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necessary by the DERC to insure compliance with the Development Code and to protect the public health and safety. Such conditions shall be limited to the following: hours of operation, maximum occupancy, fire and life safety issues, fire suppression, exte rior signage, exterior and interior lighting, parking, landscaping, existence of public telephones, and security guards.
B. ALCOHOL BEVERAGE SALES
ARTICLE I – GENERAL
SECTION I – TITLE AND PURPOSE
A. Title:
(1) This ordinance shall be known as the Conditional Use Permit – Deemed Approved Alcoholic Beverage Sales Regulations Ordinance.
(2) This ordinance requires land use permits for newly established alcoholic beverage sales activities, confers deemed approved status for existing alcoholic beverage sales activities and provides standards and an administrative hearing process to review violations of those standards in order to protect the general health, safety, and welfare of the residents of the City of San Bernardino and to prevent nuisance activities where alcoholic beverage sales occur.
B. Purpose:
(1) To protect residential, commercial, industrial and civic areas and minimize the adverse impacts of nonconforming and incompatible uses; and
(2) To provide opportunities for alcoholic beverage sales establishments to operate in a mutually beneficial relationship to each other and to other commercial and civic services; and
(3) To provide mechanisms to address problems associated with the public consumption of alcoholic beverages such as litter, loitering, graffiti, unruly behavior and escalated noise levels; and
(4) To provide that alcoholic beverage sales establishments are not the source of undue public nuisances in the community; and
(5) To provide for properly maintained alcoholic beverage sales establishments so that the negative impacts generated by these activities are not harmful to the surrounding environment in any way; and
(6) To monitor Deemed Approved establishments to ensure they do not substantially change in mode or character of operation.
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SECTION II – DEFINITIONS
The meaning and construction of these words and phrases, as set forth below, shall apply throughout, except where the context clearly indicates a different meaning or construction.
(A) “Administrator” means the Administrative Hearing Officer as identified in Section III.
(B) “Alcoholic Beverage” means alcohol, spirits, liquor, wine, beer, and any liquid or solid containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and that is fit for beverage purposes either alone or when diluted, mixed or combined with other substances, the sale of which requires a ABC license.
(C) “Alcoholic Beverage Sales Activity” means the retail sale of alcoholic beverages for onsite or offsite consumption.
(D) "Alcoholic Beverage Sales Establishment" means an establishment where an alcoholic beverage sales activity occurs. Alcoholic beverage sales establishments include but are not limited to the following recognized types of establishments: liquor stores; beer and wine stores; convenience markets; markets; neighborhood specialty food markets; retail sales establishments; wine shops; service stations; taverns; clubs; cocktail lounges, ballrooms, cabarets, dance bars, piano bars; billiard or game parlors, bowling alleys; nightclubs, dance halls; cafes, bars, restaurants with bars; full-service restaurants; and fast food establishments.
(E) “California Department of Alcoholic Beverage Control” or “ABC” refers to the department of the State of California empowered to act pursuant to Article 20, section 22, of the California Constitution and authorized to administer the provisions of the Alcoholic Beverage Control Act.
(F) “Conditions of Approval” means a requirement that must be carried out by the activity by: (1) a new alcoholic beverage sales activity to exercise a land use permit; or (2) a legal nonconforming alcoholic beverage sales activity to comply with deemed approved performance standards and to retain its deemed approved status.
(G) “Deemed Approved Activity” means any Legal Nonconforming alcoholic beverage sales activity, as defined in subsection (J). Such activity shall be considered a Deemed Approved activity as long as it complies with the Deemed Approved Performance Standards set forth in Article III, Section IV.
(H) “Deemed Approved Status” means the permitted use of land for a Deemed Approved Activity. Deemed Approved status replaces Legal Nonconforming status with respect to Alcoholic Beverage Sales Commercial Activity and remains in effect as long as it complies with the Deemed Approved provisions and performance standards.
(I) “Illegal Activity” means an activity, which has been finally determined to be in noncompliance with the Deemed Approved provisions and performance standards.
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Such an activity shall lose its Deemed Approved status and shall no longer be considered a Deemed Approved activity.
(J) “Legal Nonconforming Alcoholic Beverage Sales Commercial Activity” or “Legal Nonconforming Activity” means an Alcoholic Beverage Sales Commercial Activity which was a nonconforming use pursuant to San Bernardino Municipal Code (Development Code) Chapter 1 9.62, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in the exercise of the rights and privileges conferred by the license at a time immediately prior to the effective date of the Deemed Approved Alcoh olic Beverage Sale Regulations Ordinance. Such an activity shall be considered a Deemed Approved Activity and shall no longer be considered a Legal Nonconforming Activity.
(K) “Off-Sale Alcohol Outlet” means an establishment that conducts retail sales of Alcoholic Beverages for consumption off the premises where sold.
(L) “On-Sale Alcohol Outlet” means an establishment that conducts retail sales of Alcoholic Beverages for consumption on the premises where sold.
(M) “Operational Standards” means regulations for the business practice activities and land use for locations with a Conditional Use Permit or those further requirements imposed to achieve these goals. Operational Standards constitute requirements which must be complied with by an establishment in order to maintain its Conditional Use Permit.
(N) “Performance Standards” means regulations for the business practice activities and land use for locations with Deemed Approved status or those further requirements imposed to achieve these goals. Performance Standards constitute requirements which must be complied with by an establishment in order to retain its Deemed Approved status.
(O) “Permit” means a Conditional Use Permit issued pursuant to this ordinance.
(P) “Permittee” means the individual or entity that owns an alcoholic beverage sale establishment and to whom a Conditional Use Permit to operate an alcoholic beverage sale establishment has been issued by the City of San Bernardino.
(Q) “Premises” means the actual space in a building devoted to alcoholic beverage sales.
(R) “Restaurant” means a bona fide eating place whose predominant function is the service of food and where on-site sale of alcoholic beverages is incidental or secondary.
SECTION III – ADMINISTRATIVE HEARING OFFICER
The “Administrative Hearing Officer” shall have the same appointment and qualifications as that designated in San Bernardino Municipal Code Chapter 9.93, Administrative Civil Penalties; and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance of particular alcoholic beverage sale establishments
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with the provisions of this Ordinance. This section is not intended to restrict the powers and duties otherwise pertaining to other City officers or bodies in the field of monitoring and ensuring the harmony of alcoholic beverage sale activities in the City. The Administrative Hearing Officers shall have the powers and duties assigned to them by the Development Code, and other San Bernardino Municipal Code ordinances.
