article viii. administration - city of concord, california of concord development code article viii...

City of Concord Development Code Article VIII Administration

Effective: November 7, 2013

Division 1. Public Hearings

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Article VIII. Administration Divisions:

Division 1 Public Hearings Division 2 Permit Implementation, Time Limits, Extensions, and Amendments Division 3 Appeals and Calls for Review Division 4 Environmental Review Division 5 Performance Guarantees and Property Maintenance Division 6 Covenants of Easements Division 7 Non-conforming Uses, Structures, and Parcels Division 8 Non-conforming Physical Improvements/Property Upgrades Division 9 Enforcement

Division 1. Public Hearings Sections: 122-1163 Purpose 122-1164 Notice of Public Hearing 122-1165 Scheduling of Public Hearing 122-1166 Exception to Required Public Hearing 122-1167 Hearing Procedures 122-1168 Review Authority, Notice of Decision, and Findings 122-1169 Recommendation by Planning Commission 122-1170 Effective Date of Decision

122-1163 Purpose

This Division establishes procedures for public hearings before the Zoning Administrator, Planning Commission, and City Council.

122-1164 Notice of Public Hearing

When a planning permit or other matter requires a public hearing, the public shall be provided notice of the hearing in compliance with Government Code §§ 65090, 65091, 65094, and 66451.3, and Public Resources Code 21000, et. seq., and as required by this Division.

(a) Contents. A notice of a public hearing shall include:

(1) Hearing information. The date, time, and place of the hearing, the name of the Review Authority, a brief description of the City’s general procedures concerning the conduct of hearings and decisions (e.g., the public’s right to appear and be heard), and the phone number and street address of the Planning Division where an interested person may call or visit to obtain additional information.

(2) Project information. The name of the project, associated permit types and numbers, and a general explanation of the matter to be considered, the address and assessor parcel number of the property that is the subject of the hearing, and the General Plan and Zoning designations.




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(3) Statement on environmental document. A statement that the Review Authority will consider approval of a proposed Negative Declaration or Certification of a Final Environmental Impact Report, if either document has been prepared for the project in compliance with the provisions of the California Environmental Quality Act (CEQA) and the City’s Environmental Review Procedures.

(b) Method of notice distribution

(1) Mailed notice. Notice shall be mailed or delivered at least 10 calendar days before the scheduled hearing to:

a. The property owner and applicant of the proposed project, or the owner’s agent and the applicant.

b. Local agencies that are expected to provide services such as schools, water, or other essential facilities to the project whose ability to provide the facilities and services could be affected.

c. All property owners and renters of the real property shown on the latest equalized assessment roll within a radius of the exterior boundaries of the parcel that is the subject of the hearing, as follows:

Table 122-1164.1 Public Hearing Notice Distribution

Type of Notice Distance Requirement

General Plan Amendment 500 feet Rezoning 500 feet Development Agreement 500 feet Planned Development Use Permit 500 feet Major Subdivision 500 feet Use Permit 300 feet Hillside Development Use Permit 300 feet Certificate of Appropriateness (Historic Preservation) 300 feet Minor Subdivision 300 feet Minor Use Permit 300 feet Finding of Public Convenience and Necessity 300 feet Variance 300 feet Large Famiy Day Care Home(1) 100 feet Minor Exception 100 feet (1) Per § 122.618(3) Child day care facilities, Large family day care home)

d. Any person requesting notice who had filed a written request for same with the Planning Division and has paid the fee established by the City’s Fee Schedule for the notice.

(2) Additional notice required. In addition to the mailed notice as required in Subsection (b)(1) above, at least 10 days prior to the hearing, the notice shall also be:




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a. Published at least once in a newspaper of general circulation in the City; and

b. Posted at the subject site by the applicant in a clearly visible location on each frontage of the property. The posting of the signs shall not be required where a General Plan, Rezoning, or Zoning Amendment is initiated by the City and affects multiple ownerships (see Subsection (3) below); and

c. Posted at the City.

(3) Alternative to mailed notice. If the number of property owners to whom notice would be mailed in compliance with Subsection (b)(1) above is more than 1,000, the Planning Division may instead, provide alternative notice by placing a display advertisement of at least one-eighth page in a newspaper of general circulation as allowed by Government Code 65091 (a) (3).

(4) Additional optional notice. In addition to the types of notice required herein, the Planning Division may provide additional notice with an alternative distribution method as deemed necessary or desirable (e.g. use of a greater mailing radius, use of the Internet, etc.).

(c) Notice for continued public hearings. As determined by the Planning Division or as required by the Planning Commission, notice for continued public hearing items may be:

(1) Announced at a previous public hearing to a specific date, time, and location which shall constitute the required notification for the future public hearing; or

(2) Mailed and posted at the site pursuant to Subsections (b)(1) and (b)(2) above; or

(3) Other notice as determined by the Review Authority.

122-1165 Scheduling of Public Hearing

After the completion of environmental document as required by the California Environmental Quality Act (CEQA) and any adopted City Environmental Review Procedures, the matter shall be scheduled for public hearing on a Zoning Administrator, Planning Commission, or City Council agenda (as applicable).

122-1166 Exception to Required Public Hearing

(d) Notice. For Minor Exceptions, Minor Use Permits, and Variances that are deemed minor, non-impacting, and non-controversial which typically require a public hearing, the Planning Division may instead provide notice stating that the Planning Division will decide whether to approve or disapprove the application on a date specified in the notice and that a public hearing will only be held by the Zoning Administrator if requested in writing by an interested person prior to the specified date for the decision. If a public hearing is not requested, the Planning Division may approve the application without holding a public hearing.

(e) Zoning Administrator hearing. When a public hearing is requested, the Zoning Administrator shall hold a public hearing in compliance with this Division, prior to making a decision on the application.




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122-1167 Hearing Procedures

(f) Conduct of hearing. A hearing shall be held at the date, time, and place for which notice was given.

(g) Testimony. The Review Authority shall hear testimony regarding the subject application from any person, either individually or as a representative of a person or an organization.

(h) Time limits. The Review Authority may establish time limits for individual testimony and may require that individuals with shared concerns select one or more spokespersons to present testimony on behalf of those individuals.

