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Ordinances of the Elk Valley Rancheria, California

Last amended: 2002

Elk Valley Indian Rancheria Ordinance No. 01-08

AN ORDINANCE OF THE TRIBAL COUNCIL FOR THE ELK VALLEY RANCHERIA ADOPTING ZONING AND LAND USE REGULATIONS FOR THE ELK VALLEY INDIAN RANCHERIA


Zoning and Land Use Ordinance -- Chapters 56-84 [Part 3]

[Chapter Listing]


ZONING AND LAND USE ORDINANCE


CHAPTER 56 - YARD AND HEIGHT EXCEPTIONS AND MODIFICATIONS


Sections
:

56.010 Purpose.
56.020 Height limits.
56.030 Front yard.
56.040 Accessory structures--Generally.
56.050 Accessory structures--Generally.
56.060 Side yards.
56.070 Rear yard exceptions and modifications.
56.080 Projections into required yards.


56.010 Purpose
. This chapter shall clarify and recognize logical and acceptable standards for encroachments into required yards, and height restrictions. The requirements specified within this ordinance shall be subject to the terms of this chapter.


56.020 Height limits
. Height limitations set forth elsewhere in this ordinance shall not apply to:

A. Barns, silos or other farm buildings or structures on farms, provided these are not less than fifty feet from, every lot line; church spires, belfries, cupolas and domes; monuments, water towers, fire and hose towers, observation towers; distribution and transmission lines, towers and poles; windmills, chimneys, smokestacks, flagpoles, radio towers, masts and aerials; parapet walls extending not more than four feet above the limiting height of the buildings; and outdoor theater screens, provided such screens contain no advertising matter other than the name of the theater;

B. Places of public assembly in churches, schools and other permitted public and semipublic buildings, provided that these are located on the first floor of such buildings; and provided further, that for each one foot by which the height of such building exceeds the maximum height otherwise permitted in the district, its side and rear yards shall be increased in width or depth by an additional foot over the side and rear yard required for the highest building otherwise permitted in the district;

C. Bulkheads, elevators,penthouses, water tank monitors and scenery lofts, provided no linear dimension of any such structure exceeds fifty percent of the corresponding street lot line frontage; or towers and monuments, fire towers, hose towers, cooling towers, grain elevators, gas holders, or other structures where the manufacturing process requires a greater height; provided, however, that all such structures above the heights other wise permitted in the district shall not occupy more than twenty-five percent of the area of the lot and shall be distant not less than twenty-five feet in all parts from every lot line not a street lot line.


56.030 Front yard
. The following exceptions and modifications shall apply to the front yard requirements provided in this ordinance.

A. In any R district, where the average depth of at least two existing front yards on lots within one hundred feet of the lot in question and within the same block front is less or greater than the least front yard depth prescribed elsewhere in the ordinance, the required depth of the front yard on such lot may be modified. In such case, the front yard shall not be less than the average depth of the existing front yards, or the average depth of existing front yards on the two lots immediately adjoining, or in the case of a corner lot, the depth of the front yard on the lot immediately adjoining; provided, however, that the depth of a front yard on any lot shall be at least ten feet and need not exceed twenty-five feet.

B. In any R district where the natural grade of a lot within the required front yard has an average slope, normal to the front lot line at every point along such line, of such a degree or percent of slope that it is not practicable to provide a driveway with a grade of twelve percent or less to a private garage conforming to the requirements of this ordinance, such garage may be located within such front yard, but not be in any case closer than six feet to the street line.

C. Where the building setback lines shown on a final re corded subdivision map approved by the Council in accordance with an ordinance adopted by the Council provide for a different front yard than required in this ordinance, then the front yard shall be as shown by the setback lines on the final map.


56.040 Accessory structures--Generally. Accessory structures shall meet the following requirements:

A. Attached or Detached Construction. An accessory structure may be erected detached from the main building, or may be erected as an integral part of the main building, or it may be connected therewith by a breeze way or similar structure.

B. Attached to Main Building. An accessory structure (not including a patio structure) attached to the main building shall be made structurally apart and have a common wall with the main building, and shall comply in all respects with the requirements of the ordinance applicable to the main building.

C. Corner Lots. No accessory structure within twenty-five feet of the common property line on a reverse corner lot shall be placed any closer to the side street property line than the required front yard of the adjoining lot, and in no case shall any part of such accessory structure be nearer to the side street lot line than the least width of the side yard required for the main building to which it is accessory.

D. Dwelling Use Restricted. Accessory structures shall not be used for dwelling purposes.

E. Lot Coverage. Accessory structures shall not exceed thirty percent of the area of the minimum required rear yard.


56.050 Accessory structures--Side and rear yards
. The following exceptions and modifications shall apply to the side and rear yard requirements:

A. Yard Requirements. Unless an accessory structure is attached to the main structure, it shall be located at least six feet from any structure on the same lot. A detached accessory structure, except for accessory storage structures of one hundred square feet or less as specified in G below, shall be located no closer than three feet of any interior lot line.

B. Patios and decks not more than thirty inches above grade may be located in side and rear yards to within three feet of any interior lot line.

C. Patio structures may encroach into required rear yards to within ten feet of the rear lot line.

D. Additions to non-conventional principal residential structures may encroach into required rear or side yards or patio areas.

E. Patio structures for non-conventional principal residential structures may encroach to within three feet from any lot line, provided that there remains an open space equal to seventy percent of the otherwise required yard area into which such encroachment is made.

F. Lath-covered structures for non-conventional principal residential structures may encroach to within three feet from the property line, provided that the lath cover is uniformly open.

G. Exceptions. A detached accessory structure may be located, closer than three feet of any interior side or rear property line in a residential district, provided that the following conditions are met:

1. It shall be located at least six feet from any structure on the same lot;

2. It shall not exceed a maximum overall height of six feet, six inches;

3. It shall be limited to a maximum gross floor area of one hundred square feet;

4. Fire-resistive materials shall be installed and a necessary permit obtained in accord with any building code hereinafter adopted by the Council.


56.060 Side yards
. The following exceptions and modifications shall apply to the side yard requirements provided in this ordinance:

A. A side yard along the side street lot line of a corner lot shall have a width of not less than one-half of the required depth of the front yard.

B. Where the building setback lines shown on a final recorded subdivision map provide for a different side yard on a corner lot than required in this chapter, then the side yard shall be shown by setback lines on the map.


56.070 Rear yard exceptions and modifications
. The following are exceptions and modifications shall apply to the rear yard requirements provided herein:

A. Covered patios in residential districts may encroach into otherwise required rear yards to within ten feet of the rear lot line, provided that there remains an open area equal to one hundred and twenty percent of the area obtained by multiplying the otherwise required rear yard dimension by the lot width.

B. In no instance shall the combined square footage of both accessory structures and building additions occupy more than thirty percent of the required rear yard.

C. No additional projecting into the required rear yard shall exceed one story in height.

D. Corner and Reverse corner Lots. Garages or carports attached to a main structure may encroach into a required rear yard to within five feet of a rear property line, provided that the additional and any other structure does not occupy more than thirty-five percent of the required rear yard, and provided further that all applicable building and fire codes hereinafter adopted by the Council are complied with.


56.080 Projections into required yards
. Certain architectural features may project into any required front yard, rear yard, or required side yard as follows:

A. Cornices, canopies, eaves, or other similar architectural features, may project a distance not exceeding two feet;

B. Porches, stairways and landings, when they serve as a required means of egress from any structure, may project a distance not to exceed three feet;

C. An uncovered stair and necessary landings may project a distance not to exceed three feet, provided such stair and landing shall not extend above the entrance floor of the building, except for a railing not exceeding three feet, six inches in height;

D. Bay window, balconies and chimneys may project a distance not exceeding two feet, provided that such features do not occupy, in the aggregate, more than one-third of the length of the building wall on which they are located.


CHAPTER 58 -
FENCES AND HEDGES


Sections
:

58.010 Purpose.
58.020 General height limitations.
58.030 Special height limitations.
58.040 Fencing material provisions.
58.050 Fences on lots used for commercial, industrial or institutional purposes.


58.010 Purpose. The purpose of this chapter is to provide standards for the height of fences and hedges.


58.020 General height limitations
.

A. Except as provide in Section 58.050, no fence shall be erected, altered or place, and no hedge shall be allowed to grow so as to exceed a height of eight feet in the required rear yard or required side yard lot.

B. Except as provided in sections 58.030 and 58.050 no fence shall be erected, altered or places, and no hedge shall be allowed to grow so as to exceed the height of forty-eight inches in the required front yard of a lot.


