HomeMy WebLinkAboutTC Ord 2005-10-05
ORDINANCE NO. 488 N.S.
AN ORDINANCE OF THE TOWN COUNCIL OF
THE TOWN OF TIBURON ADDING A NEW
ARTICLE VII TO TITLE IV, CHAPTER 16
(ZONING) OF THE TIBURON MUNICIPAL CODE
REGARDING ECONOMIC EXCEPTIONS
The Town Council of the Town of Tiburon does ordain as follows:
SECTION 1. FINDINGS.
A. The Town Council has held duly noticed public hearings on June 15,2005,
September 7,2005, September 21,2005, and October 5,2005, and has heard and
considered public testimony on the proposed Ordinance.
B. The Town Council finds that all notices and procedures required by law attendant
to the adoption of this Ordinance have been followed.
C. The Town Council finds that the amendment actions made by this Ordinance are
necessary for the protection of the public health, safety, and welfare.
D. The Town Council has found that the amendments made by this Ordinance are
consistent with the goals and policies of the Tiburon General Plan and other
adopted ordinances and regulations of the Town of Tiburon.
E. The Town Council finds that this project is categorically exempt from the
requirements of the California Environmental Quality Act per Section 15308 of
the CEQA Guidelines and under the "general rule", pursuant to Section
15061(b)(3) of the CEQA Guidelines.
SECTION 2. AMENDMENT TO MUNICIPAL CODE.
A new Article VII to Chapter 16, Title IV, of the Tiburon Municipal Code,
entitled "Economic Exceptions," is hereby added to the Tiburon Municipal Code to read
as follows:
Article VII. Economic Exceptions
16-7.1. Purpose.
The purpose of this article is to ensure that the Town applies its General Plan, ordinances,
resolutions and other measures that regulate land use for the protection and promotion of
the public health, safety, general welfare and the environment (collectively, "Land Use
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Regulations") in a manner that treats property owners fairly and in a manner consistent
with state and federal law. This article authorizes the Town to grant an Economic
Exception relaxing the application of the Town's Land Use Regulations to the extent
necessary to avoid an unconstitutional taking under the United States or California
Consti tutions.
16-7.2.
Application for Economic Exception.
(a) If any applicant believes that strict application of the Town's Land Use
Regulations would not permit an economically viable use of his or her property, or would
otherwise effect an unconstitutional taking of property, the applicant may apply for an
Economic Exception. The application for an Economic Exception shall include the
entirety of all parcels that are geographically contiguous in which the applicant holds an
interest at the time of the application.
(b) The applicant shall be required to fund all costs associated with
independent peer review studies and reports commissioned by the Town of any
information submitted by the applicant, or the independent preparation of such
information by the Town or its consultants, and may be required to submit an advance
deposit upon application to cover such costs.
(c) Any applicant that does not submit a request for an Economic Exception
as set forth in section 16-7.3 shall be deemed to have waived any objections based on the
Takings clauses of the United States and California Constitutions to the strict application
of the Town's Land Use Regulations, including, without limitation, any condition of
approval, mitigation measure or other measure imposed to implement said regulations.
16-7.3.
Time for Filin2 Application.
(a) Economic Exception requests should be filed as early as possible in the
planning and/or permit process.
(1) If the Economic Exception request is based on the facial
application of the Town's Land Use Regulations, the applicant shall apply for the
Economic Exception before or in conjunction with the first land development
application submitted for the property.
(2) The applicant shall apply for an Economic Exception in
conjunction with the first land development application submitted for the property
ifit is reasonably foreseeable that the Town's Land Use Regulations will require a
denial or a condition of approval, mitigation measure or other measure to be
imposed which the applicant believes will effect an unconstitutional taking of
property.
(b) Notwithstanding subsection 16-7.3(a)(I), if the Town Council is the decision-
making body for the land development application and the applicant's Economic
Exception request is based on a denial or on a condition of approval, mitigation measure
or other measure imposed by the Town Council, the applicant shall submit the application
for an Economic Exception within thirty (30) days of the Town Council's action on the
land development application. The Council shall retain jurisdiction over the project after
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its initial decision on the application for the sole purpose of considering a request for an
Economic Exception, which jurisdiction shall expire at the end of the 30-day period if no
such request is filed. This subsection 16-7 .3(b) shall not apply if the denial, condition of
approval, mitigation measure or other measure was reasonably foreseeable when the
applicant filed its first land development application for the property.
(c) Notwithstanding subsection 16-7.3(a)(I), if the Planning Commission, Design
Review Board, or Town Official is the decision-making body for the land development
application and the applicant's Economic Exception request is based on a denial or on a
condition of approval, mitigation measure or other measure imposed by the Planning
Commission, Design Review Board, or Town Official, the applicant shall submit the
application for an Economic Exception within ten (10) days of the decision-making
body's action on the land development application. The request for an Economic
Exception shall be submitted in conjunction with an appeal filed pursuant to the Town's
regular appeal process for contesting zoning permit decisions as set forth in section 16-
3.8 of this Code. The applicant may submit supporting information for the Economic
Exception request for a period of thirty (30) days following the decision being appealed.
