Escondido City Zoning Code
ARTICLE 61
ADMINISTRATION AND ENFORCEMENT
§ 33-1200 Definition and purpose.
A conditional use permit is a permit allowing a use under specified conditions which assure that the use will not be detrimental to the public health, safety and welfare and will not impair the integrity and character of the surrounding areas. Conditional use permits are classified as "minor" or "major," as provided for in section 33-1202.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1201 Authorization.
(a)
Unless otherwise provided, the director, zoning administrator or planning commission shall have the authority to grant, conditionally grant or deny a conditional use permit application based on sound principles of land use. Unless as otherwise provided, a conditional use permit is granted at the discretion of the director, zoning administrator or planning commission and is not the automatic right of any applicant.
(b)
When a proposed use is not specifically listed as permitted or conditionally permitted in the subject zone, the director shall determine if the use shall be permitted, or conditionally permitted as a major or minor conditional use, after study and finding that the use is similar to uses listed and would be consistent with the purpose of the subject zone. The director may also determine that a conditionally permitted use qualifies for processing as a minor conditional use permit when the project substantially conforms to one of the situations listed in section 33-1202(c) based on the details of the request.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1202 Application, fees and procedures.
(a)
Application and fees. Application for a conditional use permit may be initiated by the property owner or agent of the property affected, the planning commission, or the city council. Application shall be made on forms provided by the city and shall be accompanied by the appropriate fee. The application shall further be accompanied by such materials as required by the director.
(b)
Procedures. The zoning administrator or planning commission shall consider the application, all relevant codes and regulations, the project's environmental status, necessary findings, the circumstances of the particular case, and any other relevant evidence, and shall hold a public hearing before approving, conditionally approving, or denying the application. The zoning administrator may refer any minor conditional use permit application to the planning commission.
(c)
Minor conditional use permit. The zoning administrator shall give notice pursuant to Division 6 of this article and hold a hearing on the application. Minor conditional use permits include, but are not limited to, the following:
(1)
Land uses specified as minor conditional uses in the land use matrix of the applicable zoning district, area plan, specific plan, or planned development;
(2)
Requests where the conditional use to be permitted does not involve the construction of a new building or other substantial structural improvements on the property in question, provided the use does not involve the use of hazardous substances;
(3)
Requests where the conditional use requiring the permit would make use of an existing building and does not involve substantial remodeling of the existing building or the use of hazardous substances;
(4)
Requests where the use requiring the permit is a temporary use that operates periodically on a regular basis and exceeds the time or area restrictions set forth in sections 33-1534(c)(1) and (2) of Article 73;
(5)
Applications for additional animals over those permitted by section 33-1116 of Article 57, pursuant to section 33-1116(g);
(6)
For uses in nonresidential zones requesting parking suitable for the proposed use or mix of uses, pursuant to section 33-764(b) of Article 39;
(7)
Requests for businesses in the CN zone that are open for business before 7:00 a.m. or after 11:00 p.m., pursuant to section 33-337(d);
(8)
Requests involving a modification to an existing major conditional use permit (or a modification to a conditional use permit that was approved before the establishment of the minor conditional use permit process) that otherwise meets the criteria under sections 33-1202(c)(1)-(7).
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2021-10, § 6, 10-27-21)
§ 33-1203 Findings.
All decisions granting or denying a permit shall be in writing and shall state the reasons for the decision. In granting a conditional use permit, the following guidelines shall be observed:
(a)
A conditional use permit should be granted upon sound principles of land use and in response to services required by the community.
(b)
A conditional use permit should not be granted if it will cause deterioration of bordering land uses or create special problems for the area in which it is located.
(c)
A conditional use permit must be considered in relationship to its effect on the community or neighborhood plan for the area in which it is to be located.
Any conditional use permit granted shall be subject to such conditions necessary and desirable to preserve the public health, safety and general welfare. |
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1204 Notification of action.
The decisions of the zoning administrator and the planning commission shall be filed in the Planning Division and a copy provided to the applicant at the address shown on the application.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1205 Appeal and effective date.
The provisions of Division 6 of this article regarding appeal of the zoning administrator's or commission's actions and the effective date of approval shall apply.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1206 Expiration.
Unless otherwise specified in the action granting a conditional use permit, any such permit shall become automatically null and void unless the uses authorized by the permit have been substantially implemented within 24 months from the grant of the permit. The abandonment or non-use of a permit for a period of 24 consecutive months shall also result in such permit becoming automatically null and void. The director shall have authority to grant extensions to the deadlines in this section. Once any portion of a conditional use permit is utilized, the other conditions thereof become immediately operative and must be strictly complied with.
(Ord. No. 2023-15, 10/25/2023)
§ 33-1207 Modification or revocation of conditional use permits.
The planning commission or the city council shall have the discretion to initiate proceedings to revoke or modify a conditional use permit. If such proceedings are initiated, written notice of a public hearing shall be served on the owner of the property for which such permit was granted at least 10 days before such public hearing. Such notice may be served either personally or by certified mail, postage prepaid, return receipt requested. A conditional use permit may be modified or revoked under any of the following circumstances:
(a)
That the use is detrimental to the public health, safety or welfare or is a nuisance;
(b)
That the conditional use permit was obtained by fraud;
(c)
That the use for which the permit was granted is not being exercised;
(d)
That the use for which the permit was granted has ceased or been suspended for 12 months or more;
(e)
That the conditions of the improvements, if any, on a property for which a conditional use permit has been issued, are such that they can be used or altered as to be used in conformity with the uses permitted in the zone in which such property is located without impairing the constitutional rights of any person;
(f)
That the conditions of the conditional use permit are not being complied with.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1208 Minor expansion of existing conditional use permits.