58.030 Special height limitations
. Notwithstanding the general height limitations on fences and hedges imposed by Section 58.020, the following more restrictive height limitations imposed by this section shall be applicable to the special circumstances described herein:

A. Corner Lots:

1. On corner lots (including reversed corner Lots), no fence or hedge exceeding forty-eight inches in height shall be erected, altered, placed or allowed to grow within five feet of the side street lot line;

2. On corner lots, within the triangular area bounded by the street lot lines and a line connecting such street lot lines twenty feet from their intersection, no fence, hedge or other obstruction shall be erected, altered, place or allowed to grow so as to exceed a height of thirty inches above the elevation of the top of the curb;

B. Multiple Dwellings. Private open space enclosures for multiple dwellings in yard areas adjacent to streets shall not be erected, altered or placed so as to exceed a height of six feet, except that any fence erected within five feet of a street property line shall not exceed four feet.


58.040 Fencing material provisions
.

A. Fences With Finished Appearances. A fence adjacent to a public right-of-way which is designed with a finished appearance on one side shall be oriented so that the finished side faces such right-of-way.

B. Barbed Wire: Pointed and Electrically Charged Materials. No barbed wire, other sharp-pointed material, or electrically charged material shall be used in the construction of a fence unless said material is at least eight feet above the ground level, except where used to contain livestock.


58.050 Fences on lots used for commercial industrial or institutional purposes
. Notwithstanding the general height limitation of Section 58.020, the following less-restrictive height and locational limitations shall apply to fences used for the purposes described herein:

A. Fences, Commercial and Industrial Lots. Open fences not in excess of ten feet in height may be erected on lots principally used for commercial or industrial purposes in any required rear or side yard, except where such yard abuts upon a street.

B. Fences, Agricultural Lots. On lots principally used for agricultural purposes, open fences in excess of four feet in height and less than six feet in height may be erected in any required yard where necessary for confinement of livestock or for security reasons.

C. Open Fences; Athletic and Institutional Facilities. Open fences which enclose school grounds, play grounds, tennis courts, swimming pools or other areas which are used for athletic purposes may exceed the height and location limitations of this chapter with the approval of the planning commission.


CHAPTER 60 -
LANDSCAPING


Sections
:

60.010 Purpose.
60.020 Landscaping--Requirements.
60.030 Landscaping -Materials.


60.010 Purpose
. The purpose of the chapter is to set minimum standards for landscaping required for the development of industrially and commercially zoned lands.


60.020 Landscaping--Requirements
.

A. The required front yards for R-3, industrial and commercial zones, shall be landscaped, except for needed walkways and driveways, with a minimum of two square feet per foot of street frontage.

B. Required landscaping shall be visible from a public street.


60.030 Landscaping--Materials. All landscaping required by this ordinance shall meet the following standards:

A. Materials. Landscaping shall include the planting and maintenance of some combination of trees, ground cover, shrubs, vines, flowers or lawns, with the plant materials consisting of native species and/or drought-resistant plants. In addition, the combination or design may include natural features such as rock and stone, and structural features including but not limited to fountains, reflecting pools, art work, screens, walls and fences.

B. Timing and Maintenance. All required plantings shall be in place prior to use or occupancy of new buildings or structures. All required plantings shall be maintained in good growing condition, and whenever necessary, shall be replaced with new plant materials to ensure continued compliance with applicable landscaping, buffering and screening requirements. All landscaping shall be maintained in a manner that will not depreciate adjacent property values or otherwise adversely affect adjacent properties.


CHAPTER 62 -
APARTMENT COMPLEX REGULATIONS


Sections
:

62.010 Application.
62.020 Purpose.
62.030 General development criteria.


62.010 Application
.
The provisions of this chapter shall be known as the "apartment complex regulations". These provisions apply to uses classified as multifamily residential.


62.020 Purpose
. The purpose and objective of this chapter is to set reasonable minimum standards for the development of well-designed apartment buildings or dwelling groups containing five or more dwelling units.


62.030 General development criteria
.

A. Interior Access Drives. Interior private access drives shall be paved with a minimum of two inches of asphaltic cement over six inches of compacted base, and shall be paved to a width of not less than sixteen feet for one-way traffic, and twenty- five feet for two-way traffic. All corners shall have a minimum twenty-five foot radius.

B. Open Space

1. At least one substantial area of group usable open space shall be provided. Such area shall:

a. Total at least one hundred and fifty square feet per dwelling unit; required setbacks shall not be considered open space;

b. Be landscaped;

c. Include outdoor recreational facilities for both active and passive recreation.

2. Private open space areas shall be provided as follows:

a. Above Ground Level. Sixty square feet, the least dimension which is seven feet;

b. Ground Level. One hundred and twenty square feet, the lest dimension of which is ten feet and which is enclosed by a view-obscuring fence four to six feet in height; a "private open space" shall be an area contiguous to the individual dwelling unit which allows its occupants the personal use of an outdoor space; each dwelling unit shall have at least one private open space;

c. Refuse Storage. There shall be adequate areas provided for refuse storage. Such refuse storage areas shall be screened from view by a six-foot-high solid fence, and shall be no more than one hundred feet from any residence;

d. Access. Each apartment complex shall have direct vehicular access from a publicly maintained street. This requirement does not apply to the expansion of an existing apartment complex when adequate access is obtained through the existing portion of the apartment complex;

e. Storage Areas. Storage areas of a minimum of fifty cubic feet shall be provided for each dwelling unit. These shall be of a type and design to provide secure storage, accessible from the ground level in the vicinity of resident parking stalls.


CHAPTER 64 - MOBILE HOME PARK REGULATIONS


Sections
:

64.010 Application.
64.020 Purpose.
64.030 General development criteria.
64.040 Mobile home lot development criteria.


64.010 Application. The provisions of Sections 64.010 through 64.040, inclusive, shall be known as the "mobile home park regulations." These provisions apply to uses classified in the mobile home park use type. (See Chapter 06, Group 2d.)


64.020 Purpose. The purpose and objective of this chapter is to set reasonable standards for the development of well-designed mobile home parks.


64.030 General development criteria
. Development criteria for mobile home parks includes:

A. Setbacks: Perimeter. Mobile homes and buildings within a mobile home park shall maintain the following setbacks:

1. A side yard and rear yard setback of at least fifteen feet from the exterior boundary of the mobile home park, suitably landscaped to provide effective screening;

2. A setback of twenty feet shall be maintained from the nearest edge of the street right-of-way;

B. Interior Access Drives. Interior private access drives shall be paved with a minimum of two inches of asphaltic cement over six inches of compacted base, and shall be paved to a width of not less than sixteen feet for one-way traffic, twenty-five feet for two-way traffic. All corners shall have a minimum twenty-five foot radius. Rolled concrete curb and gutter shall be provided along all drives:

C. Open Space.

1. At least one substantial area of group usable open space shall be provided. Such area shall:

a. Total at least one hundred fifty square feet per dwelling unit; required perimeter setbacks shall not be considered open space;

b. Be landscaped;

c. Include outdoor recreational facilities for both active and passive recreation;

D. Refuse Storage. There shall be individual refuse storage and pickup for each lot. In addition, there shall be one refuse-storage facility for every twenty-five lots; these shall be screened from view by a six-foot-high solid fence, and located a minimum of fifty feet from the nearest mobile home;

E. Emergency Access. Provisions shall be made for one emergency access from a publicly maintained street. This requirement does not apply to the expansion of an existing mobile home park when adequate access is obtained through the existing portion of the mobile home park.


64.040 Mobile home lot development criteria
. Development criteria for mobile home lots includes:

A. Density of Occupation. Each mobile home lot shall be designed to be occupied by one mobile home and uses accessory thereto. The overall density of the mobile home park shall conform to R3 density requirements.

B. Setback From Interior Access Drive. Each mobile home lot shall have a front yard setback of not less than five feet extending the entire width of the mobile home lot. A front yard will be measured from the nearest element of the mobile home or any mobile home accessory structure to the closest edge of the interior access drive.

C. Side and Rear Yard Setbacks. Each mobile home lot shall have a side and rear yard of not less than five feet, with the exception that storage sheds shall be set back a minimum of six inches from the rear and side lot lines. A side or rear yard will be measured from the nearest element of the mobile home or any accessory structure, with the exception stated above, to the side or rear lot line respectively.

D. Access. All mobile home lots and recreation facilities shall, have access only from an interior access drive.


CHAPTER 66 -
SUPPLEMENTAL PROVISIONS


Sections
:

66.010 Purpose.
66.020 Accessory uses encompassed by principal use.
66.030 Residential uses.
66.040 Home occupation.
66.050 Conversion of dwellings.
66.060 Dwelling groups.
66.070 Temporary land uses.
66.080 Moving of buildings.
66.090 Public utility service.
66.100 Outside storage of trash.
66.110 Plan lines.


