Agenda packet — Ontario City Council, October 1, 2024 (part 3 of 3)

ATTACHMENT A:

Notice of Assessment for Transient Occupancy Tax
(''Notice of Assessment")

(Notice of Assessment to follow this page)

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Reviewed: RZ/12/21/2023

DECISION NO.: ZA23-039

FILE NO.: PDET23-016

DESCRIPTION: Referral to Zoning Administrator and Stay of Decision for the West Coast Inn (“Hotel”), located at 1211 North Grove Avenue , within the Neighborhood Commercial zoning district, to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(l) as to the Hotel (APN: 1047-451-25); submitted by the City of Ontario Transient Occupancy Tax License Official.

PART 1: BACKGROUND & ANALYSIS

THE CITY OF ONTARIO TRANSIENT OCCUPANCY TAX LICENSE OFFICIAL, (herein after referred to as “Applicant”) has filed a request that Zoning Administrator provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(l) as to the Hotel. Land Use Interpretation or Determination, File No. PDET23-016, as described in the subject of this Decision (herein after referred to as "Application" or "Project").

DESCRIPTION: Referral to Zoning Administrator and Stay of Decision for the West Coast Inn, located at 1211 North Grove Avenue , within the Community Commercial zoning district, to provide an interpretation or determination regarding the applicability and enforceability of Ontario Development Code (ODC) Section 5.03.250(E)(l) as to the Hotel.

ANALYSIS: Under the ODC Section 1.02.015(A), the Zoning Administrator shall have jurisdiction of, and be responsible for, the administration and application of the regulations and provisions of this Development Code. Subsequently, the ODC Table 2.01- 1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations.

The West Coast Inn (Formally known as the Grove Ave nue Motel) is located at 1211 North Grove Avenue and zoned Neighborhood Commercial. In 1987, the City of Ontario Building Department issued building permits for the construction of Motel (Known as “Grove Avenue Motel”).

The Ontario Development Code, Division 9.01 (Definitions), defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the West Coast Inn. Hotels are defined as lodging facilit ies, which offers transient accommodations at a daily rate, to the general public, and which may provide additional services, such as restaurants, meeting rooms and recreational facilities. The definitions for a Motel and Hotel both clearly state the intent for transient accommodations at a daily rate .

ODC Division 5.03, Section 5.03.250(E)(1) states that n o guestroom , for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420 ZONING ADMINISTRATOR DECISION:

LAND USE DETERMINATION

December 21, 2023
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Zoning Administrator Decision
File No. PDET23-016
December 21, 2023

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as full days. Rooms that are being rented longer than 30 days are in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate . Section 3-6.02(g) of the Ontario Municipal Code (OMC) states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days.

PART 2: RECITALS

WHEREAS, the City of Ontario has received a request for an interpretation or determination, as described in Part I, above; and

WHEREAS, Ontario Development Code Table 2.01 -1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act u pon Interpretations and Land Use Determinations; and

WHEREAS, it has been recognized that every conceivable use cannot be identified by the City of Ontario Development Code, and anticipating that new uses will evolve over time, Ontario Development Code Section 1.02.101 (Interpretations and Land Use Determinations) establishes the Zoning Administrator’s authority to review and act upon a Determination of Use, comparing and measuring a proposed use against those listed in the Development Code, which have similar impacts, functions and characteristics; and

WHEREAS, all legal prerequisites to the adoption of this Determination of Use have occurred.

PART 3: THE DECISION

NOW, THEREFORE, it is hereby found, determined, and resolved by the Zoning Administrator of the City of Ontario as follows:

(1) All facts set forth in the preceding sections of this Interpretation and Determination of Use are true and correct and are incorporated by this reference.

(2) Based upon the evidence presented, the Zoning Administrator hereby concludes as follows:

(a) The West Coast Inn is located at 1211 North Grove Avenue , within the Neighborhood Commercial zoning district. Hotels or Motels are permitted within the Neighborhood Commercial zoning district subject to approval of a Conditional Use Permit; and

(b) In 1987, the City of Ontario Building Department issued building permits for the construction of Motel (Known as “Grove Avenue Motel”); and

(c) Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the West Coast Inn; and 602
Zoning Administrator Decision
File No. PDET23-016
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(d) ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and

(e) Rooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and

(f) Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days ; and

(g) The Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and

(h) Section 3 -6.04 of the OMC provides for exemption s from the TOT under limited circumstances and pursuant to Section 3 -6.04(b) no such exemption shall be granted except upon a claim made at the time the rent is collected and made under penalty of perjury upon a form approved by the Tax Administrator.

(3) The Zoning Administrator hereby finds and determines that the project identified in this Determination of Use is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment.

(4) Based upon the findings and conclusions set forth in Parts 1, 2 and 3 above, the Zoning Administrator hereby finds and determines, File No. PDET23-016, the following:

(a) That the ODC Division 5.03, Section 5.03.250(E)(l) is applicable and enforceable to the operation of the West Coast Inn . ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate . Section 3 -6.029(g) of t he Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g).

(b) That Hotel has not applied for an exemption pursuant to Section 3 -6.04 of the OMC and therefore no such exemption would be applicable to the Hotel.

(c) That Hotel’s operations, as stipulated in the January 8 , 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

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CITY OF ONTARIO PLANNING COMMISSION/

HISTORIC PRESERVATION MEETING

MINUTES

May 28, 2024

CONTENTS PAGE

PLEDGE OF ALLEGIANCE ................................................................................................ 2

SPECIAL CEREMONIES .................................................................................................... 2

ANNOUNCEMENTS............................................................................................................ 2

PUBLIC COMMENTS .......................................................................................................... 2

CONSENT CALENDAR

A-01. Minutes of April 23, 2024 .......................................................................................... 2

PUBLIC HEARINGS

B. File No. PDA21-010 ................................................................................................. 2

C. File No. PMTT22 -022 .............................................................................................. 3

D. File No. PDEV22-017 ............................................................................................... 4

E. File No. PUD23-004 ................................................................................................. 5

F. File No. PDCA24-002 .............................................................................................. 6

G. Appeal File No. PCUP23-018 ................................................................................... 7

H. Appeal File Nos. PDET23-005, PDET23-007 PDET23-008, PDET23-009, PDET23-010, PDET23-015 AND PDET23-016 ......................................................................................... 10

MATTERS FROM THE PLANNING COMMISSION ........................................................ 12

DIRECTOR’S REPORT ........................................................................................................ 13

ADJOURNMENT .......................................................................................................... 13

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CITY OF ONTARIO PLANNING COMMISSION/

HISTORIC PRESERVATION MEETING

MINUTES

May 28, 2024

REGULAR MEETING: City Hall, 303 East B Street
Called to order by Chairperson Ricci at 6:30 PM

COMMISSIONERS

Present: Chairperson Ricci, Vice-Chairman DeDiemar, Anderson, Del Turco, Gage, Lampkin

Absent: Dean

OTHERS PRESENT: Community Development Assistant D irector Zeledon, City Attorney Guiboa, Planning Director Noh, Sustainability Manager Ruddins, Principal Planner Eoff IV, Senior Planner Ayala , Senior Planner Grahn, Associate Planner Aguilo , Associate Planner Torres, Assistant City Engineer Lee, and Planning Secretary Berendsen

PLEDGE OF ALLEGIANCE TO THE FLAG

The Pledge of Allegiance was led by Commissioner Del Turco.