Expansion of existing major and minor conditional uses of less than 1,000 square feet or 10% of the facility, whichever is greater, may be requested through the plot plan administrative review process pursuant to Division 8 of this article. The director or zoning administrator may administratively approve or conditionally approve, without a public hearing, other minor adjustments, in substantial conformance to the original development plans of a major or minor conditional use, that do not involve an expansion or change to the conditionally permitted use, provided that such adjustments do not conflict with the concept or intent of the development plans originally approved.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1209 Limitation on refiling of applications.
Any final action which denies any application for a conditional use permit shall prohibit the refiling of a similar or substantially similar application for at least one year from the date of denial.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1210 Violation-Penalty.
In addition to modification or revocation as provided in section 33-1207 of this division, the violation of any condition of a conditional use permit is unlawful and may be punished as provided in section 33-1313 of this article. A violation of any condition of a conditional use permit may also result in the imposition of civil penalties as provided in section 1-20 et seq., of Chapter 1 of the Escondido Municipal Code.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1211 (Reserved)
(Deleted by Ord. No. 92-47, § 2, 11-18-92)
§ 33-1212 Conditional use permits for residential care facilities for the handicapped.
(a)
The decision whether or not to issue a conditional use permit for residential care facilities for the handicapped, when required by other provisions of this code, shall lie with the sound discretion of the director. Whenever permissible under the California Environmental Quality Act or its guidelines for implementation, the director shall prepare a notice of exemption for the proposed residential care facility. If the facility is not eligible for an exemption, the director shall conduct only such environmental review as is necessary to comply with the minimum requirements of the California Environmental Quality Act. The construction of access ramps for persons with mobility impairments shall not be deemed to be a substantial modification of a structure or to have a significant effect on the environment.
(b)
Upon determining whether or not to issue a conditional use permit for a residential care facility for the handicapped, the director shall provide notification of the intended decision to surrounding property owners as provided in section 33-1300. The notification shall advise all interested persons that unless appealed, the director's decision to issue a conditional use permit for a residential care facility for the handicapped shall become final within 10 days of the date of notification.
(c)
Any interested person may appeal the decision of the director to grant or deny a conditional use permit for a residential care facility for the handicapped. Such appeal shall be made to the planning commission and the city council, and shall be made pursuant to the requirements set forth in section 33-1300 et seq. of this code.
(d)
In determining whether or not to grant a conditional use permit for a residential care facility for the handicapped, the director shall grant the application as long as the following requirements are met:
(1)
The proposed use and structure comply with all existing and applicable Zoning Code provisions, Uniform Housing Code provisions, and Uniform Building Code requirements;
(2)
The site and structure have, or will receive, all necessary licenses from the appropriate state or federal regulatory agencies;
(3)
The design of the physical structure is not wholly inconsistent with the design and scale of the surrounding neighborhood; however, this factor shall not be considered with respect to an existing structure;
(4)
The use and structure will not create measurable and identifiable traffic problems in the surrounding neighborhood. In making this determination, the director shall determine from information supplied by the applicant the number of automobile trips that the home may reasonably be expected to generate. Traffic may not be used as a reason to deny or condition the application unless this number is more than twice the number which the city assumes for planning purposes will be generated by a typical single-family residence, which is 10;
(5)
The use and structure will not create measurable and identifiable parking problems in the surrounding neighborhood. In making this determination, the director shall determine from information supplied by the applicant the number of cars that may reasonably be expected to be present at the home at any one time, and may condition the permit on the applicant's providing the appropriate number of off-street parking spaces. In making this determination, the director shall not apply any formula, but shall assess the actual likelihood that the prospective residents will own and operate cars.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1220 Variance defined.
Variance is a waiver or modification of some requirement contained in this chapter which may be granted in accordance with the requirements of this division. A variance may not be granted which authorizes a use or activity which is not otherwise expressly authorized by the zone regulations governing the parcel of property.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1221 Administrative adjustment defined.
Administrative adjustment is a reduction or exceedance of certain standards prescribed in the zoning code, which may be granted in accordance with the requirements of this division. An administrative adjustment may not be granted for the authorization of a use or activity which is not otherwise expressly authorized by the zoning regulations governing the parcel of property. Administrative adjustments may be requested for the following property development standards:
(a)
Up to a 25% reduction of required yards/setbacks for structures, signs, and parking areas;
(b)
Reductions up to 25% of the required number of parking spaces for uses in nonresidential zones, pursuant to section 33-764 of this chapter.
(c)
Increases above the 50% limitation on the cumulative costs of improvements as a percentage of the replacement value of the nonconforming use for a nonconforming single-family residential structure in a single-family zone, pursuant to section 33-1243 of this chapter.
(d)
Modifications of the identified front, street side, side and rear lot lines of a lot in order to facilitate orderly development on a parcel subject to unusual circumstances, including, but not limited to, topography, grading, drainage and stormwater treatment, utility facilities, easements, access and other site constraints or development requirements.
(e)
Modifications to fences or walls within the street side yard setback of a corner lot when extenuating circumstances are present, including, but not limited to, unusual topography, adverse adjacent uses, and other constraints.
(f)
Up to a 25% increase in fence height for commercial zoned properties, and up to a 50% increase in fence height for industrial zoned properties.
