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CC - Item 3N - Establishment of Process for Termination and Extension of Nonconforming Uses0 • ROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: ANDREW C. LAZZARETTO, CITY MANAG DATE: NOVEMBER 28, 2006 SUBJECT: ESTABLISHMENT OF A PROCESS FOR THE TERMINATION AND EXTENSION OF NONCONFORMING USES SUMMARY The City's zoning ordinance currently has provisions that allow for the City to amortize out and terminate buildings and uses which do not conform with zoning code designations. However, the City does not have a process to allow property owners or business owners facing termination, and closure, or removal, to appeal the decision in conformance with due process principles of law. RECOMMENDATION Staff recommends that the City Council waive further reading and introduce Ordinance No. 848, adding subsection L to section 17.12.060 of the City's municipal code relating to the termination and extension of nonconforming uses. ANALYSIS The City's current zoning ordinance has provisions for terminating certain nonconforming uses, buildings and structures through amortization. For example, Section 17.12.060(H) provides that a nonconforming use of a conforming building or structure shall be discontinued within three years. However the zoning ordinance does not contain a substantive due process procedure to allow business owners the right to a hearing in order to establish that the termination constitutes a taking and that the amortization period should accordingly be extended. •C0 APPROVED FOR CITY COUNCIL AGENDA: • • City Council Meeting November 28, 2006 Page 2 of 2 California courts have relied upon a case-by-case balancing approach to determine when a city can properly terminate a nonconforming use. The courts have upheld termination provisions where a reasonable period of time to recover the permit holder's investment is allowed. The California Supreme Court laid down the following rule in Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848 (1980): "The California cases have firmly declared that zoning legislation may validly provide for the eventual termination of nonconforming uses without compensation if it provides a reasonable amortization period commensurate with the investment involved." The proposed ordinance will allow an application to be filed for an extension of time within which a nonconforming use must be discontinued and removed. Once an application is filed, a public hearing will be held before the Planning Commission. In order to obtain an extension of time, the applicant must prove that there would be an unconstitutional taking if they were required to abate within the time specified and that allowing the continuation of the use will not adversely impact the public health, safety, or welfare of the surrounding community. In making its determination, the Planning Commission will have the ability to impose conditions to ensure that there is no detriment to the public. Furthermore, the decision of the Planning Commission may be appealed to the City Council. PUBLIC NOTICE PROCESS This item was posted through the regular agenda notification process. As the ordinance does not change the zoning of any property, does not impose, remove, or modify any regulations, it is not necessary for the Planning Commission to make a recommendation on this Ordinance or to hold noticed public hearings. Submitted by: Brad Johnson Planning Director Attachments: A. Ordinance No. 848 ORDINANCE NO. 848 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA ADDING SUBSECTION L TO SECTION 17.12.060 OF THE CITY'S MUNICIPAL CODE RELATING TO THE TERMINATION AND EXTENSION OF NONCONFORMING USES THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. A. The City currently has provisions in its Municipal Code relating to abatement of nonconforming buildings and uses. B. The Municipal Code does not include any procedures to request an extension of time in which to abate the nonconforming buildings and uses. C. The City wishes to establish procedures relating to the discontinuance of nonconforming buildings and uses. Section 2. Section 17.12.060 of the Rosemead Municipal Code is hereby amended by adding subsection L to read as follows: L. Procedure Relating to Nonconforming Buildings and Uses 1. Notwithstanding any other provision of this Section, an application may be filed requesting a public hearing before the Planning Commission for an extension of time within which a nonconforming use must be discontinued and removed. The procedure set forth in Sections 17.124.010 through 17.124.070 shall constitute the procedure relating to applications for an extension of time within which a nonconforming building or use must be discontinued and removed. 3. The burden of proof shall be on the applicant to demonstrate the following: 0 0 a. that to require cessation of such use would impair the property rights of any person so as to constitute an unconstitutional taking of property; and b. that such use does not and will not during the extension period requested: 1. adversely affect the health, peace or welfare of persons residing in the surrounding area; or 2. be materially detrimental to the use, enjoyment or valuation of the property of other persons located in the surrounding area; or 3. jeopardize, endanger or otherwise constitute a menace to the public health, safety or general welfare. 4. The applicant shall have the right to present evidence and cross-examine witnesses. 5. The Planning Commission shall not approve an application for which the applicant has failed to meet the burden of proof required by subsection 3 above, and any such approval may be conditioned to ensure that the approval will be in accord the findings required by subsection 3. 6. The applicant, any member of the City Council or any other person aggrieved by such decision of the Planning Commission may appeal the decision to the City Council in accordance with the provisions of Section 17.124.070. The decision of the City Council on appeal is final and any judicial action brought to challenge the City Council's decision must be filed not later than the 90th day on which the decision becomes final in accordance with Code of Civil Procedure section 1094.6. Section 3. The City Clerk shall certify to the adoption of this ordinance. PASSED, APPROVED, AND ADOPTED, this day of 2006.