66.010 Purpose. The purpose of this chapter is to establish the relationship between adjacent uses and surrounding land uses and the criteria for regulating these uses.


66.020 Accessory uses encompassed by principal use. In addition to the principal and accessory uses expressly included in the use regulations, each zone subject to such use regulations shall be deemed to include such accessory uses which are specifically identified by these accessory use regulations, and such other accessory uses which are necessarily and customarily associated with, and are appropriate, incidental and subordinate to, such principal uses.


66.030 Residential uses. Subject to the restrictions and limitations specified, the following accessory buildings and uses shall be permitted in zones where residential uses exist as a principal permitted use, conditional use, or legal nonconforming use:

A. 1. Limited Agriculture. Incidental agricultural uses for the growth and harvesting of products including:

a. Raising of vegetable and flow gardens and the harvesting of fruit and nut bearing trees,

b. Greenhouses for the propagation of plants, not to exceed two hundred square feet in size;

2. Limited agriculture does not include the raising, breeding or keeping of any livestock on the premises other than household pets as defined in subsection B;

3. No sale of any agricultural products is permitted;

B. Household Pets. Animals or fowl ordinarily permitted in the house and kept for pleasure or company and not for profit, such as dogs, cats or canaries, but not more than two dogs, four months of age or older, and not to exceed three cats six weeks of age or older. Household pets may also include not more than twelve chinchillas, twelve hamsters, twelve white mice or other laboratory animals; provided, that not more than four kinds of household pets may be kept for any dwelling unit at any one time;

C. Small Animals. Not more than six adult rabbits and/or hares, and domestic fowl (hens only), providing not more than twelve of any one combination of such animals, and fowl may be maintained on a parcel;

D. Private Garage. An accessory building or portion of a main building designed for the storage of self-propelled passenger vehicles, camping trailers or boats belonging to the owners or occupants of the site;

E. Children's playhouses, patios, porches, gazebos, etc.,

F. Radio and television receiving antennas;

G. Boarding of one or two individuals;

H. Vehicle and Equipment Repairs or Fabrication. Repair, fabrication or other work on automobile, other vehicles or equipment on residential premises shall be subject to the following conditions and restrictions:

1. such work shall be limited to those vehicles or equipment which may, be stored within a private garage upon residential premises,

2. Such work shall be done only upon such vehicles or equipment which are owned by an occupant of the residential premises,

3. Such work shall be done only between the hours of eight a.m. and ten p.m.

4. Such work shall not be done in a public right-of- way,

5. Storage of parts for such vehicles or equipment on the premises shall be limited to those parts reasonably necessary for repair of the occupant's vehicle or equipment. Parts which cannot be conveniently located within an enclosed structure shall be screened from view from the public way and adjacent property, and may not occupy any required open space prescribed elsewhere in this ordinance,

6. Notwithstanding anything to the contrary herein, no such work shall be permitted which creates a nuisance, as defined by any ordinance enacted by the Council, or which otherwise tends to deteriorate the environment, peace, tranquillity and quiet enjoyment of the residents in the surrounding neighborhood, and

7. Flammable liquids shall not be used in any building or residential premises in connection with such work, and no welding or torch cutting may be done anywhere on such premises except by permit obtained from the fire marshal. All such work will be conducted in conformance with the applicable provisions of the uniform fire code.


66.040 Home occupation
.

A. A home occupation shall be defined as an activity which is clearly incidental and secondary to the use of a dwelling for residential purposes.

B. Home occupation shall be permitted only after a home occupation permit has been issued by the planning director, and a business license secured from the Secretary of the Council.

C. A home occupation shall not change the residential character of either the dwelling or the surrounding neighborhood.

D. A home occupation shall be conducted entirely within a dwelling, and shall not be permitted in any accessory structure or within any yard space.

E. A home occupation shall be operated and maintained only by a resident of the dwelling in which such home occupation occurs, and, there shall be no employees.

F. A home occupation shall not have a separate entrance from outside a dwelling.

G. A home occupation shall not involve the use of more than one room or fifty percent of the ground floor area of a dwelling unit, whichever is greater.

H. A home occupation shall not utilize mechanical or electrical equipment except that which is customary for purely domestic or hobby purposes.

I. No home occupation shall be operated in such a manner as to cause offense noise, vibration, smoke, or other particulate matter, odorous matter, heat, humidity, glare, electronic interference, or constitute a nuisance or safety hazard.

J. No wholesale, jobbing, or retail business shall be permitted unless it is conducted entirely by mail and/or telephone; provided, however, that articles produced by the members of the immediate family residing on the premises may be sold upon the premises.

K. No outdoor storage of materials used to conduct a home occupation shall be permitted.

L. A home occupation shall not be permitted to generate vehicular traffic and parking beyond that normal to the zoning district in which it is located.

M. No sign, nameplate, or any other form of advertising shall be displayed on the premises in connection with any home occupation.

N. In no event shall a home occupation be interpreted to include an animal hospital or kennel; automobile and/or body and fender repairing; barber or beauty shop; business, dance or music school; doctor or dentist office; mortuary; private club; repair shop or service establishment; or restaurant or tourist home.


66.050 Conversion of dwellings. The conversion of any building into a dwelling or the conversion of any dwelling so as to accommodate an increased number of dwelling units or households shall be permitted only within a zoning district in which a new building for similar occupancy would be permitted in accordance with the provisions of this chapter. Further, such a conversion shall be permitted:

A. Only after a, zoning site plan review or conditional use permit has been obtained;

B. Only when the resulting occupancy will comply with the requirements governing new residential construction in the affected zoning district with respect to minimum requirements for lot size, setbacks, off-street parking, etc.


66.060 Dwelling groups
. The following minimum distances between main or principal buildings in a dwelling group shall be as follows:

A. Minimum distance of twenty feet between one story parallel buildings, and thirty feet between two story parallel buildings, within increase of six feet of further separation for each additional story of building height.

B. Minimum distance of twelve feet between one or two story buildings in a single row, with an increase of six feet of further separation for each additional story of building height.


66.070 Temporary land uses
.

A. Pow Wows, carnivals, circuses, fairs, festivals, animal displays, amusement rides, and other similar gatherings shall be permitted in any nonresidential zoning district for a maximum ten day period of time upon the approval of a zoning permit application by the planning director.

B. Temporary sales offices, those which are open to the general public, shall be permitted within a residential subdivision for a maximum one-year period of time by the planning director.

1. If such offices are detached and separate from a dwelling group, for instance, a mobile home which has been converted for sales office purposes, they shall be located at least one hundred feet from an existing residential dwelling unit, and, shall be connected to on-site water and sewer utility hook-ups.

C. Christmas tree sales lots shall be permitted only within the administrative office (CO) , community commercial (C1), and heavy commercial (C2) zoning districts. Further:

1. Such lots shall be permitted to be established by the planning director only between Thanksgiving and New Years;

2. Such lots shall be restricted only to the sale of Christmas trees;

3. Such lots shall be permitted to display signs only in accordance with the provisions of this ordinance.

D. Seasonal uses including the temporary display and sale of crop, fruits or vegetables shall be permitted in the administrative office (CO), community commercial (C1), and heavy commercial (C2) zoning districts by the planning director. Further, such uses shall:

1. Be permitted for no more than four nonconsecutive seven-day periods in a calendar year;

2. Such uses shall be permitted to display signs only in accordance with the provisions of this ordinance.

E. Peddlers and hawkers shall be permitted business uses in all zoning districts by the planning director. Further, such businesses shall:

1. Be permitted for no more than four nonconsecutive seven-day periods in a calendar year;

2. Such uses shall be permitted to display signs only in accordance with the provisions of this ordinance.

F. Temporary construction offices shall be permitted for a maximum one-year period of time by the planning director.

G. Temporary commercial and administrative office buildings may be permitted for a maximum two-year period of time only upon approval of a conditional use permit application by the planning commission.


66.080 Moving of buildings
.

A. No buildings whether now in use or formerly used for residential, commercial, or industrial purposes, shall be permitted to be physically moved from a lot within the Rancheria, or, from a lot outside the Rancheria to a lot within the Rancheria, unless said building and its placement on a lot of record can meet all of the minimum provisions of the zoning district in which it is to be located.

B. Upon the filing of a zoning permit application to move a building, the planning director shall refer said application to the building official. He/she shall then be responsible for making an inspection of the building to be moved, and prepare a report concerning the integrity of such building and any improvements which will be required to be made. The building official may recommend denial of a zoning permit if, in his/her opinion, the construction, age, or condition of the building to be moved raises doubts as to its structural integrity, or, if the proposed building to be moved is sufficiently heavy to cause damage to any street or pavement within the Rancheria.