(i) Continuance. A hearing may be continued from time-to-time, without further notice, provided the Review Authority announces the date, time, and place to which the hearing will be continued before the adjournment or recess of the hearing.

(j) Deferral of final decision. The Review Authority may announce a tentative decision and defer its action on a final decision until appropriate findings and/or conditions of approval have been prepared.

122-1168 Review Authority, Notice of Decision, and Findings

Once the Zoning Administrator, Planning Commission, or City Council has approved, approved with conditions, modified, revoked, or denied any discretionary planning permit under the Development Code, a notice of final decision and findings of fact shall be issued.

(k) Decision. The Review Authority shall announce and record its decision on the matter being considered at the conclusion of a scheduled hearing or defer action and continue the matter to a later meeting in compliance with Section 122-1167 (Hearing Procedures).

(l) Zoning Administrator referral. May take appropriate action or instead refer the matter to the Planning Commission for a determination. A referral will require a new notice of public hearing for the Planning Commission hearing in compliance with this Division.

(m) City Council decision. The decision of the City Council on any matter is final.

(n) Findings of fact. Findings, when required by State law or the Development Code, shall be based upon consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record and shall be stated in writing in the resolution or zoning order as approved by the Review Authority.

(o) Notice of final decision.

(1) Within 10 calendar days of a decision on an application for a planning permit or other approval, the City shall provide notice to the applicant and to any person who specifically requested notice of the City’s final action.

(2) The notice of the final decision shall contain applicable findings, conditions of approval, and reporting/monitoring requirements deemed necessary to mitigate any impacts and protect the public convenience, health, interest, safety, or general welfare of the City and the procedures for an appeal of a Zoning Administrator or Planning Commission decision..




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122-1169 Recommendation by Planning Commission

(p) At the conclusion of a public hearing on a legislative action (e.g., General Plan, Rezoning, or Development Code Amendment), Development Agreement, or Specific Plan, the Planning Commission shall forward a written recommendation, including all required findings, to the City Council for final action.

(q) Following the hearing, a copy of the Planning Commission’s recommendation shall be mailed to the applicant at the address shown on the application.

122-1170 Effective Date of Decision

(r) The approval of an Administrative Permit, Minor Exception, Design Review, Site Development Permit, Sign Permit, Variance, Minor or Major Use Permit, Planned Development Use Permit, Minor or Major Subdivision, Hillside Development Use Permit, Certificate of Appropriateness, or other decision of the Zoning Administrator or Planning Commission shall become effective on the 11th calendar day following the date the decision is rendered by the appropriate Review Authority, if no appeal is filed. If an appeal is filed in compliance with Article VIII. Division 3 (Appeals and Calls for Review), the date the Review Authority makes the final decision shall be the effective date of decision.

(s) City Council decision

(1) Permit or appeal. A permit application or appeal shall become effective immediately on the date the final determination is rendered by the City Council.

(2) General Plan amendment. A General Plan amendment shall become effective on the 31st day following the adoption of a resolution by the City Council.

(3) Zoning Map or Development Code amendment. A Zoning Map or Development Code amendment shall become effective on the 31st day following the adoption of an ordinance by the City Council.

122-1171 - - 122-1190 Reserved




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Division 2. Permit Implementation, Time Limits, Extensions,

and Amendments

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Division 2. Permit Implementation, Time Limits, Extensions, and Amendments

Sections: 122-1191 Purpose 122-1192 Time Limits and Extensions 122-1193 Modification of Approval 122-1194 Re-Submittals 122-1195 Permit to Run with the Land

122-1191 Purpose

This Division provides requirements for the implementation of the permits required by the Development Code, including time limits and procedures for extensions of time.

122-1192 Time Limits and Extensions

(a) Time limits

(1) Unless conditions of approval or other provisions of the Development Code establish a different time limit, any planning permit or approval granted in compliance with Article VII (Permits and Permit Procedures) that is not exercised within 12 months of its approval shall expire and become void, except where an extension of time is approved in compliance with Subsection (b) (Extensions) below or the applicant can demonstrate that they have diligently attempted to exercise the permit but were unable due to circumstances beyond their control (i.s., failure to obtain required permit from other governmental agency)..

(2) The planning permit shall not be deemed “exercised” until:

a. A building or grading Permit has been issued and actual construction diligently commenced thereon and has not expired;

b. A Certificate of Occupancy has been issued; or

c. The use is established (in operation) at the site.

(3) For the purposes of the Development Code, actual construction shall mean the placing of construction materials on the site in a permanent manner consistent with approved plans and permits, including the installation of public or private improvements, provided that in all cases construction work shall be diligently pursued until completion of the subject structure.

(4) The planning permit or approval shall remain valid after it has been exercised as long as the building permit (or other applicable permit) is active for the project, or a final building inspection or Certificate of Occupancy has been issued.

(5) If a project is to be developed in pre-approved phases, each subsequent phase, until 50 percent or more of the site is developed, shall be exercised within 12 months from the date that the previous phase was exercised, unless otherwise specified in the planning permit, or the planning permit shall expire and be deemed void.




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(6) If the project also involves the approval of a Tentative Map, the phasing shall be consistent with the Tentative Map and all planning permit approvals shall be valid for the life of the Tentative Map.

(b) Extensions. Upon request by the applicant, the City may extend the time for an approved planning permit to be exercised in the following manner:

(1) The permittee shall file a written request for an extension of time with the Planning Division at least 10 days before the expiration of the permit, together with the filing fee required by the City’s Fee Schedule.

(2) The applicable Review Authority shall hold a public hearing on any proposed extension in compliance with Article VIII. Division 1 (Public Hearings).

(3) The burden of proof is on the permittee to establish with substantial evidence that the permit should not expire. If the applicable Review Authority determines that the permittee has proceeded in good faith and has exercised due diligence in complying with the conditions in a timely manner, the Review Authority may grant a time extension for up to an additional 12 months from the date of the decision to extend the permit, provided that the Review Authority first finds that:

a. The requested extension is consistent with the General Plan and any applicable Specific Plan, and the overall project remains consistent with those plans as they exist at the time the extension request is being considered;

b. The findings required by the original approval remain valid; and

c. There are adequate provisions for public services and utilities (e.g. access, drainage, fire protection, sewers, water, etc.) to ensure that the requested extension would not endanger, jeopardize, or otherwise constitute a hazard to the public health, safety, or general welfare, or be injurious to the property or improvements in the vicinity and applicable Zoning District.