SECTION IV - INSPECTION AND RIGHT OF ENTRY
The sale of alcoholic beverages is a closely regulated industry. The officials responsible for enforcement of the City Municipal Code or other provisions of the Development Code or their duly authorized representatives may enter on any site or into any structure open to the public for the purpose of investigation provided they shall do so in a reasonable manner whenever they have cause to suspect a violation of any provision of this ordinance or whenever necessary to the investigation of violations to the Conditions of Approval or Deemed Approved performance standards prescribed in these regulations. If an owner, occupant or agent refuses permission to enter, inspect or investigate, premises which are not open to the public, the officials or their representatives may seek an inspection warrant under the provisions of California Code of Civil Procedure section 1822.50 et. seq. All such inspections shall be conducted in compliance with the Fourth Amendment to the United States Constitution.
SECTION V – SEVERABILITY
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Mayor and Common Council hereby declare that it would have adopted the ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more of the sections subsections, sentences, clauses or phrases may be declared invalid.
ARTICLE II – CONDITIONAL USE PERMITS FOR NEW ALCOHOLIC
BEVERAGE SALES ACTIVITIES
SECTION I – PURPOSE
The general purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity and general welfare by requiring consideration and approval of a Conditional Use Permit before a new alcoholic beverage sales activity will be permitted in any land use zoning district of the City and by requiring all new alcoholic beverage sales activities to comply with the operational standards in this ordinance and to achieve the following objectives:
(A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses.
(B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually beneficial to other such businesses and other commercial and civic activities.
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(C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels.
(D) Ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community.
(E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment in any way.
This Article alone does not allow or permit alcoholic beverage sales activities, but only applies to these activities where otherwise allowed or permitted within an applicable land use zoning district. This Article does not authorize alcoholic beverage sales activities in any land use district where they are not otherwise allowed or permitted by the applicable involved zoning district’s regulations. The provisions of this ordinance are intended to compliment the State of California alcohol-related laws. The city does not intend to replace or usurp any powers vested in the California Department of Alcoholic Beverage Control.
SECTION II – REQUIREMENT
Notwithstanding any other provisions of this Code, no new on-site or off-site alcoholic beverage sales activity may be established unless a Conditional Use Permit is first obtained in accordance with the requirements of this Article. The following uses are exempt from this requirement to obtain a Conditional Use Permit, a nd shall be subject to Director approval of a Development Permit and a finding of public convenience or necessity, if required:
(A) Sit-down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary.
(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drug stores, which do not sell alcoholic beverages as the principal business
(C) Establishments, whose applications have been deemed complete prior to the effective date of this Ordinance by the Community Development s Department.
(D) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations.
SECTION III – LOCATIONAL RESTRICTIONS
(A) Unless otherwise exempted under subsections B – H, a new alcoholic beverage sales activity is not permitted within 500 feet of any of the following locations:
1. A public or private state licensed or accredited school.
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2. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day-care facility.
3. A place of worship or religious institution.
4. A hospital.
5. An alcohol or other drug abuse recovery or treatment facility.
6. A county social service office.
(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from the locational restrictions.
(C) Sit down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.)
(D) All other establishments for on-site consumption of alcohol may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(E) Specialty retail establishments that offer unique product lines or variety of selection warranting a finding of public convenience or necessity are exempt from the locational restrictions.
(F) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(U) may be exempted from these locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(G) A fraternal organization or veterans club may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(H) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are exempt from the locational restrictions.
(I) The following location conditions will be considered in the review of Conditional Use Permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience:
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1. A location within a crime reporting district, or within 500 feet of a crime reporting district, where the general crime rate exceeds the city-wide general crime rate by more than 20 percent.
2. A location where the new alcoholic beverage sales activity would be within 500 feet from an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic beverage sales activity.
SECTION IV – OPERATIONAL STANDARDS
All new alcoholic beverage sales activities shall be designed, constructed, and operated to conform to all of the following operational standards:
(A) That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area.
(B) That it does not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area.
(C) That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests.
(D) That it complies with all provisions of local, state or federal laws, regulations or orders, including but not limited to those of the California Department of Alcoholic Beverage Control (“ABC”), California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business registration fees.
(E) That its upkeep and operating characteristics are compatible with, and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
(F) That the owners and all employees of establishments involved in the sale of alcoholic beverages complete an approved course in Licensee Education on Alcohol and Drugs (LEAD), or other "Responsible Beverage Service" (RBS) training by October 21, 2011, or within sixty (60) days of hire for employees hired after that date. To satisfy this requirement, the RBS course must be recognized by the California Department of Alcoholic Beverage Control. The RBS course shall include at a minimum the following: a review of ABC laws and regulations; administrative, criminal and civil liabilities; acceptable forms of identification; and how to identify minors and persons already intoxicated. (MC 1358 7/5/11)
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1. Sit down restaurants that continue to serve menu items until closing and whose predominant function is the service of food and where the on -site sale of alcoholic beverages is incidental or secondary are exempt from this training requirement. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) Fraternal organizations and veterans clubs are exempt from this training requirement.
2. Retail outlets with 25 or more employees or containing 10,000 square feet or more, and subject to this training requirement may elect to send only supervisory employees to the RBS training, who would then be responsible for training all employees who are involved in the sale of alcoholic beverages.
(G) A copy of these operational standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment.
SECTION V – ADMINISTRATION
The San Bernardino City Planning Commission shall administer Conditional Use Permits.
SECTION VI – PERMIT APPLICATION
Any person, association, partnership, corporation or other entity desiring to obtain an alcoholic beverage sales activity Conditional Use Permit shall file an application with the City of San Bernardino Community Development Department to forward to the San Bernardino City Planning Commission on a form provided by the City. The application shall be accompanied by a nonrefundable application processing fee in an amount established by a resolution of the Mayor and Common Council.
The application for a Conditional Use Permit shall include, but not be limited to the following information:
(A) The name, address and telephone number of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible management officer.
(B) The name, address, and telephone number of each lender or share holder with a five percent or more financial interest in the proposed business or any other person to whom a share or percentage of the income of the establishment is to be paid.
(C) The name, address, and telephone number of the person who shall manage and operate the establishment for which the permit is requested.
(D) The name, address, and telephone number, if available, of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship,
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hospitals, alcohol or other drug abuse recovery or treatment facilities or county social service offices within 500 feet of the proposed alcoholic beverage sales activity establishment.
(E) The name, address, and telephone number, if available, of all alcoholic beverage sale activities within 500 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from the proposed alcoholic beverage sales activity establishment.
(F) The name, address, and telephone number of a person authorized to accept service of legal notices.
(G) The proposed business name of the alcoholic beverage sales activity establishment and description of all operating aspects of the proposed business.
(H) The type of ABC license the applicant is seeking for the alcoholic beverage sales activity establishment.
(I) Any other information reasonably necessary to accomplish the purposes of this ordinance.