ANNOUNCEMENTS

Mr. Noh stated there were no changes to the agenda.

PUBLIC COMMENTS

No person from the public wished to speak at this time.

CONSENT CALENDAR ITEMS

A-01. MINUTES APPROVAL

Planning/Historic Preservation Commission Minutes of April 23, 2024.

PLANNING COMMISSION ACTION

It was moved by DeDiemar, seconded by Lampkin, to approve the Consent Calendar as written.

Roll call vote: AYES, Anderson, DeDiemar, Del Turco, Lampkin, Ricci; NOES, none; RECUSE, none; ABSENT, Dean, Gage. The motion was carried 5-0.

PLANNING/HISTORIC COMMISSION PUBLIC HEARING ITEMS

B. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT AGREEMENT REVIEW FOR FILE NO. PDA21-010: A public hearing to consider a Development Agreement (File No.

PDA21-010) between the City of Ontario and SL Ontario Development Company, LLC to 606

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Mr. McDonald stated they either stay in the lobby area or go to the area businesses.

Ms. DeDiemar wanted to clarify that they give economic output.

Mr. McDonald stated yes.

Mr. Del Turco wanted to know if the facility would be used for Ontario residents or from other cities.

Mr. Wong stated for participants within surrounding cities.

Mr. Del Turco wanted to clarify they have vendors contracts to supply food.

Mr. Wong stated that is correct.

Mr. Del Turco wanted to clarify that they won’t be using the surrounding restaurants in the area.

Mr. Wong stated they would use the restaurants in the area.

Ms. Anderson wanted to know if the clients that attend the facility aloud to go out of the building.

Mr. Wong, during business hours they use their transportation and have supervised outings.

Ms. Anderson wanted to know what kind of food vendors they buy food from.

Mr. Wong stated they use bakeries and Chinese food and food for events is kind of a mix.

Ms. Anderson wanted to know the percentage of various ethnicities that attend.

Mr. Wong stated that the majority are Asian but will take anyone who would like to join the program.

As there was no one else wishing to speak, Chairperson Ricci closed the public testimony.

Mr. Lampkin spoke regarding the need for senior facilities and spoke regarding concerns and the characteristics of the building for the use.

PLANNING COMMISSION ACTION

It was moved by Lampkin, seconded by Anderson; to deny the Appeal of the Zoning Administrator’s decision for File No. PCUP23 -018, subject to conditions of approval . Roll call vote: AYES, Anderson, Del Turco, Lampkin; NOES, DeDiemar, Ricci ; RECUSE, none; ABSENT, Dean, Gage. The motion was carried 3-2.

H. APPEAL OF ZONING ADMINISTRATOR DECISION FOR FILE NOS. PDET23 -005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015, AND PDET23 -016:

An appeal of Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section 5.03.250(E)(l) is applicable and enforceable to the operation of the follow ing hotels and motels; 1) Hotel Hacienda (File No PDET23- 005), located at 2423 South Archibald Avenue; 2) Bright Star Motel (File No. PDET23- 005), located at 1530 West Mission Boulevard; 3) Days Inn Ontario Motel (File No.PDET23- 008, located at 1405 East 4th Street; 4) Economy Inn (File No. PDET23 -009), located at 2301 South Euclid Avenue; 5) Mayfair Inn (File No. PDET23-010), located 1120 East Holt Boulevard; 6) Sands Motel (File No.

PDET23-015), located at 1240 West Mission Boulevard and 7) and the West Coast Inn (File No.

PDET23-016), located at 1211 North Grove Avenue. The appeal is not subject to the California 607

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Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment. (APNS: 1083-071- 26, 1011-221- 15, 0108- 381-32, 1051-071- 04, 1049-141- 25, 1101-211- 03 and 1047-451-25).

Submitted by Frank A. Weiser – Attorney at Law

Mr. Zeledon introduced Andrew Lopez, the attorney representing the City for this item.

Assistant Community Development Director Zeledon presented the staff report. Mr. Lopez explained the appellant’s issues and city’s response to them. He stated that staff is recommending the Planning Commission deny the appeal of the Zoning Administrator’s decision for, File Nos. PDET23-005, PDET23-007, PDET23-008, PDET23-009, PDET23-010, PDET23-015 AND PDET23 -016, pursuant to the facts and reasons contained in the staff report and the attached Resolutions.

PUBLIC TESTIMONY

Frank Weiser explained his procedural objections regarding CEQA applying, and that this issue relates to housing and the due process clause with the TOT audit and that they were due a hearing before the Zoning Administrator. He stated the motels are grandfathered in and there are constitutional issues , and that there can ’t be contradictory ordinances. He requested they either deny the Zoning Administrator hearing or have an EIR be produced and there should be a hearing.

Mr. Lampkin wanted to clarify that Mr. Weiser believes that staff believes that CEQA doesn’t apply.

Mr. Weiser stated he believes CEQA does apply because it is a housing issue and an EIR should be done.

Mr. Lampkin asked the deputy city attorney how CEQA applies to this appeal.

Mr. Zeledon responded and stated CEQA doesn ’t apply as there are no physical change s to the environment. He clarified the TOT, and 30-day limitation was approved in 1965 and amendments have been made since then.

Mr. Weiser stated the D evelopment Code was amended in 2017 or 2018 and his clients did not receive notification and that there cannot be contradictory applications of an ordinance.

Mr. Lampkin asked the Zoning Administrator if it is his opinion that CEQA does not apply in this situation because it is not a new development.

Mr. Zeledon stated that is correct, it is not a project defined under CEQA.

Mr. Lampkin clarified that’s why Mr. Zeledon didn’ t abdicate that they comply with CEQA as it didn ’t apply.

Mr. Zeledon stated that is correct and the CEQA exemption is sited in the Zoning Administrator decision and in the Planning Commission agenda report.

Mr. Weiser stated he respectively disagreed.

Mr. Lampkin asked the attorney what his opinion is regarding the Toronto Open Space Committee vs.

Marion Counties decision in regard to property not developed.

Attorney Lopez diverted to the specifics of the case as he hasn’t been briefed on the case.

Ms. DeDiemar wanted clarification on the definition of transient. 608

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Mr. Weiser stated under the TOT it is defined as 30 days or less and these people were given a permanent exemption beyond that.

Attorney Lopez explained that Ontario Development Code does have the transient definition as written , which states hotels can’t rent longer than 30 days.

Ms. DeDiemar asked if this would be considered a lease or rent after 30 days.

Attorney Lopez stated the Zoning Administrator based the decision on the Development Code, which says longer than 30 days is not permitted.

Mr. Zeledon responded with the definition of transient within the Development Code which states a 30- day max., which is what he needed to apply for this decision.

Mr. Weiser rebutted, disagreed with Attorney Lopez.

Mr. Zeledon responded.

As there was no one else wishing to speak, Chairperson Ricci closed the public testimony.

Mr. Lampkin spoke regarding the staff addressing the issue succinctly and the issues from the appellant that didn’t apply.