(4) Exception. If the project approval includes the approval of a Tentative Map, which is subject to additional time extensions, all planning permit approvals shall be valid for the life of the Tentative Map.

122-1193 Changes to an Approved Project

A new development project or use authorized through a permit granted in compliance with the Development Code shall be established only as approved by the Review Authority and subject to any conditions of approval, except where changes to the project, including conditions of approval, are approved in compliance with this Section.

(a) Request for change

(1) An applicant shall request desired changes in writing and shall furnish appropriate supporting materials and an explanation of the reasons for the request.

(2) Changes may be requested either before or after construction or establishment and operation of the approved use.




and Amendments

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(b) Minor changes. The Planning Division may approve minor changes to approved plans or the nature of the approved use if the changes:

(1) Are consistent with all applicable provisions of the Development Code;

(2) Do not involve a feature of the project that was specifically addressed in, or was a basis for findings in a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report (EIR) for the project;

(3) Do not create any new potentially significant environmental impacts;

(4) Do not involve a feature of the project that was specifically addressed in or was a basis for conditions of approval for the project or that was a specific consideration by the Design Review Board or the Review Authority in the original approval;

(5) Do not expand the approved floor area or any outdoor activity area by 10 percent or more over the life of the project; and

(6) Do not affect the intent of the approval or allow an additional use that would otherwise require a public hearing which was not previously considered

(c) Major changes. All other changes shall be considered major and shall be considered by the Review Authority for the original permit.

(d) Other changes. Changes to the project that are not included in Subsection (b) above, shall be reviewed by the Planning Division to determine the appropriate process of review.

122-1194 Re-Submittal

(a) Re-submittal prohibited within 12 months. For a period of 12 months following the disapproval or revocation/modification of a discretionary planning permit, entitlement, or amendment decided in compliance with the Development Code, no application for the same or substantially similar discretionary permit, entitlement, or amendment for the same site shall be submitted, unless the disapproval is made without prejudice, and so stated in the record.

(b) Planning Division determination. The Planning Division shall determine whether the new application for a discretionary planning permit or other approval is the same or substantially similar to the previously disapproved or revoked permit, entitlement, or amendment.

(c) Appeal. The determination of the Planning Division may be appealed to the Planning Commission, in compliance with Article VIII. Division 3 (Appeals and Calls for Review).

(d) City Council waiver. The City Council may waive the prohibition in Subsection (a), above if the City Council first finds that by reason of changed legal, physical, or sociological circumstances, reconsideration would be in the best interests of the City.

122-1195 Permit to Run with the Land

A planning permit granted in compliance with Article VII. (Permits and Permit Procedures) shall continue to be valid upon a change of ownership (e.g., of the site, structure, or use that was the subject of the permit application), provided that the use remains in compliance with all applicable provisions of the Development Code and all conditions of approval. If the use ceases for six (6) months or more, then the use permit shall no longer be valid.




and Amendments

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122-1196 - - 122-1215 Reserved



Division 3. Appeals and Calls for Review

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Sections:

122-1216 Purpose 122-1217 Right of Appeal 122-1218 Time Limits for Appeals and Calls for Review 122-1219 Initiation of Appeals and Calls for Review 122-1220 Procedures for Appeals and Calls for Review 122-1221 Effective Dates 122-1222 New Appeal

122-1216 Purpose

(a) Appeals. To avoid results inconsistent with the purposes of the Development Code, any decision made in compliance with the Development Code made by the:

(1) Planning Division may be appealed to the Zoning Administrator;

(2) Zoning Administrator may be appealed to the Planning Commission; and

(3) Planning Commission may be appealed to the City Council.

(b) Calls for Review. As an additional safeguard to avoid results inconsistent with the purposes of the Development Code, any decision of the:

(1) Zoning Administrator may be called up for review by the Planning Commission; and

(2) Planning Commission may be called up for review by the City Council.

(c) Referral to Planning Commission. When a decision made by the Planning Division is appealed, the Zoning Administrator may refer the matter directly to the Planning Commission for a consideration and determination.

122-1217 Right of Appeal

An appeal may be initiated by the applicant, property owner, or any interested person.

122-1218 Time Limits for Appeals and Calls for Review

(a) An appeal of a decision by an applicant or other interested person shall be initiated within ten (10) calendar days of the date of the decision.

(b) When the appeal period ends on a weekend or holiday, the time limit shall be extended to the next working day.

(c) Calls for Review shall be initiated before the end of the appeal period identified in Subsections (a) and (b) above, which is the effective date of the decision to be reviewed.




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122-1219 Initiation of Appeals and Calls for Review

(a) Filing of an appeal. An appeal accompanied by the fee identified in the City’s Fee Schedule shall be filed with the Planning Division or City Clerk on a form provided and shall state specifically the following information, in addition to any information required by Concord Municipal Code Chapter 2, Article II, Division 2 (Appeals to City Council).

(1) The specific determination or interpretation that is claimed to be not in compliance with the purposes of the Development Code;

(2) The specific facts that are claimed to be in error or an abuse of discretion;

(3) The specific facts of the record which are claimed to be inaccurate; and

(4) The specific decision that is claimed to be unsupported by the record.

(b) Calls for Review. A Call for Review may be filed by a member of the Planning Commission or the City Council to be reviewed in compliance with Section 122-1216(b) (Purpose) above, before the effective date of the decision. (See also Concord Municipal Code Chapter 2, Article II, Division 2 Sec 2-57 (Right of Councilmembers and City Manager to request review).)

(c) Effect on decision. The timely filing of an appeal or Call for Review shall cause a stay (e.g., shall temporarily vacate all proceedings associated with the matter subject to the appeal) in the effective date of the action or decision from which the appeal or a Call for Review has been taken until a final decision on the matter has been rendered by the appropriate Review Authority.

122-1220 Procedures for Appeals and Calls for Review

(a) Hearing date. An appeal or Call for Review shall be scheduled for a hearing before the appellate body no less than 12 and no more than 45 days of the City’s receipt of an appeal (consistent with Concord Municipal Code Chapter 2, Article II, Division 2 Sec 2-52 (6) (Date), unless both the applicant and appellant consent to a later date.