(J) The Planning Commission may refer the application to other City departments to determine whether the premises where the alcoholic beverage sales activity establishment will be located, complies with the City's building, health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances and other laws they administer. City departments may prepare reports summarizing their inspections and recommending whether to approve or deny the application based on their inspections.
SECTION VII – ACTION ON PERMIT APPLICATION
The Planning Commission shall approve issuance of the Conditional Use Permit to allow a new alcoholic beverage sales activity upon making the following findings:
(A) The proposed alcoholic beverage sales activity establishment is located in a zoning district in which the establishment is a permitted use.
(B) A finding of "public convenience and necessity" (Business and Professions Code Section 23958.4(b) (2)), if the activity will be located in an area that has been determined by the state of California Department of Alcoholic Beverage Control to have an undue concentration of licenses as defined in Business and Professions Code Section 23958.4(a).
(C) A finding that the alcoholic beverage sales activity will not aggravate existing problems in the neighborhood created by the sale of alcohol such as loitering, public drunkenness, alcoholic beverage sales to minors, noise and littering.
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(D) The proposed establishment will not detrimentally affect nearby neighborhoods considering the distance of the alcohol establishment to residential buildings, schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse recovery or treatment facilities, county social service offices, or other alcoholic beverages sales activity establishments.
(E) The proposed establishment will otherwise be compatible with existing and potential uses within the general area.
(F) The proposed establishment is not located in what has been determined to be a high- crime area or where a disproportionate number of police service calls occur.
(G) The use of the proposed establishment is consistent with the General Plan.
SECTION VIII – CONDITIONS OF APPROVAL
Conditions of Approval that may be imposed include but are not limited to the following:
(A) Prohibited Products: To discourage nuisance activities, an Off-Sale Alcohol Outlet may be prohibited from selling one or more of the following products:
(1) Wine or distilled spirits in containers of less than 750 milliliters.
(2) Malt beverage products with alcohol content greater than five and one-half percent by volume.
(3) Wine with an alcoholic content greater than 14 percent by volume unless in corked bottles and aged at least two years.
(4) Beer or malt liquor sold individually in containers of 40 ounces or less.
(5) Containers of beer or malt liquor not in their original factory packages of six- packs or greater.
(6) Distilled spirits in bottles or containers smaller than 375 milliliters.
(7) Cooler products, either wine- or malt beverage- based, in less than four-pack quantities.
(B) Pay Telephones: Pay telephones on the site of the establishment shall be required to be of the type that only allow outgoing calls and shall be located in a visible and well- lighted location.
(C) Program: A “complaint response community relations” program established and maintained by the establishment conducting the Deemed Approved Activity may be required. The program may include the following:
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(1) Posting at the entry of the establishment providing the telephone number for the area commander of the local law enforcement substation to any requesting individual.
(2) Coordinating efforts with the police department to monitor community complaints about the establishment activities.
(3) Having a representative of the establishment meet with neighbors or the applicable neighborhood association on a regular basis and at their request attempt to resolve any neighborhood complaints regarding the establishment.
(D) Activities: If appropriate the following activities may be prohibited on the premises:
pool or billiard tables football or pinball games, arcade style video or electronic games coin-operated amusement devices.
(E) Chilled Alcoholic Beverages: An Off-Sale Alcohol Outlet may be prohibited from maintaining refrigerated or otherwise chilled alcoholic beverages on the premises.
(F) Hours of Operation: In an Off-Sale Alcohol Outlet, the sale of alcoholic beverages may be restricted to certain hours of each day of the week unless limited further by the State of California Department of Alcoholic Beverage Control.
(G) Cups: In Off-Sale Outlets, the sale or distribution to the customer of paper or plastic cups in quantities less than their usual and customary packaging may be prohibited.
(H) Signs: The following signs shall be required to be prominently posted in a readily visible manner on an interior wall or fixture, and not on windows, in English, Spanish and the predominant language of the patrons:
(1) “California State Law prohibits the sale of alcoholic beverages to persons under 21 years of age.”
(2) "No Loitering or Public Drinking."
(3) “It is illegal to possess an open container of alcohol in the vicinity of this establishment.”
(I) Presentation of Documents: A copy of the Conditions of Approval and the California Department of Alcoholic Beverage Control license shall be required to be kept on the premises and presented to any City Enforcement Officer or authorized state or county official upon request.
(J) Mitigating Alcohol Related Problems: The establishment shall be required to operate in a manner appropriate with mitigating alcohol related problems that negatively impact those individuals living or working in the neighborhood including but not limited to sales to minors, the congregation of individuals, violence on or near the premises, drunkenness, public urination, solicitation, drug-dealing, drug use, loud noise and litter.
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(K) Drug Paraphernalia: An Off-Sale Alcohol Outlet shall be prohibited from selling drug/tobacco paraphernalia products as defined in Health and Safety Code sections 11014.5 and 11364.5. “Drug Paraphernalia” means all equipment products and materials of any kind that are used intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, co ncealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the California Uniform Controlled Substances Act commencing with California Health and Safety Code section 11000.
(L) Loitering: The establishment’s operators or employees shall be required to discourage loiterers and to ask persons loitering longer than fifteen minutes to leave the area and contact local law enforcement officials for enforcement of applicable trespassing and loitering laws if persons requested to leave fail to do so.
(M) Security Cameras: At least two 24-hour time lapse security cameras may be required to be installed and properly maintained on the exterior of the building at locations recommended by the Police Department. All criminal and suspicious activities recorded on this surveillance equipment must be reported to local law enforcement.
To the extent allowed by law, the establishment operators may be required to provide any tapes or other recording media from the security cameras to the Police Department.
(N) Security Guards: An establishment may be required to retain a specified number of security guards. The number of security guards shall vary based upon the specific facts and circumstances of each establishment site and operation. All security guards shall have all required state and City permits and licenses.
(O) Prohibited Vegetation: Exterior vegetation shall not be planted or maintained that could be used as a hiding place for persons on the premises. Exterior vegetation may be planted and maintained in a manner that minimizes its use as a hiding place.
(P) Window Obstructions: No more than 25% of windows or clear doors shall bear advertising of any sort, and all advertising signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance.
SECTION IX – APPEALS FROM A DETERMINATION ON AN APPLICATION
FOR PERMIT
Any applicant or other person aggrieved by a decision of the Planning Commission on an application for a Conditional Use Permit required by this Article may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52.
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SECTION X – GROUNDS FOR CONDITIONAL USE PERMIT SUSPENSION
OR REVOCATION
An alcoholic beverage sales activity establishment Conditional Use Permit may be suspended by the Planning Commission for up to one year or revoked after a noticed public hearing held pursuant to Development Code Chapter 19.52, for failure to comply with Operational Standards, training requirements or conditions imposed through the Conditional Use Permit.
Notice of intention to suspend or revoke shall be in writing and shall state the grounds therefore. Notice shall be mailed by U.S. First -Class Mail and Certified Mail Return Receipt Requested at least 10 days before the date of the hearing.