Mr. Del Turco asked Mr. Zeledon if the hotels were aware of the standard.

Mr. Zeledon stated yes.

PLANNING COMMISSION ACTION

It was moved by Lampkin, seconded by Del Turco , to deny the Appeal of the Zoning Administrator’s decision for File Nos. PDET23 -005, PDET23- 007, PDET23 -008, PDET23 - 009, PDET23- 010, PDET23- 015 AND PDET23 -016. Roll call vote: AYES, Anderson, DeDiemar, Del Turco, Lampkin, Ricci; NOES, none; RECUSE, none; ABSENT, Dean, Gage.

The motion was carried 5-0.

Mr. Ricci stated that this decision can be appealed within 10 days.

Attorney Guiboa stated that there was confusion regarding the voting for Item D and that some Commissioners did not intend to deny the EIR and asked the Commission if they would like to reconsider that vote and make a motion to continue that item to the next Planning Commission meeting.

It was moved by Lampkin, seconded by Anderson, to reconsider the Item D decision and to continue that Item to the next Planning Commission meeting. Roll call vote: AYES, Anderson, DeDiemar, Del Turco, Lampkin, Ricci; NOES, none; RECUSE, none; ABSENT, Dean, Gage.

The motion was carried 5-0.

MATTERS FROM THE PLANNING COMMISSION

Old Business Reports From Subcommittees

Historic Preservation (Standing): Did not meet this month.

New Business
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RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-005) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE HOTEL HACIENDA, LOCATED AT 2425 SOUTH

ARCHIBALD AVENUE, WITHIN THE COMMUNITY COMMERCIAL
ZONING DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF— APN: 1083-071-26.

WHEREAS, Noman Patel ("Applicant") operator of the Hotel Hacienda has filed an Appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation Hotel Hacienda, File No. PDET23-005, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to the Hotel Hacienda (Formally America’s Best Value Inn) (“Hotel”), located at 2425 South Archibald Avenue, within the Community Commercial zoning district; and
WHEREAS, on April 30, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Hotel Hacienda. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on April 30, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Hotel Hacienda; and
WHEREAS, the Hotel Hacienda was approved (File No. 3472-S) by the City of Ontario in 1986 as a 55-unit Motel (known in 1986 as the Knice Inn); and WHEREAS, on November 6, 1987, the Building Department approved the construction plans for a the 55-unit motel, located at 2425 South Archibald Avenue; and WHEREAS, in 1988, the Motel was constructed; and
WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, 611
to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Hotel Hacienda; and WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

1. Appellants’ Issue No. 1: The Planning Commission was required under California Environmental Quality Act to provide an Environmental Impact Report as the issue of the applicability of the Development Code may have a negative impact on the environment.

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

The California Environmental Quality Act (CEQA) provides a process through which public agencies, the public, and project developers can evaluate a project, understand its environmental impacts, and develop measures to reduce these impacts. CEQA applies to projects that may result in a change in the environment; a full environmental review is only required where the project could result in a significant adverse impact.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
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(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Moreover, if the Planning Commission’s decision to uphold the Zoning Administrator’s decision comprises a project for CEQA analysis, it falls within the " common sense" CEQA exemption set forth in CEQA Guidelines Section 15061( b)( 3), excluding projects where "it can be seen with certainty that there is no possibility that the activity in question (interpretation or determination regarding the applicability and enforceability of the Development Code) may have a significant effect on the environment."
Additionally, the “creation of government funding mechanisms or other fiscal activities, which do not involve any commitment to any specific project. . .” are not considered a “project” under CEQA. CEQA Guidelines section 15378(B)(4).

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

5.03.250(E)(1) and were entitled to an individualized hearing under the First Amendment Petition Clause, Fourth Amendment Search and Seizure Clause, the Fifth Amendment Takings Clause, the Fourteenth Amendment Due Process Clause (Substantive and Procedural) and Equal Protection of the United States Constitution.

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-018 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-005; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the 614
Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 1: Environmental Determination and Findings. As the decision- making authority for the Project, the City Council has reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the City Council, the City Council finds as follows:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(2) This Resolution has been reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the City Council has determined that this Resolution does not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment; and (3) The determination of CEQA exemption reflects the independent judgment of the Planning Commission.

SECTION 2: Concluding Facts and Reasons. Based on the substantial evidence presented to the City Council during the above-referenced hearing, the specific findings set forth in Section 1, above, and for all the reasons stated in the staff report, the City Council hereby concludes as follows:
(1) That the ODC Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation of the Hotel Hacienda. ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a 615
period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g). (2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the April 30, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 3: City Council Action. Based upon the findings and conclusions set forth in Sections 1 and 2, above, the City Council hereby Approves to uphold the Planning Commission’s Decision to uphold the Zoning Administrator Decision herein described Application.

SECTION 4: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 5: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
616

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held October 1, 2024 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held October 1, 2024. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
617
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-007) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE BRIGHT STAR MOTEL, LOCATED AT 1530 WEST

MISSION BOULEVARD, WITHIN THE LIGHT INDUSTRIAL ZONING
DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF—APN:
1011-221-15.

WHEREAS, Purushottam Patel and Esha Smah ("Applicant") operator of the Bright Star Motel (“Hotel”) has filed an appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division

5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation Bright Star Motel, File No. PDET23-007, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to the Bright Star Motel, located at 1530 West Mission Boulevard, within the Light Industrial zoning district. The existing Bright Star Motel is a legal nonconforming use; and
WHEREAS, on January 22, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Bright Star Motel. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on January 22, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Bright Star Motel; and
WHEREAS, the City of Ontario Building Department issued building permits, between 1956 and 1962, for the construction of Motel; and WHEREAS, on November 6, 1987, the Building Department approved the construction plans for a the 55-unit motel, located at 2425 South Archibald Avenue; and WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Bright Star Motel; and
618
WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
619
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Moreover, if the Planning Commission’s decision to uphold the Zoning Administrator’s decision comprises a project for CEQA analysis, it falls within the " common sense" CEQA exemption set forth in CEQA Guidelines Section 15061( b)( 3), excluding projects where "it can be seen with certainty that there is no possibility that the activity in question (interpretation or determination regarding the applicability and enforceability of the Development Code) may have a significant effect on the environment." Additionally, the “creation of government funding mechanisms or other fiscal activities, which do not involve any commitment to any specific project. . .” are not considered a “project” under CEQA. CEQA Guidelines section15378(B)(4).

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of 620
the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-019 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-007; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
621
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 2: Concluding Facts and Reasons. Based on the substantial evidence presented to the City Council during the above-referenced hearing, the specific findings set forth in Section 1, above, and for all the reasons stated in the staff report, the City Council hereby concludes as follows:
(1) That the ODC Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation of the Bright Star Motel. ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of 622
calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g). (2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the January 22, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division

5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The City Clerk shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
623

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
624
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-008) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE DAYS INN ONTARIO MOTEL, LOCATED AT 1405 EAST 4 TH STREET, WITHIN THE NEIGHBORHOOD COMMERCIAL
ZONING DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF— APN: 0108-381-32.

