Chapter 86.06 — TIME LIMITATIONS

This Chapter provides requirements for the implementation or “exercising” of the permits and authorizations required by this Development Code, including time limits and procedures for granting extensions of time. (Ord. 4011, passed - -2007)

(a) Effective Date for Planning Permits and Other Approvals. Except in the case of an amendment (Chapter 86.12) or development agreement (Chapter 86.13), final action on any planning approval (e.g., appeal, permit, Variance, or other entitlement) shall become effective on the eleventh day following the date of application approval, where no appeal of the approval has been filed in compliance with Chapter 86.08 (Appeals).

(b) When the Tenth Day Is Not a County Business Day. When the tenth day is not a County business day, the decision shall instead become effective on the second consecutive County business day following the tenth day. (Ord. 4011, passed - -2007; Am. Ord. 4085, passed - -2009)

A planning permit application for a parcel that is deemed approved by operation of law in compliance with Government Code § 65956 shall be subject to all applicable provisions of this Development Code, which shall be satisfied by the applicant before a Building Permit is issued or a land use not requiring a Building Permit is established.

(Ord. 4011, passed - -2007)

A Conditional Use Permit, Minor Use Permit, Site Plan Permit, Major or Minor Variance, Planned Development Permit, or Special Use Permit approval that is granted in compliance with Division 5 (Permit Application and Review Procedures) shall be deemed to run with the land through any change of ownership of the subject site, from the effective date of the permit, except in any case where a permit expires and becomes void in compliance with this Chapter. All applicable conditions of approval shall continue to apply after a change in property ownership. (Ord. 4011, passed - -2007; Am. Ord. 4085, passed - -2009)

(a) Deposit of Security.

(1) As a condition of approval of a Conditional Use Permit, Minor Use Permit, Major or Minor Variance, Planned Development Permit, Special Use Permit, Temporary Special Event Permit, Temporary Use Permit, or upon a finding that the County’s health, safety, and welfare warrant, the review authority may require the execution of a covenant to deposit security, and the deposit of security in a reasonable amount to ensure the faithful performance of one or more of the conditions of approval of the Conditional Use Permit, Minor Use Permit, Major or Minor Variance, Planned

Development Permit, Special Use Permit, Temporary Special Event Permit, or Temporary Use Permit in the event that the obligor fails to perform.

(2) The applicant/owner may elect to provide adequate security for the faithful performance of a condition(s) of approval imposed as part of the approval process if the Director determines that the condition(s) may be implemented at a later specified date (e.g., inability to install required landscaping due to poor weather conditions).

(3) The security shall, as required by law or otherwise at the option of the County, be in the form of cash, a certified or cashier’s check, letter of credit, a performance bond or other form of surety executed by the applicant and a corporate surety authorized to do business in California and approved by the County.

(4) The security shall remain in effect until all of the secured conditions have been performed to the satisfaction of the Director.

(5) Any security required in compliance with this Section shall be payable to the County.

(b) Release of Security. Upon satisfactory compliance with all applicable provisions of this Section, the security deposit shall be released.

(c) Failure to Comply.

(1) Upon failure to perform any secured condition, the County may perform the condition, or cause it to be done, and may collect from the obligor, and surety in case of a bond, all costs incurred, including administrative, engineering, legal, and inspection costs.

(2) Any unused portion of the security shall be refunded to the obligor after deduction of the cost of the work.

(3) To the extent that the Director can demonstrate that the obligor willfully breached an obligation in a manner that the obligor knew, or should have known, would create irreparable harm to the County, the entire amount of the bond or deposit may be withheld.

(4) The Director’s determination may be appealed to the Board by the obligor by filing an appeal with the Clerk of the Board within ten days after the decision to withhold the bond, in compliance with Chapter 86.08 (Appeals). (Ord. 4011, passed - -2007)

(a) Time Limits.

(1) Specified Item Shall Be Exercised Within 36 Months. Unless a condition of approval or other provision of this Development Code establishes a different time limit, a Conditional Use Permit, Minor Use Permit, Major or Minor Variance, Planned Development Permit, Tentative Parcel Map or Tentative Tract Map not exercised within 36 months of the actual date of the decision granting the permit or authorization shall expire and become void, except where an extension of time is approved in compliance with Subdivision (b) (Extensions of Time), below.

(2) Specified Item Shall Be Exercised Within 12 Months. Unless another provision of this Development Code establishes a different time limit, a Site Plan Permit, Special Use Permit, or Temporary Use Permit not exercised within 12 months of the actual date of the decision granting the permit or authorization shall expire and become void, except where an extension of time is approved in compliance with Subdivision (b) (Extensions of Time), below.

(3) Definition of “Exercised.” The permit or authorization shall not be deemed “exercised” until the permittee has commenced actual construction or alteration under a valid Building Permit, or has substantially commenced the approved activity or allowed use on the site in compliance with the conditions of approval, in cases where a Building Permit is not required.

(4) Run with the Land. After it has been exercised, a planning permit or authorization shall remain valid and run with the land in compliance with § 86.06.040 (Permits to Run with the Land), as long as a Building Permit is active for the project, and after a final building inspection or Certificate of Occupancy has been granted.

(5) Phased Projects.