SECTION XI – INVESTIGATIVE PROCEDURES OF POTENTIAL
VIOLATION OF CONDITIONS OF APPROVAL
The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.93, to conduct hearings, make findings and determine whether violations of this Article, including the Operational Standards and Conditions of Approval, as well as whether undue negative impacts or public nuisance activities have occurred, are occurring or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93.
Upon the City’s receipt of a complaint from the public, Police Department, City official or any other interested person that a Conditional Use Permit activity is in violation of the Operational Standards and/or Conditions of Approval set forth in this Article, the following procedure shall be followed:
(A) A City Enforcement Officer (any Police Officer or other City Enforcement Officer as listed in San Bernardino Municipal Code Chapter 9.93) shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity’s compliance with Operational Standards and/or Conditions of Approval.
(B) If the Enforcement Officer determines that the activity is in violation of the Operational Standards and/or Conditions of Approval, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a hearing by the Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.92 or 9.93.
(C) Any Administrative Citation or Administrative Civil Penalties Notice issued under this section shall be issued, processed, and enforced in compliance with all of the provisions of San Bernardino Municipal Code Chapter 9.92 and 9.93, unless otherwise expressly provided by this Ordinance.
(D) The Administrative Hearing Officer shall determine whether the activity is in compliance with the operational standards and/or Conditions of Approval. Based on this determination, the Hearing Officer may continue the Conditional Use permit
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status for the use in question, may impose Administrative Civil Penalties pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the Operational Standards and/or Conditions of Approval or may recommend that the Planning Commission revoke the activity’s Conditional Use Permit. If the Hearing Officer determines instead to impose further, new conditions on the activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whe ther a use has violated the Operational Standards or Conditions of Approval, or as to the appropriateness of imposing additional or amended conditions on a use, recommending suspension or revocation of a use, assessing administrative penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider:
1. The length of time the activity has been out of compliance with the Operational Standards and/or Conditions of Approval.
2. The impact of the violation of the Operational Standards and/or Conditions of Approval on the community.
3. Any information regarding the owner of the activity’s efforts to remedy the violation of the operational standards and/or Conditions of Approval.
(E) “Efforts to Remedy” shall include, but are not limited to:
1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity, his or her employees, or agents.
2. Requesting that those persons engaging in activities causing violations of the Operational Standards and or Conditions of Approval cease those activities, unless the owner of the activity, or his or her employees or agents feels that their personal safety would be threatened in making that request.
3. Making improvements to the activity's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, the clearing of window obstructions, the cleaning of sidewalks and the abatement of graffiti within three days.
(F) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the activity constitute a nuisance, the owner is unable or unwilling to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing Officer may recommend that the Planning Commission suspend or revoke the activity’s Conditional Use permit. All determinations, decisions, and conditions made or imposed regarding the use of a activity shall run with the land.
(G) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council.
Once the decision of the Administrative Hearing Officer becomes final, the time in
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which judicial review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law.
SECTION XII – APPEAL FROM SUSPENSION OR REVOCATION OF
CONDITIONAL USE PERMIT
Any applicant or other person aggrieved by a decision of the Planning Commission from a suspension or revocation of a Conditional Use Permit may appeal the decision to the Mayor and Common Council pursuant to Development Code Chapter 19.52.
ARTICLE III – STANDARDS AND PROCEDURES FOR EXISTING DEEMED
APPROVED ALCOHOLIC BEVERAGE SALES ACTIVITIES
SECTION I – PURPOSE
The purposes of these regulations are to protect and promote the public health, safety, comfort, convenience, prosperity and general welfare by requiring that alcoholic beverage sales activities that are legal nonconforming activities to comply with the Deemed Approved performance standards in this Chapter and to achieve the following objectives:
(A) Protect surrounding neighborhoods from the harmful effects attributable to the sale of alcoholic beverages and to minimize the adverse impacts of nonconforming and incompatible uses.
(B) Encourage businesses selling alcoholic beverages to operate in a manner that is mutually beneficial to other such businesses and other commercial and civic activities.
(C) Provide a mechanism to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels.
(D) Ensure that businesses selling alcoholic beverages are not the source of undue public nuisances in the community.
(E) Ensure that sites where alcoholic beverages are sold are properly maintained so that negative impacts generated by these activities are not harmful to the surrounding environment in any way.
SECTION II – APPLICABILITY
The Deemed Approved alcoholic beverage sales regulations shall apply to all alcoholic beverage sales activities for on-site or off-site consumption existing and operating within the City on the effective date of this ordinance.
SECTION III – AUTOMATIC DEEMED APPROVED STATUS
All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities, on the effective date of this ordinance, whether or not previously granted a
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Conditional Use Permit by the City, shall automatically become Deemed Approved Activities as of the effective date of this ordinance and shall no longer be considered Legal Nonconforming Activities.
Each deemed approved activity shall retain its Deemed Approved status as long as it complies with the performance standards of this ordinance.
The occurrence of any of the following shall terminate the Deemed Approved status of the alcoholic beverage sales activity after notice and a hearing in accordance with Section VI below, and require the issuance of a Conditional Use Permit in order to cont inue the alcoholic beverage sales activity:
(A) An existing alcoholic beverage sales activity changes its activity so that ABC requires a different type of license.
(B) There is a substantial modification to the mode or character of operation.
(C) As used herein, the phrase “substantial change of mode or character of operation” includes but is not be limited to the following:
1. The off-site alcoholic beverage sales activity establishment increases the floor or land area or shelf space devoted to the display or sales of any alcoholic beverage.
2. The on-site alcoholic beverage sales activity establishment increases the floor or land area or shelf space devoted to the display, sales or service of any alcoholic beverage.
3. The off-site or on-site alcoholic beverage sales activity establishment expands the sale or service of any alcoholic beverages and/or increases the number of customer seats primarily devoted to the sale or service of any alcoholic beverages.
4. The off-site or on-site alcoholic beverage sales activity establishment extends the hours of operation.
5. The alcoholic beverage sales activity establishment proposes to reinstate alcohol sales after the ABC license has been either revoked or suspended for a period 90 days or greater by ABC.
6. The alcoholic beverage sales activity voluntarily discontinues active operation for more than 90 consecutive days or ceases to be licensed by the ABC.
(D) A substantial change in the mode of character of operation shall not include:
1. Re-establishment, restoration or repair of an existing alcoholic beverage sales activity on the same premises after the premises have been rendered totally or partially inaccessible by a riot, insurrection, toxic accident or act of God, provided that the re-establishment, restoration or repair does not increase the
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sales or service of any alcoholic beverage, extend the hours of operation of any establishment or add to the capacity, floor or land area or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages.