(b) Notice and public hearing. (See Concord Municipal Code Chapter 2, Article II, Division 2 Sec 2-52 (Appeal where public notice required), Sec 2-53 (Appeal where public notice not required), and Sec 2-55 (Procedure).

(1) An appeal or Call for Review hearing shall be a public hearing only if the decision being appealed or reviewed required a public hearing.

(2) Notice of a public hearing shall be given in the same manner required for the decision being appealed or reviewed in compliance with Article VIII. Division 1 (Public Hearings).

(3) In addition to providing notice pursuant to Subsection (b), notice shall also be provided to all persons who spoke on the matter at any prior hearings or submitted written comments. Notice to such persons shall be mailed only if they provided their name and address at the time they spoke at the prior hearing.

(c) Plans and materials.

(1) At an appeal or Call for Review hearing, the appellate body shall conduct a hearing “de novo” and may consider new materials and testimony in addition to the same application, plans, and related project materials that were the subject of the original decision.

(2) The City Clerk shall advise the appellate body as to compliance with this provision.




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(d) Hearing. At the hearing, the appellate body shall review the record of the decision and hear testimony of the appellant, the applicant, and any other interested party.

(e) Decision and notice.

(1) After the hearing, the appellate body shall affirm, modify, or reverse the original decision or remand the matter to the original Review Authority to cure a deficiency in the record or proceedings.

(2) The appellate body’s decision shall be supported by the weight of the evidence presented at the hearing.

(3) Decisions on appeals or Calls for Review shall be rendered within 30 calendar days of the close of the hearing.

(4) The notice shall be mailed within five working days after the date of the decision to the applicant, the appellant, and any other party requesting notice.

(f) Failure to act. Failure of the appellate body to act within the time limits identified in Subsections (a) and (e) above shall be deemed affirmation of the original decision.

122-1221 Effective Dates

(a) Planning Commission decision. A decision by the Planning Commission regarding an appeal or Call for Review shall become final 10 calendar days after the effective date of the decision, unless appealed to the City Council in compliance with this Division.

(b) City Council decision. A decision by the City Council regarding an appeal or Call for Review shall become final on the effective date of the decision.

122-1222 New Appeal Following disapproval of an appeal or certification of a decision called for review, any matter that is the same or substantially the same shall not be considered by the same appellate body within the following 12-month period, unless the disapproval or certification was made without prejudice and so stated in the record.

122-1223 - - 122-1242 Reserved




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Division 4. Environmental Review

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Division 4. Environmental Review Section: 122-1243 Environmental Review

122-1243 Environmental Review

After acceptance of a complete application, the project shall be reviewed as required by the California Environmental Quality Act (CEQA) and any adopted City Environmental Review Procedures to determine if it is a project as defined by CEQA, whether the project is exempt from the requirements of CEQA, or if a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report (EIR) is required by CEQA.

122-1244 - - 122-1264 Reserved



Division 4. Environmental Review

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Division 5. Performance Guarantees and Property Maintenance

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Division 5. Performance Guarantees and Property Maintenance Sections: 122-1265 Purpose 122-1266 Performance Guarantees 122-1267 Property Maintenance Requirements

122-1265 Purpose This Division establishes processes and mechanisms for ensuring the faithful performance and proper completion of any approved work, as well as the proper maintenance of previously constructed or installed improvements, in a manner that protects the public health, safety, and general welfare.

122-1266 Performance Guarantees A planning permit may be required by conditions of approval or by action of the Planning Division, Zoning Administrator, Planning Commission, or City Council, to provide adequate security to guarantee the faithful performance and proper completion of any approved work, and/or compliance with conditions of approval imposed by the Review Authority. The provisions of this section apply to performance guarantees for projects authorized by any discretionary planning permit required by the Development Code.

(a) Form and amount of security. The required security shall be in a form approved by the Planning division upon recommendation from the City Attorney. The amount of security shall be determined based on the estimated cost of materials and performance for construction or installation to ensure proper completion of the work, functional improvements, and/or compliance with conditions of approval.

(b) Duration of security. Required improvement security shall remain in effect until final inspections have been made and all work has been accepted by the Planning Division, or until any required warranty period has lapsed.

(c) Release or forfeit of security.

(1) Upon satisfactory completion of work and the approval of a final inspection (or after the end of the required time for maintenance security), the security deposit shall be released.

(2) Upon a determination by the Planning Division that the responsible parties have failed, within a required time or an otherwise reasonable time period to complete the work, to comply with all of the terms of any applicable permit, or in the event of a failure of the completed improvements to function properly, the City may do the required work or cause it to be done, and collect from the permittee or surety all the costs incurred by the City, including the costs of the work, and all administrative and inspection costs.

(3) Any unused portion of the security shall be refunded to the funding source after deduction of the cost of the work by the City.

122-1267 Property Maintenance Requirements Any person owning, leasing, occupying, or having charge or possession of any property shall ensure that it is maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that its aesthetic appearance is continuously preserved in compliance with conditions of



Division 5. Performance Guarantees and Property Maintenance

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approval imposed by the Review Authority. The provisions of this section apply to property maintenance agreements for projects authority by any land use permits required by the Development Code.

(a) Property maintenance agreements. Applicants, property owners, or lessees shall enter into a City-approved agreement to ensure maintenance in perpetuity of building exteriors, landscaping, irrigation, parking lot areas, signs, lighting, walls and fences, and any other related improvements.

(1) Security for maintenance. The Review Authority may require security for maintenance of property improvements in an amount determined by the Review Authority to be sufficient to ensure the proper maintenance and functioning of the improvements. Maintenance security shall remain in effect for at least 12 months after the date of final inspection.

(2) Security for landscaped areas. The Review Authority may require performance bonds in the amount of 100 percent of the replacement cost of the landscaping to be posted to guarantee the continued maintenance of required landscaping for up to a 10-year period, when determined to be appropriate or necessary because of the important role landscaping plays in the overall development of a site.

(b) Building and landscape remodel and replacement. For tenant improvements, the Planning Division shall determine the extent of building and landscape remodel and replacement necessary to ensure compliance with the Development Code and any prior conditions of approval.

