The purpose of this memo is to address concerns raised by the Council during the City Council meeting of May 18, 2004, regarding the effective date of enforcement of BMC sec. 5-801.1, banning commercial use of park facilities without a permit.  The memo also clarifies the time limits set forth in the permit appeals process outlined in Chapter 2, Article 15 of the BMC.

Background

On May 18, 2004, Council introduced BMC sec. 5-801.1, making the commercial use of City owned, operated or maintained property without proper permits unlawful.  During the discussions relating to the introduction of the ordinance, Council raised concerns regarding the effective date of enforcement of the ordinance in order to ensure entities have adequate time to obtain the required permits.  Council also inquired as to the permit appeals process and what would constitute a reasonable period of time to apply for a permit and if necessary, complete the permit appeals process. 

Discussion

Effective Date of Enforcement

Pursuant to Section 8 of the Charter of the City of Burbank, all ordinances shall become effective at 12:01 a.m. on the 31^st day from and after the date of the first publication or posting thereof (excluding the day of adoption).  

The Charter also provides for the introduction and passage of ordinances at one and the same meeting but only ordinances related to an election, or ordinances otherwise specially required by the laws of the State, or ordinances declared by the Council to be necessary as an emergency measure for preserving the public peace, health, safety or welfare or as mandated by a state or federal law, or ordinances related to bond issues. 

Since the proposed amendment does not fall within any categories allowing for an earlier effective date as set forth above, the effective date of the ordinance pursuant to the Charter would be  12:01 a.m. on the 31^st day from and after the date of the first publication or posting. 

In order to effectuate Council�s desire to ensure entities have adequate time to obtain the required permits, we have proposed that the following language (in italics) be added to BMC sec. 5-801.1 section 4: 

            4.         This Ordinance shall become effective at 12:01 a.m. of the thirty-first day after publication.  Enforcement of the provisions of this ordinance shall not commence for 90 days after the effective date of the Ordinance. 

A stay on enforcement should give any affected entities sufficient and reasonable time to apply for a permit and if necessary, initiate and probably complete the permit appeals process as set forth in Article 15 of Chapter 2 of the BMC.

Timeline of Permit Appeals Process

Once an application for a park permit is filed, the Parks, Recreation and Community Services Director has eight days to approve or disapprove the application.  If the Director disapproves the application, he must mail to the applicant within ten (10) days after the date upon which such application was filed, a notice of his action with a general statement as to the reasons for the denial of the permit.

If the applicant is dissatisfied with the decision of the Director and wishes to appeal to the Permit Appeals Panel the applicant must file a written Notice of Appeal with the City Clerk no later than ten (10) days after the mailing of a Notice of Decision by the Director.

The City Clerk will provide a copy of the Notice to Appeal to the Director who shall promptly transmit to the City Manager a written report on the matter and a copy of all papers constituting any part of the record upon which the decision was based.

The City Manager shall then set the matter for hearing by the Permit Appeals Panel.

After the hearing of the appeal, the Permit Appeals Panel shall prepare written findings which shall be considered by the Panel and adopted as submitted or as modified by motion of the Panel at a further meeting to be held not later than thirty (30) days following the close of the appeal hearing.  The decision of the Panel, unless a timely appeal is filed, shall be final and conclusive.

Any decision of the Permit Appeals Panel may be appealed to the Council upon filing a Notice of Appeal with the City Clerk within ten (10) days after the date of service of the Notice of Decision by the Permit Appeals Panel.  The City Clerk shall set a time for the hearing.  Unless otherwise ordered and noticed, hearings shall be held as a part of the regular meetings of the Council.

After the hearing of the appeal, the Council shall cause the preparation of written findings which shall be considered by the Council and adopted as submitted or as modified by the Council at a regular meeting not later than two (2) weeks following the close of the appeal hearing.

Given the time frame currently mandated by the permit appeals process, a stay on enforcement for a period of 90 days appears to be sufficient and reasonable time for any affected entity to apply for a permit and avail itself of the permit appeal procedure.

Staff recommends, however, tightening the time frame for the permit appeal procedure in order to provide clearer time guidelines to the City Manager and City Clerk in setting appeal hearings.  Staff will bring the proposed changes to the permit appeals process to Council in the coming weeks.

Recommendation

The addition of language staying enforcement of BMC sec. 5-801.1 addresses Council�s concern that affected entities of the ordinance have reasonable time to apply for a permit and if necessary, pursue the permit appeals process.  Section 8 of the Burbank Charter provides that a proposed ordinance may be amended or modified between the time of introduction and final passage providing its general scope and original purpose are retained.  The addition of this one sentence does not change either the general scope or original purpose of the ordinance. 

It is staff�s recommendation that the City Council adopt �AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK ADDING SECTION 5-801.1 TO THE BURBANK MUNICIPAL CODE BANNING COMMERCIAL ACTIVITY ON CITY OWNED PROPERTY WITHOUT PROPER PERMITS�

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