As part of this year�s budget process, the City Council directed staff to create a "Conditions of Approval Enforcement Pilot Program" which would verify and track the conditions established for discretionary entitlements such as Conditional Use Permits (CUPs) and Planned Developments (PDs). The purpose of this report is to provide details of the proposed pilot program prior to its initiation.

BACKGROUND

Over the past couple of years, Planning Board members, including Jef Vander Borght (now Council Member Vander Borght) have expressed their concerns that conditions of approval to certain discretionary land use entitlements such as conditional use permits and planned development zones are not being met throughout the community. Consequently, during this year�s budget process, a Conditions of Approval Enforcement Program was introduced as a discussion paper item (Exhibit A). While adopting the budget, the Council appropriated $100,000 for a six-month pilot program and directed staff to implement such a program as it deemed necessary.

Current Enforcement Procedures

Presently, when an entitlement is approved by the Planning Board or City Council, conditions of approval are attached and the applicant is given a specific time period to comply. The conditions of approval are generally divided into the following two categories which determine when compliance can be confirmed.

1. "FIRST CATEGORY" OF CONDITIONS OF APPROVAL

Conditions of approval which must be complied with immediately in order to be issued either a Building or Use and Occupancy Permit. These conditions are usually established for making a specific improvement or incorporating a specific design feature into the architectural plans when constructing a project.

2. "SECOND CATEGORY" OF CONDITIONS OF APPROVAL

Conditions of approval which prescribe restriction on the use or performance standards, such as confinement of hours of operation or limitations on outdoor activities. These types of conditions require routine field checks or reliance on complaints to provide long term assurance of compliance. Proactively verifying this category of conditions would be the primary focal point of this pilot program.

On average, the number of planning applications that are processed and have requirements that fall into this "Second Category" is an average of 64 applications per year. As the table below illustrates, conditional use permits and planned developments are the primary discretionary applications that have conditions which fall into this second category.

Confirmation of compliance with the second category of conditions of approval is currently done only when a complaint is received, or when City inspectors verify a violation while routinely in the field. Enforcement of this category of conditions has a strong potential for being problematic because it generally requires property access or entry which many times can involve non-daytime or non-business hours. In addition, confirmation of compliance with use restrictions and/or performance standards needs to be accomplished repeatedly during the life of the entitlement through mutually agreed upon inspection timeframes.

Because of the relative short amount of time prescribed for the pilot program (6 months), staff suggests the following proposal.

UTILIZING EXISTING STAFF VS. CONTRACT PERSONNEL

Due to the need for familiarity with City codes and inspection procedures, in addition to a condensed timeframe, should the Council approve moving forward, it is recommended we conduct this pilot program "in-house" utilizing existing staff as opposed to using a contracted consultant. Staff proposes to proceed with the pilot program "in-house" using a Code Compliance Inspector, who is extremely familiar with the City, inspection procedures, as well as existing CUP and planned development projects and permit processes.

For the six month duration of the program, this inspector will be dedicated as on "special assignment" to solely devote time to the pilot program. In turn, an existing part-time Code Compliance Inspector would take over as a temporary full-time inspector to backup existing enforcement cases during the interim. A part-time temporary code enforcement inspector would be hired to cover the temporary vacancy of the existing part-time inspector. In doing so, this will not add any personnel to the existing workforce. A part-time replacement inspector will be hired for a six month period to fill the void created by this "special assignment."

The License and Code Services Division will work in tandem with the Planning Division in obtaining the case files and conditions of approval for the various discretionary permits that will be handled during the pilot program. The Deputy City Planner will be the "point person" for the Planning Division for the duration of the pilot program.

As well, should this pilot program evolve into an ongoing City program, it will be an easier transition for the License and Code Services� Division having completed the pilot program with existing staff. Additionally, implementing this project "in-house" will be a cost saving as the estimated cost is much less than contracting with an outside consultant. With the aforementioned personnel changes, the pilot project would cost approximately $25,000 and not exceed the $100,000 in funds appropriated for this project. However, it should be noted that the generation of spin-off complaints resulting from these proactive inspections could over time limit the number of discretionary permits that are able to be reviewed. Although a formal request for proposal was not issued, consultant estimates ranged from $70,000 to $100,000.

WHAT WILL BE INSPECTED (VERIFIED)

Staff plans to begin by verifying conditions of approvals on all planned developments. As well, staff will verify conditional use permits over the past 10 years (beginning 10 years ago). Emphasis will be on conditional use permits which currently receive the most complaints, such as those that are residentially adjacent. Staff will inspect a geographical cross section of the community along with a mix of various types of CUPs in order to return to Council having pursued verification on several different discretionary permits. It is important to note that as a result of new state law and the City's interim development control ordinance, enforcement on second dwelling unit CUPs has been stayed pending City adoption of a new ordinance and therefore, those types of CUPs will not be subject to this program.

