After a property is rezoned, existing uses that do not conform to the requirements of the amended zoning designation and/or Zoning Map can create unsafe conditions, disharmony with planned uses, and can make planned uses financially unviable. This ordinance seeks to mitigate the negative impacts of non-conforming uses through an amortization provision.
Recognizing that property owners and businesses have a significant investment in the property/business, the proposed Amendment provides adequate time for owners of nonconforming uses to recoup their investments or find alternative locations for those uses. Further, the proposed amortization program includes exemptions that protects certain non-conforming uses such as uses of historical significance, existing religious uses, and residential units that may not create unsafe or disharmonious conflicts with planned development.
FISCAL IMPACT:
The proposed zoning code amendment does not have a direct impact on the General Fund.
Any associated expenses, either direct or indirect, would be paid from the General Fund.
COMMITTEE RECOMMENDATION:
The Planning Commission considered the proposed zoning code amendments on August 15, 2022 and voted unanimously to recommend Council approval.
CEQA REQUIREMENTS:
The proposed code amendment that addresses amortization of nonconforming uses is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) that says the activity is covered by the commonsense exemption that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Using commonsense, changing the text of the Zoning Code to dictate the amortization of nonconforming uses, will not cause an effect on the environment.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion introducing and waiving the first reading of an Ordinance repealing and replacing Section 10-3.505 of Article 3 of Title 10 of the City of Modesto Municipal Code and amending the Title of Section 10-3.506 of Article 3 of Title 10 of the Modesto Municipal Code.
Approved by:
Jaylen French,
Director of Community and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Ordinance
2. Planning Commission Resolution 2022-21
3. Planning Commission Minutes, August 15, 2022
4. Planning Commission Agenda Report, August 15, 2022
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ORDINANCE NO. _______
ORDINANCE REPEALING AND REPLACING
SECTION 10-3.505 OF ARTICLE 3 OF TITLE 10 OF
THE CITY OF MODESTO MUNICIPAL CODE AND
AMENDING THE TITLE OF SECTION 10-3.506 OF
ARTICLE 3 OF TITLE 10 OF THE CITY OF
MODESTO MUNICIPAL CODE
WHEREAS, the City of Modesto (the “City”) does, from time to time, amend the zoning designation and/or Zoning Map for properties within the City; and WHEREAS, the intent of these amendments is to achieve the City’s goals for safe, harmonious, and prosperous development and redevelopment of properties within the City; and WHEREAS, existing uses that do not conform to the requirements of the amended zoning designation and/or Zoning Map can create unsafe conditions, disharmony with planned uses, and can make planned uses financially unviable; and
WHEREAS, to eliminate the negative impacts of nonconforming uses as described above, the City does intend to provide for the amortization of such nonconforming uses; and WHEREAS, the City recognizes that property owners may have made substantial investment in uses that are rendered nonconforming by the City’s adoption of amendments to the zoning designation and/or Zoning Map; and
WHEREAS, the City desires to provide adequate time for owners of nonconforming uses to recoup their investments or find alternative locations for their uses; and WHEREAS, the City further recognizes that certain nonconforming uses such as uses of historical significance, existing religious uses, and residential units may not create unsafe or disharmonious conflicts with planned development.
NOW, THEREFORE, the City Council of the City of Modesto does ordain as follows:
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SECTION 1. REPEAL AND REPLACEMENT OF SECTION 10-3.505 OF ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE. Section 10-3.505 is repealed in its entirety and replaced with the following:
“Section 10-3.505 – Termination of Nonconforming Uses.
A. Violation of Title. Any of the following violations of this Title shall immediately terminate the right to operate a nonconforming use, except as otherwise provided in this Title:
1. Increasing or enlarging the area, space, or volume occupied by or devoted to such nonconforming use except as provided in Section 10-3.502(b) and (c).
2. Changing a nonconforming use to a use not permitted in the zone except as provided in Section 10-3.502(d);
3. Addition to a nonconforming use of another use not permitted in the zone.
B. Discontinuance. Discontinuance of a nonconforming use pursuant to Section 10.3.502(e) shall result in the termination of any rights to continue the nonconforming use.
C. Amortization of Nonconforming Uses.
1. Notwithstanding Section 10-3.502, any and all uses of real property which become nonconforming uses by reason of an amendment to this Title and/or to the City of Modesto Zoning Map adopted by the City Council of the City of Modesto on or after January 1, 2022, shall be allowed to continue for a period of not more than six (6) months after the effective date of the ordinance rendering such use a nonconforming use. On or before such date, all such nonconforming uses shall be terminated unless an application for extension of time has been approved in accordance with the provisions of Section 10-3.506. #18..