(g)
Other adjustments as specified by this chapter.
§ 33-1222 Authorization.
(a)
The zoning administrator, shall have the authority to approve, conditionally approve or deny a variance application as provided for in Title 7, Chapter 4, Article III (Section 65900 et seq.) of the Government Code of the state of California, providing such approval or conditional approval is consistent with the intent and purpose of this chapter and this article. A variance is granted at the discretion of the zoning administrator and is not the automatic right of any applicant.
(b)
The director of community development (director), or designee, shall have the authority to approve, conditionally approve, or deny an application for an administrative adjustment providing such approval or conditional approval is consistent with the intent and purpose of this chapter and will not be detrimental to adjacent properties or improvements.
(c)
The zoning administrator and the director may refer any variance or administrative adjustment application to the planning commission.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1223 Application and procedure.
(a)
Application. Application for a variance may be initiated by the property owner or agent of the property affected, or the city council. Application for an administrative adjustment may be initiated by the property owner or owner's agent. An application shall be made on forms provided by the city and shall be accompanied by a fee in the amount established by resolution of the city council. The application shall further be accompanied by such materials as may be required by the zoning administrator and director.
(b)
Variance Procedure. The zoning administrator shall hold a public hearing pursuant to Division 6 of this article. Such hearing may be continued from time to time as deemed necessary by the zoning administrator.
(c)
Administrative Adjustment Procedure. The director shall review the requested adjustment, the applicant’s justification, the compatibility with adjacent properties or improvements and any other pertinent factor(s). If an administrative adjustment is associated with a discretionary application that requires a public hearing, the request shall be reviewed by the appropriate decision-making body for the discretionary action, and a separate application or Notice of Intended Decision is not required.
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2023-16, 1/10/2024)
§ 33-1224 Variance findings.
The decision of the zoning administrator shall be in writing and shall state the reasons therefor. In granting a variance, the following findings shall be made:
(a)
That there are exceptional or extraordinary circumstances or conditions applicable to the property involved, or to the intended use of the property, that do not apply generally to the property or class of use in the same zone or vicinity;
(b)
That the granting of such variance will not be materially detrimental to the public health, safety or welfare or injurious to the property or improvements in such zone or vicinity in which the property is located;
(c)
That such variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by other property in the same zone or vicinity;
(d)
That the granting of such variance will not adversely affect the comprehensive general plan.
Any variance granted shall be subject to conditions necessary to assure that the variance thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1225 Notification of action.
(a)
Zoning Administrator Action. Decisions of the zoning administrator shall be filed in the planning division and a copy provided to the applicant at the address shown on the application.
(b)
Director Action. The director shall give notice of the intended decision as provided in Division 6 of this article.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1226 Appeal and effective date.
A decision of the zoning administrator or director may be appealed to the planning commission, pursuant to Division 6 of this article.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1227 Expiration.
Unless otherwise specified in the action granting a variance or administrative adjustment, any such approval shall become automatically null and void unless the variance or administrative adjustment authorized by the approval has been substantially implemented within 12 months from the grant of approval. The abandonment or non-use of a variance or administrative adjustment for a period of 12 consecutive months shall also result in such approval becoming automatically null and void. The director shall have authority to grant extensions to the deadlines in this section for both variances and administrative adjustments. Once any portion of a variance or administrative adjustment is utilized, the other conditions thereof become immediately operative and must be strictly complied with.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1228 Modification or revocation of variances.
The authority making the original grant of a variance or the city council shall have the discretion to initiate proceedings to revoke or modify a variance. If such proceedings are initiated, written notice of a public hearing shall be served on the owner of the property for which such variance was granted at least 10 days before such public hearing. Such notice may be served either personally or by certified mail, postage prepaid, return receipt requested. A variance may be modified or revoked under the following circumstances:
(a)
That the grant is detrimental to the public health, safety or welfare or is a nuisance;
(b)
That the variance was obtained by fraud;
(c)
That the purpose for which the variance was granted is not being exercised;
(d)
That the use for which the variance was granted has ceased or been suspended for 12 months or more;
(e)
That the conditions of the variance are not being complied with.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1229 Limitation of refiling of applications.
Any final action which denies any application for a variance shall prohibit the refiling of a similar or substantially similar application for at least one year from the date of denial.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1240 Definition and purpose.
as used in this division, is the use of any building, structure or land which is prohibited by any city law, but which use was lawful prior to the effective date of such law. The purpose of this division is to provide for the control, improvement and termination of uses, structures or parcels which do not conform to the current regulations for the land on which they are located.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1241 Continuing nonconforming use.
(a)
A nonconforming use may be continued even though such use does not conform to the revised provisions of applicable regulatory ordinances, but only if such use constitutes a legal nonconforming use as determined by the provisions of this division.
(b)
This division does not authorize or approve the continuance of the use of any land, building or structure which was in violation of law at the commencement of such use.
(c)
Alterations or enlargements may be made to single-family residential structures in residential zones notwithstanding the fact that such structure or lots may not conform to the minimum setback, lot size or lot width requirements of the current applicable zoning regulations, if the residential structure was built in conformity with the development standards in force at the time of construction.
Alterations or enlargements made to such nonconforming structures shall observe current front and rear yard setbacks, but may observe prior established nonconforming side yard setbacks subject to current applicable building code requirements and subject to the limitations of section 33-1243.