WHEREAS, Kisham Patel ("Applicant") operator of the Days Inn Ontario Motel (“Hotel”) has filed an appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section

5.03.250(E)(1) is applicable and enforceable to the operation Days Inn Ontario Motel, File No. PDET23-008, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Days Inn Ontario is located at 1405 East 4th Street, within the Neighborhood Commercial zoning district. Hotels or Motels are permitted within the Neighborhood Commercial zoning district subject to approval of a Conditional Use Permit; and
WHEREAS, on April 2, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Days Inn Ontario. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on April 2, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Days Inn Ontario Motel; and
WHEREAS, in 1985, The Planning Commission approved a Conditional Use Permit (File No. 3225-CUP) to establish 53-unit Days Inn Ontario Motel (known as Youngs Motel); and
WHEREAS, in 1987, the City of Ontario Building Department issued building permits for the construction of Days Inn Ontario Motel (Known as “Youngs Motel”); and WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior 625
walkways consistent with the City approval and design layout for the Days Inn Ontario; and
WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
626
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

The Zoning Administrator has acted within his limited authority to interpret the Ontario Development Code (“ODC”). The Zoning Administrator, under Section l.02.015(A)(l) of the ODC, has jurisdiction of, and is responsible for, the administration and application of the regulations and provisions of the Development Code. The Zoning Administrator’s power is limited to interpretation of the Code as applied to a particular case. ODC § 1.02.010(B)(1). Thus, the Zoning Administrator’s power is limited to interpretation of the code and its application to a particular set of facts.
627
Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-020 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-008; and
628
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 2: Concluding Facts and Reasons. Based on the substantial evidence presented to the City Council during the above-referenced hearing, the specific findings set forth in Section 1, above, and for all the reasons stated in the staff report, the City Council hereby concludes as follows:
(1) That the ODC Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation of the Days Inn Ontario. ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the 629
Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g). (2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the April 2, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The City Clerk shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
630
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
631

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
632
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-009) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE ECONOMY INN, LOCATED AT 2301 SOUTH

EUCLID AVENUE, WITHIN THE COMMUNITY COMMERCIAL ZONING
DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF—APN:
1051-071-04.

WHEREAS, Mehesh Patel ("Applicant") operator of the Economy Inn (“Hotel”) has filed an Appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section

5.03.250(E)(1) is applicable and enforceable to the operation Economy Inn, File No.

PDET23-009, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Economy Inn is located at 2301 South Euclid Avenue, within the Community Commercial zoning district. Hotels or Motels are permitted within the Community Commercial zoning district subject to approval of a Conditional Use Permit; and
WHEREAS, on February 5, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Economy Inn. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on February 5, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Economy Inn; and
WHEREAS, in 1984, The Planning Commission approved a Conditional Use Permit (File No. 3051-CUP) to establish 47-unit Economy Inn Motel; and WHEREAS, in 1985, the City of Ontario Building Department issued building permits for the construction of the Economy Inn Motel; and WHEREAS Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Economy Inn; and 633
WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
634
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning 635
Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-021 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-009; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the 636
Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 2: Concluding Facts and Reasons. Based on the substantial evidence presented to the City Council during the above-referenced hearing, the specific findings set forth in Section 1, above, and for all the reasons stated in the staff report, the City Council hereby concludes as follows:
(1) That the ODC Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation of the Economy Inn. ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason 637
of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g). (2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the February 5, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division

5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
638
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
639

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
640
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-010) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE MAYFAIR INN, LOCATED AT 1120 EAST HOLT

BOULEVARD, WITHIN THE INDUSTRIAL PARK ZONING DISTRICT,
AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 1049-141-25.

WHEREAS, Dilip Payaram ("Applicant") operator of the Mayfair Inn (“Hotel”) has filed an appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section

5.03.250(E)(1) is applicable and enforceable to the operation Mayfair Inn, File No.

PDET23-010, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Mayfair Inn (formally known as the Knights Inn) is located at 1120 East Holt Boulevard, within the Industrial Park zoning district. Hotels or Motels are not permitted within the Industrial Park zoning district. The existing Mayfair Inn is a legal nonconforming use; and
WHEREAS, on April 16, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Mayfiar Inn. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on April 16, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Mayfair Inn; and
WHEREAS, in 1985, the Planning Commission approved a Development Plan (File No. 3294-S) for the construction of 37-unit Mayfair Inn motel; and WHEREAS, in 1987, City of Ontario Building Department issued permits for the construction of Mayfair Motel; and
WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Mayfair Inn; and 641
WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State 642
CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which 643
imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-022 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-010; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
644
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as 645
full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g).
(2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the April 16, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
646
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
647

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
648
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-015) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE SANDS MOTEL, LOCATED AT 1240 WEST

MISSION BOULEVARD, WITHIN THE LIGHT INDUSTRIAL ZONING
DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF—APN:
1101-211-03.

WHEREAS, Purushottam Patel and Andy Patel ("Applicant") operator of the Sands Motel (“Hotel”) has filed an Appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division

5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation Sands Motel, File No. PDET23-015, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Sands Motel is located at 1240 West Mission Boulevard, within the Light Industrial zoning district. Hotels or Motels are not permitted within the Light Industrial zoning district. The existing Sands Motel is a legal nonconforming use; and WHEREAS, on January 1, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the Sands Motel. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on January 1, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to Sands Motel; and
WHEREAS The City of Ontario Building Department issued permits for the construction of Sands Motel in the 1956; and
WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the Sands Mote; and WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
649
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will 650
result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator 651
to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-023 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-015; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
652
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as 653
full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g).
(2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the January 1, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division

5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The City Clerk shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
654
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
655

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
656
RESOLUTION NO. ________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO UPHOLD THE PLANNING COMMISSION’S DECISION TO UPHOLD THE ZONING ADMINISTRATOR’S INTERPRETATION AND DETERMINATION DECISION (FILE NO. PDET23-016) THAT THE
ONTARIO DEVELOPMENT CODE DIVISION 5.03, SECTION

5.03.250(E)(1) IS APPLICABLE AND ENFORCEABLE TO THE
OPERATION TO THE WEST COAST INN, LOCATED AT 1211 NORTH

GROVE AVENUE, WITHIN THE NEIGHBORHOOD COMMERCIAL
ZONING DISTRICT, AND MAKING FINDINGS IN SUPPORT THEREOF— APN: 1047-451-25.

WHEREAS, Anil Patel ("Applicant") operator of the West Coast Inn (“Hotel”) has filed an Appeal of Application of the Zoning Administrators interpretation and determination decision that the Ontario Development Code Division 5.03, Section

5.03.250(E)(1) is applicable and enforceable to the operation West Coast Inn, File No.