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2. Exemptions.
a. Historical Structures. Nonconforming structures that have been certified to be a historic resource by the City, County of Stanislaus, the State of California, or in the National Register of Historic Places are exempt from this section. b. Nonconforming Due to Lack of a conditional use permit. i. Conformity of Uses Requiring Conditional Use Permits. A use that becomes nonconforming only because it is a use that would be required by amendment to this Title or to the Zoning Map to have conditional use permit approval shall be deemed conforming. ii. Previous Conditional Use Permits in Effect. A use that was authorized by a conditional use permit prior to adoption of an amendment to this Title, but is identified by the amendment as a use that is not allowed in its current location, may continue, but only in compliance with the original conditional use permit. c. Religious Institutions. Religious Institutions of a permanent nature which became nonconforming at the time of adoption of an amendment to this Title or to the Zoning Map may be continued, reconstructed, structurally altered, extended, or enlarged subject to plans approved by the Community Development Director or his or her designee for any reconstruction, alteration, extension, or enlargement and provided such reconstruction, alteration, extension, or enlargement conforms with all other provisions of this title; and provided, further, that said extension, reconstruction, alteration or enlargement shall not be extended to additional property beyond the parcel(s) upon which the nonconforming use exists. d. Residential Units. Residential Units which became nonconforming uses at the time of adoption of an amendment to this Title or to the Zoning Map may be continued, #18..
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reconstructed, structurally altered, extended, or enlarged in conformance to the previous residential zone.
3. Failure to terminate a nonconforming use constitutes a public nuisance. Failure to terminate a nonconforming use within the time periods provided in this Section shall constitute a violation of this Code and is a public nuisance subject to abatement in accordance with the provisions of this Code.
D. Unlawful Uses and Structures. Uses and structures that did not comply with the applicable provisions of this Code or prior planning and zoning regulations when established are violations of this Code and are subject to the provisions of this Code regarding the administration and enforcement of this Code. This section does not grant any right to continue unlawful use of property containing an illegal use or structure.”
SECTION 2. AMENDMENT TO SECTION 10-3.506 OF ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE. The title to Section 10-3.506 shall be amended to read “Extension of Time for Termination of Nonconforming Use.” SECTION 3. SEVERABILITY.
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of Modesto hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
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SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”).
The proposed Ordinance is exempt from CEQA under the general rule in CEQA Guidelines section 15061(b)(3), that CEQA only applies to projects that have the potential for causing a significant effect on the environment.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days following its final passage and adoption.
SECTION 6. PUBLICATION.
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this Ordinance, the date of its introduction and the places where this ordinance is posted.
The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 27 day of September, 2022, by Council Member ____________, who moved its introduction and passage to print, which motion being duly seconded by Council Member ____________, was upon roll call carried and ordered printed and published by the following vote:
AYES: Council Members:
NAYS: Council Members:
ABSENT: Council Members:
APPROVED:_________________________
SUE ZWAHLEN, Mayor
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ATTEST:
BY: __________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: __________________________________
JOSE M. SANCHEZ, City Attorney
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FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ____ day of October, 2022, Councilmember ______________moved its final adoption, which motion being duly seconded by Councilmember ________________, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: __________________________
MAYOR SUE ZWAHLEN
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
5123047.5
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PLANNING COMMISSION
RESOLUTION NO. 2022-21
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL AN
ORDINANCE REPEALING AND REPLACING SECTION 10-3.505 OF
ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE IN ITS ENTIRETY; AND AMENDING THE TITLE OF SECTION 10-3.506 OF ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE WHEREAS,the City of Modesto does, from time to time, amend the zoning designation and/or Zoning Map for properties within the City; and WHEREAS,the intent of these amendments is to achieve the City's goals for safe, harmonious, and prosperous development and redevelopment within the City; and WHEREAS, existing uses that do not conform to the requirements of the amended zoning designation and/or Zoning Map can create unsafe conditions, disharmony with planned uses, and can make planned uses financially unviable; and WHEREAS,to eliminate the negative impacts of nonconforming uses as described above,the City shall provide for amortization of such nonconforming uses to provide adequate time for owners of nonconforming uses to recoup their investments or find alternative locations for their uses; and
WHEREAS,the City further recognizes that certain nonconforming uses such as uses of historical significance, existing religious uses, and residential units may not create unsafe or disharmonious conflicts with planned development; and WHEREAS, a public hearing was held by the Planning Commission on August 15, 2022,in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence, both oral and documentary was received and considered; and WHEREAS,the Planning Commission finds that the proposed Ordinance is exempt from the California Environmental Quality Act ("CEQA") under the general rule in CEQA Guidelines section 15061(b)(3),that CEQA only applies to projects that have the potential for causing a significant effect on the environment.
