March 19, 2024, Item #5
DATE:
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Summary:
AGENDA RE PQ RT City of Poway
March 19, 2024
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
Alan Fenstermacher, City Attorney
[email protected]
CITY COUNCIL
Amendments to Chapters 2.21, 13.12, 16.10, 17.02, 17.40, 17.46, 17.47, 17.48 and
17.50 of the Poway Municipal Code and the Master Fee Schedule Regarding Rehearing Procedures and Public Noticing
The City Attorney's Office, in conjunction with City staff, has been reviewing the Poway Municipal Code ("PMC") for needed updates, and has periodically brought proposed amendments to the City Council.
The proposed Ordinance (Attachment A) would amend the PMC to eliminate the City's rehearing process for matters already heard by the City Council, and require project applicants to (1) mail a notice of public hearing to both property owners and occupants of properties within 500 feet of certain projects, and (2) bear all costs of doing so. The proposed Resolution (Attachment B) would amend the City's Master Fee Schedule to shift all costs incurred in connection with delivering the required public notices to the project applicant.
Recommended Action:
It is recommended the City Council introduce the attached Ordinance (Attachment A) for first reading by title only, waive further reading and schedule the adoption of the Ordinance for the April 2, 2024 Regular City Council meeting, and adopt the Resolution (Attachment B).
Discussion:
As part of staffs periodic analysis of the PMC, it is recommending eliminating the City Council rehearing process, and updating provisions regarding public notices to conform to current practices, and increasing cost recovery.
First, with respect to the rehearing process, it is only available where "new and different evidence not available at the previous hearing" is discovered within 10 days of the relevant City Council hearing/decision. It is very unlikely that any such evidence would ever be discovered within 10 days of a City Council decision, and also unlikely that the very same City Council would reverse course on a decision that it just made. Indeed, there have been very few requests for a rehearing submitted in since the rehearing procedure was added to the PMC in 1998 (Ordinance No. 492), and City staff is 1 of9
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not aware of any such requests that have been granted. Thus, City staff believes that the rehearing process is not an efficient use of City resources or the City Council’s time. Nothing about the proposed PMC amendment would change any aggrieved party’s ability to (1) appeal any decision made by City staff or any inferior City body to the City Council (see, PMC Ch. 2.20) or (2) challenge a decision by the City Council in Superior Court.
Second, the proposed amendments to the PMC and Master Fee Schedule relating to noticing aim to (1) ensure all potentially interested parties are notified of new development projects, and (2) avoid spending taxpayer resources in support of entirely private development projects.
By way of background, the PMC currently requires that a notice of certain public hearings be sent to all owners of property located within 500 feet of property subject to that hearing. ( See, PMC §§
17.46.050 [zone changes]; 17.48040 [conditional use permits]; 17.50.040 [variances]; 17.47.070(B) [specific plan adoption and amendments]; 17.53.021 (B) [development agreements]; 16.10.020 (B) [tentative subdivision maps]; 16.14.050(A) [boundary adjustments] ) This exceeds the requirements of state law, which only mandate notice to properties within 300 feet of the property subject to the public hearing.
Following City Council direction, in recent years, City staff has also provided notice to all occupants of properties within 500 feet, in addition to property owners . This again exceeds the requirements of state law, which only mandates that notice be provided to property owners. The City uses a third party consultant for this service, and pays all costs associated therewith. In addition to all costs associated with notifying occupants, the City pays for postage for the mailed public notices that are sent to property owners, and spends City staff time stuffing envelopes and undertaking related tasks.
The proposed Ordinance and Resolution would (1) codify the requirement to provide public notice to occupants of properties whenever the PMC otherwise requires notification to property owners, and (2) shift all costs from the City associated with the required noticing to the project applicant.
Environmental Review:
The proposed Ordinance is not a “project” subject to the California Environmental Quality Act (“CEQA”).
Fiscal Impact:
The Ordinance will result in cost savings by eliminating an inefficient process that utilizes City resources, and the Resolution will result in cost savings through increased cost recovery.
Public Notification:
A Notice of Public Hearing was published in the Poway News Chieftain on Thursday, March 7, 2024, and Thursday, March 14, 2024.
Attachments:
A. Proposed Ordinance
B. Resolution
March 19, 2024, Item #5
March 19, 2024, Item #5
Reviewed/Approved By:
Wen~erman
Assistant City Manager
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Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c~'
City Manager
March 19, 2024, Item #5
ATTACHMENT A
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING CHAPTERS 2.21, 13.12,
16.10, 17.40, 17.46, 17.47, 17.48 AND 17.50 OF THE POWAY
MUNICIPAL CODE TO ELIMINATE THE REHEARING
PROCEDURE AND AMENDING CHAPTER 17.02 TO REQUIRE
COST RECOVERY FOR PUBLIC NOTICING OF PRIVATE
DEVELOPMENT PROJECTS
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing the Poway Municipal Code ("PMC") and recommending updates where appropriate; WHEREAS, the City Council of the City of Poway wishes to ensure that City resources, including City staff time, is used as efficiently as possible, and that duplication is avoided; WHEREAS, the City Council of the City of Poway has determined that the rehearing process set forth in Chapter 2.21 of the PMC is unnecessary, and that it is very unlikely the sufficient new and different information not available at a previous hearing would ever become available within 10 days after that hearing;
WHEREAS, the City Council of the City of Poway believes that the most appropriate forum for aggrieved persons to contest its decisions is in the Superior Court, rather than a rehearing in front of the City Gouncil;
WHEREAS, the City Council of the City of Poway desires that both property owners and occupants within 500 feet of certain projects that require a public hearing receive advance notice of that hearing, but has also determined that the City should not bear the costs of noticing for private development projects, as it current does; and
WHEREAS, the City Council of the City of Poway is attempting to come closer to full cost recovery, and does not believe it is in the public's interest to bear costs on behalf of private, for profit developments.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:
SECTION 1: The above. recitations are true and correct.