PDET23-016, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the West Coast Inn is located at 1211 North Grove Avenue, within the Neighborhood Commercial zoning district. Hotels or Motels are permitted within the Neighborhood Commercial zoning district subject to approval of a Conditional Use Permit; and
WHEREAS, on January 8, 2021, Executive Director of Finance Armen Harkalyan ("License Official") sitting as the Transient Occupancy Tax License Official under Chapter 6 of Title 3 of the Ontario Municipal Code, held a hearing for the operator of the West Coast Inn. The purpose of the hearing was to allow the operators the opportunity to rebut the amount of tax assessed by the License Official and offer evidence why the specified tax, interest, and penalties are incorrect; and
WHEREAS, on January 8, 2021, the License Official issued a Stay of Decision and referred the matter to the Zoning Administrator to provide an interpretation or determination regarding the applicability and enforceability of Section 5.03.250(E)(1) as to West Coast Inn; and
WHEREAS in 1987, the City of Ontario Building Department issued building permits for the construction of West Coast Inn Motel (known as “Grove Avenue Motel”); and
WHEREAS, Division 9.01 (Definitions) of the Ontario Development Code (ODC) defines a Motel as a lodging facility that offers transient accommodations at a daily rate, to the general public, which are predominantly accessed from parking lots or exterior walkways consistent with the City approval and design layout for the West Coast Inn; and 657
WHEREAS, ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days; and
WHEREAS, guestrooms that are being rented longer than 30 days is in violation of ODC Division 5.03, Section 5.03.250(E)(1) and not consistent with the intent of Motel or Hotel to provide transient accommodations at a daily rate; and WHEREAS, Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days; and
WHEREAS, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g); and
WHEREAS, in response to the Appellants basis for the appeal staff has prepared a response to each of the items. Below is the Appellants statement and staff’s response:

Staff Response: Appellants’ argument is flawed because the TOT ordinance was not a “project” under CEQA requiring an Environmental Impact Report.

As part of the Planning Commission’s decision to uphold the Zoning Administrator’s decision, the Planning Commission reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Planning Commission, the Planning Commission found that:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(2) This Resolutions were reviewed with respect to the applicability of the California Environmental Quality Act of 1970 ( "CEQA "), and the State 658
CEQA Guidelines, and the Planning Commission determined that the Resolutions did not constitute a " project" within the meaning of CEQA Guidelines Section 15060( c)( 2) because there is no potential that it will result in a direct or reasonably foreseeable indirect physical change in the environment and CEQA Guidelines Section 15378 because it has no potential for either a direct physical change to the environment, or a reasonably foreseeable indirect physical change in the environment.

Here, there is no physical project undertaken. The TOT’s effect is fiscal. Thus, the TOT ordinance is a funding mechanism is not a “project” and an EIR is not required under CEQA.

2. Appellants’ Issue No. 2: Subject hotels never received notice of the zoning change and adoption of Ontario Development Code (“ODC”) Division 5.03 Section

Staff Response: Appellant’s arguments introduce irrelevant legal arguments that go beyond the limited scope of the Zoning Administrator’s decisions.

Appellants’ arguments introduce irrelevant legal arguments that do not challenge the underlying factual findings and analysis of each of the decisions by the Zoning Administrator. The Appellants take issue with the implementation of legislation of the Ontario Development Code. For reference, Ordinance No. 1569, which 659
imposed the TOT was passed in 1965 – fifty-nine years ago. These issues are beyond the scope of the Zoning Administrator’s role. For the Zoning Administrator to consider these legal issues would exceed the power granted by the Development Code.

The Zoning Administrator has acted within his limited authority to interpret the Development Code as to Appellants’ claims and found that their hotels are subject to ODC chapter 5.03.250(E)(1). Appellants do not challenge the factual findings made by the Zoning Administrator. Thus, the appeal should be denied, and the Zoning Administrator’s decisions upheld; and
WHEREAS, Ontario Development Code Table 2.01-1 (Review Matrix) establishes that the Zoning Administrator has the responsibility and authority to review and act upon Interpretations and Land Use Determinations; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act, commencing with Public Resources Code Section 21000 (hereinafter referred to as "CEQA"); and
WHEREAS, the Project is not subject to the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, pursuant to Section 15060(c)(2) of the State CEQA Guidelines, as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject appeal Application; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on May 28, 2024, the Planning Commission of the City of Ontario conducted a hearing to consider the Appeal and concluded said hearing on that date, voting to issue Resolution No. PC24-024 upholding the Zoning Administrator’s decision to deny the Appeal; and
WHEREAS, on June 6, 2024, Frank A. Weiser (“Appellant Representative”), submitted an Appeal of the Planning Commission’s decision to uphold the Zoning Administrator’s decision and deny the Appeal of the Land Use Determination, File No.

PDET23-016; and
WHEREAS, on September 3, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date and continued the item to the October 1, 2024 City Council meeting; and
660
WHEREAS, on October 1, 2024, the City Council of the City of Ontario conducted a hearing to consider the Appeal of the Planning Commission’s denial of the Application, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the City Council of the City of Ontario, as follows:

SECTION 2: Concluding Facts and Reasons. Based on the substantial evidence presented to the City Council during the above-referenced hearing, the specific findings set forth in Section 1, above, and for all the reasons stated in the staff report, the City Council hereby concludes as follows:
(1) That the ODC Division 5.03, Section 5.03.250(E)(1) is applicable and enforceable to the operation of the West Coast Inn. ODC Division 5.03, Section 5.03.250(E)(1) states that no guestroom, for Motel or Hotel, shall be rented for a period exceeding 30 consecutive calendar days, counting portions of calendar days as full days. The intent of a Motel or Hotel to provide transient accommodations at a daily rate. Section 3-6.029(g) of the Ontario Municipal Code (OMC) clearly states that “Transient” shall mean any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license, or other agreement for a period of thirty (30) consecutive calendar days or less, counting portions of 661
calendar days as full days. Therefore, the Transient Occupancy Tax shall be imposed on “transients” as defined the OMC Section 3-6.029(g). (2) That Hotel has not applied for an exemption pursuant to Section 3-6.04 of the OMC and therefore no such exemption would be applicable to the Hotel. (3) That Hotel’s operations, as stipulated in the January 8, 2021 hearing, allowing guests to stay longer than 30 days is in violation of ODC Division

5.03, Section 5.03.250(E)(1) and in violation of all applicable zoning and use permits.

SECTION 5: Certification to Adoption. The City Clerk shall certify to the adoption of the Resolution.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
662

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
663
Department: Records Management
Prepared By: Peak Approver
Staff Member Presenting: Claudia Y. Isbell,
Assistant City Clerk
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT:

AN ORDINANCE AMENDING SECTION 2-1.203 OF THE ONTARIO MUNICIPAL

CODE RELATING TO SALARY COMPENSATION FOR THE CITY COUNCIL

CITY OF ONTARIO
Agenda Report
October
1, 2024
SECTION:

ADMINISTRATIVE

REPORTS/DISCUSSION/ACTION

RECOMMENDATION:

That the City Council introduce and waive further reading of Ordinance Amending Section 2-1.203 of the Ontario Municipal Code relating to Salary Compensation for the Mayor and the City Council.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The compensation adjustments for the City Council members will be effective after the November 5, 2024 election, and will increase General Fund personnel appropriations by approximately $6,760 per Councilmember, for a total of $27,040 for the remainder of Fiscal Year 2024-25. Additional appropriations will be added to the General Fund at a future quarterly budget update, as necessary.

BACKGROUND & ANALYSIS:

Senate Bill 329 amends Government Code Section 36516 and authorizes a City Council to enact an ordinance to provide each member of the City Council a salary based upon the population of the city, as speciﬁed. The bill allows for an increase up to $2,550 for cities with a population from 150,000 to 250,000.

