Loading...
HomeMy WebLinkAboutAGENDA REPORT 1993 0317 CC REG ITEM 08I'":ORPARK, CALIFORNIA Cary Council Meeting of 199-3 ACTION; By ITEM S' X. AGENDA REPORT TO: The Honorable City Council FROM: Jaime Aguilera, Director of Community opment Prepared by Paul Porter, Senior Planne� DATE: March 5, 1993 (CC meeting of March 17, 1993) SUBJECT: CONSIDER MINOR MODIFICATION NO. 2 TO REMOVE PERFORMANCE BOND REQUIREMENT (CONDITION NO. 42) FOR IPD 90 -7 THROUGH 13 AND 91 -1 THROUGH 3 - (MOORPARK WEST) Background On October 16, 1991, the City Council adopted Resolution No. 91 -809 approving IPD -90 -7 through 13 and 91 -1 through 3 on the application of Moorpark West and Murray Siegal subject to compliance to the Conditions of Approval. The approval was for the following industrial buildings: IPD Permit Lot Size Building Size 90 -7 58,930 sq. ft. 21,256 sq. ft. 90 -8 20,219 sq. ft. 7,704 sq. ft. 90 -9 17,955 sq. ft. 6,797 sq. ft. 90 -10 15,171 sq. ft. 4,911 sq. ft. 90 -11 29,953 sq. ft. 13,636 sq. ft. 90 -12 15,173 sq. ft. 4,911 sq. ft. 90 -13 29,978 sq. ft. 14,613 sq. ft. 91 -1 19,140 sq. ft. 7,772 sq. ft. 91 -2 13,831 sq. ft. 4,971 sq. ft. 91 -3 23,126 sq. ft. 8,815 sq. ft. Discussion On December 4, 1992, the applicant applied for Minor Modification No. 1 to these Industrial Planned Development Permits requesting that Condition No. 42 be removed from the Conditions of Approval. Condition No. 42 stated: 42. Prior to the issuance of a zoning clearance, a Surety Performance Bond in the amount of $10,000 shall be filed and accepted by the Director of Community Development. The Director of Community Development, may, through a public hearing to be heard before the City Council recommend that any or all of the funds in the Performance Bond be forfeited for noncompliance of the Conditions of Approval or for some other just cause. PP03 :05:93 110:02amA:\MZNNOD2.CC 1 This condition shall automatically be superseded by a related resolution or ordinance regarding condition compliance for entitlement approvals adopted by the City Council. The applicant has indicated that the imposition of this Condition for an indeterminate time is costly and makes it more difficult to sell or lease buildings. At the City Council meeting on January 6, 1993, staff indicated that condition No. 42 would be rewritten, but that staff would research the issue and if it was determined that the City could recover code enforcement costs by means of a nuisance ordinance, that staff would bring this matter back to the City Council for further review without further cost to the applicant. Minor Modification No. 1 imposed the following wording for condition No. 42: COMMUNITY DEVELOPMENT CONDITION PRIOR TO THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY 42. Prior to the issuance of a Certificate of Occupancy, a Surety Performance Bond in the amount of $10,000 shall be filed and accepted by the Director of Community Development. The Director of Community Development, may, through a public hearing to be heard before the City Council recommend that any or all of the funds in the Performance Bond be forfeited for noncompliance of the Conditions of Approval or for some other just cause. This bond shall be in effect for a ten (10) year period from the date of the last occupancy allowed with this permit. The applicant or future owners agree to pay for all costs for enforcing condition compliance in the future. Staff Analvsis At the time this Condition of Approval was amended on this industrial project, it was thought that the City needed the applicant to provide a financial security as an incentive to adhere to the conditions of approval, because Code Enforcement did not have the authority to issue citations. If the applicant failed to adhere to the Conditions of Approval, the bond could be forfeited by City Council for noncompliance of the Conditions of Approval or some other just cause. Since the original imposition of this Condition, the City has authorized code enforcement personnel to use citations in order to seek compliance with city codes and project conditions of approval for those individuals or companies that are uncooperative. Further, the city has the ability per Article 1 of the Moorpark Municipal Code, to recover costs expended in the enforcement of the city codes (see Attachment 2). PP03:05 :93 1I0:02amA:\MINMOD2.CC 2 Now that the city has obtained to ability to cite property owners for violations of the Municipal Code or noncompliance with Conditions of Approval of Discretionary projects such as IPD's, CPD's and RPD's, there is no longer a need to impose condition No. 42 requiring a Performance bond on development projects. Therefore, staff recommends deleting this condition as it is presently written and imposing the following condition to replace it: 42. The Director of Community Development may declare a development project that is not in compliance with the Conditions of Approval or for some other just cause, a "public nuisance ". The applicant shall be liable to the city for any and all costs and expenses to the city involved in thereafter abating the nuisance and in obtaining compliance with the conditions of approval or applicable codes. If the applicant fails to pay all city costs related to this action, the city may enact special assessment proceedings against the parcel of land upon which the nuisance existed (Municipal Code Section 1.12.080). In the future, staff intends to impose this condition of approval on