NOW, THEREFORE,BE IT RESOLVED by the Planning Commission that it hereby finds and determines as follows:
The proposed amendments will not be detrimental to the public health, safety, and welfare because the proposed amendments amortize nonconforming uses to conform to surrounding areas and reduce land use conflicts,but will also provide adequate time for owners of nonconforming uses to recoup their investments or find alternative locations for their uses and exempt certain nonconforming uses such as uses of historical significance, existing religious uses, and residential uses from discontinued use.
1. CODE-22-002
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Res No 2022-21 Page 2
The proposed changes will result in an orderly planned use of land because the proposed amendments amortize nonconforming uses and will result in transitioning those existing land uses so that the properties become compatible with surrounding uses.
2. The proposed change is in accordance with the community's objectives as set forth in the Urban Area General Plan and any applicable specific plan because the proposed amendments will result in consistency with the General Plan Chapter III, regarding land use goals and policies helping rezoned properties transition to become compatible and consistent with the applicable Urban Area General Plan land use designation.
3. The proposed amendments are exempt from the California Environmental Quality Act ("CEQA"), per CEQA Guidelines Section 15061(b)(3), which exempts any project where it can be seen with certainty that it would not have any significant effects on the environment.
4. BE IT FURTHER RESOLVED that the Planning Commission recommends to the City Council approval of the attached Ordinance [as shown in Exhibit "A"(Ordinance Repealing and Replacing Section 10-3.505 of Article 3 of Title 10 of the City of Modesto Municipal Code in its Entirety; and Amending the Title of Section 10-3.506 of Article 3 of Title 10 of the City of Modesto Municipal Code)]. The foregoing Resolution was introduced at the regular meeting of the Planning Commission held on August 15, 2022, by Shanks, who moved its adoption, which motion was seconded by Morad, and carriedby the following vote:
Morad, Pollard, Shanks, Vazquez, Vohra
None
Birring
None
Ayes:
Noes:
Absent:
Recused:
BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO. Steve Mitchell, Secretary 5130465.1
CODE-22-002
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ITEM B
Planning Commission Agenda Report August 15, 2022
Public Hearing Item B Page 1
CITY OF MODESTO
PLANNING COMMISSION STAFF REPORT
1010 10th STREET
MODESTO, CA 95354
(209) 577-5267 – (209) 491-5798 (fax)
TO: Chairperson Shanks and Members of the Planning Commission PREPARED BY: Jonnie Lan, AICP, Senior Planner
Contact Info: 577-5267, [email protected]
APPROVED BY: Steve Mitchell, Planning Manager
MEETING DATE: August 15, 2022
SUBJECT: Amendment to the Zoning Regulations Regarding Amortization of NonConforming Uses (City Initiated).
RECOMMENDATION
Resolution recommending the City Council adopt an ordinance repealing and replacing Section 10-3.505 of Article 3 of Title 10 of the City of Modesto Municipal Code and amending the Title of Section 10-3.506 of Article 3 of Title 10 (City initiated)
BACKGROUND
The current zoning code does not provide for the amortization of non-conforming uses. A nonconforming use is a use that no longer conforms to the use regulations of the zone in which it is located. Amortization means to phase out and discontinue non-conforming uses.
The City of Modesto recently initiated a rezoning of several properties on the west side of McHenry Avenue and south of Briggsmore Avenue from Commercial-Industrial (C-M) into a Planned Development to allow a mixture of commercial and residential uses. The industrial uses allowed in the previous C-M zone could be incompatible with surrounding existing commercial and residential uses creating unappealing or unsafe conditions. It was through this rezone of which two properties are owned by U-Haul that staff recognized the City does not have an amortization provision to address non-conforming uses upon properties that have been rezoned.
PROJECT DESCRIPTION
The proposed Modesto Municipal Code change would update the City’s standards for nonconforming uses and the timeline in which they must be discontinued. Non-conforming uses under this ordinance would have six months from the time of the rezoning to discontinue the non-conforming use. The ordinance includes a provision allowing the non-conforming use to #18..
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Planning Commission Agenda Report August 15, 2022
Public Hearing Item B Page 2
seek an extension of time, which must be approved by an appointed Hearing Officer. Staff recommends approval of the code amendment.
ANALYSIS
There are several reasons to establish the amortization of non-conforming uses. After a property is rezoned, existing uses that do not conform to the requirements of the amended zoning designation and/or Zoning Map can create unsafe conditions, disharmony with planned uses, and can make planned uses financially unviable. A way to mitigate the negative impacts of nonconforming uses is for the City to provide for amortization of such nonconforming uses.