The bill authorizes the salary of council members to be increased beyond the speciﬁed maximums to an amount not exceeding the greater of either 5% for each calendar year from the operative date of the last adjustment of the salary in eﬀect when the Ordinance or amendment is enacted, or an amount equal to inﬂation since January 1, 2024, based upon the California Consumer Price Index, which shall not exceed 10% for each calendar year. The bill requires the City Council to consider the adoption of an ordinance to increase council member compensation in open session during at least two regular meetings of the City Council.

As such, Staﬀ recommends that the City Council introduce the Ordinance and waive further reading of the Ordinance to bring City Council compensation to the amount of $2,550. 664
ORDINANCE NO. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING SECTION 2-1.203 OF THE ONTARIO

MUNICIPAL CODE RELATING TO SALARY COMPENSATION FOR THE
CITY COUNCIL.

WHEREAS, the California State Governor signed SB 329 into law on June 29, 2023, and
WHEREAS, the new law amends Government Code Section 36516, allowing general law cities to adjust council member salaries for inflation, and WHEREAS, the new law allows for cities over 150,000 up to and including 250,000 in population, up to and including [a salary of] two thousand five hundred and fifty dollars ($2,550) per month, and
WHEREAS, the City Council’s current salary is below the newly established salary, and
WHEREAS, the new salary for City Council would be effective on November 5, 2024, and
WHEREAS, the City Council desires to modify the salary compensation for all City Council Members.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario as follows:

SECTION 1. Findings. The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. Section 2-1.203 of Chapter 1 to Title 2 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Sec. 2-1.203. Payment.
(a) Each member of the Council shall receive as salary the sum of Two-Thousand-Five-Hundred-Fifty and Dollars ($2,550) per month. (b) Said salaries shall be payable from and after the operative date of this section at the same time and in the same manner as salaries are paid to other officers and employees of the City.

SECTION 3. Pursuant to Section 36516.5 of the California Government Code, the adjustments to City Council Member salary set forth herein shall become effective 665
upon the completion and installation of the new members of the City Council subsequent to November 5, 2024, pursuant to California Elections Code Section 10262.

SECTION 4. CEQA. The City Council hereby finds that adoption of this Ordinance is not a "project" under the California Environmental Quality Act because the Ordinance does not involve any commitment to a specific project which may result in a potentially significant physical impact on the environment, as contemplated by Title 14, California Code of Regulations, Section 15378(b)(4).

SECTION 5. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings and this Ordinance are based are located at the City Clerk's office located at 303 East "B" Street, Ontario, CA 91764. The custodian of these records is the City Clerk.

SECTION 6. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 7. Effective Date. This Ordinance shall become effective thirty (30) days following its adoption.

SECTION 8. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this _____ day of __________ 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
666
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
667

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2024 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
668
Department: Financial Services
Prepared By: Jennifer Schaefer
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Doreen Nunes
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 21
SUBJECT:

A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF AN

AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE ONTARIO PUBLIC

FINANCING AUTHORITY AND THE CITY OF ONTARIO

CITY OF ONTARIO
Agenda Report
October
1, 2024
SECTION:

ADMINISTRATIVE

REPORTS/DISCUSSION/ACTION

RECOMMENDATION:

That the City Council and the Ontario Public Financing Authority take the following actions:

A
.

The City Council consider and adopt a Resolution authorizing the execution and delivery of Amendment No. 1 to the Lease Agreement; and
B
.

The Ontario Public Financing Authority consider and adopt a Resolution authorizing the execution and delivery of Amendment No. 1 to the Lease Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT:

There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

The City of Ontario ("City") and the Ontario Public Financing Authority ("Authority") entered into a Lease Agreement on March 1, 2023, under which the City leased to the Authority property ("Leased Premises") for the purpose of securing payments made with respect to the Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A. The Authority and the City wish to release a portion of the Leased Premises surrounding Lot A to the Ontario Sports Arena and a portion of the frontage of the Sports Arena consisting of approximately ﬁve acres ("Released Property") for future development and improvement to the surrounding area. The Authority and the City wish to substitute property consisting of approximately ﬁve acres located at the corner of East Fourth Street and Via Piemonte ("Substitute Property") as Leased Premises under the Lease Agreement. The City has determined that the fair rental value of the Substitute Property, together with the remaining Leased Premises is greater than the payments remaining on the bonds. The security for payment of the bonds will not be impaired, nor will the interests of the bondholders be adversely affected.
669

The City and the Authority have determined that it is in its best interest to amend the description of the Leased Property contained in the Lease Agreement by removing the Released Property and replacing it with the Substitute Property.
670
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF
AMENDMENT NO. 1 TO LEASE AGREEMENT.

WHEREAS, the Ontario Public Financing Authority (the "Authority") is a joint exercise of powers authority formed pursuant to a Joint Exercise of Powers Agreement by and between the City of Ontario (the "City") and the Ontario Housing Authority and is authorized under said Agreement and under the laws of the State of California to finance the acquisition and construction of public capital improvements for the City; and WHEREAS, the Authority has caused to be delivered its $100,000,000 Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A (the "Bonds") for the purpose of financing the acquisition of real property and construction and installation of public improvements throughout the City (the “Project”) which Bonds are payable from lease payments to be paid to the Authority by the City pursuant to a Lease Agreement dated as of March 1, 2023 relating to the Project (the “Lease Agreement”); and
WHEREAS, the City Council wishes to release a portion of the Leased Premises surrounding Lot A to the Ontario Sports Arena and a portion of the frontage of the Sports Arena consisting of approximately 5 acres (the “Released Property”) for future development and improvement to the surrounding area; and WHEREAS, the City Council wishes to substitute property consisting of land located at the corner of E. Fourth Street and Via Piemonte and consisting of approximately 5 acres (the “Substitute Property”) as Leased Premises under the Lease Agreement; and
WHEREAS, the City Council has determined to release (the “Released Property from the Leased Premises and replace it with the Substitute Property under the Leased Premises; and
WHEREAS, under the terms of the Lease Agreement, the Original Purchaser, as defined in the Lease Agreement, of the Bonds, Bank of America, N.A., shall have provided its consent to any amendment before such amendment shall become effective; and
WHEREAS, the City and Authority will release and substitute the Leased Premises pursuant to the Lease Agreement upon the written consent of the Original Purchaser.

NOW THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED that the City Council of the City of Ontario as follows:

Section 1. Findings and Determinations. The City Council finds and determines that the above recitals are true and correct and that the value of real 671
property together with an assessment of value of improvements exceeds the amount of the outstanding Bonds. The fair rental value of the Substitute Property, together with the remaining Leased Premises is greater than the payments remaining on the Bonds.

Section 2. Approval of Amendments. The City Council hereby approves the Amendment No. 1 to Lease Agreement in substantially the form on file with the City Clerk, together with such additions thereto and changes therein as Bond Counsel shall deem necessary, desirable or appropriate, the execution of which by the Mayor, the Mayor Pro Tem, the City Manager or the Executive Director of Finance shall be conclusive evidence of the approval of any such additions and changes. The Mayor, the Mayor Pro Tem, the City Manager or the Executive Director of Finance is hereby authorized and directed to execute, and the City Clerk is hereby authorized and directed to attest and affix the seal of the City to, the final forms of each of the above-mentioned documents for and in the name and on behalf of the City.