C. Prior to issuing a zoning permit, the planning director shall determine that the moving of said building will have no detrimental effect on the living environment of the surrounding neighborhood, or upon the property values in said neighborhood.


66.090 Public utility service
. Public utility, services are uses associated with minor public utility service. These uses shall be permitted in all zoning districts, provided that the utility services available service the neighboring area only:

A. Electrical distribution lines;

B. Minor incidental appurtenances to utility lines;

C. Sewer lines;

D. Telephone lines;

E. Water or gas pipes, mains and conduits.


66.100 Outside storage of trash
.

A. With the exception of single-family detached, duplex and triplex residences, all outdoor storage facilities for fuel, raw materials, trash and/or waste products shall be enclosed by a four-sided screened fence or wall, or combination thereof, so as to completely conceal such matter from surrounding land uses.

B. All outside areas used for the storage of trash shall be constructed with a concrete floor and curb.

C. In no case shall such facilities be permitted to be placed within a required front yard.

D. All trash enclosure areas shall be surrounded by a five-foot-high fence or wall.


66.110 Plan lines. Whenever an official plan line has been established for any street, required yards shall be measured from such a line.


CHAPTER 68 - ADULT ENTERTAINMENT REGULATIONS


Sections
:

68.010 Findings and purpose.
68.020 Definitions.
68.030 Applicability.
68.040 Special regulations.
68.050 Wavier of locational provisions.


68.010 Findings and purpose. The council finds that adult entertainment businesses are recognized on the Rancheria as objectionable because of their very nature; that concentrations of such businesses tend to have a deleterious effect on adjacent, areas and neighborhoods; and that special regulation of such businesses is therefore necessary to prevent the blighting and downgrading of adjacent areas. The purpose of this chapter is to prevent clustering of adult entertainment businesses and to prevent their location near residential areas and uses.


68.020 Definitions
. As used in this ordinance and chapter, the following terms have the following meanings:

A. "Adult book store" means an establishment having as a substantial or significant portion of its stock in trade books, magazines or other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or an establishment having an area or section devoted to the sale or display of such materials.

B. "Adult entertainment business" means a business or establishment which offers services or entertainment to its patrons characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, including but not limited to any one or more of the businesses described in this section.

C. "Adult hotel" or "adult motel" means a hotel or motel wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

D. "Adult mini motion picture theater" means an enclosed building with a capacity for less than fifty persons used for presenting material distinguished or characterized by an emphasis on matter depicting or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

E. "Adult motion picture arcade" means any place to which the public is permitted or invited wherein coin or slug-operated, or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any,one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

F. "Adult motion picture theater" means an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

G. "Cabaret" means a nightclub, theater or other establishment which features live performances by topless dancers, bottomless dancers, "go-go" dancers, exotic dancers, strippers or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

H. "Massage parlor" means any establishment offering for any form of consideration or gratuity, massages, alcohol rubs, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation.

I. "Model studio" means any business where, for any form of consideration or gratuity, figure models who display specified anatomical areas are provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by persons paying such consideration or gratuity.

J. "Sexual encounter center" means any business, agency or person who, for any form of consideration or gratuity, provides a place where three or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas.

K. "Specified anatomical areas" means and includes the following:

1. Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and/or

2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

L. "Specified sexual activities" means any one or more of the following activities:

1 Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context,of a sexual relationship, use of excretory functions in the context of a sexual relationship, anilingus, buggery, coprophagy, corprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerisum, sapphism, or zooerasty; or

2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or

3. Use of human or animal masturbation, sodomy, oral copulation, ejaculation; or

4. Fondling or touching of nude human genitals, pubic region, buttocks, or female breast; or

5. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain; or

6. Erotic or lewd touching, fondling or other contact with an animal by a human being; or

7. Human excretion, urination, menstruation, vaginal or anal irrigation.


68.030 Applicability. The regulations contained in this chapter apply to all areas, within the Rancheria where adult entertainment businesses are allowed under this ordinance, either as principal permitted uses or as conditional uses.


68.040 Special regulations.

A. In any zone within the Rancheria where adult entertainment businesses regulated by this chapter would otherwise be allowed as principal permitted or conditional uses, it is unlawful to establish any adult entertainment business if its location is:

1. Within five hundred feet of any area zoned for residential use; or

2. Within one thousand feet of any other adult entertainment business; or

3. Within one thousand feet of any public or private school, park, playground, public building, church, any noncommercial establishment operated by a bona fide religious organization, or any establishment likely to be used or patronized by minors.

B. As used in this section, the term "establish any adult entertainment business" shall include the opening of such a business as a new business, the relocation of such business, or the conversion of an existing business location to any adult entertainment business use.


68.050 Waiver of locational provisions.

A. Any property owner or his authorized agent may apply to the planning commission for a waiver of any. locational regulations contained in Section 68.040. After proper notice and public hearing, the planning commission may waive any such regulation only if all of the findings are made and are supported by clear and convincing evidence:

1. That the proposed use will not be contrary to the public interest or injurious to nearby properties, and that the spirit and intent of this chapter will be observed;

2. That the proposed use will not enlarge or encourage the development of a "blighted" area;

3. That the establishment of an additional regulated use in the area will not be contrary to any program of neighborhood revitalization or renewal; and

4. That all applicable regulations of this ordinance will be observed.

B. The procedure for hearing before the planning commission permitted under subsection A shall be the same as that provided in Chapter 74 of this ordinance with, among other matters, the same notice requirements, the same right to appeal to the council and the same fees payable by the applicant.


CHAPTER 70 - SITE PLAN REVIEW


Sections
:

70.010 Purpose.
70.020 Site plan review requirement.
70.030 Application.
70.040 Planning commission findings and conditions.
70.050 Planning commission decision.
70.060 Appeal to the council.
70.070 Revisions to approved site plan.
70.080 Required street dedications and improvements.
70.090 Building permits.


70.010 Purpose
. The purposes of site plan review are to enable the planning commission to make a finding that a proposed development is in conformity with the intent and provisions of this ordinance and to guide staff in the issuance of building permits.


70.020 Site plan review requirement
. A site plan will be submitted to the planning commission for approval in accordance with the provisions of this chapter before a building permit is issued for applications involving new construction, additions or structural alterations in all zoning districts.


70.030 Application
. The applicant shall submit ten prints of the site plan to the planning director. The site plan shall be drawn to scale and shall indicate clearly and with full dimensions the following information:

A. The lot dimensions;

B. All buildings and structures and their location, elevation, size, height and proposed use;

C. The yards and spaces between buildings;

D. Walls and fences and their location, height and materials;

E. Off-street parking, including the location, number of spaces, dimensions of the parking area, and internal circulation pattern;

F. Pedestrian, vehicular and service access; points of ingress and egress; and internal circulation;

G. Signs and their location, size and height;

H. Loading, including the location, dimensions, number of spaces and internal circulation;

I. Lighting, including the location, general nature and hooding devices, if any;

J. Street dedications and improvements, as provided in Section 70.090;

K. Drainage improvements;

L. Landscaping, including the location, and type;

M. Fire prevention equipment and measures, including the location and type;

N. Such other data as may be required to permit the planning commission to make the required findings.


70.040 Planning commission findings and conditions.

A. Within fifteen days after submission of a complete site plan application, the planning commission shall approve, approve with such conditions as set forth in this section, or disapprove the site plan. In approving the site plan, the planning commission shall find that:

1. All the applicable provisions of this ordinance are complied with;

2. The following are so arranged that traffic congestion is avoided and pedestrian and vehicular safety and welfare are protected, and there will be no adverse effect on surrounding property:

a. Facilities, improvements and utilities,

b. Vehicular ingress, egress and internal circulation

c. Setbacks,

d. Height of buildings,

e. Location of service use areas,

f. Walls,

g. Landscaping;

3. The proposed lighting is so arranged as to deflect the light away from adjoining properties;

4. The proposed signs will not by size, location, or lighting interfere with traffic or limit visibility;

5. That any conditions of approval are deemed necessary to protect the public health, safety and welfare. Conditions may include the following:

a. Requiring special yards, spaces and buffers,

b. Requiring fences and walls,

c. Requiring enclosure of storage areas and limitation on out-of-door display of merchandise,

d. Requiring grading, surfacing and drainage improvements, egress,

e. Regulation of points of vehicular ingress and

f. Regulation of signs,

g. Requiring landscaping and maintenance thereof,

h. Requiring maintenance of grounds,

i. Requiring fire prevention equipment and measures,

j. Regulation of noise, vibration, odors, electrical discharge, or interference,

k. Regulation of lighting.

l. Requiring street dedications and improvements, subject to the provisions of Section 70.090,

m. Such other conditions as could make possible the development of the Rancheria in an orderly and efficient manner and in conformity with the intent and purposes set forth in this chapter.