Additionally, the City wants to provide adequate time for owners of nonconforming uses to recoup their investments or find alternative locations for those uses.
The proposed amortization program includes exemptions that protects certain nonconforming uses such as uses of historical significance, existing religious uses, and residential units that may not create unsafe or disharmonious conflicts with planned development.
GENERAL PLAN CONSISTENCY
The proposed code change will allow changes in zoning to align with the policy of the General Plan without the lingering effects of an incompatible nonconforming use.
ENVIRONMENTAL ASSESSMENT
The proposed code amendment that addresses amortization of nonconforming uses is exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) that says the activity is covered by the commonsense exemption that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Using commonsense, changing the text of the Zoning Code to dictate the amortization of nonconforming uses, will not cause an effect on the environment.
ATTACHMENTS
1. Draft Planning Commission Resolution
2. Financial Interest Disclosure Form
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City of Modesto Planning Commission
Minutes
August 15, 2022
1 Being the hour of 6:01 pm, the meeting was called to order by Chairperson Vohra.
I. ROLL CALL
Commissioners Morad, Pollard, Shanks, Silva, Vazquez and Vohra present Commissioners Birring absent
MOTION
It was moved by Commissioner Shanks, seconded by Commissioner Pollard, and carried unanimously that Commissioner Birring be excused from this meeting.
II. APPROVAL OF MINUTES
It was moved by Commissioner Shanks, seconded by Commissioner Pollard, and carried unanimously that the minutes of the regular meeting of August 1, be approved.
III. CONFLICT OF INTEREST DECLARATION
None
IV. PUBLIC HEARINGS
Item A Tentative Parcel Map to divide a parcel, 17,500 square-foot parcel, into two parcels; submitted by Elevation Design and Consulting
Contact Info: Edwin Borquez, 577-5267, [email protected] Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried unanimously (Morad, Pollard, Shanks, Silva, Vazquez, Vohra, ayes; None, noes; Birring, absent; None, recused) that the Planning Commission adopt Resolution No. 2021-20 RESOLUTION APPROVING TENTATIVE PARCEL MAP FOR PROPERTY LOCATED AT 309 ROSEBURG AVENUE (ELEVATION DESIGN
AND CONSULTING)
Item B Amendment to the Zoning Regulations Regarding Amortization of NonConforming Uses (City Initiated).
Contact Info: Jonnie Lan, 577-5267 [email protected]
Motion/Action (Approved)
It was moved by Commissioner Shanks, seconded by Commissioner Morad, and carried unanimously (Morad, Pollard, Shanks, Silva, Vazquez, Vohra, ayes; None, noes; Birring, absent; None, recused) that the Planning Commission adopt Resolution No. 2021-21 A RESOLUTION RECOMMENDING TO THE CITY COUNCIL AN ORDINANCE REPEALING AND REPLACING SECTION 10-3.505 OF ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE IN ITS ENTIRETY; AND AMENDING THE TITLE OF SECTION 10-3.506 OF ARTICLE 3 OF TITLE 10 OF THE CITY OF MODESTO MUNICIPAL CODE
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Planning Commission Minutes 2 August 15, 2022
V. OTHER BUSINESS
None.
VI. ORAL COMMUNICATIONS
Welcomed new members to the Planning Division
VII. MATTERS TOO LATE FOR THE AGENDA
None.
VIII. ADJOURNMENT
The meeting was adjourned at 6:20 pm.
Original, signed copy on file in CEDD
Steve Mitchell, Secretary
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OFFICE OF THE CITY CLERK
NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, SEPTEMBER 27, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Mike Hoesch v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ11304476, ADJ93185879, ADJ8580687
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Brittoni Estrella, et al. v. City of Modesto et al.
United States Eastern District
Case No.: 1:22-cv-00921
September 23, 2022 BY ORDER OF THE CHAIR
/S
Diane Nayares-Perez, CMC, City Clerk
Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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TO: THE CLERK OF THE CITY OF MODESTO
RE: CLOSED SESSION
Pursuant to Section 2-1.02 of the Modesto Municipal Code, you are hereby authorized and empowered to call a special Closed Session meeting of the Council of the City of Modesto to be convened on
TUESDAY, SEPTEMBER 27, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Mike Hoesch v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ11304476, ADJ93185879, ADJ8580687
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Brittoni Estrella, et al. v. City of Modesto et al.
United States Eastern District
Case No.: 1:22-cv-00921
September 23, 2022 BY ORDER OF THE CHAIR
/S
__________________________
SUE ZWAHLEN, Mayor
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