(c) Abatement of violations. The abatement of any conditions described in this Division shall be performed in compliance with Article VIII. Division 9 (Enforcement).

122-1268 - - 122-1288 Reserved



Division 6. Covenants of Easements

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Sections: 122-1289 Applicability 122-1290 Form of Covenant 122-1291 Recordation 122-1292 Effect of Covenant 122-1293 Enforceability of Covenant 122-1294 Release of Covenant 122-1295 Fees

122-1289 Applicability When necessary to achieve the land use goals of the City, the City may require a property owner holding property in common ownership to execute and record a Covenant of Easement in favor of the City, in compliance with State law. (Government Code Sections 65870 et seq.)

(a) A Covenant of Easement may be required to provide for emergency access, access to an on-site public art feature for maintenance, landscaping, light and air access, ingress and egress, parking, solar access, or for open space.

(b) The Covenant of Easement may be imposed as a condition of approval by the Review Authority.

122-1290 Form of Covenant

The form of the Covenant shall be approved by the City Attorney, and the Covenant of Easement shall:

(a) Describe the real property to be subject to the easement;

(b) Describe the real property to be benefitted by the easement;

(c) Identify the City approval or permit granted which relied on or required the Covenant; and

(d) Identify the purposes of the easement.

122-1291 Recordation

The Covenant of Easement shall be recorded in the County Recorder’s Office.

122-1292 Effect of Covenant

From and after the time of its recordation, the Covenant of Easement shall:

(a) Act as an easement in compliance with Civil Code Section 801 et seq., except that it shall not merge into any other interest in the real property. Civil Code Section 1104 shall be applicable to the conveyance of the affected real property; and

(b) Impart notice to all persons to the extent afforded by the recording laws of the state. Upon recordation, the burdens of the Covenant shall be binding on, and the Covenant shall benefit, all successors-in-interest to the real property.

122-1293 Enforceability of Covenant




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The Covenant of Easement shall be enforceable by the successors-in-interest to the real property benefited by the Covenant and the City. Nothing in this Section creates standing in any person, other than the City, and any owner of the real property burdened or benefited by the Covenant, to enforce or to challenge the Covenant or any requested amendment or release.

122-1294 Release of Covenant

The release of the Covenant of Easement may be affected by the Planning Commission or the City Council on appeal, following a noticed public hearing in compliance with Division 1 (Public Hearings).

(a) The Covenant of Easement may be released by the City at the request of any person, including the City or an affected property owner, on a finding that the Covenant on the subject property is no longer necessary to achieve the land use goals of the City.

(b) A notice of the release of the Covenant of Easement shall be recorded by the Planning Division with the County Recorder's Office.

122-1295 Fees

The City shall impose fees to recover the City's reasonable cost of processing a request for a release. Fees for the processing shall be established by the City’s Fee Schedule. 122-1296 - - 122-1315 Reserved



Division 7. Non-conforming Uses, Structures, and Parcels

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Division 7. Non-conforming Uses, Structures, and Parcels Sections: 122-1316 Purpose 122-1317 Applicability 122-1318 Non-conforming Uses and Non-conforming Structures 122-1319 Loss of Non-conforming Status 122-1320 Non-conforming Parcels 122-1321 Exemptions 122-1322 Nuisance Abatement and Enforcement.

122-1316 Purpose

(a) This Division provides regulations for non-conforming uses, structures, and parcels that were lawful before the adoption or amendment of the Development Code, but which would be prohibited, regulated, or restricted differently under the terms of this title or future amendments.

(b) It is the intent of the City to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to continue to exist under the conditions identified in this Division.

(c) This Division does not regulate non-conforming signs which are subject to the requirements in Section 122-546 (Non-confirming and Abandoned Signs), or non-conforming parking, subject to the requirements in 122-385(f) (Parking Requirements).

(d) Any use or structure which was established or constructed in violation of the applicable zoning regulations in effect at the time of establishment or construction and which does not conform to the applicable regulations of this Development Code, is not a non-conforming use or structure, and the use or structure is in violation of this Development Code.

122-1317 Applicability Non-conforming uses, structures, and parcels may be continued, transferred, or sold only in compliance with the provisions of this Division.

(a) Non-conforming uses. A use of land and/or a structure that was legally established and has been maintained prior to the adoption or amendment of this Development Code, but the use is not allowed in the applicable Zoning District or the use has not been granted a permit(s) required by the applicable Zoning District, or the use is not operated in conformance with applicable performance standards in the Development Code.

(b) Non-conforming structures. A structure that was legally constructed prior to the adoption or amendment of this Development Code or the City’s adopted Design Guidelines, but does not conform to the development standards in Article II (Zoning Districts – Uses and Standards) with the exception of minimum Floor Area Ratio (FAR).

(c) Non-conforming parcels/lots. A parcel that was legally created prior to the adoption or amendment of this Development Code, but does not comply with the current requirements for lot area, width, depth, or other applicable requirements of this Development Code.




Article VIII –

122-1318 Non-conforming Uses and Non-conforming Structures A non-conforming use and/or a non-conforming use of a structure may continue to exist, including transfers of ownership, provided that their continuation shall comply with the requirements of this section.

(a) Non-conforming uses. A non-conforming use may be continued or replaced provided that:

(1) The use shall not be enlarged or expanded in size or capacity, or extended to occupy a greater area of land or building floor area than it legally occupied before it became non-conforming.

(2) The use shall not be intensified so that the hours of operation are extended, the number of employees are increased, the occupancy capacity is increased, the volume of traffic or noise generated by the use is increased, or a greater amount of parking is required.

(3) The use may be replaced with another non-conforming use of a similar classification or a less intensive use in compliance with (2) above.

(4) Non-conforming uses within a multi-tenant commercial or industrial center or complex may be established or replaced by another similar non-conforming use when the Planning Division finds:

a. That the new non-conforming use is, as per Article II, Land Use Classification Tables, a similar classification to or less intensive than the use previously allowed in the center or complex;

b. That the non-conforming use will not adversely affect or be materially detrimental to adjoining properties; and

c. That the use of the entire center or complex has not been vacant or discontinued for a period of one year or more.

(5) An existing use that is authorized by a previously approved Use Permit, but is not allowed by the Development Code in its current location, may continue to exist in compliance with the original permit approval and shall be deemed non-conforming.