(d)
Notwithstanding the provisions of this chapter, the director of community development ("director") or designee, may determine that nonconforming status exists for residential, commercial or industrial zoned properties, even though permit documentation is not available, subject to the following findings:
(1)
The structure was constructed prior to 1976 and subsequently annexed to the city.
(2)
The structure or building does not create a public nuisance as a result of conditions that threaten the public health, safety and welfare.
(3)
Except as noted in this subsection, all other provisions of this article shall apply.
(e)
Investigation. Any request brought pursuant to this subsection, shall be made in writing to the planning division, and shall be accompanied by a filing fee, which shall be established by resolution of the city council. The director, or designee, shall review the request, together with any other information deemed relevant or necessary. Any necessary information shall be the responsibility of the applicant to provide. Upon making the required findings of this subsection, the director, or designee, shall grant, deny, or conditionally grant the request subject to the provisions of this article.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1242 Inapplicability of this division.
The following properties shall not be entitled to legal nonconforming use status under section 33-1241:
(a)
Abandoned Use of Property. Any discontinuance of a nonconforming use for a continuous period of six months shall be deemed to constitute abandonment of any preexisting nonconforming rights and such property shall not thereafter be returned to such nonconforming use;
(b)
Altered Property Use. Nonconforming uses may not be repaired, altered, improved or reconstructed in such a way that the nonconforming use becomes more permanent or is expanded. Alterations, improvements and reconstruction are deemed to make the nonconforming use more permanent or expanded if cumulative expenditures on the nonconforming use exceed the percentages of replacement value set forth in section 33-1243. All percentages used in section 33-1243 shall be calculated on a cumulative basis commencing with the initial expenditure. Replacement values shall be calculated by the director, or designee, using the most recent table of valuation multipliers of the International Code Council;
(c)
Changed Use. A nonconforming building, structure or use shall not be changed to another nonconforming use;
(d)
Extended Nonconforming Use. A nonconforming use shall not be physically extended or enlarged, except as permitted in section 33-1243. Minor expansions of nonconforming buildings are permitted provided the degree of nonconformity is not increased and all applicable development standards are met. The extension or enlargement of a lawful use to any portion of a nonconforming use, or the issuance of a home occupation permit pursuant to Article 44, shall not be deemed the extension of such nonconforming use.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1243 Exceptions to nonconforming use provisions.
(a)
Routine Maintenance. Nothing in this division shall prevent a property owner from performing routine maintenance on a nonconforming use. For the purposes of this section, the term, "routine maintenance," is minor work on a nonconforming use which does not require a permit of any kind and is primarily related to the aesthetics of a use or to alleviate normal wear and tear. Common examples of routine maintenance include, but are not limited to, painting, scraping, cleaning, pruning and so forth.
(b)
Voluntary Work. Nothing in this division shall prohibit the repair, alteration, improvement or reconstruction of a nonconforming use provided that the total cumulative costs of such work do not exceed 25% of the replacement value of the nonconforming use. The 25% limitation shall include the replacement costs of work conducted pursuant to subsection (c) of this section and shall not include work that brings the property more into conformance with the current code:
(1)
Improvements, additions and/or alterations for a nonconforming single-family residential structure(s) in a residential zone, including restoration pursuant to government order, may exceed the 25% limitation up to 50% of the replacement value of the nonconforming structure;
(2)
Improvements, additions and/or alterations above 50% for a nonconforming single-family residential structure(s) in a single-family zone, including restoration pursuant to governmental order, may be approved or conditionally approved by the director, or designee, pursuant to an administrative adjustment, as provided for in Division 2 of this article, upon demonstration that the proposed adjustment will be compatible with and will not be detrimental to adjacent property or improvements;
(3)
The application for the administrative adjustment of the replacement valuation shall include a fee to the city in an amount to be established by resolution of the city council. The director may agendize the application for consideration by the planning commission. Replacement values shall be calculated by using the most recent table of valuation multipliers of the International Code Council;
(4)
A nonconforming sign may be altered, improved or remodeled notwithstanding this section provided the cumulative costs of such improvements or remodeling of the sign does not exceed 50% of the cost of reconstruction of the building, as determined by the director;
(5)
City-Wide Zone Change. Nothing in this division shall prohibit the repair, alteration, improvement or reconstruction of a residential use considered nonconforming due to the city-wide zone change program; provided, that the total cumulative costs of such work does not exceed 50% of the replacement value of the nonconforming use, except as permitted within this subsection;
(6)
Industrial Zones. Repairs, alterations and expansions to nonconforming sites, structures and uses in industrial zones may exceed the 25% limitation up to 75% of the replacement costs of all existing improvements provided the expansion or alteration does not expand the degree of nonconformity, pursuant to section 33-574 of this chapter.
(c)
Restoration Pursuant to Governmental Order. Nothing in this division shall prevent the repair, alteration, improvement or reconstruction of any portion of a nonconforming use if such work is ordered by a governmental authority having jurisdiction or if such work is necessary to bring the nonconforming use into compliance with any applicable building, plumbing, electrical or similar codes, provided the total cost of such work includes only restoration pursuant to government order to ensure health, safety and welfare.
(d)
Restoration Following Disaster. Nothing in this division shall prevent the repair, alteration, improvement or reconstruction of any nonconforming use damaged by fire, collapse, explosion or acts of God, provided the total cumulative costs of such work does not exceed 50% of the replacement value. Nonconforming residential structures are exempt from the 50% limitation set forth in this subsection and may be constructed, repaired and rebuilt to nonconforming densities and the use thereof may be continued following damage by fire, collapse, explosion or acts of God without limitation as to cost. The percent limitations set forth in this subsection do not include work pursuant to subsection (b) or (c) of this section.