Section 3. Official Actions. The Mayor, the Mayor Pro Tem, the City Manager, the Executive Director of Finance, the City Clerk and any and all other officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions other documents, which they, or any of them, may deem necessary or advisable in order to consummate the transactions as described herein.

Section 4. Effective Date. This Resolution shall take effect from and after the date of its passage and adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
672
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
673

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
674
RESOLUTION NO. ______

A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ONTARIO

PUBLIC FINANCING AUTHORITY OF THE CITY OF ONTARIO,

CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF
AMENDMENT NO. 1 TO LEASE AGREEMENT.

WHEREAS, the Ontario Public Financing Authority (the “Authority”) is a joint exercise of powers authority formed pursuant to a Joint Exercise of Powers Agreement by and between the City of Ontario (the “City”) and the Ontario Housing Authority and is authorized under said Agreement and under the laws of the State of California to finance the acquisition and construction of public capital improvements for the City; and WHEREAS, the Authority has caused to be delivered its $100,000,000 Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A (the “Bonds”) for the purpose of financing the acquisition of real property and construction and installation of public improvements throughout the City (the “Project”) which Bonds are payable from lease payments to be paid to the Authority by the City pursuant to a Lease Agreement dated as of March 1, 2023, relating to the Project (the “Lease Agreement”); and
WHEREAS, the Authority wishes to release a portion of the Leased Premises surrounding Lot A to the Ontario Sports Arena and a portion of the frontage of the Sports Arena consisting of approximately 5 acres (the “Released Property”) for future development and improvement to the surrounding area; and WHEREAS, the Authority wishes to substitute property consisting of land located at the corner of E. Fourth Street and Via Piemonte and approximately 5 acres (the “Substitute Property”) as Leased Premises under the Lease Agreement; and WHEREAS, the Authority has determined to release the Released Property from the Leased Premises and replace it with the Substitute Property under the Leased Premises; and
WHEREAS, under the terms of the Lease Agreement, the Original Purchaser, as defined in the Lease Agreement, of the Bonds, Bank of America, N.A., shall have provided its consent to any amendment before such amendment shall become effective; and
WHEREAS, the City and Authority will release and substitute the Leased Premises pursuant to the Lease Agreement upon receipt of the written consent of the Original Purchaser.

NOW THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED that the Board of the Ontario Public Financing Authority as follows:
675
SECTION 1. Findings and Determinations. The Board of the Authority finds and determines that the above recitals are true and correct and that the value of the remaining Leased Premises under the Lease Agreement will be equal to or in excess of the remaining lease payments to be made under the Lease Agreement.

SECTION 2. Approval of Amendments. The Board of the Authority hereby approves the Amendment No. 1 to Lease Agreement in the form on file with the Secretary, together with such additions thereto and changes therein as Counsel to the City shall deem necessary, desirable or appropriate, the execution of which by the Chair, the Vice-Chair, the Executive Director, the Treasurer shall be conclusive evidence of the approval of any such additions and changes.

SECTION 3. Official Actions. The Chair, the Vice-Chair, the Executive Director, the Treasurer, and the Secretary, and the and any and all other officers of the Authority are hereby authorized and directed, for and in the name and on behalf of the Authority, to do any and all things and take any and all actions other documents, which they, or any of them, may deem necessary or advisable in order to consummate the transactions as described herein.

SECTION 4. Effective Date. This Resolution shall take effect from and after the date of its passage and adoption.

The Secretary of the Ontario Public Financing Authority shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 1st day of October 2024. _____________________________________
PAUL S. LEON, CHAIRMAN
ATTEST:
______________________________________

SHEILA MAUTZ, AUTHORITY SECRETARY
APPROVED AS TO FORM:
_______________________________________

AUTHORITY COUNSEL
676

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, Secretary of the Ontario Public Financing Authority, DO HEREBY CERTIFY that the foregoing Resolution No. OPFA- was duly passed and adopted by the Board Members of the Ontario Public Financing Authority at their regular meeting held October 1, 2024, by the following roll call vote, to wit:

AYES: BOARD MEMBERS:

NOES: BOARD MEMBERS:

ABSENT: BOARD MEMBERS:
______________________________________

SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
The foregoing is the original of Resolution No. OPFA duly passed and adopted by the Ontario Public Financing Authority at their regular meeting held October 1, 2024. _____________________________________

SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
677
09960.00000\42710599.1

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

Best Best & Krieger LLP
3390 University Avenue, 5th Floor
Riverside, California 92501
Attention: Kim A. Byrens, Esq.
(Space above for Recorder’s Use)
AM
ENDMENT NO. 1 TO

LEASE AGREEMENT
D
ated as of October 1, 2024
by a
nd between
ONT

ARIO PUBLIC FINANCING AUTHORITY
an
d
C

ITY OF ONTARIO
(Exempt from filing fee pursuant to
Government Code Section 6103)
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09960.00000\42710599.1

TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS AND EXHIBITS
Section 1.1 Definitions........................................................................................................ 2

ARTICLE II

REPRESENTATIONS, OF THE AUTHORITY
Section 2.1 Representations of the City .............................................................................. 2

ARTICLE III

AMENDMENT TO LEASE AGREEMENT
Section 3.1 Amendment to Leased Property Description ................................................... 2

ARTICLE IV

MISCELLANEOUS
Section 4.1 Severability ...................................................................................................... 2 Section 4.2 Execution in Counterparts................................................................................ 2 Section 4.3 Applicable Law ................................................................................................ 2

EXHIBIT A – AMENDED AND RESTATED LEASED PROPERTY .................................. A-1 679
09960.00000\42710599.1

1 AMENDMENT NO. 1 TO

LEASE AGREEMENT
THIS AMENDMENT NO. 1 TO LEASE AGREEMENT, made as of October 1, 2024, is entered into by and between ONTARIO PUBLIC FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California, as lessor (the “Authority”) and the CITY OF ONTARIO, a municipal corporation, duly organized and existing under and by virtue of the laws of said state, as lessee (the “City”).