(6) A use lawfully existing without a Minor Use Permit or Use Permit that would be required by the Development Code to have such a permit approval in compliance with Article II, shall be allowed to operate to the extent that it previously operated (e.g., maintains the same site area boundaries, hours of operation, etc.) and shall be deemed non-conforming.

(b) Non-conforming structures. A non-conforming structure may be expanded, enlarged, repaired and maintained as follows:

(1) Expansion and enlargement. Non-conforming structures may be enlarged or extended to occupy a greater area of land or building floor area provided that any expansion or enlargement complies with all applicable requirements of this Development Code and does not increase the degree of nonconformity.

(2) Repair, maintenance and additional improvements. A non-conforming single-family dwelling or duplex may be maintained and repaired at the discretion of the owner. Non-conforming multifamily and non-residential structures may be maintained, repaired and improved as follows:




Article VIII –

a. Repairs, maintenance and additional improvements up to 50% of the value of the structure.

i. No structural alterations are allowed except as set forth in Subsection (b) (3) Seismic retrofitting, Building and Fire Code compliance.

ii. The cost of the work done during any 12-month period shall not exceed 50 percent of the value of the structure as determined by the Building Official in compliance with the Building Code.

b. Repairs, maintenance and additional improvements greater than 50% of the value of the structure. Repairs, maintenance and additional improvements performed within a 12-month period, having a total cost greater than 50% of the value of the structure, may be authorized through a Minor Use Permit approval provided that the Review Authority finds that the work will be a benefit to the City and the surrounding area.

(3) Seismic retrofitting, Building and Fire Code compliance. Repairs, alterations or reconstruction to reinforce unreinforced masonry structures necessary to comply with building code and Fire Code requirements shall be allowed, provided that the work is exclusively to comply with applicable earthquake safety standards, and the Building Code and Fire Code.

(4) For purpose of this Subsection, the cost of any required foundation work shall not be counted within the 50-percent limitation.

122-1319 Loss of Non-conforming Status The non-conforming status of a use, structure or physical improvements shall terminate under the following conditions:

(a) Discontinuance

(1) If the non-conforming use of land, a non-conforming use of a conforming structure, a conforming use of a non-conforming structure or use of non-conforming physical improvements is discontinued for a continuous period of 365 calendar days or more, all rights to legal non-conforming status shall terminate.

(2) The Planning Division shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconformity, disconnected or discontinued utilities, or no business receipts or records to document continued operation.

(3) Without further action by the City, any further use of the land, structure or physical improvements shall comply with all of the regulations of the applicable Zoning District and all other applicable provisions of this Development Code and City adopted Design Guidelines.




Article VIII –

(b) Destruction. Non-conforming status shall terminate if a non-conforming structure, conforming structure occupied by a non-conforming use or non-conforming physical improvements are involuntarily damaged or destroyed by earthquake, explosion, fire, or other calamity, except for single-family, duplex and multi-family structures as provided by Section 122-1321 (b) below, except as follows:

(1) Less than 50 percent. If the cost of repairing or replacing the damaged portion of the non-conforming structure or physical improvements is 50 percent or less of the assessed value immediately before the involuntary damage, the structure or physical improvements may be restored to the same size, and the use continued as before, provided that permits have been obtained and the restoration work is started within 180 days of the date of the damage, and the work is continuously pursued to completion within 12 months from the date Building Permits were issued.

(2) Greater than 50 percent. If the cost of repairing or replacing the damaged portion of the non-conforming structure or physical improvements is greater than 50 percent of the assessed value immediately prior to the involuntary damage, the structure nor the physical improvement shall be reconstructed, repaired, or restored, except in conformity with the requirements of the applicable Zoning District.

122-1320 Non-conforming Parcels

(a) Legal building site. A non-conforming parcel that does not comply with the applicable area, width, or depth requirements of the Development Code shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the Planning Division with evidence furnished by the applicant.

(1) Approved subdivision. The parcel was created by a recorded subdivision;

(2) Individual parcel legally created by deed. The parcel is under one ownership and of record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel non-conforming;

(3) Variance or lot line adjustment. The parcel was approved through a Variance procedure or resulted from a lot line adjustment; or

(4) Partial government acquisition. The parcel was created in compliance with the provisions of this Development Code, but was made non-conforming when a portion was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing a public right-of-way was decreased not more than 50 percent.

(b) Subdivision or lot line adjustment

(1) No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel.

(2) No subdivision or lot line adjustment shall be approved for a parcel that contains a non-conforming use on the parcel.

122-1321 Exemptions




Article VIII –

(a) Historic structures. Non-conforming structures of historical significance may be altered or enlarged without conforming to the Zoning District requirements, provided the historic structure is:

(1) Designated by the City as an historic site or structure as listed in the General Plan;

(2) Designated as a California State Historic Landmark or a National Register Site; and

(3) Proposed to be altered or enlarged in such a way that once completed, the entire structure represents an authentic replica of the original structure.

(b) Non-conforming residential structures

(1) Non-conforming single-family, duplex and multifamily dwelling units that have been involuntarily damaged or destroyed by earthquake, explosion, fire, flood, wind, riot, war, or other calamity, may be reconstructed or replaced with a new structure using the same development standards applied to the damaged or destroyed structure (e.g., building footprint, building height, density standards, number of dwelling units, setbacks, and square footage) provided:

a. The applicant provides sufficient documentation supporting the claim that the damage or destruction occurred involuntarily;

b. There is no expansion of the gross floor area or number of dwelling units;

c. The replacement structure complies with the Building Code, and will not be detrimental to the public health, safety, or welfare or materially injurious to the properties or improvements in the immediate vicinity of the replacement structure; and

d. A Building Permit is issued no later than 12 months after the date of destruction, and construction is diligently pursued to completion.

(2) If the preceding requirements are not met, the replacement structure shall comply with all of the regulations of the applicable Zoning District in effect on the date of application for a Building Permit.

(c) Non-conforming upon annexation. Non-conforming uses, structures, and/or physical improvements which lawfully exist on the date the property is annexed to the City, and which do not conform to this Development and the City’s adopted Design Guidelines, may continue to exist and, upon annexation, shall be deemed non-conforming and subject to the provisions of this Division.