2. Temporary closure for not more than ninety days in cases of vacation or illness or for purposes of repair, renovation, or remodeling if that repair, renovation, or remodeling does not change the nature of the premises and does not increase the sales or service of any alcoholic beverage, extend the hours of operation of any establishment, or add to the capacity, floor or land area, or shelf space devoted to alcoholic beverages of any establishment that sells or serves any alcoholic beverages.
(E) Discontinuance. Once it is determined by the City that there has been a discontinuance of active operation for 90 consecutive days or a cessation of ABC licensing, it may be resumed only upon the granting of a Conditional Use Permit as provided in Article II. The property owner shall be notified by the City of the termination of the Deemed Approved status and shall be informed of the property owner’s right to appeal the City’s decision to the Administrative Hearing Officer.
SECTION IV – DEEMED APPROVED PERFORMANCE STANDARDS
The provisions of this section shall be known as the Deemed Approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of alcoholic beverage sales activities. These standards shall apply to all Deemed Approved alcoholic beverage sales activities that hold Deemed Approved status pursuant to this Article.
An alcoholic beverage sales activity (“Alcohol Outlet”) shall retain its Deemed Approved status only if it conforms to all of the following Deemed Approved performance standards:
(A) The Alcohol Outlet shall not cause adverse effects to the health, peace or safety of persons residing or working in the surrounding area.
(B) The Alcohol Outlet shall not jeopardize or endanger the public health or safety of persons residing or working in the surrounding area.
(C) The Alcohol Outlet shall not allow repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, or lewd conduct.
(D) The Alcohol Outlet shall comply with all provisions of local, state or federal laws, regulations or orders, including but not limited to those of the ABC, California Business and Professions Code §§ 24200, 24200.6, and 25612.5, as well as any
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condition imposed on any permits issued pursuant to applicable laws, regulations or orders. This includes compliance with annual City business registration fees.
(E) The Alcohol Outlet’s upkeep and operating characteristics shall be compatible with and not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.
(F) A copy of these performance standards, any applicable ABC or City operating conditions, and any training requirements shall be posted in at least one prominent place within the interior of the establishment where it will be readily visible and legible to the employees and patrons of the establishment.
(G) The owners and all employees of establishments involved in the sale of alcoholic beverages shall complete an approved course in Licensee Education on Alcohol and Drugs (LEAD), or other "Responsible Beverage Service" (RBS) training by October 21, 2011, or within 60 days of hire for employees hired after that date. To satisfy this requirement, the RBS course must be recognized by the California Department of Alcoholic Beverage Control. The RBS course shall include at a minimum the following: a review of ABC laws and regulations; administrative, criminal and civil liabilities; acceptable forms of identification; and how to identify minors and persons already intoxicated. (MC 1358 7/5/11)
1. Sit down restaurants that continue to serve menu items until closing and whose predominant function is the service of food and where the on -site sale of alcoholic beverages is incidental or secondary are exempt from this training requirement. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) Fraternal organizations and veterans clubs are exempt from this training requirement.
2. Retail outlets with 25 or more employees or containing 10,000 square feet or more, and subject to this training requirement may elect to send only supervisory employees to the RBS training, who would then be responsible for training all employees who are involved in the sale of alcoholic beverages.
SECTION V – NOTIFICATION TO OWNERS OF ESTABLISHMENTS
CONDUCTING DEEMED APPROVED ACTIVITIES
The City’s Community Development Department shall notify the owner of each Deemed Approved activity, and also, if not the same, any property owner at the address shown on the City’s property tax assessment records, of the activity’s Deemed Approved status. The notice shall be sent by U.S. First Class Mail and Certified Mail Return Receipt Requested and shall include a copy of the performance standards in this Article with the requirement that they be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review. This notice shall also provide that the activity is required to comply with all performance standards, and that the activity is required to comply with all other aspects of the Deemed Approved regulations. Should the notice be returned, then the notice shall be sent via regular U.S. Mail. Failure of any person to receive
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notice given pursuant to this Article shall not affect the Deemed Approved status of the activity.
SECTION VI - DEEMED APPROVED STATUS PROCEDURES
The City shall appoint an Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapter 9.93 to conduct hearings, make findings and determine whether violations of this Article, including the Deemed Approved performance standards, Conditions of Approval, undue negative impacts or public nuisance activity, have occurred, are occurring, or are likely to occur in the future. The assigned Administrative Hearing Officer shall exercise all powers relating to the conduct of the administrative hearing pursuant to San Bernardino Municipal Code Chapter 9.93.
Upon the City’s receipt of a complaint from the public, Police Department, City official or any other interested person that a Deemed Approved use is in violation of the performance standards set forth in this Article, the following procedure shall be followed:
(A) A City Enforcement Officer shall assess the nature of the complaint and its validity by conducting an on-site observation and inspection of the premises to assess the activity’s compliance with performance standards.
(B) If the Enforcement Officer determines that the Deemed Approved activity is in violation of the performance standards, the Enforcement Officer may issue an Administrative Citation or an Administrative Civil Penalties Notice, which then may be subject to a h earing by the Administrative Hearing Officer pursuant to San Bernardino Municipal Code Chapters 9.92 or 9.93.
(C) Any Administrative Citation or Administrative Civil Penalties Notice issued under this section shall be issued, processed, and enforced in compliance with all of the provisions of San Bernardino Municipal Code Chapters 9.92 and 9.93, unless otherwise expressly provided by this Ordinance.
(D) The Administrative Hearing Officer shall determine whether the Deemed Approved activity is in compliance with the performance standards. Based on this determination, the Hearing Officer may continue the Deemed Approved status for the use in question, may impose Administrative Civil Penalties for violations of the performance standards pursuant to San Bernardino Municipal Code Chapter 9.93, may impose such reasonable conditions, including but not limited to the conditions listed in Article II, Section VIII above, as are in the judgment of the Hearing Officer necessary to ensure compliance with the performance standards and may suspend or revoke the Deemed Approved activity’s Deemed Approved status. If the Hearing Officer determines instead to impose further, new conditions on the Deemed Approved activity, such conditions shall be based upon the information then before the Hearing Officer. In reaching a determination as to whether a use has violated the performance standards, or as to the appropriateness of imposing additional or amended conditions on a use, suspending or revoking a use, assessing Administrative Civil Penalties, or the amount of Administrative Civil Penalties to assess, the Hearing Officer may consider:
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1. The length of time the Deemed Approved activity has been out of compliance with the performance standards.
2. The impact of the violation of the performance standard(s) on the community.
3. Any information regarding the owner of the Deemed Approved activity’s efforts to remedy the violation of the performance standard(s).
(E) “Efforts to Remedy” shall include, but are not limited to:
1. Timely calls to the Police Department that are placed by the owner of the Deemed Approved activity, his or her employees, or agents.