future development projects rather than require the $ 10,000 performance bond. This condition shall automatically be superseded by a related resolution or ordinance regarding condition compliance for entitlement approvals adopted by the City Council. The Director of Community Development has initiated this proposed Minor Modification on behalf of the applicant (pursuant to Council direction) and plans to Conditionally approve it. Pursuant to Resolution No. 88 -523, the Director has the authority to approve Minor Modifications. This matter is being presented to the City Council as a courtesy. In the event the City Council wishes to appeal the Director's decision, it may do so. Should the City Council desire to appeal, it should set a public hearing date. The next available meeting date would be the regular meeting of April 7, 1993. If the City Council takes no action, the Director's decision stands. Recommendation Receive and file the report and direct staff to proceed with appropriate action to replace the condition requiring the Performance Surety Bond with the 'public nuisance' condition for all projects with the Performance Surety Bond requirement. Attachments: 1. Proposed revision to condition No. 42 2. Section 1.12.080 (Nuisance - Cost Recovery) of the Municipal Code PP03 :05:93 110:02amA:\MZIVMOD2.CC 3 DEPARTMENT OF COMMUNITY DEVELOPMENT CONDITION 42. The Director of Community Development, may, declare a development project that is not in compliance with the Conditions of Approval or for some other just cause, a "pubic nuisance ". The applicant shall be liable to the city for any and all costs and expenses to the city involved in thereafter abating the nuisance and in obtaining compliance with the conditions of approval or applicable codes. If the applicant fails to pay all city costs related to this action, the city may enact special assessment proceedings against the parcel of land upon which the nuisance existed (Municipal Code Section 1.12.080). PP03 :05 :93110:02amA :\X1NMOD2.CC 4 ATTACHMENT 1 1.12.080 alties and the same procedure for foreclosure and sale in the case of delinquency as provided for ordinary municipal taxes. O. Any person who maintains any public nuisance as defined in this section or Section 1.12.070 or who violates or fails to comply with an order of abatement made pursuant to this section is guilty of a misdemeanor. No person shall obstruct, impede or interfere with any representative of the city or with any owner, as defined in this section, of a property which has been ordered vacated, repaired, rehabilitiated or which improvements thereon have been ordered demolished and removed, whenever such repre- sentative of the city or owner is engaged in vacating, repairing, rehabilitating the property or demolishing and removing the improvements pursuant to the provisions of this section, or in performing any necessary act prelimi- nary or incidental to such work as authroized or directed pursuant to this section. (Ord. 143 §3(part), 1991) 1.12.080 Nuisance - -Cost recovery. A. Whenever any person creating, causing, committing or maintaining a pub- lic nuisance, as referred to in Section 1.12.070 of this chapter, or other public nuisances, as defined under state law or other ordinance or regulation, has been given no- tice, by or on behalf of the city attorney or by any other city officer, employee or policing agent authorized to give such notice, to abate such nuisance or cease and desist from continuing such nuisance or violation of law, and such person who was given notice fails, refuses or neglects to comply with the notice within the time specified therein, or if such a time is not specified, then within a time reasonably sufficient to enable such compliance, such non- complying person shall be liable to the city for any and all costs and expenses to the city involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed in the notice. II (Moorpark 11191) 10 -4 ATTACHMENT 2 1.12.081 -- 1.12.090 B. Costs and expenses, as referred to in subsection A of this section may include, but are not limited to, any and all direct costs and expenses related to such things as personnel salaries and benefits, operational overhead, rent, interest, fees for experts or consultants, legal costs or expenses, including attorneys, fees, claims against the city arising as a consequence of the nuisance or violation and procedures associated with collecting moneys due hereunder. C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, and thereafter the nuisance or violation was abated, but such person subsequently allowed or was re- sponsible for a recurrence of the nuisance or violation. D. The liability of any person for the payment of the costs and expenses provided for in subsection A of this section may be waived in whole or in part by the city at- torney in any case wherein he determines, in his sole dis- cretion, that the failure or refusal of such person to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specially involved in the circumstances of the case. Any determina- tion or decision of the city attorney in this regard shall be final and conclusive and shall not be subject to appeal as prescribed in Chapter 2.04 of this code. E. Moneys due to the city pursuant to this section / may be recovered in an appropriate civil action. Alterna- tively, such liability may be enforced by special assess- ment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the Government Code of