SECTION 2: Chapter 2.21 of the PMC is hereby deleted in its entirety.
SECTION 3: Section 13.12.110 of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
13.12.110 Conditional use permit -City Council action.
The City Council may grant by resolution a conditional use permit as the permit was applied for or in modified form, or the application may be denied. The decision of the City Council is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance with Chapter
2.21 PMC.
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Ordinance No.
SECTION 4: Section 16.10.060 of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
_16.10.060 City Council action Rehearing
The City Council's action to approve, conditionally approve or deny a tentative map is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance with Chapter 2.21 PMC.
SECTION 5: Section 17.40.050(8) of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
17.40.050 Enforcement -Referral Rehearing
In cases where a request for a permit has been referred to the City Council for decision, its action is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance with Chapter
2.21 PMC.
SECTION 6: Section 17.46.080 of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
17.46.080 City Council action Rehearing
The decision of the City Council is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance with Chapter 2.21 PMC.
SECTION 7: Section 17.47.080 of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
17.47.080 City Council action Rehearing
The decision of the City Council is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance with Chapter 2.21 PMC.
SECTION 8: Section 17.48.060(8) of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
8. Variations from regulations prescribed elsewhere in this chapter for fences, walls, hedges, screening and landscaping; site area, width and depth; front, rear and side yards; coverage; height of structures; distances between structures; usable open space; signs; off-street parking facilities or frontage on a public street, shall be separately administered in accordance with the procedures in Chapter
17.50 PMC. The decision of the City Council is final and effective upon City Council approval \Vithin 10 calendar days unless a request for rehearing is filed in accordance with Chapter 2.21 PMC.
SECTION 9: Section 17.50.100 of the PMC is hereby amended as follows, additions in underline, and deletions in strikethrough:
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Ordinance No.
17.50.100 City Council action Rehearing
The decision of the City Council is final and effective upon City Council approval within 10 calendar days unless a request for a rehearing is filed in accordance 1Nith Chapter 2.21 PMC.
SECTION 1 O: Section 17.02.06 is hereby added to Chapter 17.02 of Title 17 (Zoning) of the PMC, to read as follows:
17.02.060 Public Noticing
A. For all public hearings where the City is required to give notice of the hearing by mail or delivery under any provision of the PMC to all persons, including businesses, corporations or other public or private entities, shown on the last equalized assessment roll as owning real property within a certain distance of the property subject to the public hearing, notice shall also be provided to the occupants of those same properties.
B. The project applicant shall bear all costs of providing notice required by this Section 17.02.060, as well as all other public notices required pursuant to any other section of the PMC.
SECTION 11: The City Council finds that this Ordinance is not a "project" pursuant to the California Environmental Quality Act ("CEQA").
SECTION 12: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 13: This Ordinance shall be codified.
EFFECTIVE DA TE: This Ordinance shall take effect and be in force thirty (30) days after its adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.
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Ordinance No.
INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City of Poway, California, held the 19th day of March, 2024, and thereafter.
PASSED AND ADOPTED at a regular meeting of said City Council held the 2nd day of April, 2024, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DI SQUALi Fl ED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
March 19, 2024, Item #5
ATTACHMENT B
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RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING THE MASTER FEE
SCHEDULE TO ADD FEES RELATING TO PUBLIC NOTICES,
AND REMOVE REFERENCE TO REHEARING
WHEREAS, California Government Code section 66016 et seq. establishes procedures for the adoption of fees for services by local government; WHEREAS, on May 4, 2010, the City Council adopted Resolution No. 10-017, adopting a Master Schedule of Fees;
WHEREAS, on March 19, 2019, the City Council introduced for a first reading an Ordinance deleting Chapter 2.21 and amending Chapters 13.12, 16.10, 17.02, 17.40, 17.46,
17.47, 17.48 and 17.50 of the Poway Municipal Code;
WHEREAS, these amendments to the PMC necessitate corresponding amendments to the Poway Master Fee Schedule to be properly implemented; and WHEREAS, _the proposed fees do not exceed the objectively reasonable costs that the City will incur.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows:
SECTION 1: The foregoing recitals are true and correct, and incorporated into this Resolution by this reference, as if fully set forth herein.
SECTION 2: The City Council finds that this amendment to the Master Fee Schedule is not a "project" pursuant to CEQA.
SECTION 3: The City's Master Fee Schedule is hereby amended to add the following fees under the Development Services fees, subcategory "Miscellaneous Permits & Activities" (shown in underline), and delete the language shown in strikethrough:
Public Noticing to Occupants and Property
Owners within 500 Feet
Appeals to City Council or Project Rehearing
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$2,000 Deposit, full cost recovery
$ 765
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Resolution No. 24-
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Poway, California on the 19th day of March, 2024 by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DISQUALIFIED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk