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(a) Intent. As a result of the Eastern Neighborhoods Zoning Controls, certain land uses that were previously permitted, particularly office and housing, are no longer permitted. The purpose of this Section is to establish a time-limited program wherein existing uses that have operated without the benefit of required permits may seek those permits. Uses that could be "legitimized" under this Section are those uses which, under the current provisions of this Code and without this Section, could not otherwise seek the required permits.
(b) Applicability.
(1) Geography. This Section shall apply only to property located in the Eastern Neighborhoods Mixed Use Districts, the SLI District, or any PDR District which is located within the boundaries of the Eastern Neighborhoods Project Area pursuant to Section 423.3. This Section shall not apply to any Live/Work use as defined in Section 102.
(2) Eligibility. Any use that is the subject of an application under this Section shall be one that is determined by the Zoning Administrator as one which:
(A) exists as of the date of the application;
(B) would have been principally permitted or permitted with Conditional Use authorization under provisions of the Planning Code that were effective on April 17, 2008;
(C) would not be permitted under current provisions of this Code;
(D) is a land use that either:
(i) has been regularly operating or functioning on a continuous basis for no less than 2 years prior to the effective date of this Section; or
(ii) has been functioning in the space since at least April 17, 2008, and is associated with an organization, entity or enterprise which has been located in this space on a continuous basis for no less than 2 years prior to the effective date of this Section;
(E) is not accessory to any other use; and
(F) is not discontinued and abandoned pursuant to the provisions of Section 183 that would otherwise apply to nonconforming uses.
(3) Sunset. All applications for a determination of eligibility under Subsection (d) must be received by the Zoning Administrator on or before November 12, 2012. If the Planning Department fails to timely issue notice pursuant to Subsection (c), the Zoning Administrator may extend this termination date for an additional period of time not to exceed the number of days that the Department delayed in issuing the notice. An applicant who has received a determination of eligibility must submit to the Department all required application materials for legitimization within 90 days of the date of issuance of the determination of eligibility and diligently pursue the legitimization process until completion. For purposes of this section, "diligently pursue" shall mean timely responding to all requests for additional information from the Department or other City agency reviewing the matter and timely applying for and pursuing all permits and other approvals required to legitimize the use. Failure to do so may result in the Zoning Administrator's revocation of the legitimization letter.
(c) Notification of Program Availability. Within 90 days of the effective date of this Section, the Planning Department shall cause notice to be mailed to all owners of property to which this Section applies. Such notification shall consist of an explanation of this program and application instructions and any other relevant information determined by the Zoning Administrator.
(d) Application for Eligibility. An application under this Section may include multiple tenancies and/or uses on a property; however, only one application may be made per parcel for the duration of the program. Such application may not involve any expansion or intensification of the use in question. Any proposed expansion or intensification must be made under separate application and is subject to all current provisions of this Code.
Any application under this Subsection shall be accompanied by the following materials:
(1) floor plans for the entire building along with specific demarcation of the space proposed for legitimization;
(2) evidence supporting the findings required under Subsection (b)(2) above. Such evidence may include but is not necessarily limited to the following: rental or lease agreements, building or other permits, utility records, business licenses, or tax records; and
(3) notification materials, including a list of all property owners within 300 feet of the subject property, as set forth in Section 306.3(a)(2) and, to the extent practical, a complete list of all current occupants of the subject property.
(e) Determination of Eligibility. The Zoning Administrator shall determine compliance with the criteria set forth in Subsection (b)(2), above, through a written decision. No less than 30 days prior to making a determination, the Zoning Administrator shall mail and post a notice of intent to render a determination as set forth below so that parties other than the applicant are afforded the opportunity to present information which may have bearing on the determination:
(1) By mailing notice to owners within 300 feet of the property in question as set forth in Section 306.3(a)(2);
(2) by mailing notice to current tenants of the subject property using materials submitted pursuant to Section (d)(3), above;
(3) by mailing notice to all individuals or neighborhood organizations having made written request for notification for either (i) applications under this Section or (ii) specific properties or areas; and
(4) by posting a notice on the subject property as set forth in Section 306.8.