B. In making such findings, the planning commission shall consult with other tribal or Bureau of Indian Affairs personnel as appropriate to assure that approvals will be consistent with established legislative policies relating to traffic safety, street dedications, street improvements and public safety.


70.050 Planning commission decision
. The decision of the planning commission shall be final unless appealed to the council in accordance with the procedure specified in Section 70.060. The planning commission shall cause a copy of the site plan, with their decision and any conditions shown thereon or attached thereto, to be mailed to the applicant within ten days of the adoption thereof.


70.060 Appeal to the council.

A. Procedure. The applicant may appeal the decision of the planning commission to the council by setting forth in writing the reasons for such appeal. Such appeal shall be filed with the secretary of the council within ten days after the date of mailing as shown by the postmark on the papers mentioned in Section 70.050. The appeal shall be placed on the agenda of the council's next regular meeting after the appeal is filed; provided, however, that if the appeal is filed within ten days of the next regular meeting of the council, the appeal shall be placed on the agenda of the council's second regular meeting following the decision of the planning commission. The council may affirm, reverse, or modify a decision of the planning commission; provided, however, that if a decision denying a site plan is reversed or a decision granting a site plan is modified, the council shall, on the basis of the record transmitted, and such other evidence as may be submitted, make the findings prerequisite to the approval of a site plan as prescribed in Section 70.040.

B. Decision. The decision of the council shall be final. The council shall cause a copy of the site plan, with its decision and any conditions attached thereto, to be mailed to the applicant within ten days of the adoption thereof.


70.070 Revisions to approved site plan
. Revisions by the applicant to an approved site plan shall be made pursuant to the procedure set forth in this chapter.


70.080 Required street dedications and improvements. Because of changes that may occur in a local neighborhood within the Rancheria due to increases in vehicular traffic generated by facilities requiring site plan review, and upon the principle that such developments should be required to provide street dedications and improvements as near as practicable in proportion to such increased vehicular traffic, but should not be required to provide such street facilities for nonrelated traffic, the following dedications and improvements may be deemed necessary by the commission and may be required as a condition to approval of any site plan:

A. When development borders or is traversed by an existing street:

1. Local streets and Cul-de-sacs. Widen and pave any existing street or road to its ultimate width as established by the council by ordinance; install curbs, gutters, drainage, sidewalks, street trees, street signs, street lights, required utilities and grade and improve from curb to any existing pavement;

2. Arterial and Collector Streets. Set back all facilities the required distance from ultimate property line as established by the council by ordinance; dedicate all necessary rights-of-way to widen the street to its ultimate width as established by any precise plan or where the ultimate right-of-way lines are otherwise determinable and the grades have been established or can be determined; install curbs, gutters, drainage facilities, sidewalks, street trees, street signs, required utilities, and grade and improve the shoulder and one traffic lane abutting the development. In no case shall a person be required to dedicate or improve, the right-of-way for a distance in excess of thirty feet as measured from the ultimate right-of-way line;

3. Major Thoroughfares. Set back all facilities the required distance from the ultimate property line in accordance with the standards established by the council by ordinance; install curbs, gutters, drainage facilities, sidewalks, street trees, street signs, street lights and required utilities. No other dedications or improvements are required.

B. All frontage roads or new roads of any class made necessary by the development shall be dedicated and fully graded and improved with curbs, gutters, drainage, sidewalks, street trees, street signs, street lights, required utilities, grading and paving; provided, that where the street involved is indicated as an eventual major street or major thoroughfare upon any general plan adopted by the council, the amount of grading and paving shall not exceed that required for such existing streets under subsection A2 of this section. Where a frontage road is provided and improved, the improvements in subsection A2 of this section will not be required.

C. All improvements shall be to standards adopted by the council by ordinance.


70.090 Building permits
. Before a building permit shall be issued for any building or structure that is subject to site plan review, the commission shall determine that:

A. The proposed building is in conformity with the site plan and conditions approved by the planning commission; and

B. All required dedications have been recorded; and

C. A letter has been furnished by the applicant from all appropriate utilities that all necessary utilities will be installed and that the utility companies will conform to all tribal ordinances; and

D. All required on-site (within the development area) and off-site (outside the development area) improvements shall have either been completed or, if not completed, the permittee shall have entered into an agreement with the Tribe to complete the work within one year from the date of the issuance of the permit. The commission may extend the completion date for one additional six-month period upon written request of the permittee, upon a showing of good cause therefor. Such an agreement shall be secured either by cash deposit with the Tribe, cash deposited in irrevocable escrow approved by the commission, or other financial security approved by the commission as the equivalent thereof. Such security shall be in the amount of one hundred percent of the estimated cost of completion to be determined by the commission. In the event such work is not completed with the period provided, or any extension thereof, the Tribe shall be authorized to take all necessary action to enforce the agreement, including the use of the security to cause the completion of all required improvements. Moneys deposited with the Tribe or in escrow may be partially released to the depositor by the commission during the progress of the work, so long as the same ratio of security is maintained on the deposit to secure all uncompleted work.


CHAPTER 72 - NONCONFORMING USES AND STRUCTURES


Sections
:

72.010 Purpose.
72.020 Continuing existing use.
72.030 Conditional use.
72.040 Maintenance and repairs.
72.050 Abandoned use or building.
72.060 Additions, extensions, enlargements and moving.
72.070 Change of use.
72.080 Restoration of damaged structures.
72.090 Change of zones.


72.010 Purpose
. To regulate, reduce, or eliminate conflicts arising from the presence of any zoning district of land, uses or structures which do not correctly conform to the requirements of this chapter.


72.020 Continuing existing use. Any use, building, or structure, existing at the time of the enactment of this chapter, which does not conform with the provisions of this chapter for the zone in which it is located shall, be deemed to be a nonconforming use and may be continued except as hereinafter specified.


72.030 Conditional uses
. Any use legally existing on the effective date of the ordinance codified in this chapter which is listed as a conditional use in the zone where located, shall be and remain a nonconforming use until a conditional use permit is obtained as provided in this chapter.


72.040 Maintenance and repairs
.

A. Ordinary nonstructural repairs, alterations or maintenance may be made to a nonconforming structure as required to keep it in sound condition; provided, that such maintenance and repair does not exceed fifty percent of the market value in any five year period.

B. Nothing in this chapter shall prevent the strengthening or restoring to a safe condition or any part of any building or structure declared unsafe by the building official.


72.050 Abandoned use or building
. Any interruption of a nonconforming use, or the use of a nonconforming building which continues for twelve months or more or the expiration or termination of any lease or assignment of any nonconforming lot or structure located on the expired lease premises shall be deemed to be an abandonment of such use, and subsequent use of the lot or buildings shall be in accordance with the applicable provisions of this ordinance.


72.060 Additions extensions enlargements and moving
.

A. Uses. A nonconforming use shall not be moved, enlarged, or extended within the structure it occupies, nor shall it be enlarged or increased to occupy a greater area of land than that occupied by such use at the time the ordinance codified in this chapter was adopted unless a conditional use permit application has been approved by the commission.

B. Structures. A nonconforming structure may be structurally altered, enlarged, or extended only when such improvement will not exceed twenty-five, percent of the building's market value and upon approval of a site plan review permit. Structural alterations or additions of more than twenty-five percent of the building's market value will require the processing and approval of a conditional use permit application by the commission.


72.070 Change of use
.

A. When authorized by the commission, in accordance with the provisions of this chapter, a nonconforming use which if determined by the commission to be of the same or a more desirable nature may be substituted for another nonconforming use.

B. Whenever a nonconforming use has been changed to a conforming use, such use shall not thereafter be changed to a nonconforming use.


72.080 Restoration of damaged structures
. Any nonconforming building damaged more than fifty percent of its then reasonable replacement value at the time of damage by fire, flood, explosion, earthquake, or other act, shall not be restored or reconstructed and used as before such happening; but if less than fifty percent is damaged, it may be restored, reconstructed or used as before without compliance with zoning regulations then in force for the district in which it is located at the time of such act and provided that such reconstruction shall be started within one year of such act. For purposes of this section, the percentage of damage shall be calculated by dividing the estimated cost of restoring the structure as nearly as possible to its conditions prior to such occurrence by estimated market value of the structure (excluding the value of the land) immediately prior to the occurrence.


72.090 Change of zones
. The foregoing provisions of this section shall also apply to any nonconforming uses and structures in zones hereafter changed to a more restrictive use or to zones hereafter established on areas not previously covered by this ordinance.


CHAPTER 74 - USE PERMITS


Sections
:

74.010 Granting- -Conditions- -Authority.
74.020 Application--Filing--Fee.
74.030 Hearing--Notice.
74.040 Application--Planning commission action.
74.050 Expiration.
74.060 Modifications.
74.070 Renewals.
74.080 Revocation.


74.010 Granting--Conditions--Authority
. A request for a use permit may be granted subject to conditions, or denied by the commission for any use for which a use permit is permitted or required by these regulations, or for any use which, while not specifically enumerated in the regulations, is, in the opinion of the planning commission, similar to and compatible with the uses permitted in the zone in which the property is situated.


74.020 Application--Filing--Fee
. Application for a use permit shall be filed with the office of the tribal secretary upon a form provided, and shall be accompanied by such information as may be required to describe fully the proposed use for which the permit is sought, and shall be accompanied by a filing fee in the amount as established by resolution of the council.


74.030 Hearing--Notice
.

A. Upon receipt of such application, the tribal secretary shall set the matter for public hearing as directed by the planning commission. Notice of the time and place of the hearing shall be given at least ten calendar days before the hearing, by prepaid U.S. mail notices to lessees and assignees of parcels or lots adjoining that of the petitioner, by publication once in a newspaper of general circulation sold on the Rancheria, and by posting such notice in conspicuous places on or close to the property affected.

B. The notice shall include a general explanation of the matter to be considered and a general description of the area affected.


74.040 Application--Planning commission action
. Within thirty days of the conclusion of the hearing, the planning commission shall act on the matter. The planning commission, before granting a conditional use permit, shall make all of the following findings:

A. That the site for the proposed use is adequate in size and shape to accommodate the use of all yards, spaces, walls, and fences, parking, loading, landscaping and other features required by this ordinance to adjust the use with land and uses in the neighborhood;

B. That the site for the proposed use relates to streets and highways adequate in width and pavement type to carry the quantity and kind of traffic generated by the proposed use;

C. That the proposed use will have no adverse effect upon adjoining or other leases or assignments. In making this determination, the commission shall consider the proposed location of improvements on the site; vehicular ingress, egress and internal circulation, setbacks, height of buildings; walls and fences; landscaping; outdoor lighting; signs, such other characteristics as will affect surrounding property;

D. That the proposed use is consistent with the objectives and policies of any general plan adopted by the council;

E. That the conditions established by the commission for the conditional use permit are deemed necessary to protect the public health, safety and general welfare. Conditions may include the following:

1. Requiring special yards, spaces and buffers,

2. Requiring fences and walls,

3. Requiring enclosure of storage areas and limitations on and outside display of merchandise,

4. Regulation of grading, surfacing, and drainage improvements,

5. Regulation of points of vehicular ingress and egress,

6. Regulation of signs,

7. Requiring landscaping and maintenance thereof,

8. Requiring maintenance of grounds,

9. Requiring fire prevention equipment and measures,

10. Regulation of noise, vibration, odors, etc.

11. Regulation of time for certain activities,

12. Regulation of lighting,

13. Requiring a bond or deposit of money to assure faithful compliance and performance on the part of the applicant for the completion of street improvements and other facilities, or the removal of such facilities.

14. Requiring street construction and improvements;

F. Failure of the planning commission to act within the time set out in this section shall be deemed to be a denial of the application on that date. The action of the planning commission shall become final ten days from the date thereof, unless an appeal has been filed during, the ten-day period.


74.050 Expiration
. Any conditional use permit granted under this chapter shall become null and void if not exercised within the time specified in such conditional use permit or, if no date is specified, within one year from date of approval.


74.060 Modifications
. At any time, during the effective periods of a use permit, an application may be made requesting a modification of use or conditions of issuance to a use permit. The application shall be filed in accordance with those provisions as established for a use permit. The fee for such request shall be established by resolution of the council.


74.070 Renewals. An application for renewal shall be filed prior to the expiration date of a use permit. Said application shall be filed in accordance with those provisions as established for a use permit. The fee for such request shall be established by resolution of the council.


74.080 Revocation
. In any case where the terms and conditions to the granting of a conditional use permit are not, complied with, the planning commission shall give notice to the holder of such conditional use permit of its intention to revoke the same. Proceedings for the revocation of a conditional use permit shall be conducted in the same manner as proceedings for action on the application therefor.


CHAPTER 76 - VARIANCES


Sections
:

76.010 Application--Filing procedure.
76.020 Hearing--Notice.
76.030 Hearing--Time limits.
76.040 Approval--Criteria.
76.050 Granting--Period of validity.
76.060 Revocation.


76.010 Application--Filing procedure
. An application for a variance from the terms of the zoning ordinance may be filed. An application for a variance shall be filed in the office of the Tribal Secretary upon a form provided, and shall be accompanied by a filing fee as determined by resolution of the council, and shall include such other information as may be required to describe fully the proposed variance.


76.020 Hearing--Notice
.

A. Upon receipt of such application, the Tribal Secretary shall set the matter for public hearing. Notice of the time and place of the hearing shall be given at least ten calendar-days before the hearing, by prepaid U.S. Mail notices to lessees and assignees to parcels or lots adjoining that of the petitioner, by publication once in a newspaper of general circulation sold on the Rancheria, and by posting such notice in conspicuous places on or close to the property affected.

B. The notice shall include a general explanation of the matter to be considered and a general description of the area affected.


76.030 Hearing--Time limits
.

A. Any such hearing may be continued from time to time, except that the commission shall act on the matter within sixty days of the original hearing date. Failure to act within such period shall constitute disapproval of the request.

B. The decision of the planning commission shall become final ten days after the date thereof unless an appeal has been filed during the ten-day period.


76.040 Approval--Criteria
.

A. The planning commission may grant a variance from the terms of this ordinance only upon a showing by the applicant that:

1. Because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification;

2. The variances does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated;

3. The variance does not authorize a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property; and

4. The variance will be consistent with any General Plan adopted by the council and will not have an adverse effect on neighboring properties.

B. The planning commission shall make any variance granted pursuant to this section subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. The planning commission may make a variance subject, to such other reasonable conditions as it may deem appropriate to carry out the purpose and intent of this ordinance.

C. No variance shall be granted unless and until the planning commission has made written findings of fact in support of its decision. The findings of fact shall demonstrate that the criteria set forth in subsection A have been met, shall be supported by substantial evidence in the administrative record, and shall be made a part of the official minutes of the planning commission. The applicant for a variance shall have the burden of providing that the criteria for the granting of a variance, as set forth in subsection A, have been met.


76.050 Granting--Period of validity
. Unless otherwise expressly provided by the planning commission, a variance shall be granted for an indefinite period. However, the planning commission may grant a variance for a specified period of time.


76.060 Revocation
. In any case where the terms and conditions to the granting of a variance are not complied with, the planning commission shall give notice to the holder of such variance of its intention to revoke the same. Proceedings for the revocation of a variance shall be conducted in the same manner as proceedings for action on the application therefor.


CHAPTER 78 - AMENDMENTS


Sections:

78.010 Type--When to be made.
78.020 Application for amendment.
78.030 Accompanying fee, maps and data.
78.040 Calling of public hearing--Rezones.
78.050 Notice of public hearing.
78.060 Action by commission on proposed amendments.
78.070 Submission of recommended amendment to council.
78.080 Action by Tribal Secretary--Notice of public hearing.
78.090 Findings by council.
78.100 Action by council--Change in commission recommendation.
78.110 Effect of denial of application.
78.110 Pre zoning.


78.010 Type--When to be made
. This ordinance may be amended by changing the boundaries of districts or by changing any other provision of this chapter whenever the public necessity, convenience and general welfare require such amendment.


78.020 Application for amendment
. Amendments may be initiated by the council or the planning commission, or by an application of one or more lessees or assignees of property affected by the proposed amendment.


78.030 Accompanying fee, maps and data
. An application by an individual for an amendment shall be accompanied by maps, drawings and data necessary to demonstrate that the proposed amendment is in general conformance with any general plan adopted by the council and that public necessity, convenience and general welfare require the adoption of the proposed amendment. An accurate legal description and scale of drawings of the land and existing buildings shall be submitted with the application. Such application shall be accompanied by a fee established by the Council by resolution.