(e)
Low-and Very Low-Income Housing. Low-and very low-income housing units may be repaired, altered, improved or reconstructed to a condition complying with all applicable building, electrical, plumbing and similar codes without regard to the percent limitations set forth in subsection (c) or (d) of this section, if the following conditions are satisfied:
(1)
The housing units at issue have been inhabited continuously by individuals with low-or very low-income for at least one year prior to the date of the proposed alteration, improvement or reconstruction;
(2)
The property owner restricts the property for occupation solely by individuals of families of low-and very low-income for a period of at least 10 years. Such restrictions shall be in a form satisfactory to the city attorney;
(3)
The property owner does not charge rent for the property which is in excess of 30% of the gross household income of the residents of the property.
(f)
Income Definition. For the purposes of subsection (e) of this section, the term "low-and very low-income" means 80% and 50% respectively of median income of the San Diego County metropolitan statistical area adjusted for household size or any more recent definition adopted by the Department of Housing and Urban Development.
(g)
Any property owner electing to not be subject to restrictions imposed pursuant to subsection (e)(2) of this section shall immediately notify the city and shall terminate, demolish or bring the nonconforming use into compliance with all relevant zoning, building, plumbing, electrical and similar codes within 30 days of terminating the low-income use.
(h)
Miscellaneous Exceptions. The following nonconforming situations are not subject to this division:
(1)
Lots created in the Old Escondido Neighborhood Historic District pursuant to Article 65, section 33-1376;
(2)
Single-family residential lots that were created legally but now do not meet minimum lot width, lot frontage or lot area;
(3)
Nonconforming structures listed on the city's local register of historic places pursuant to the provisions of Article 40 of this chapter.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1244 Appeals.
Any owner of a nonconforming use or structure who is notified by the city of the nonconformance and/or ordered to remove or abate said structure or use may appeal such order to the director pursuant to the terms and procedures set forth in the following sections of this division.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1245 Time for appeal.
Any notice of nonconformance or order for removal or abatement shall become final upon the expiration of 30 days from the date of posting and mailing of the notice and order, unless an appeal to the director is filed prior to the expiration of said period of time. In the event that an appeal is timely filed, all action to be commenced against a nonconforming structure or use shall be stayed until said appeal is finally decided, unless there is an immediate and imminent threat to the public health, safety or welfare, as determined by the director.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1246 Procedure for appeals.
(a)
Form. Any appeal brought pursuant to section 33-1244 shall be submitted on an application form to be provided by the planning division and shall be filed with the planning division. An appellant shall provide the following information as to each nonconforming structure or use that is the subject of an appeal:
(1)
A detailed description of the use or structure, including legal description, assessor's parcel number, the method of its construction and dimensions;
(2)
The name and address of each owner, occupant or tenant of the property upon which the use or structure is located;
(3)
The date and value of original construction of the nonconforming structure or the date of commencement of the nonconforming use and investment in such use;
(4)
The date and cost of appellant's purchase of the use or structure;
(5)
The date or dates, and all expenditures for repairs, alterations, improvements or reconstruction on the nonconforming use;
(6)
The current value of the use or structure.
(b)
Investigation. The director shall initiate an investigation of each of the above points, together with any other information deemed relevant or necessary by the director.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1247 Hearing on appeal.
Within 30 days of the filing of the appeal, the director shall commence a hearing during which the appellant may present evidence and argument. The building advisory and appeals board may grant or deny the appeal upon determining that the application of this division to the appellant is neither arbitrary nor unreasonable.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1248 Findings.
The building advisory and appeals board shall not grant an appeal until the following findings are made:
(a)
The use or structures to which the legal nonconforming use applies was lawfully in existence prior to the imposition of the law to which the current use or structures do not conform;
(b)
The use of the property or building does not constitute a public nuisance as a result of conditions that threaten the public health, safety and welfare.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1249 Appeal to planning commission and city council.
The decision of the building advisory and appeals board may be appealed to the planning commission and subsequently to the city council pursuant to section 33-1303 of this chapter.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1250 Future entitlements.
A copy of all determinations on appeal shall be permanently maintained on file with the planning division. No building permit or land use entitlement shall be issued for any property which does not conform to current laws.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1260 Procedure.
The city council may adopt an ordinance amending any prior zoning ordinance, the Escondido Zoning Code, or the Escondido Zone District map after a public hearing is held on the proposed amendment. To the extent required by state law, the planning commission shall hold a hearing and make recommendations on any such amendments prior to city council consideration.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1261 Application, initiation and fee.
(a)
An application for a zoning amendment may be initiated by the city or by the owner of property subject to the amendment. Applications shall be on city forms and accompanied by the applicable fee.
(b)
An application for a general plan amendment/specific plan amendment may be initiated by the city or by the owner of property subject to the amendment. Applications initiated by the owner of the property subject to the amendment require initiation authorization by the city council. Applications shall be on city forms and accompanied by the applicable fees.
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2023-06, § 3, 3-8-23)
§ 33-1262 Planning commission action.
The planning commission's recommendation to the city council shall be in writing and shall state the reasons for approval or denial based on factors pursuant to section 33-1263. A recommendation of denial shall terminate the process unless timely appealed by the applicant to the city council.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1263 Factors to be considered.