2. Requesting that those persons engaging in activities causing violations of the performance standard(s) cease those activities, unless the owner of the Deemed Approved activity, or his or her employees or agents feels that their personal safety would be threatened in making that request.
3. Making improvements to the Deemed Approved activity's property or operations, including but not limited to the installation of lighting sufficient to illuminate the area within the use's property line, the installation of security cameras, clear unobstructed windows, clean sidewalks and graffiti abated within three days.
(F) If in the judgment of the Administrative Hearing Officer, the operations of the owner of the deemed Approved activity constitute a nuisance, the owner is unable to abate the nuisance and the nuisance is shown to be a threat to the public health and safety of the surrounding neighborhood, the Hearing Officer may suspend or revoke the activity’s Deemed Approved status. Any continued operation of the business shall require a Conditional Use Permit approved by the Planning Commission. All determinations, decisions, and conditions made or imposed regarding the use of a Deemed Approved activity shall run with the land.
(G) The decision of the Administrative Hearing Officer shall become final and conclusive and shall not be subject to appeal to the Mayor and Common Council.
Once the decision of the Administrative Hearing Officer becomes final as provided in this Chapter, the time in which judicial review of the decision must be sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State Law.
ARTICLE IV - ALCOHOLIC BEVERAGE SALES ACTIVITY PENALTIES
(A) Any person who violates, causes or permits another person to violate any provision of this ordinance is guilty of either an infraction or misdemeanor. Any person convicted of either an infraction or misdemeanor under the provision of this ordinance shall be punished by a fine, imprisonment or both according to Chapter
1.12 of the San Bernardino Municipal Code.
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(B) Separate Offenses for Each Day: Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.
(C) Any Violation a Public Nuisance: In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of these regulations shall be and is declared to be a public nuisance and may be abated as such by the City.
(D) Injunction as Additional Remedy: Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall at the discretion of the City, create a cause of action for injunctive relief.
(E) Administrative Civil Penalties: In addition to any other penalties provided in this section, $1,000.00 in Administrative Civil Penalties shall be imposed for each and every offense and for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator.
(F) The City shall bill all persons liable for these Administrative Civil Penalties by mail showing the itemized cost of such chargeable service and requesting payment.
Payment of the penalties shall be due within thirty 30 days of the date of the bill is deposited in the Mail. If full payment is not received within the required time for payment the bill will be delinquent and all persons liable for the penalties shall be charged interest at the maximum legal rate from the date the payment period expires and a further civil penalty in the amount of $100.00 per day. The delinquent costs may be placed as a lien against the property or collected by the City in any manner authorized bylaw and are recoverable in a civil action filed by the City in a court of competent jurisdiction.
(G) Liability for Expenses: In addition to the punishment provided by law a violator is liable for such costs expenses and disbursements paid or incurred by the City or any of its contractors in correction abatement and prosecution of the violation. Re- inspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of the establishment conducting the Deemed Approved Activity or owner of the property where the establishment is located. The Enforcement Officer shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property.
C. AUTOMOBILE SALES
Automobile sales dealerships, new and/or used, in the City must conform with the intent of this Development Code and shall enhance and promote the image of the City. A Development Permit shall be required for automobile sales dealerships of new vehicles and a Conditional Use Permit shall be required for automobile sales dealerships of used vehicles, and all dealerships must be constructed in the following manner:
CONDITIONAL USE PERMITS AND MINOR USE PERMITS – 19.36
IV-19.36-1 Oct. 2019
CHAPTER 19.36
CONDITIONAL USE PERMITS AND
MINOR USE PERMITS
Section Page
19.36.010 Purpose ........................................................................................................... IV-19.36-1
19.36.020 Application ..................................................................................................... IV-19.36-1
19.36.030 Project Review ............................................................................................... IV-19.36-2
19.36.040 Hearings and Notice ...................................................................................... IV-19.36-2
19.36.050 Findings .......................................................................................................... IV-19.36-2
19.36.060 Use of Property Before Final Decision ........................................................ IV-19.36-3
19.36.070 Conditional Use Permit or Minor Use Permit Expiration .......................... IV-19.36-3
19.36.080 Modification of Conditional Use Permit or Minor Use Permit .................. IV-19.36-3
19.36.090 Time Extension .............................................................................................. IV-19.36-3
19.36.100 Revocation ..................................................................................................... IV-19.36-4
19.36.110 Conditional Use Permit or Minor Use Permit to Run With the Land ........... IV-19.36-4
19.36.120 Performance Guarantee ................................................................................. IV-19.36-4
19.36.010 PURPOSE
Conditional uses are unique and their effect on the surrounding environment cannot be determined in advance of the use being proposed for a particular location. At the time of application, a review of the location, design, configuration, and potential impact of the proposed use shall be conducted by comparing the use to established development standards and design guidelines. This review shall determine whether the proposed use should be permitted by weighing the public need for and the benefit to be derived from the use against the impact which it may cause.
An application for a Minor Use Permit may be made in-lieu of an application for a Conditional Use Permit if the use meets the following criteria:
1. The use will be entirely located within a structure that has previously been approved with a Development Permit or Conditional Use Permit;
2. The use will be less than 10,000 square feet in gross floor area;
3. The use will be exempt from the provisions of the California Environmental Quality Act;
For all other applications for conditional uses, and for all applications for social service centers and religious facilities/churches, a Conditional Use Permit shall be required. (MC 1381 12/19/12)
19.36.020 APPLICATION
An application for a Conditional Use Permit or a Minor Use Permit shall be filed in a manner consistent with the requirements contained in Chapter 19.32 (Applications and Fees). (MC 1381 12/19/12)
CONDITIONAL USE PERMITS AND MINOR USE PERMITS – 19.36
IV-19.36-2 Oct. 2019
19.36.030 PROJECT REVIEW
Each Conditional Use Permit or Minor Use Permit application shall be analyzed to assure that the application is consistent with the intent and purpose of this Chapter.
Minor Use Permit applications shall be reviewed and approved by the DRC.