78.040 Calling of public hearing--Rezones. Upon the filing of an application pursuant to this chapter by any person, or upon initiation of an amendment by the council, the Tribal Secretary shall take appropriate steps to schedule and publish notice of a public hearing on the matter before the commission, any such hearing to be held as soon thereafter as the necessary studies and report can be completed by the planning director and necessary legal notice of the hearing can be accomplished, and subject to any rules of the commission relating generally to scheduling of such hearings; provided, however, that in the event any rezoning applied for by a person is determined to be not in general conformance with any General Plan adopted by the council, or if such conformance is doubtful, the application shall be placed on the commission agenda without a public hearing having been called thereon. If the commission decides that any such rezoning would be in conformance with such plan, and if it deems it is in the public interest, the commission may call a public hearing thereon.


78.050 Notice of public hearing.

A. In the case of any public hearing called in accordance with the provisions of the preceding section, notice of the time and place of the hearing shall be given by at least one publication in a newspaper of general circulation sold on the Rancheria and by mail or delivery to all persons, businesses, corporations or other public or private entities owning an assignment or lease within three hundred feet of the property which is the subject of the proposed zoning change, at least ten days prior to the public hearing. The names and addresses of such persons, businesses, corporations or entities as shown on the current tribal assignment or lease records shall be used for giving notice pursuant to this section.

B. In the event that the number of lessees or assignees to whom notice would be sent pursuant to subsection A is greater than one hundred, as an alternative to the notice required by subsection A, notice may be provided pursuant to this subsection. Such notice shall be given,at least ten days prior to the hearing by either of the following procedures by placing an insert with any generalized mailing sent by any public agency to property owners in the area affected by the proposed amendment such as billings for services, etc.


78.060 Acting by commission on proposed amendments
. If at the conclusion of any hearing, the commission decides to recommend amendment of this ordinance, the recommendation shall be made by motion carried by the affirmative votes of not less than a majority of the total members of the commission. No recommendation for amendment shall be made without a public hearing having been held thereon. No recommendation for amendment shall be made unless the commission adopts findings as follows:

A. The proposed amendment is required to protect the public health, safety and welfare.

B. Any other appropriate findings.


78.070 Submission of recommended amendment to council
. A copy of any recommended amendment shall be submitted to the council, and shall be accompanied by a report of findings, summary of hearings, and recommendations of the commission.


78.080 Action by Tribal Secretary--Notice of public hearing. Upon receipt of a copy of any recommended amendment from the commission, the Tribal Secretary shall place the matter upon the agenda of the council at the earliest meeting practicable, having due regard to the rules of the council and time necessary for the giving of notice of public hearing if such notice is required. The Tribal Secretary shall schedule the matter for public hearing on the council agenda, and shall cause notice of the time and place of the hearing to be published in newspaper of general circulation sold on the Rancheria at least ten days prior to such hearing.


78.090 Findings by council
. In order to amend this chapter, the council shall find as follows:

A. The proposed amendment is in general conformance with any general plan adopted by the council;

B. The public necessity, convenience and general welfare require the adoption of the proposed amendment;

C. Any other appropriate findings.


78.100 Action by council--Change in commission recommendation.

A. The council shall hold a public hearing before adopting any ordinance which amends this chapter. Where a commission recommendation has been made, the council shall not make a change in such proposed amendment until the proposed change has been referred to the commission for a report and copy of the report has been filed with the council. When a council-proposed change in any proposed amendment is referred back to the commission, the failure of the commission to report within forty days after the reference or such longer period as may be designated by the council shall be deemed to be approval of the proposed change.

B. When it deems it to be for the public interest, the council may initiate an ordinance amending this ordinance. The council shall refer the matter to the commission for report. If the commission has not held a public hearing on the proposed amendment, it shall do so before making its report. The failure of the commission to report within forty days after the reference or such longer period as may be designated by the council shall be deemed to be approval of the proposed change or amendment.

C. No provision in this chapter shall be deemed to affect the authority of the council to adopt any temporary interim zoning ordinance or amendment thereto when such adoption is in the best interests of the Tribe. Such interim ordinance shall only remain in effect for 90 days.


78.110 Effect of denial of application
. Whenever an application for an amendment of the text of this ordinance or for rezoning of any property is denied, the application for such amendment of or for rezoning of all or any portion of the property shall not be eligible for reconsideration for one year following such denial, except in the following cases:

A. Upon initiation by the council or commission;

B. When the new application, although involving all or a portion of the same property, is for a different zoning district than that previously applied for.


CHAPTER 80 - FEES, CHARGES AND EXPENSES


Sections
:

80.010 Schedule of fees, charges and expenses.
80.020 Payment of fees as prerequisite to action.
80.030 Exemption.
80.040 Refunds.


80.010 Schedule of fees, charges and expenses.The council shall by resolution establish a schedule of fees, charges and expenses for conditional use permits, amendments to rezone property, planned unit developments, architectural or site plan review, variances, appeals, and other matters pertaining to this ordinance. The schedule of fees may be changed or modified only by resolution of the council.


80.020 Payment of fees as prerequisite to action
. Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any application, appeal or other matter pertaining to this ordinance as to which a fee, charge or payment of expense is required.


80.030 Exemption
. At their discretion, the council may exempt individuals from payment of any fee or, charge related to this ordinance.


80.040 Refunds
. No fee, charge or expense shall be refundable except in any case where the Tribal Treasurer determines and certifies any such fee or portion thereof has been received in error, in which case the amount of money received in error may be refunded to the proper party, any such payment to be processed as are other demands against the Tribe.


CHAPTER 82 -
ADMINISTRATION AND ENFORCEMENT


Sections
:

82.010 Purpose.
82.020 Documents issued in conflict with ordinance provisions.
82.030 Violation declared nuisance.
82.040 Remedies cumulative.
82.050 Enforcement and interpretation.
82.060 Violation- -Penalty.


82.010 Purpose. The purpose of this chapter is to establish a functional and meaningful system of administration and enforcement.


82.020 Documents issued in conflict with ordinance provisions. All departments, officers and public employees vested with the, duty or authority to issue permits, certificates or licenses shall issue no permit, certificate or license for uses, buildings or purposes within the Rancheria in conflict with the provisions of these regulations, and any such permit, certificate or license issued in conflict with the provisions of these regulations shall be null and void.


82.030 Violation declared nuisance
. Any building or structure set up, erected, constructed, altered, enlarged, converted, moved, or maintained contrary to the provisions of this chapter, or, any use of any land, building, or premises established, conducted, operated, or maintained contrary to the provisions of this chapter, shall be and the same is declared to be unlawful and a public nuisance.


82.040 Remedies cumulative. The remedies provided for herein shall be cumulative and not exclusive.


82.050 Enforcement and interpretation. The planning director and the planning commission, with the assistance, of the Tribal attorney, shall be responsible for the administration, interpretation, enforcement and correction of violations of the provisions of this ordinance, subject to the provisions of Section 82.020.


82.060 Violation--Penalty. Any person, whether principal, agent, employee or otherwise, violating or causing or permitting the violation of any of the provisions of these regulations shall be subject to a civil penalty punishable by a fine of not more than five hundred dollars and be subject to a civil enforcement action to enjoin the violation.


CHAPTER 84 -
APPEALS TO COUNCIL AND PLANNING COMMISSION


Sections
:

84.010 Purpose.
84.020 Definitions.
84.030 Actions appealable to council.
84.050 Filing notice of appeal with commission.
84.060 Notice of appeal--Time limit.
84.070 Notice of appeal--Contents.
84.080 Appeal fee.
84.090 Action by secretary.
84.100 Public hearing may be held.
84.110 Consideration by commission.
84.120 Special appeal procedure for Chapters 38 and 40.


84.010 Purpose
. The purpose of the appeal procedure is to provide a general method of recourse for persons aggrieved by or dissatisfied with any action by an administrative agency of the Tribe in the administration or enforcement of any provisions of this ordinance.


84.020 Definitions
. Unless it is plainly evident from the context of this chapter that a different meaning is intended, certain terms used in this chapter are defined as follows:

A. "Action" means the issuance, granting, approval, extension or amendment of any license, permit, certificate, variance or other entitlement; or the imposition of any condition in connection therewith; or the denial, disapproval, suspension or revocation thereof; the making or failure or refusal to make any finding; or the imposition of any order or requirement; or any other decision or determination pursuant to this ordinance.

B. "Administrative agency" means any administrative official, board, commission, body or other agency of the Tribe, except the council.

C. "Applicant" means any person whose application for a license, permit, certificate, findings, variance or other entitlement was approved, issued or granted by an administrative agency, where an appeal is taken from the action of such agency by a third-party appellant.

D. "Direct subject appellant" means any person who appeals an action taken:

1. In connection with an application which he/she filed or which was filed on his/her behalf with an administrative agency; or

2. In connection with suspension or revocation of any license, permit, certificate or other entitlement previously granted or issued to him/her; or

3. Ordering him/her or advising him/her that he/she will be, required to perform or cease and desist from performing any act, or correct any omission or deficiency.