Scheduling of the Town Council hearing on the appeal and the request for Economic
Exception shall be at a date that the Director of Community Development determines
will allow sufficient time for the Town to analyze the issues raised by the appeal and the
Economic Exception application. This subsection 16-7.3( c) shall not apply if the denial,
condition of approval, mitigation measure or other measure was reasonably foreseeable
when the applicant filed its first land development application for the property.
(d) For purposes of this section, "first land development application" shall mean
the first land development application filed in connection with a particular project.
16-7.4.
ReQuired Information.
(a) The applicant shall provide all of the following information within thirty
(30) days of the decision on which the Economic Exception request is being filed:
(1) The date the applicant purchased or otherwise acquired the property,
and from whom.
(2) The purchase price paid by the applicant for the property and a
description of any consideration that the applicant received for that purchase price
in addition to the property.
(3) The fair market value of the property at the time the applicant acquired
it, describing the basis upon which the fair market value is derived, including any
appraisals done at the time.
(4) The general plan, zoning or similar land use designations applicable to
the property at the time the applicant acquired it, as well as any changes to these
designations that occurred after acquisition.
(5) A description of any development restrictions or other restrictions on
use, other than government regulatory restrictions described in (4) above, that
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applied to the property at the time the applicant acquired it, or which have been
imposed after acquisition.
(6) A description of any change in the size of the property since the time
the applicant acquired it, including a discussion of the nature of the change, the
circumstances and the relevant dates.
(7) A statement as to whether the applicant has sold or leased a portion of,
or interest in, the property since the time of purchase, indicating the relevant
dates, sales prices, rents, and nature of the portion or interests in the property that
were sold or leased.
(8) A title report for the property, as well as copies of any underlying
documents referenced therein, and copies of any litigation guarantees or similar
documents that affect or limit the use of all or a portion of the property.
(9) A statement describing any offers to buy all or a portion of the
property which the applicant solicited or received, including the approximate date
of the offer and offered price.
(10) An accounting of the applicant's costs associated with the ownership
of the property, annualized for each of the last five (5) calendar years, including
property taxes, property assessments, debt service costs (such as mortgage and
interest costs), and maintenance, operation and management costs.
(11) Apart from any rent received from the leasing of all or a portion of
the property, an accounting of any income generated by the use of all or a portion
of the property over the last five (5) calendar years. If there is any such income to
report it should be listed on an annualized basis along with a description of the
uses that generate or have generated such income.
(12) A brief written explanation why the application is necessary to avoid
an unconstitutional taking.
(b) The Director of Community Development may, in his reasonable discretion,
require the submittal of additional information that he determines is necessary to analyze
the application.
(c) The Director of Community Development may, in his reasonable discretion,
grant additional time for the applicant to submit the required information.
16-7.5.
Economicallv Viable Use Determination: Economic Exception.
(a) The Town Council shall hold a public hearing on any application for an
Economic Exception. The Town Council shall grant an Economic Exception from strict
application of the Town's Land Use Regulations if the Town Council makes the
following findings:
(1) Based on the economic information provided by the applicant or
consultants, and considering any other relevant evidence, strict application of the
Town's Land Use Regulations would not provide an economically viable use of
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Ordinance No. 488 NS.
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the applicant's property or would otherwise constitute an unconstitutional taking
of the applicant's property.
(2) The Economic Exception granted will result in a project which, to the
maximum extent possible while avoiding an unconstitutional taking, (a) complies
with the Town's General Plan and Zoning Ordinance and (b) minimizes
significant environmental impacts.
(b) The Town Council's findings shall identify the evidence supporting the
findings.
SECTION 3. SEVERABILITY.
If any section, subsection, sentence, clause 0 r phrase 0 fthis chapter is for any
reason held b y a court of competent jurisdiction to b e invalid, such decision shall not
affect the validity of the remaining portions of this chapter. The Town Council declares
that it would have passed this chapter and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that anyone or more section, sentences, clauses or
phrases be declared invalid.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall take effect and be in force thirty (30) days after the date of
passage, and before the expiration of fifteen (15) days after passage by the Town Council,
a copy of the ordinance shall be published with the names of the members voting for and
against it at least once in a newspaper of general circulation in the Town of Tiburon.
This Ordinance was introduced at a regular meeting of the Town Council of the
Town of Tiburon on September 21,2005, and was adopted at a regular meeting of the
Town Council of the Town of Tiburon on October 5,2005, which was noticed pursuant
to Government Code Section 65090, by the following vote:
AYES:
COUNCILMEMBERS:
Berger, Fredericks, Gram, Slavitz
NOES:
COUNCILMEMBERS:
None
ABSENT:
COUNCILMEMBERS:
Smith
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DIANE CRANE IACOPI, TOWN CLERK.
Town ofTiburon
Ordinance No. 488 NS.
Effective November 4, 2005
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