To ensure effective implementation of General Plan policies relating to design guidelines, each application for a Conditional Use Permit shall be reviewed by the DRC prior to approval by the Commission. (MC 1381 12/19/12)
19.36.040 HEARINGS AND NOTICE
Upon receipt in proper form of a Conditional Use Permit or Minor Use Permit application, a hearing shall be set and notice of the hearing given in a manner consistent with Chapter 19.52 (Hearings and Appeals). (MC 1381 12/19/12)
19.36.050 FINDINGS
Following a hearing, the DRC or Commission shall record the decision in writing and shall recite therein the findings upon which such decision is based. The DRC or Commission may approve and/or modify a Conditional Use Permit or Minor Use Permit application in whole or in part, with or without conditions, only if all of the following findings are made: (MC 1381 12/19/12)
1. The proposed use is conditionally permitted within, and would not impair the integrity and character of the subject zone and complies with all of the applicable provisions of this Development Code; (MC 1393 12/2/13)
2. The proposed use is consistent with the General Plan;
3. The approval of the Conditional Use Permit or Minor Use Permit for the proposed use is in compliance with the requirements of the California Environmental Quality Act and Section
19.20.030(6) of the Development Code; (MC 1381 12/19/12)
4. There will be no potentially significant negative impacts upon environmental quality and natural resources that could not be properly mitigated and monitored;
5. The location, size, design, and operating characteristics of the proposed use are compatible with the existing and future land uses within the general area in which the proposed use is to be located and will not create significant noise, traffic or other conditions or situations that may be objectionable or detrimental to other permitted uses in the vicinity or adverse to the public interest, health, safety, convenience, or welfare of the City;
6. The subject site is physically suitable for the type and density/intensity of use being proposed; and
7. There are adequate provisions for public access, water, sanitation, and public utilities and services to ensure that the proposed use would not be detrimental to public health and safety. (MC 888 1/6/94)
CONDITIONAL USE PERMITS AND MINOR USE PERMITS – 19.36
IV-19.36-3 Oct. 2019
19.36.060 USE OF PROPERTY BEFORE FINAL DECISION
No permit shall be issued for any use involved in an application for approval of a Conditional Use Permit or Minor Use Permit until, and unless, the same shall have become final, pursuant to Section
19.52.080 (Effective Date). (MC 1381 12/19/12)
19.36.070 CONDITIONAL USE PERMIT EXPIRATION
Within two years of Conditional Use Permit or Minor Use Permit approval, commencement of construction shall have occurred or the Conditional Use Permit or Minor Use Permit shall become null and void. In addition, if after commencement of construction, work is discontinued for a period of one year, then the Conditional Use Permit or Minor Use Permit shall become null and void.
Projects may be built in phases if preapproved by the review authority. If a project is built in preapproved phases, each subsequent phase shall have 1 year from the previous phase's date of construction commencement to the next phase's date of construction co mmencement to have occurred, or the Conditional Use Permit or Minor Use Permit shall become null and void. (MC 891 12/20/93; MC 1381 12/19/12)
Any previously approved Conditional Use Permit that had not expired as of September 13, 1993 shall be extended for two years. This automatic extension of time is a one -time extension from September 13, 1993 and is in addition to the time granted under the initial approval of the Conditional Use Permit or any subsequent approval of an extension of time. (MC 895 1/24/94)
Any previously approved Conditional Use Permit that had not expired as of January 1, 2010 shall be extended for two years. This automatic extension of time is a one-time extension, and is in addition to the time granted under the initial approval of the C onditional Use Permit, or any subsequent approval of an extension of time. The automatic extension of time shall not reinstate nor extend any person’s right to an administrative appeal, and shall not reinstate nor extend any claims or litigation statute of limitations. By acceptance of this grant of an automatic extension of time, the applicant(s) hereby waives any challenges to the conditions, fees and requirements of the Conditional Use Permit. (MC 1329 7/19/10)
19.36.080 MODIFICATION OF CONDITIONAL USE PERMIT
An approved Conditional Use or Minor Use Permit may be modified, in a manner pursuant to Chapter 19.32 (Applications and Fees). Minor modifications to an approved Conditional Use Permit or Minor Use Permit may be approved by the D irector, pursuant to Secti on 19.60 (Minor Modifications). (MC 1381 12/19/12)
19.36.090 TIME EXTENSION
The approving authority may, upon an application being filed 30 days prior to expiration and for good cause, grant a time ext ension not to exceed 12 months. Upon granting of an extension, the approving authority shall ensure that the Conditional Use Permit or Minor Use Permit complies with all current Development Code provisions. (MC 1381 12/19/12)
CONDITIONAL USE PERMITS AND MINOR USE PERMITS – 19.36
IV-19.36-4 Oct. 2019
19.36.100 REVOCATION
The approving authority may hold a hearing to revoke or modify a Conditional Use Permit or Minor Use Permit granted pursuant to the provisions of this Chapter. Ten days prior to the hearing, notice shall be delivered in writing to the applicant and/or owner of the property for which such Conditional Use Permit or Minor Use Permit was granted. Notice shall be deemed delivered 2 days after being mailed, first class postage paid, to the owner as shown on the current tax rolls of the County of San Bernardino, and/or the project applicant.
A Conditional Use Permit or Minor Use Permit may be revoked or modified by the approving authority if any one of the following findings can be made:
1. That circumstances have changed so that 1 or more of the findings contained in Section
19.46.050 can no longer be made;
2. That the Conditional Use Permit or Minor Use Permit was obtained by misrepresentation or fraud;
3. That the use for which the Conditional Use Permit or Minor Use Permit was granted had ceased or was suspended for six or more consecutive calendar months;
4. That one or more of the conditions of the Conditional Use Permit or Minor Use Permit have not been met;
5. That the use is in violation of any statute, ordinance, law, or regulation; and
6. That the use permitted by the Conditional Use Permit or Minor Use Permit is detrimental to the public health, safety or welfare or constitutes a nuisance. (MC 1381 12/19/12)
19.36.110 CONDITIONAL USE PERMIT/MINOR USE PERMIT TO RUN
WITH THE LAND
A Conditional Use Permit or Minor Use Permit granted pursuant to the provisions of this Chapter shall continue to be valid upon a change of ownership of the site, business, service, use or structure which was the subject of the permit application. (MC 1381 12/19/12)
19.36.120 PERFORMANCE GUARANTEE
The developer may be conditioned to provide performance security in a manner similar to Section
19.30.230 for the faithful performance of any or all conditions of approval.
HEARINGS AND APPEALS – 19.52
IV-19.52-1 June 2022
CHAPTER 19.52
HEARINGS AND APPEALS
Section Page
19.52.010 Purpose ....................................................................................................... IV-19.52-1
19.52.020 Application Processing .............................................................................. IV-19.52-1
19.52.030 Director Investigation ................................................................................ IV-19.52-2
19.52.040 Hearing Procedure ..................................................................................... IV-19.52-2
19.52.050 Notice of Decision – Director and Development Review Committee .......... IV-19.52-2
19.52.060 Notice of Decision – Commission ............................................................... IV-19.52-2
19.52.070 Notice of Decision – Council ...................................................................... IV-19.52-3
19.52.080 Effective Date ............................................................................................ IV-19.52-3
19.52.090 Appeal of Action ........................................................................................ IV-19.52-3
19.52.100 Filing of Appeals ........................................................................................ IV-19.52-3
19.52.110 Notice of Appeal Hearings ......................................................................... IV-19.52-4
19.52.120 Effective Date of Appealed Actions .......................................................... IV-19.52-4
19.52.130 Reapplication ............................................................................................. IV-19.52-4
19.52.140 Reconsideration .......................................................................................... IV-19.52-4
19.52.010 PURPOSE
These provisions specify procedures for hearings before the Council, Commission, Development Review Committee (DRC) and Director and appeals of any requirement, decision or determination made by the Director, DRC or the Commission.
