered by the Town.
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, a mandatory reopening of an entire CUP for
reevaluation could potentially deter CUP applicants as this could create an uncertainty
with their business planning.
As an alternative, staff suggests a condition that a CUP can be. opened for reevaluation
within six months /one year of commencement to only consider selected issues which
were identified during the approval process. This could work as a precursor to setting the
application for consideration of modification or revocation. The condition could be
written that the Director, Planning Corission, or Town Council could request this
reevaluation by notified public hearing by the Planning Commission. As with
revocations, the public could voice their concerns about the CUP's operation under
verbal communication at a Development Review Committee, Planning Commission, or
Town Council meeting or by submitting a written request for consideration. If Council
directs staff to implement this alternative, Council should consider whether or not there
should be a minimum number of complaints required to open the matter for reevaluation.
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: Update on Conditional Use Permit Complaint Process
August 29, 2013
CONCLUSION:
Staff is seeking Council comment and direction regarding Conditional Use Permit compliance
process. Of the alternatives presented, staff recommends either option of Alternative 2 in that it
allows an opportunity to confirm the interpretation of a condition of approval without opening
the entire CUP. In addition, it deals with bringing a CUP into compliance. Staff also
recommends partially implementing Alternative 3 to include a condition to allow an opportunity
to open the matter for reconsideration if there is a concern regarding the use as described above.
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 staff to prepare an ordinance amendment, the work required for
preparing the amendment(s) will require a commitment of staff time.
Attachments:
None