(d) Approved uses, structures and physical improvements not yet established or constructed.

(1) A use, structure or physical improvements for which a Planning or Building Permit was approved and issued, but not yet established or construction completed before the effective date of this Development Code, may be completed, provided the work is diligently pursued to completion.

(2) If upon establishment or completion, a use, structure or physical improvements, referenced in (d) (1) above, or parts thereof, are not in compliance with this Development Code, they shall be deemed to be non-conforming and shall thereafter be subject to the provisions of this Division.




Article VIII –

(3) For the purpose of this section, the provisions of Article VIII. Division 2 (Permit Implementation, Time Limits, Extensions, and Amendments) shall govern the determination of whether the permit has been exercised in a timely manner.

(e) Floor Area Ratio (FAR) of existing development. At the time of adoption of this Development Code, existing development that does not meet the minimum FAR standards shall not be classified as non-conforming

122-1322 Nuisance Abatement and Enforcement

(a) Violations. Uses, structures and physical improvements which do not comply with the applicable provisions of this Development Code when established, are violations of this Development Code and are subject to the regulations of the Municipal Code.

(b) Continuance of public nuisances prohibited. The provisions of this Division do not allow, and shall not be interpreted to allow, the continuance or a use, structure or physical improvements which are deemed a public nuisance, or which is prohibited or otherwise made unlawful, in whole or in part, by the Municipal Code (including the Building Code and Fire Code) or by laws enacted by the State or Federal government which are applicable to the City.

(c) Enforcement. In the event that a non-conforming use, structure of physical improvement is found to constitute a public nuisance, appropriate action shall be taken by the City in compliance with the Municipal Code. Any violation of the Development Code can be deemed to be evidence of a public nuisance.

122-1323 - - 122-1343 Reserved



Division 8. Non-conforming Physical Improvements/Property Upgrades

Article VIII –

Division 8. Non-Conforming Physical Improvements/Property Upgrades Sections: 122-1344 Purpose 122-1345 Applicability 122-1346 Non-conforming Physical Improvements

122-1344 Purpose

(a) This Division provides regulations aimed at reducing and/or eliminating non-conforming property improvements for non-residential development in order to upgrade the appearance and function for the betterment of the community.

(b) It is the intent of the City to promote property upgrades that are proportionate in value of other improvements being made, but not to require extensive changes that would be impractical or cost prohibitive.

122-1345 Applicability This Division applies to physical improvements on a non-residential property that were constructed prior to adoption of this Development Code and/or the City’s adopted Design Guidelines and do not conform to Article II, Article III, Article IV or Article V of the Development Code and/or the City’s adopted Design Guidelines. Exceptions include:

(a) A parking lot which provides fewer parking spaces than is required for the use(s) it supports shall not be deemed a non-conforming physical improvement solely because of the lack of sufficient off-street parking and loading facilities required by this Development Code.

(b) A structure shall be deemed a non-conforming physical improvement if it does not comply with the development standards within Article II of this Development Code but not other Articles of the Development Code or the City’s adopted Design Guidelines.

122-1346 Non-conforming Physical Improvements A non-residential development with non-conforming physical improvements may continue to exist, including a change of and/or new occupancies as allowed by Article II, and transfers of ownership, provided that their continuation shall comply with the requirements of this section.

(a) Property Changes. Non-residential developments with non-conforming physical improvements may be expanded, enlarged, repaired and improved, if the proposed changes reduce the degree or eliminate the non-conforming physical improvement as determined by the Planning Division.

(b) Property Upgrades. Non-residential developments with non-conforming physical improvements must be upgraded to reduce and/or eliminate the non-conforming physical improvements as follows:

(1) Activities triggering upgrades. The activities listed in the table, below, trigger property upgrades listed in priority order.



Division 8. Non-conforming Physical Improvements/Property Upgrades

Article VIII –

REQUIRED UPGRADES (PRIORITY)

ACTIVITY Façade

Improvements (1)

Trash and Recycling Enclosure

(2)

Landscaping (3)

Signage (4)

Parking Lot Lighting

(5)

Parking Layout and

Design (6)

Construct new building(s) X X X X X X

Construct or alter building that increases

the size by 25% or more X X X X X X

Expand use within existing structure such

that occupancy is 25% or more

X X X X

Change of use that requires more parking

(retenanting) X X X X

Repave or resurface parking lot X X

Replace or add building signage for single-tenant

building X X

Replace or add building signage for single tenant in multi-tenant building

X X

Reface existing ground sign X X

Add new signage (other than building signage) X X

Expand use of site (i.e. outdoor storage or sales) X X

(2) Determination of property upgrades. The applicant shall demonstrate how the design of the proposed activity and associated upgrades will reduce or eliminate the non-conforming physical improvements with particular attention being paid to those upgrades that have been designated with the highest priority. If site conditions are such that the highest priority upgrades are not feasible due to the associated cost or extent of changes that would be needed, lower priority upgrades may be substituted.

(3) Review and Decision. The Planning Manager, or his/her designee, shall review the proposed activity and associated upgrades in conjunction with the relevant permit process as set forth in Article VII, and make a decision as to which property upgrades shall be incorporated into the associated conditions of approval.

122-1347 - - 122-1367 Reserved

City of Concord Development Code Article VIII. Administration

Final Draft 6/22/12

Division 9. Enforcement

Article VIII –

Division 9. Enforcement Sections: 122-1368 Purpose 122-1369 Enforcement Responsibilities 122-1370 Nuisance Defined 122-1371 Responsibility to Investigate Violations of this Ordinance 122-1372 Penalties 122-1373 Remedies 122-1374 Revocation of Permits 122-1375 Nuisance Abatement 122-1376 Limitation of Actions 122-1377 Recording a Notice of Violation 122-1378 Stop Orders

122-1368 Purpose This Division establishes the responsibilities of enforcing the requirements of the Development Code, and sets forth the procedures the City will use to identify, abate, remove, and enjoin those uses, structures, or buildings that are deemed to be in violation of the Development Code.