HOW INSPECTIONS WILL BE CONDUCTED

Curbside field inspections will be conducted for each selected site. If compliance can be verified with a curbside field inspection then the inspector can move onto the next case. Whenever a curbside inspection cannot be conducted, letters requesting entry will be sent out to notify properties owners of the pending inspection. The License and Code Services Inspector will then inspect the premises for compliance with the conditions. They can enter private property with consent of the property owner or person in control of the property, in addition to entering properties readily open to the public. However, should inspectors be denied entry onto property, they will need to obtain an inspection warrant to complete the inspection. When entry is not voluntarily granted, then the City Attorney�s Office will need to advise the inspector on securing an Inspection Warrant. As a result, a program of this nature will require staff support from other departments, in particular, the City Attorney�s Office. Support from other departments will largely be determined by how complicated any one case becomes.

WHAT OTHER CITIES ARE DOING

Staff did contact several other cities in addition to the League of California Cities to see if a proactive citywide verification program (specifically for conditions of approval) existed and if so, to determine what types of efforts were the most successful. Although several cities have considered conducting such a program, staff was unable to find a City that had adopted and implemented such a proactive program. Additionally, staff contacted two well-known and reputable planning consultants, Willdan & Associates as well as Berryman-Henniger and neither indicated that they had been contracted to perform a proactive verification program as extensive as the aforementioned proposal. These firms did cite that many cities have tickler files (a few with sophisticated software based notifications) that periodically remind staff of annual inspections on certain cases as opposed to complaint-driven inspections. Additionally, it was indicated that if there was non-compliance with conditions of approval, the method typically used by most cities was to ultimately have a revocation hearing before the City Council or Planning Board/Commission.

NON-COMPLIANCE

Should staff discover that a permit be in non-compliance, staff would proceed in a manner similar to building code violations. A Notice of Violation would be issued and if the violation is not resolved, revocation procedures could result with respect to the permit. At this time, a code amendment would need to occur to make a violation of a condition of approval to certain land use entitlements a criminal violation. Because conditions can be outdated or no longer necessary, a property/business owner would be encouraged to amend their existing conditional use permit. While the existing code could be interpreted as adequate, basically requiring a property/business owner to apply for a new CUP, a code amendment is proposed to directly address modification of a conditional use permit condition. A fee amendment would also be needed; however, the fee proposed would be identical as a new CUP application, since similar analysis and noticing would be required.

In essence, the property/business owner would have the following options should they be in non-compliance with any of their respective condition(s) of approval.

Option 1: After the Notice of Violation is issued, the property/business owner has a reasonable period to meet all the conditions of approval, or

Option 2: The property/business owner may elect to go to the Planning Board, after providing the Planning Division with an application to amend its existing permit to modify/delete/change any condition of approval that the applicant may feel is necessary for that particular discretionary permit. Only those conditions proposed to be changed would be considered at the hearing. This decision, similar to any other discretionary permit, could be appealed to the City Council for a final decision.

SPIN OFF COMPLAINTS

One of the results that staff foresees with this type of proactive enforcement is the program generating "spin-off" complaints. Spin-off complaints are when a property/business owner is made aware that he/she is not in compliance and they make staff aware of alleged violations on neighboring properties. Staff is required to investigate and inspect these other properties which will add to the workload. It is important to note that this is a primary reason that many cities have not implemented a proactive program. It is proposed that the dedicated staff person for this program will follow up with all these spin-off complaints.

ADDITIONAL ENFORCEMENT MEASURES TO BE IMPLEMENTED

Whether or not this pilot program evolves into an ongoing City program, staff intends to continue to examine the feasibility of implementing additional enforcement measures with our existing staff. The following are some examples of additional enforcement measures that are currently being explored.

• Staff is looking at utilizing the City�s Geographical Information Systems (GIS) database and document imaging system to maintain and share entitlement information and records including approved resolutions and/or ordinances and related conditions of approval.
• Staff is also planning to install a "tickler file" to provide an annual reminder to each project planner to check the operational or performance requirements imposed on a project they are responsible for.

While not directly part of the pilot program, certain cost recovery measures as to code enforcement will be examined. These include imposing inspection fees for repeated inspections of code violators; continuing to work on an administrative citation process for certain code violations; and exploring an annual inspection program as part of future CUPs where an annual fee is charged for the service.

The Council appropriated $100,000 in account 001.CD34A.62970.0000.000000 (Code Enforcement-Holding Account) specifically for a pilot program during the budget process this fiscal year. As a result of implementing this project "in-house," staff anticipates that there is a sufficient amount of funding for this pilot program which will not be exceeded.

RECOMMENDATION

In light of the recent state budget proposals and the overall uncertainties of the budget impacts to the City, staff is reluctant to support spending funds on a new code enforcement pilot program that may evolve into an ongoing city program. Although funds have been appropriated this fiscal year to implement a pilot program and staff believes a well-planned proposal has been outlined above, staff feels the fiscally prudent action is to put this pilot program on hold until the impacts of this year�s budget are known. To that end, it is recommended that the City Council direct staff to bring this pilot program back to the Council for consideration following the upcoming budget process.

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