(f) Application to Legitimize. Uses that are determined to be in compliance with the criteria of Subsection (b)(2), above, shall be governed as set forth below. Unless specifically stated by the Planning Commission in the case of a Conditional Use authorization, approval of any application under this Subsection shall be deemed to authorize all aspects of the use and portions of the structure housing the use under the Planning Code. Those portions of the use or structure that do not comply with current provisions of this Code shall be deemed nonconforming uses or noncomplying structures under Article 1.7 of this Code. Action under this Subsection in no way shall affect the applicability of relevant portions of the or other portions of the Municipal Code.
(1) Those uses which, under the provisions of this Code that were applicable on April 17, 2008, would have either: (i) required Conditional Use authorization pursuant to Section 303 or (ii) been principally permitted but required an allocation of office space of less than 50,000 gross square feet under the Annual Limit pursuant to Section 321(b)(4), may seek such authorization pursuant to all requirements of the applicable Section.
(2) Those uses which, under the provisions of this Code that were applicable on April 17, 2008, were principally permitted may seek a building permit in order to legally establish the use. Upon the Department's determination that the application is consistent with the enabling Zoning Administrator's decision, the Planning Department shall approve such permit.
(3) Those uses which, under the provisions of this Code that were applicable on April 17, 2008, would have required an allocation of office space of 50,000 or more gross square feet under the Annual Limit, may seek such authorization pursuant to the requirements of Section 321; however, no application may be acted on by the Planning Commission until the termination date of the application period set forth in Subsection (b)(3), above. After that time, Planning Department staff shall take all reasonable steps to schedule pending eligible applications for Planning Commission review based on the order in which a project's determination of eligibility was issued. Nothing in this Section shall preclude the Director of Planning, based on the demand for participation in this program, from limiting the number of projects that appear before the Planning Commission in a given period of time.
(g) Fee Amount. Any use authorized under Subsection (f) above shall, in addition to any applicable application fees, pay for the area being legitimized the following impact fees:
(1) If the use is legitimizing as Office, (as defined in Sec. 102)
(A) If the project is subject to the Transit Impact Development Fee (as defined in Section 411), a $2.00/gross square foot Transit Impact Development Fee.
(B) If the project is subject to the Jobs-Housing Linkage Fee (as defined in Section 413), an $8.50/gross square foot Jobs-Housing Linkage Fee.
(C) No Eastern Neighborhoods Impact Fees shall be charged.
(2) If the use is legitimizing as Retail or Entertainment (as defined in Section 401)
(A) If the project is subject to the Transit Impact Development Fee (as defined in Section 411), a $2.00/gross square foot Transit Impact Development Fee.
(B) If the project is subject to the Jobs-Housing Linkage Fee (as described in Sec. 413), a $7.20/gross square foot Jobs-Housing Linkage Fee.
(C) No Eastern Neighborhoods Impact Fees shall be charged.
(h) Fee Payment. Fees shall be paid upon issuance of the first construction permit (as defined in Sec. 401) or if an applicant has elected to participate in a deferred payment program, as specified below:
(1) Prior to issuance by DBI of the first construction permit, at least 20% of applicable fees are due. Henceforth, at least 20% of applicable fees are due by July 1st of each subsequent calendar year, such that final payment must be made within four years of receiving the first building or site permit.
(2) The applicant may elect to pay any outstanding balance at any time within these four years.
(3) A Notice of Special Restrictions shall be placed on the title of the property specifying that additional payment is required. This Notice of Special Restrictions shall be released when payment is complete.
(4) All outstanding fees will be adjusted annually based on the cost of living as defined by the Controller's Office.
(5) The Department may assess an additional fee for time and materials spent implementing this deferred fee program.
(6) Failure to comply with the terms of the program and associated NSR as specified in this Subsection shall be deemed a violation of this Code and result in an enforcement action by the Department, which may include, referral to the Bureau of Delinquent Revenue and a lien on the subject property. Any enforcement action also may result in additional charges or penalties to cover the City's costs in the enforcement action, including, but not limited to City Attorney's fees.
AMENDMENT HISTORY
Division (b)(3) amended; Ord. 61-12, Eff. 5/19/2012. Division (b)(1) amended; former divisions (b)(2)(D)(1) and (2) redesignated as (b)(2)(D)(i) and (ii); divisions (f) and (g)(1) amended; former division (g)(2) deleted and former division (g)(3) redesignated as (g)(2); division (h) amended; Ord. 22-15, Eff. 3/22/2015. Former division (g)(4) redesignated as (g)(3); Ord. 188-15
, Eff. 12/4/2015.