W I T N E S S E T H
WHEREAS, the City and the Authority have previously entered into a Lease Agreement dated as of March 1, 2023 (the “Lease Agreement”), a memorandum of which was recorded as Document No. 2023-0065791 in the Official Records of the San Bernardino County Recor der’s Office, under which the City leased to the Authority the property set forth therein and described in Exhibit A thereto (the “Leased Premises”) for the purpose of securing payments made with respect to the $100,000,000 Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A (the “Bonds”), which were issued pursuant to a Indenture of Trust (the “Indenture”) dated as of March 1, 2023, by and between the Ontario Finance Authority and Zions Bancorporation, National Association; and
WHEREAS, the Authority and the City wish to release a portion of the Leased Premises surrounding Lot A to the Ontario Sports Arena and a portion of the frontage of the Sports Arena consisting of approximately ___ acres (the “Released Property”) for future development and improvement to the surrounding area; and
WHEREAS, the Authority and the City wish to substitute property consisting of land located at the [Southwest/Southeast corner of E. Fourth Street and Via Piemonte] and approximately__ acres (the “Substitute Property”) as Leased Premises under the Lease Agreement; and
WHEREAS, the City and the Authority have determined that it is in its best interests to amend the Lease Agreement to remove the Released Property from the description of the Leased Property contained in the Lease Agreement by amending and restating Exhibit A and replacing such Exhibit A with the description of the Substitute Property shown in Exhibit A attached hereto and by this reference herein incorporated; and
WHEREAS, under the terms of the Lease Agreement, the Original Purchaser, as defined in the Lease Agreement, of the Bonds, Bank of America, N.A., shall have provided its consent to any amendment before such amendment shall become effective; and WHEREAS, the City finds that the security for payment of the Bonds will not be impaired, nor will the interests of the Holders be adversely effected; and NOW, THEREFORE, in consideration of the above premises and of the mutual covenants hereinafter contained and for other good and valuable consideration, the parties hereto agree as follows:
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09960.00000\42710599.1

2 ARTICLE I

DEFINITIONS AND EXHIBITS
Section 1.1 Definitions. Unless the context otherwise requires, capitalized terms used herein shall have the meanings given to such terms in the Lease Agreement and the Indenture.

ARTICLE II

REPRESENTATIONS, OF THE AUTHORITY
Section 2.1 Representations of the City . The City represents, covenants and warrants to the Authority as follows:
(a) D ue Organization and Existence. The City is a duly organized and validly existing municipal corporation under the laws of the State of California. (b) N o Default . No Event of Default has occurred under the Lease Agreement and no event has occurred which, with the passing of time or the giving of notice, would constitute an Event of Default under the Lease Agreement.

ARTICLE III

AMENDMENT TO LEASE AGREEMENT
Section 3.1 Amendment to Leased Property Description. The Lease Agreement is hereby amended by amending and restating Exhibit A of each respective agreement and revising said exhibit with the description of property described in Exhibit A hereto.

ARTICLE IV

MISCELLANEOUS
Section 4.1 Severability. In the event any provision of this Amendment No. 1 to Lease Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof.

Section 4.2 E xecution in Counterparts. This Amendment No. 1 to Lease Agreement may be executed in several counterparts, each of which shall be original and all of which shall constitute but one and the same instrument.

Section 4.3 A
pplicable Law . This Amendment No. 1 to Lease Agreement shall be governed and construed in accordance with the laws of the State of California. 681
09960.00000\42710599.1

3 IN WITNESS WHEREOF, the Authority has caused this Amendment No. 1 to Lease Agreement to be executed in its corporate name by its duly authorized officer and sealed with its corporate seal; and the City has caused this Lease to be executed in its name by its duly authorized officers, as of the date first above written.

CITY OF ONTARIO, as Lessee

By: _______________________________________
City Manager
(S E A L)
ATTEST:

Clerk

ONTARIO PUBLIC FINANCING AUTHORITY,
as Lessor

By: _______________________________________
Executive Director
ATTEST:

Secretary
CONSENTED TO BY:

BANK OF AMERICA, N.A., as Purchaser

By:

Authorized Representative

682
09960.00000\42710599.1

4 STATE OF CALIFORNIA )
) ss

COUNTY OF SAN BERNARDINO )
On ___________________, 2024, before me, ___________________________, a Notary Public, personally appeared _______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature _____________________________ (Seal)

683
09960.00000\42710599.1

5 STATE OF CALIFORNIA )
) ss

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature _____________________________ (Seal)

684
09960.00000\42710599.1

1 EXHIBIT A

AMENDED AND RESTATED

LEASED PROPERTY

(SEE FOLLOWING PAGES)
685
46700.50044\42734468.1

Best Best & Krieger LLP | 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502 Phone: (951) 686-1450 | Fax: (951) 686-3083 | www.bbklaw.com Memorandum
To: Honorable Mayor And Members Of The City Council Of The City Of Ontario And Members Of The Ontario Public Financing Authority

From: Best Best & Krieger LLP, Bond Counsel
Date: October 1, 2024
Re: Release And Substitution Of Property Relating To Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A

The City of Ontario has previously financed the acquisition of property and other public improvements with the proceeds of the Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2024 Series A (the “2023 Bonds”). The leased asset under the lea se agreement relating to the 2023 Bonds is the Toyota Sports Arena and the surrounding property and parking lots. The City is engaging vendors to develop the sports arena complex and entertainment zone on certain property surrounding the sports arena. The City will need to protect the interests of the purchaser of the 2023 Bonds, Bank of America, from unwanted encumbrances on the property that is the subject of the lease agreement for the 2023 Bonds. To accomplish the goal of protecting the owner of the 2023 Bonds and allowing the vendors to assert their interests in the development of the sports arena area, it is necessary to release from the lien of the 2023 Bonds certain properties adjacent to the sports arena and to substitute those properties with ot her property of equivalent value.
686
46700.50044\42734468.1

- 2 -
Best Best & Krieger LLP
Accompanying this memorandum are approving resolutions of the City and the Ontario Public Financing Authority which approve the release and substitution of the property along with the following document:

1. Amendment No. 1 to Lease Agreement, by and between the City and the Ontario Public Financing Authority. This agreement provides for the release of certain property and the substitution of additional property with an equivalent value.

Each resolution requires that the consent of the owner of the 2023 Bonds is required to effect the amendment. Additionally, each resolution authorizes the officers of the City and Authority to provide such other documents and certificates to effectuate the release and substitution of the property.

Should the City Council and the governing board of the Ontario Public Financing Authority wish to proceed with the release and substitution of the property, the accompanying resolutions should be considered for adoption.
687
46700.50044\42734468.1
Best Best & Krieger LLP | 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502 Phone: (951) 686-1450 | Fax: (951) 686-3083 | www.bbklaw.com Memorandum
To: Honorable Mayor And Members Of The City Council Of The City Of Ontario And Members Of The Ontario Public Financing Authority
From: Best Best & Krieger LLP, Bond Counsel
Date: October 1, 2024
Re: Release And Substitution Of Property Relating To Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2023 Series A
The City of Ontario has previously financed the acquisition of property and other public improvements with the proceeds of the Ontario Public Financing Authority Taxable Lease Revenue Bonds, 2024 Series A (the “2023 Bonds”). The leased asset under the lea se agreement relating to the 2023 Bonds is the Toyota Sports Arena and the surrounding property and parking lots. The City is engaging vendors to develop the sports arena complex and entertainment zone on certain property surrounding the sports arena. The City will need to protect the interests of the purchaser of the 2023 Bonds, Bank of America, from unwanted encumbrances on the property that is the subject of the lease agreement for the 2023 Bonds. To accomplish the goal of protecting the owner of the 2023 Bonds and allowing the vendors to assert their interests in the development of the sports arena area, it is necessary to release from the lien of the 2023 Bonds certain properties adjacent to the sports arena and to substitute those properties with ot her property of equivalent value.
688
46700.50044\42734468.1
- 2 -
Best Best & Krieger LLP
Accompanying this memorandum are approving resolutions of the City and the Ontario Public Financing Authority which approve the release and substitution of the property along with the following document:

Ontario City CouncilOctober 1, 2024

Ontario City Council
October 1, 2024