122-1369 Enforcement Responsibilities All departments, officials, and public employees of the City, vested with the duty or authority to issue permits or licenses, shall conform to the provisions of the Development Code, and shall issue no permit or license for uses, buildings, or purposes in conflict with the provisions of the Development Code. Any permit or license issued in conflict with the provisions of the Development Code shall be null and void. It shall be the duty of the Building Official of the City to enforce the provisions of this Zoning Ordnance pertaining to the erection, construction, reconstruction, moving, conversion, alteration, or addition to any building or structure.

122-1370 Nuisance Defined Any building or structure set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of the Development Code, and any use of any land, building, or premises established, conducted, operated, or maintained contrary to the provisions of the Development Code, including any permit issued hereunder shall be and the same is hereby declared to be unlawful and a public nuisance.

122-1371 Responsibility to Investigate Violations of this Ordinance The Planning Division and/or other City Departments as may be designated by the City Manager shall investigate all violations and suspected violations and make a written report thereon. Said report shall contain the name of the parties to the violation, the nature of the violation and its location, and the number of the section of the Chapter which had been violated.


Final Draft 6/22/12


Article VIII –

122-1372 Penalties Any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating or causing the violation of any of the provisions of the Development Code shall be deemed guilty of a misdemeanor punishable pursuant to Concord Municipal Code Chapter 1, Section 23 (Penalty for Misdemeanors. Such person, firm, or corporation shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of the Development Code is committed or continued by such person, firm, or corporation, and shall be punishable as herein provided.

122-1373 Remedies The remedies provided for herein shall be cumulative and not exclusive. Upon a finding of nuisance pursuant to this Division, and after giving the property owner an opportunity to cure the nuisance and determining that the nuisance still exists, the Planning Commission or City Council may impose any remedy available at law or in equity, which shall include, but is not limited to, any of the following or combination thereof:

(a) Ordering the cessation of the use in whole or in part;

(b) Imposing reasonable conditions upon any continued operation of the use, including those uses that constitute existing non-conforming uses;

(c) Requiring continued compliance with any condition so imposed;

(d) Requiring the user to guarantee compliance in all respects with any imposed conditions; or

(e) Imposing additional conditions or ordering the cessation of the use in whole or in part upon a failure of the user to comply with any conditions so imposed.

122-1374 Revocation of Permits Any planning permit granted in accordance with the Development Code may be revoked if any of the conditions or terms of such permit are violated or if any law or ordinance is violated in connection therewith.

(a) Determination of revocation. Upon determination by the Planning Division that there are reasonable grounds for revocation of any planning permit or other approval authorized by the Development Code a revocation hearing shall be set with the appropriate Review Authority.

(b) Public hearing on proposed revocation. The Review Authority shall hold a public hearing on any proposed revocation. Notice shall be given in accordance with Division 1 of this Article.

(c) Post decision procedures. A revocation hearing and any post decision procedures shall be in accordance with this Article VIII.

(d) Required findings. The Review Authority shall revoke the permit upon finding that:

(1) The permit was issued on the basis of erroneous or misleading information or misrepresentation; or

(2) The terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated; or


Final Draft 6/22/12


Article VIII –

(3) There has been a discontinuance of the exercise of the entitlement granted by the permit for six consecutive months.

(e) Right to revoke is cumulative. The City’s right to revoke a discretionary permit as provided in this section shall be cumulative to any other remedy allowed by law.

122-1375 Nuisance Abatement Notices of violation shall be provided, and nuisances abated, according to the procedures of Chapter 62, Article II. Section 37 (Administrative Citations and Fines), Chapter 62, Article II. Section 38 (Abatement by City) and Chapter 62, Article II, Section 38.5 (Payment of Costs) of the Concord Municipal Code.

122-1376 Limitation of Actions Except as otherwise provided in Government Code § 65009, any court action or proceedings to attack, review, set aside, void or annul any decision on matters listed in this Division, including, but not limited to, rezoning or reclassification of property, or concerning any of the proceedings, acts or determinations taken, done or made prior to such decisions, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service is made on the City after the effective date of such decisions.

(a) The provisions of this section apply to all matters listed in the Development Code, provided, however, that should any court of competent jurisdiction hold that this section is invalid in its application to matters referred to in California Government Code § 65907, then such validity shall not affect the application of the provisions of this section to all other matters listed in the Development Code, and, to this end, the application of this section to matters other than those listed in California Government Code § 65907 is hereby declared to be severable.

(b) The City Council hereby declares that it would have adopted this Division and made the same applicable to matters other than those listed in California Government Code § 65907 irrespective of any holding that this Division cannot legally be applied to matters referred to in California Government Code § 65907.

122-1377 Recording a Notice of Violation If compliance is not achieved through an order of the Planning Division or the City Building Official to correct violations of the Development Code within the time specified in the Notice of Violation, the Planning Division may file with the County Recorder a certified statement describing the property and certifying that:

(a) The property and/or structure is in violation of the Development Code; and

(b) The owner had been so notified;

(c) The notice shall specifically describe the violations and a proof of service shall also be recorded with the Notice and Order.

Whenever the corrections ordered shall thereafter have been completed, the Planning Division shall file a new certified statement with the County Recorder certifying that all required corrections have been made so that the property and/or structure is no longer in violation of the Development Code.


Final Draft 6/22/12


Article VIII –

122-1378 Stop Orders

When any person violates any provision of the Development Code, the Planning Division, the Building Official, or the Chief of Police may order that such violation be stopped immediately, by causing a written stop order to be served on the appropriate person.

The stop order shall be served by personal delivery to any person engaged in any active violation of the Development Code; or if there are no such individuals on the site, the stop order shall be served by posting a copy of the order on the premises where the violation has occurred and by promptly mailing a copy of such order to the owner or the owner’s authorized agent, at such address as may be shown on current City records or in current records in the office of the Contra Costa County Tax Assessor or Tax Collector. Such order shall become effective immediately upon personal delivery or upon posting the order. After service of a stop order, no person shall perform any act on the premises in violation of the terms of the stop order, except such actions as are determined by the Planning Division or Building Official to be necessary to correct the violation or to render the premises safe and secure, until such violation has been corrected to the satisfaction of the Planning Division or the Building Official. After service of such order, no person shall continue the use ordered to be stopped, and no other use shall be commenced on the premises, until such time as the Planning Division determines that the succeeding use is in conformity with the requirements of the Development Code.

122-1379 - - 122-1578 Reserved

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