The decisions of the planning commission and city council shall be in writing and shall state the reasons therefore after consideration of the following factors:
(a)
That the public health, safety and welfare will not be adversely affected by the proposed change;
(b)
That the property involved is suitable for the uses permitted by the proposed zone;
(c)
That the uses permitted by the proposed zone would not be detrimental to surrounding properties;
(d)
That the proposed change is consistent with the adopted general plan;
(e)
That the proposed change of zone does not establish a residential density below 70% of the maximum permitted density of any lot or parcel of land previously zoned R-3, R-4, or R-5 unless the exceptions regarding dwelling unit density can be made pursuant to the provisions set forth in Article 6;
(f)
That the relationship of the proposed change is applicable to specific plans.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1264 Notification of planning commission's recommendation.
The recommendation of the commission shall be filed in the planning division and a copy provided to the applicant at the address shown on the application.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1265 City council action.
The city council may approve, modify or deny the proposed amendment. Any modification of a proposed change of zone by the city council not previously considered by the planning commission during its hearing, shall first be referred to the planning commission for report and recommendation. Such report and further recommendation may be made by the planning commission without holding a public hearing.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1266 through § 33-1269. (Reserved)
Editor's note—Sections 33-1266—33-1269 were repealed by Ord. No. 2017-03R, § 4, enacted March 22, 2017.
§ 33-1270 Zoning of vacated public rights-of-way.
Where a public street or alley or other public right-of-way is officially vacated or abandoned, the area comprising such vacated or abandoned right-of-way shall acquire the zoning classification of the property to which it reverts.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1271 Purpose.
It is the policy of the city, pursuant to Title III of the Americans with Disabilities Act (42 U.S.C. Section 12131, et seq.) (the "ADA"), the Federal Fair Housing Act (42 U.S.C. Section 3604(f)(3)(B)) ("FHA"), and the California Fair Employment and Housing Act (Cal. Gov. Code Sections 12927(c)(1), 12955(τ) ("FEHA") (collectively, the "Acts"), to provide persons with disabilities reasonable accommodation in the city's zoning laws and land use rules, policies and procedures. The purpose of this division is to provide a process for individuals with disabilities to make requests for reasonable accommodation in regard to the various land use, zoning, or building laws, rules, policies, practices and/or procedures of the city, when such accommodations are necessary to afford disabled persons an equal opportunity to use and enjoy a dwelling.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1272 Applicability.
This division shall apply to any person who is qualified as a "disabled person" under the ADA, or who is otherwise qualified to receive reasonable accommodation under any of the Acts.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1273 (Reserved)
Editor's note—Section 33-1273 was repealed by Ord. No. 2017-03R, § 4, enacted March 22, 2017.
§ 33-1274 Authorization.
The director, or designee, shall have the authority to grant, conditionally grant or deny a reasonable accommodation application consistent with the intent and purpose of this division, and shall provide the applicant with a written decision in a timely manner. The director shall give notice of the intended decision using the procedures outlined in section 33-1300 of this article.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1275 Application and fee.
In order to make available housing more obtainable to an individual with a disability, a disabled person may request reasonable accommodation for a specific residential living unit, relating to the various land use, zoning, or building laws, rules, policies, practices and/or procedures of the city. A disabled person may file a request for reasonable accommodation on an application provided by the planning department. There shall be no fee imposed in connection with a request for reasonable accommodation under the provisions of this division. However, if the project for which the request is being made also requires some other planning permit or approval, the applicant shall file the requests together and submit the required fees associated with the related permits.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1276 Factors to be considered.
In determining the reasonableness of a requested accommodation, the director shall consider the following factors:
(a)
Whether the housing which is the subject of the request for reasonable accommodation will be used by an individual protected under the Acts;
(b)
Whether fulfillment of the request is necessary to make specific housing available to an individual protected under the Acts;
(c)
Whether the accommodation will impose an unreasonable financial or administrative burden on the city;
(d)
Whether the accommodation will require a fundamental alteration of the zoning or building laws, policies and/or procedures of the city;
(e)
Whether the accommodation will have any potential impact on surrounding uses;
(f)
Physical attributes of the property and structures; and
(g)
Any other factor deemed relevant to the determination according to the Acts, as amended.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1300 Notification of surrounding property owners.
The following provisions shall govern all notices of public hearing or public notices. Such notices shall be given as follows, unless noted otherwise:
(a)
For notices of public hearings, the notice shall be published at least 10 calendar days before the hearing at least once in a newspaper of general circulation in the community. Such notice shall include a general explanation of the matter to be considered, the time, date and place of the hearing, the hearing body or officer, and any subject property.
(b)
For notices of intended decision, the matter shall be published at least 10 days before the action at least once in a newspaper of general circulation in the community. Such notice shall include a general explanation of the matter to be considered and other information required pursuant to subsection (a) of this section. The findings, determination, or order contained in that notice will be declared as final on the date of noticed decision unless appealed as provided by the procedures commencing at section 33-1303.
(c)
In addition to notice by publication in subsections (a) and (b), the city shall give notice as follows:
(1)
Mailing to each owner of property within the boundaries of the proposal as well as each property owner within a radius of 500 feet of the exterior boundaries of the project. The notice shall be deposited in the United States mail with postage prepaid not less than 15 days prior to the date of the public hearing or the decision becoming effective.
(A)
When property is within a radius of 500 feet of the exterior boundaries of the subject property and consists of a mobilehome park or a condominium project, notice shall be provided to each resident within the mobilehome park or each owner of any interest in the condominium project.