19.52.020 APPLICATION PROCESSING (MC 1574 5/4/22)
Applications shall be reviewed and processed in a manner consistent with the provisions of the California Government Code Sections 65090, 65091, and 66451.3.
Not less than 10 days before the date of a hearing, public notice shall be given of such hearing by the following methods:
1. By one publication in a newspaper of general circulation within the City. The notice shall state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body;
2. By mailing, 10 days prior to said hearing, postage prepaid, to the owners and tenants (residential and business) of a property within a radius of 1,000 feet of the exterior boundaries of the property involved in the application, using for this purpose the last known name and address of such owners and tenants (residential and business) as shown upon the current tax assessor's records. Notice is deemed received two days after date of postmark. The list of property owner and tenant (residential and business) addresses shall be typed upon gummed labels, together with required postage. The list shall be prepared and certified by the applicant or a title insurance company.
HEARINGS AND APPEALS – 19.52
IV-19.52-2 June 2022
The notice shall state the nature of the request, location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body; and the notice shall be prepared in English and Spanish.
3. In the event that the number of owners and tenants (residential and business) to whom notice would be sent is greater than 1,000, notice may be given at least 10 days prior to the hearing by placing a display advertisement of at least 1/8 page in the newspaper having the greatest circulation within the area affected by the proposed action. The notice shall state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body; and
4. By mailing, 10 days prior to said hearing, postage prepaid, to the owner of the subject real property or the owner's authorized agent, and to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the proposed project.
The notice shall state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body. Notice is deemed received 2 days after date of postmark.
19.52.030 DIRECTOR INVESTIGATION
The Director shall make an investigation of the facts bearing on the case to provide the information necessary for action consistent with the intent of this Development Code and the General Plan. The Director shall report the findings to the DRC, Commission or Council as appropriate.
19.52.040 HEARING PROCEDURE
Hearings as provided for in this Chapter shall be held at the date, time, and place for which notice has been given as required in this Chapter. The summary minutes shall be prepared, or audio tape made and filed in the Department. Any hearing may be continued provided that prior to the adjournment or recess of the hearing, a clear announcement is made specifying the date, time, and place to which said hearing will be continued.
19.52.050 NOTICE OF DECISION – DIRECTOR AND DEVELOPMENT
REVIEW COMMITTEE
The Director and/or the DRC shall announce and record their respective decisions at the conclusion of each required hearing. The decision shall set forth applicable findings and any conditions of approval. Following the hearing, a notice of the decision and any conditions of approval shall be mailed to the applicant at the address shown upon the application.
19.52.060 NOTICE OF DECISION – COMMISSION
The Commission shall announce and record its decision at the conclusion of the public hearing. The decision shall set forth the findings of the Commission together with all required conditions of approval deemed necessary to mitigate any impacts and protect the health, safety and welfare of the community.
HEARINGS AND APPEALS – 19.52
IV-19.52-3 June 2022
Following the hearing, a notice of the decision of the Commission, and any conditions of approval shall be mailed to the applicant at the address shown upon the application.
The recommendation with findings of the Commission for the following applications shall be transmitted to the Council for final action:
1. Specific Plans;
2. General Plan Amendments, text or map;
3. Development Code Amendments;
4. Development Agreements; and
5. Surface Mining and Land Reclamation Plans.
19.52.070 NOTICE OF DECISION – COUNCIL
The Council shall announce and record its decision at the conclusion of the public hearing. The decision shall set forth the findings of the Council and conditions of approval deemed necessary to mitigate any impacts and protect the health, safety and welfare of the City.
Following the hearing, a notice of the decision of the Council and any conditions of approval shall be mailed by the City Clerk to the applicant at the address shown upon the application.
The decision of the Council shall be final.
19.52.080 EFFECTIVE DATE
Director approved Development Permits shall become effective upon approval, unless appealed.
Minor Exceptions, Variances, all other Development Permits, and Conditional Use Permits, shall become effective 15 days following the final date of action (i.e., approval) by the appropriate review authority. Specific Plans, General Plan Amendments, Development Code Amendments, Development Agreements, and Surface Mining and Land Reclamation Plans shall become effective 30 days following the final date of action (i.e., adoption) by the Council. The letter of approval shall constitute the permit, and the resolution or ordinance shall constitute the amendment.
19.52.090 APPEAL OF ACTION
Any determination or action taken by the Director or the DRC may only be appealed to the Commission. In a similar manner, any action taken by the Commission to approve or disapprove an application may be appealed to the Council. Any determination or action taken by the City Engineer may only be appealed directly to the Council.
19.52.100 FILING OF APPEALS
All appeals shall be submitted to the Department on a City application form, and shall specifically state the basis of the appeal. An appeal of a Director or DRC action shall be filed with the
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Department within 15 days following the final date of action for which an appeal is made. An appeal of a Commission decision shall be filed with the Department within 15 days following the final date of action for which an appeal is made.
An appeal of a City Engineer action shall be filed in the office of the City Clerk. All appeals relating to subdivision matters shall be made within 15 days following the date of the decision or action for which an appeal is made. Appeals shall be accompanied by a filing fee as specified in Chapter 19.32 (Applications and Fees).
19.52.110 NOTICE OF APPEAL HEARINGS
Notice of an appeal hearing shall conform to the manner which the original notice was given. The appellant shall be responsible for all noticing materials required in the original application.
19.52.120 EFFECTIVE DATE OF APPEALED ACTIONS
An action of the Director or DRC appealed to the Commission shall not become final until upheld by the Commission. An action of the Commission or City Engineer appealed to the Council shall not become final unless and until upheld by the Council.
19.52.130 REAPPLICATION
When an application for a permit or amendment is denied, no application for the same or substantially same permit or amendment shall be filed in whole, or in part, for the ensuing 12 months except as otherwise specified at the time of denial. The Director shall determine whether the new application is for a permit or amendment which is the same or substantially the same as a previously denied permit or amendment. No decision of the Director shall be effective until a period of 15 days has elapsed following the written notice of decision.
19.52.140 RECONSIDERATION
If more complete or additional facts or information, which may affect the original action taken on an application by a review authority are presented, the review authority may reconsider such action taken, if a request for reconsideration is filed with the Department within 15 days following the final date of action. If a public hearing was required in the original review process, another public notice as specified in Section 19.52.020 shall be made prior to the reconsideration of the review authority, and all costs associated with the reconsideration shall be paid by the applicant.