E. "Third-party appellant" means any person aggrieved by any action who is not defined in this section as a direct subject appellant.


84.030 Actions appealable to council
. Any action of the commission may be appealed to the council in accordance with the procedures set forth in this chapter.


84.050 Filing notice of appeal with commission. Any person aggrieved by or dissatisfied with, or excepting to any action by an administrative agency, as to which an appeal to the commission is authorized pursuant to Section 84.040, may appeal from such action by filing a written notice of appeal with the Tribal Secretary, directed to the commission.


84.060 Notice of appeal--Time limit.

A. A notice of appeal of a direct subject appellant who is aggrieved by or dissatisfied with a decision on an application made by him/her or in his/her behalf, or with any action order, requirement, decision or determination as to which he/she is a direct subject appellant shall not be acted upon unless filed within ten days after service of written notice of such action appealed from.

B. A notice of appeal of a third-party appellant who is not a direct subject of the actions from which the appeal is sought, shall not be acted upon unless filed within ten days of the action, denial, order, requirement, permit, decision or determination which is the subject of the appeal.

C. No appeal shall be submitted to the commission for consideration if the notice of appeal is not filed within the time limit prescribed in this section unless the appellant shall file with the Tribal Secretary a written request for leave to file a late appeal. The request shall specify the reasons why the notice of the appeal was not timely filed. The request shall not be submitted to the commission unless it shall have been filed with the Tribal Secretary not more than thirty days from the date of the action, denial, order, requirement, permit, decision or determination from which appeal is sought. A timely request shall be considered by the commission and may be granted only if the commission finds that there is good cause for tardiness in filing the appeal; provided, however, that if the request was filed by a third-party appellant, the commission shall not grant it unless it makes the additional finding that the delay in the filing of the notice of appeal will not work to the substantial prejudice of the applicant and will not cause him/her substantial economic hardship.

D. The timely filing of a notice of appeal by a third-party appellant, or the granting of a request for leave to file a late appeal to such an appellant, shall cause a stay in the operative effect of the action, permit decision or determination from which the appeal has been taken until the commission shall have rendered its decision on the appeal, unless the appeal is first withdrawn.

E. When a request for leave to file a late appeal has been timely filed, the tribal secretary shall schedule the matter promptly upon the commission agenda at a subsequent regular meeting. He/she shall cause notice thereof to be given not less than five days prior to such meeting to the person filing the request, and in the case of a request filed a person who, as an appellant, would be described under subsection B, he/she shall also cause such notice to be sent to the applicant.


84.070 Notice of appeal--Contents
.

A. The notice of appeal shall set forth:

1. The specific action appealed from;

2. The specific grounds of the appeal; and

3. The relief or action sought from the commission.

B. In the event any notice of appeal fails to set forth any information set forth by this section, the tribal secretary shall return the same to the appellant with a statement of the respects in which it is deficient, and the appellant shall thereafter be allowed five days in which to perfect and re-file his/her notice of appeal.


84.080 Appeal fee
. Except where an appeal is filed by the Chairperson of the council or other council member in pursuance of his/her official duties, the written notice of appeal shall be accompanied by a fee, as established by resolution of the council. If the notice of appeal is not accompanied by a fee, or if the amount paid is insufficient to the appropriate fee, the tribal secretary shall promptly notify the appellant of the deficiency and shall advise him/her that the appeal shall not be considered unless the deficiency is corrected within five days of the notice. No appeal shall be scheduled for consideration by the commission unless and until the appropriate appeal fee has been paid. If a deficiency in payment of an appeal fee is not corrected within the time period prescribed in the notice, the right of appeal shall be terminated.


84.090 Action by secretary
. Upon the timely filing of a notice of appeal in proper form and with payment of the appeal fee pursuant to Section 84.080 (including cases in which the notice of appeal was filed upon the granting of leave to file a late appeal by the commission), the tribal secretary shall schedule the matter promptly on the commission agenda at a subsequent regular meeting and shall cause notice thereof to be given the appellant not less than five days prior to such hearing, unless such notice is waived in writing by the appellant. Where the notice of appeal was filed by a third-party appellant, the notice of hearing shall be given to the applicant not less than five days prior thereto. The tribal secretary shall also cause a copy of the notice of appeal to be transmitted to the official or body whose action has been appealed from. Notice of hearing given pursuant to this section shall be in writing and shall be deemed to have been given upon deposit with the United States Postal Service of such notice by first-class mail or air-mail, postage prepaid, addressed to the last known address of the appellant.


84.100 Public hearing may be held
. No public hearing need be held by the, commission on any such appeal, provided that a public hearing may be held when the same is deemed necessary in the public interest. If a public hearing is ordered, notice thereof shall be given by publishing notice of the same in a newspaper of general circulation sold on the Rancheria not less than ten days prior to the date of such hearing, and by such other means as the commission deems necessary.


84.110 Consideration by commission
.

A. Consideration by Commission. At the time of consideration of the appeal by the commission, the appellant shall be limited to a presentation on the specific grounds of appeal and matters set forth in this notice of appeal and shall have the burden of establishing cause why the action appealed from should be altered, reversed or modified. Where the notice of appeal was filed by a third-party appellant, the applicant shall have the right to present evidence in support of the action.

B. Action by Commission. The commission may continue the matter from time to time, and at the conclusion of its consideration may affirm, reverse or modify the action appealed from and may take any action which might have been taken in the first instance by the administrative agency from whose action the appeal has been taken.


84.120 Special appeal procedure for Chapters 38 and 40
.

A. 1. The planning commission shall hear and decide appeals from the requirements of Chapters 38 and 40 of this ordinance when it is alleged there is an error in any requirement, decision or determination made by the building official in the enforcement or administration of these chapters. Those aggrieved by the decision of the planning commission, may appeal such decision, to the council.

2. In passing upon such applications, the planning commission shall consider all technical evaluations, all relevant factors and standards specified in other sections of this ordinance, and:

a. The danger that materials may be swept onto other lands to the injury of others;

b. The danger to life and property due to flooding or erosion damage;

c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

d. The importance of the services provided by the proposed facility to the community;

e. The necessity to the facility of a waterfront location, where applicable;

f. The availability of alternative locations, for the proposed use which are not subject to flooding or erosion damage;

g. The compatibility of the proposed use with existing and anticipated development;

h. The relationship of the proposed use to the comprehensive plan and Flood Plain management program for that area;

i. The safety of access to the property in times of flood for ordinary and emergency vehicles;

j. The expected heights, ,velocity, duration, rate of rise and sediment transport of the floodgates, and the effects of wave action, if applicable, expected at the site; and

k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water system, and streets and bridges.

3. Upon consideration of the factors listed above and the purposes of Chapters 38 and 40, the planning commission may attached such conditions to the granting of an appeal as it deems necessary to further those purposes.

B. The following criteria shall apply to the granting of appeals from requirements, decisions or determinations made by the building official in the enforcement or administration of Chapters 38 and 40:

1. Appeals may be granted for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section.

2. Appeals shall not be granted within any designated Floodway if any increase in flood levels during the base blood discharge would result.

3. Appeals shall only be granted upon a determination, that the appeal granted with conditions is the minimum necessary, considering the flood hazard, to afford relief.

4. Appeal shall only be granted upon:

a. A showing of good and sufficient cause;

b. A determination that failure to grant the appeal would result in exceptional hardship to the applicant; and

c. A determination that the granting of an appeal will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing tribal ordinances.

5. Any applicant to whom an appeal is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest-floor elevation. The building official shall maintain the records of all appeal actions and report any grants of appeal to the Federal Insurance Administration and the Federal Emergency Management Agency.


Section 3. Severability
. If any part of provision of this ordinance is held invalid, the remainder of the ordinance shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this ordinance are severable.


Section 4. Repeal of all Prior or Inconsistent Ordinances
. All ordinances or resolutions previously enacted by the Council which are inconsistent with any of the provisions of this ordinance are hereby repealed.


Section 5. Effective Date. This ordinance shall take effect immediately after its passage.


CERTIFICATION


The foregoing ordinance was adopted at a regular meeting of the Tribal Council of the Elk Valley Rancheria, with a quorum present, held on the 17th day of October, 2001, and adopted by the following vote:

AYES: 6
NOES: 0
ABSENT: 2
Abstain: 0

                            /s/                          
Dale Miller, Chairman

ATTESTED:

                    /s/                       
Secretary of the Tribal Council
Donna Townsend

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Ordinances of the Elk Valley Rancheria, California

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