(B)
For projects involving the conversion of apartment complexes to condominium units, notices shall be provided to each apartment unit within the complex.
(2)
Physically posting a notice on the project site in a conspicuous location so that the notice is visible from all portions of the site which abut a private or public street. The applicant shall maintain the posted notice in good condition for the full 10 day public notice period. Such notice shall be clearly headed "NOTICE OF PUBLIC HEARING," or "NOTICE OF INTENDED DECISION" and shall include:
(A)
A general explanation of the matter to be considered;
(B)
The city case reference number;
(C)
The applicant's name;
(D)
The telephone number of the planning division for further information; and
(E)
The date of the hearing; or the closing date of the public review period.
The notice shall be constructed according to the following standards: Minimum size requirements of six square feet. |
(3)
Requirements for this section are considered minimum notification requirements in addition to other minimum requirements set forth in the provisions of this chapter.
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2019-10, § 7, 8-21-19)
§ 33-1301 Fees.
All fees required in connection with this code shall be established by resolution of the city council, which may be amended from time to time. Fees shall be payable to the city of Escondido. Fees shall not be refunded unless a written request to withdraw the application and receive a refund of fees is submitted by the applicant prior to the time that the publication of notice of the hearing is ordered, or the notice of intended decision is issued, or administrative approval is issued. Any refund shall be based on the percentage of work performed on the application at the time the request is received.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1302 Continuation of hearings.
Any hearing required by this code may be continued from time to time.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1303 Appeals.
(a)
This section shall control all appeals unless specified otherwise in this code. If the final date to appeal falls on a day when the city's business offices are closed, the time for appeal shall run through the end of the next city business day.
(b)
Any interested party may appeal the decision of the director, zoning administrator or planning commission within 10 calendar days following the date of the decision.
(c)
All appeals shall be in writing, and shall be accompanied by the applicable fee. The appeal shall state the decision from which the appeal is taken, and shall contain a concise statement of the reasons for the appeal. An appeal not containing the basis for appeal may be rejected as incomplete.
(d)
All appeals shall be filed, along with the appropriate filing fee, with the city clerk. The filing of an appeal shall immediately stay the effective date of any decision which is subject to the appeal.
(e)
Within the time limits set forth in subsection (b) of this section, the city council may request planning commission review of any decision of the zoning administrator or director, or council review of any decision of the planning commission. Such review shall be requested in writing, and shall be filed with the city manager. There shall be no appeal fee payable upon a request for a review by the city council or a member of the city council.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1304 Hearing on appeal.
Decisions which are appealed shall be set for public hearing at the earliest practicable date, given the schedules of parties involved, but subject to the discretion of the hearing body. Decisions of the director and zoning administrator may be appealed to the planning commission, and decisions of the planning commission may be appealed to the city council.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1310 Enforcement.
All employees of the City of Escondido vested with the duty or authority to issue, deny, or modify permits of any sort shall conform to the provisions of this chapter and shall issue no permit, certificate or license for uses, buildings or purposes in conflict with the provisions of this chapter. Any such permit, certificate or license issued in conflict with the provisions of this chapter, intentionally or otherwise, shall be null and void.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1311 Right of entry.
Whenever necessary to make an inspection of any premises, business records or other data to enforce any of the provisions of this chapter, or whenever any of the officials set forth in section 33-1310 of this article has reasonable cause to believe that there exists in any building or upon any premises any condition, or violation of this chapter, or use of property or premises that is unsafe, dangerous or hazardous, the official or their authorized representative may enter such building or premises at all reasonable times to inspect the building, premises, business records, or other data or to perform any duty imposed upon such official by this chapter. If the building or premises are occupied, the official shall first present proper credentials and request entry. If the building or premises are unoccupied, the official shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If such entry is refused, the official or authorized representative shall have recourse to every remedy provided by law to secure entry.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1312 Abatement.
Any building or structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this code, and any use of land, building or premises established, conducted, operated or maintained contrary to the provisions of this code is unlawful and a public nuisance. The city attorney is authorized to immediately commence action or proceedings for the abatement and removal and enjoinment of such nuisance in the manner provided by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining or using any such building or structure or using property contrary to the provisions of this code. This remedy shall be cumulative and not exclusive.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1313 Penalty provisions.
Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any portion of this chapter, including the use of land or structures contrary to this chapter, shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than $1,000, or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment. Such person, firm or corporation is guilty of a separate offense for each and every day during any portion of which any violation of this chapter is committed or continued by such person, firm or corporation.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1314 Definition, purpose, and applicability.
(a)
Plot plan means a zoning instrument used primarily to review the location and site development of certain permitted land uses. The plot plan review process is required when any of the following are proposed in a multifamily, commercial, or industrial zone:
(1)
A new building, structure, or addition;
(2)
A new permitted use of land or existing structure that may require additional off-street parking;
(3)
A modification of an existing development affecting the building area, parking (when a reduction in parking spaces is proposed), outdoor uses, or on-site circulation. Changes to parking areas that do not result in a reduction in parking spaces are exempt from plot plan review, but require design review, as provided in section 33-1355(b)(2);
(4)
As may otherwise be required by this chapter.
Plot plan review is not required for residential development created by a planned development or residential subdivision of single-family lots. |
(b)
Minor plot plan may include, but shall not be limited to, a change in use with no additional floor area, minor building additions, outdoor storage as an accessory use in the industrial zones, or other site plan changes affecting site circulation and parking, as determined by the director.