the state relating to weed abatement assessments. (Ord. 2 §1(part), 1983) 1.12.081 Nuisance -- Emergency abatement. Any nuisance which is determined by the city to be an immediate public health hazard may be removed by the city from a property through summary abatement without notice. When the city has effected the removal of such solid waste, the owner or occupant of the property shall be liable to the city for the cost of such removal and disposal. (Ord. 143 §3(part), 1991) 1.12.090 Violation of administrative provisions. The violation of, or the failure or omission to perform in ac- cordance with, any administrative provision of this code by any officer or employee of the city shall generally not be considered a criminal act, but may be deemed a failure to perform the duties or to observe the rules and regulations of the department, office, commission or board within the meaning of the rules and regulations of the city or of the civil service regulations of the city, if applicable. ` (Ord. 2 §1(part), 1983) 11 (Moorpark 11/91) 1.12.080 alties and the same rroced..re for foreclosure and ::ale in l the case of delinr,_uencv as provided for ordinary municipal taxes. O. Any person who maintains any public nuisance as defined in this section or Section 1.12.070 or who violates or fails to comply with an order of abatement made pursuant to this section is guilty of a misdemeanor. No person shall obstruct, impede or interfere with any representative of the city or with any owner, as defined in this section, of a property which has been ordered vacated, repaired, rehabilitiated or which improvements thereon have been ordered demolished and removed, whenever such repre- sentative of the city or owner is engaged in vacating, repairing, rehabilitating the property or demolishing and removing the improvements pursuant to the provisions of this section, or in performing any necessary act prelimi- nary or incidental to such work as authooized or directed pursuant to this section. (Ord. 143 §3(part), 1991) 1.12.080 Nuisance - -Cost recovery. A. Whenever any person creating, causing, committing or maintaining a pub- lic nuisance, as referred to in Section 1.12.070 of this chapter, or other public nuisances, as defined under state law or other ordinance or regulation, has been given no- tice, by or on behalf of the city attorney or by any other city officer, employee or policing agent authorized to give such notice, to abate such nuisance or cease and desist from continuing such nuisance or violation of law, and such person who was given notice fails, refuses or neglects to comply with the notice within the time specified therein, or if such a time is not specified, then within a time reasonably sufficient to enable such compliance, such non- complying person shall be liable to the city for any and all costs and expenses to the city involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed in the notice. 1.12.081 -- 1.12.090 ( B. Costs and expenses, as referred to in subsection A of this section may include, but are not limited to, any and all direct costs and expenses related to such tt:ing3 as personnel salaries and benefits, operational overheat:, rent, interest, fees for experts or consultants, legal- costs or expenses, including attorneys' fees, claims against the city arising as a consequence of the nuisance or violation and procedures associated with collecting moneys due hereunder. C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, and thereafter the nuisance or violation was abated, but such person subsequently allowed or was re- sponsible for a recurrence of the nuisance or violation. D. The liability of any person for the payment of the costs and expenses provided for in subsection A of this section may be waived in whole or in part by the city at- torney in any case wherein he determines, in his sole dis- cretion, that the failure or refusal of such person to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specially involved in the circumstances of the case. Any determina- tion or decision of the city attorney in this regard shall be final and conclusive and shall not be subject to appeal as prescribed in Chapter 2.04 of this code. E. Moneys due to the city pursuant to this section may be recovered in an appropriate civil action. Alterna- tively, such liability may be enforced by special assess- ment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the Government Code of the state relating to weed abatement assessments. (Ord. 2 §1(part), 1983) 1.12.081 Nuisance -- Emergency abatement. Any nuisance which is determined by the city to be an immediate public health hazard may be removed by the city from a property through summary abatement without notice. When the city has effected the removal of such solid waste, the owner or occupant of the property shall be liable to the city for the cost of such removal and disposal. (Ord. 143 §3(part), 1991) 1.12.090 Violation of administrative provisions. The violation of, or the failure or omission to perform in ac- cordance with, any administrative provision of this code by any officer or employee of the city shall generally not be considered a criminal act, but may be deemed a _`ailure to perform the duties or to observe the rules and regulations of the department, office, commission or board within the meaning of the rules and regulations of the city or of the civil service regula -,ions of the city, if applicable. (Ord. 2 §1(part), 1983)