(c)
Major plot plan may include, but shall not be limited to, new construction, reconstruction and additions of facilities permitted in the underlying zone, or other projects that exceed thresholds for a minor plot plan, as determined by the director. All two-family dwelling projects proposed pursuant to section 33-115 shall be subject to the approval of a major plot plan.
(d)
Pursuant to AB 1397, rezoning of sites for the RHNA past the April 15, 2021 statutory deadline is subject to by-right approval of housing projects that include 20% of lower income units. Select sites identified in the city's adopted Suitable Sites Inventory (Appendix B of the City's Housing Element) are subject to the required by-right provisions of AB 1397 (Government Code section 65583.2). The select sites identified in the city's adopted Suitable Sites Inventory provide by-right approval through the plot plan review process for multi-family housing consistent with the densities and development standards established for the specific plan areas. To be consistent with AB 1397, this section further specifies that housing projects setting aside 20% of the units for lower income households are permitted by-right, without discretionary review.
(Ord. No. 2023-15, 10/25/2023)
§ 33-1315 Authorization, procedure and modifications.
(a)
Authorization. The director, or designee, shall have the authority to grant, conditionally grant or deny a plot plan application, or refer it to the planning commission as provided for in Section 65900 et seq. of the California Government Code, based on sound principles of land use.
(b)
Procedure. Application for a plot plan may be initiated by the property owner or agent of the property affected. Application shall be made on forms provided by the city and shall be accompanied by the appropriate fee. A discretionary project application shall further be accompanied by such materials as required by the director. The project shall be reviewed for conformance to all applicable requirements of the general plan, zoning code, specific plans, area plans, city design standards, building and safety requirements, and other applicable city standards, to the satisfaction of the director.
(c)
Modifications. The director may approve or conditionally approve minor modifications to a project that are consistent with the intent of the plot plan approval and do not intensify the use(s) on the site.
(Ord. No. 2023-15, 10/25/2023)
§ 33-1316 Findings, notification of action and appeals.
(a)
Findings. The decision of the director shall be in writing and shall state the reasons therefor. In granting a plot plan approval, the director shall issue a conditional letter of approval and shall make the following findings:
(1)
That the use is a permitted use in the zone in which it is located.
(2)
That the plot plan is granted subject to such conditions as deemed necessary to meet the standards of the use and zone in which it is located and to comply with applicable design standards.
(3)
That the plot plan is granted subject to such additional conditions as deemed necessary and desirable to preserve the public health, safety and general welfare.
(b)
Notification of action. The director's written decision, the conditional letter of approval, shall be filed in the planning division and a copy provided to the applicant at the address shown on the application. The applicant must sign and return the conditional letter of approval, thereby agreeing to the conditions of approval, prior to submittal of applications for construction permits.
(c)
Appeals. Appeals shall be governed by the provisions of Division 6 of this article. Any final action which denies any application for a plot plan shall prohibit the refiling of a similar or substantially similar application for at least one year from the date of denial.
(Ord. No. 2017-03R, § 4, 3-22-17)
§ 33-1317 Expiration and extension of time.
Unless otherwise specified in the action approving a plot plan, said approval shall become automatically null and void unless the project authorized by the plot plan approval has been substantially implemented within 24 months from the approval date. The abandonment or non-use of a plot plan approval for a period of 24 months shall also result in such approval becoming automatically null and void. The director shall have authority to grant extensions to the deadlines in this section. Once any portion of a plot plan is utilized, the other conditions thereof become immediately operative and must be strictly complied with.
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2023-06, § 3, 3-8-23)
§ 33-1318 Office established-Authority.
§ 33-1319 Powers and duties and procedure.
(a)
The zoning administrator is authorized to consider and approve, disapprove or modify applications and/or issue use permits, for requests that include, but are not limited to:
(2)
Minor conditional use permits for non-residential parking pursuant to section 33-764 of Article 39;
(4)
Reasonable accommodation as provided in Division 5 of this article;
(5)
Grading exemptions not associated with a discretionary project pursuant to section 33-1066(d) of Article 55;
(6)
Proposed modifications to an approved precise development plan pursuant to section 33-411 of Article 19;
(7)
Time extensions for maps and permits, except those maps and permits initially approved by the director as specified in this article and Chapter 32, upon submittal of a written request for an extension request, justification statement, and payment of all required application fees;
(8)
Comprehensive sign programs as specified in section 33-1392(c) of Article 66;
(b)
The zoning administrator is authorized to consider and adopt a negative declaration or mitigated negative declaration, prepared pursuant to CEQA and Article 47 of this chapter, upon completion of the CEQA public review period, for administrative projects that do not require a public hearing.
(c)
The zoning administrator shall have the power to adopt all rules and procedures necessary for the conduct of the administrator's business.
(1)
The zoning administrator shall schedule public hearings as needed.
(2)
The zoning administrator shall hold a hearing, issue a notice of intended decision, or take an administrative action on an application as required pursuant to this chapter for the specific type of request.
(3)
The decisions of the zoning administrator shall be filed in the planning division and a copy provided to the applicant at the address shown on the application.
(4)
Actions of the zoning administrator may be appealed to the planning commission.
(Ord. No. 2017-03R, § 4, 3-22-17; Ord. No. 2018-07R, § 7, 4-18-18; Ord. No. 2020-14 § 10, 8-12-20; Ord. No. 2023-15, 10/25/2023; Ord. No. 2024-05, 5/8/2024)