(A) Projects Other than Planned Development Permits. If a project (other than a Planned Development Permit) is to be developed in approved phases, each subsequent phase shall be exercised within 36 months from the date that the previous phase was exercised, unless otherwise specified in the permit or authorization, or the permit or authorization shall expire and become void, except where an extension of time is approved in compliance with Subdivision (b). (Extensions of time), below. If the project also involves the approval of a Tentative Map, the phasing shall be consistent with the Tentative Map and the permit or authorization shall be exercised before the expiration of the Tentative Map, or the permit or authorization shall expire and become void

and become void, except where an extension of time is approved in compliance with Subdivision (b). (Extensions of time), below. If the project also involves the approval of a Tentative Map, the phasing shall be consistent with the Tentative Map and the permit or authorization shall be exercised before the expiration of the Tentative Map, or the permit or authorization shall expire and become void

(B) Planned Development Permits. Notwithstanding the above provisions of this Section, a conditionally approved Planned Development Permit for a phased project shall be subject to a time limitation not to exceed that specified by the condition of approval for the Development Plan approval. The applicant, however, shall either record a tract map or obtain Building Permits for at least one phase of the project within five years of the Development Plan conditional approval and, as applicable, within each succeeding five-year period. Each five-year period shall begin with the last County approved action that was accomplished (e.g., recordation of a tract map, obtain a Building Permit).

(6) First Amendment Protected Businesses.

(A) Time Limits for First Amendment Protected Businesses. The Director shall accept as complete, or disapprove as incomplete, the application for a Conditional Use Permit for a business protected by the First Amendment within 30 days from the date on which an application is submitted to the Director. The Director shall approve or disapprove the completed Conditional Use Permit application within 90 days of its acceptance as complete by the Director. The time limit established by this Section may be extended once for a period not to exceed 90 days upon consent of the Director and the applicant.

(B) Compliance with Permit Streamlining Act. If the permit requested is for a development project for construction or reconstruction subject to the Permit Streamlining Act (Government Code §§ 65920 et seq. ), the time limits provided in the Permit Streamlining Act shall apply to the Conditional Use Permit approval or disapproval.

(C) Time Limits for Appeals. Upon the filing of an appeal in compliance with Chapter 86.08 (Appeals), the Commission or the Board shall render its decision on the appeal within 60 days.

(b) Extensions of Time. Upon written request by the applicant, the County may extend the time for a planning permit or authorization to be exercised.

(1) Time for Filing of Request. The applicant shall file a written request for an extension of time with the Director at least 30 days before the expiration of the permit or authorization, together with the filing fee required in compliance with the County Fee Ordinance.

(2) Action on Extension Request. A permit or authorization may be extended as follows for no more than a total of 36 months for those applications listed in § 86.06.060(a)(1) and (2) above, except as noted below, beyond the expiration of the original approval.

(A) Evidence to Be Provided. The Director shall determine whether the applicant has made a good faith effort to exercise the permit or authorization. The burden of proof is on the applicant to establish, with substantial evidence, that circumstances beyond the control of the applicant (e.g., demonstrated problems with completing the acquisition of the parcel, poor weather during periods of planned construction, etc.) have prevented exercising the permit or authorization.

(B) Recommendations for Denial and Revocations. Recommendations for denial of a request for extension, and revocations of permits, shall be referred to the Zoning Administrator or the Planning Commission for public hearing and determination.

(C) Exceptional or Extraordinary Circumstances. Under exceptional or extraordinary circumstances, one or more extensions may be granted in addition to that provided in § 86.06.060(b)(2). In addition to the existence of

exceptional or extraordinary circumstances, the applicant must show that unreasonable delay to the project, if any, was not caused by the applicant.

(D) Findings. Requests for extensions shall only be granted if findings can be made that the project is consistent with the provisions of the General Plan and the San Bernardino County Code in effect at the time the extension request is considered.

(E) Phased Projects. This Subdivision shall not be applied to extend the time limits provided in § 86.06.060(a) (5)(B), above.

(3) Action on extension of a project subject to the Subdivision Map Act. The expiration date of a Tentative Map may only be extended in compliance with the Map Act § 66452.6.

(Ord. 4011, passed - -2007; Am. Ord. 4043, passed - -2008)

Development of a new land use authorized through a planning permit or authorization granted in compliance with this Development Code shall be established only as approved by the review authority, and in compliance with any conditions of approval, except where a change to the project is approved in compliance with Chapter 85.12 (Revisions to an Approved Action).

(Ord. 4011, passed - -2007)

(a) Resubmittal after Disapproval with Prejudice.

(1) The review authority may disapprove an application for a discretionary planning permit or amendment, on the grounds that two or more similar applications for the same parcel have been disapproved in the past two years (e.g., disapproval with prejudice), or that another cause exists for limiting the refiling of the application.

(2) For a period of 12 months following the date of the disapproval with prejudice of a discretionary planning permit or amendment, no application for the same or substantially similar planning permit or amendment shall be filed for the same site, or any portion of the site, except where the Director determines that substantial new evidence or proof of changed circumstances warrants further consideration.

(b) Resubmittal after Disapproval Without Prejudice. There shall be no limitation on subsequent applications for a site where a project was disapproved without prejudice.

(c) Director’s determination, appeal. The Director shall determine whether a new application is for a planning permit or amendment that is the same or substantially similar to a previously approved or disapproved permit or amendment, and shall either process or reject the application in compliance with this Section. The Director’s determination may be appealed to the Commission in compliance with Chapter 86.08 (Appeals). (Ord. 4011, passed - -2007)

(a) Applicability. When necessary to achieve the land use goals of the County, the County may require a property owner holding property in common ownership to execute and record a Covenant of Easement in favor of the County, in compliance with Government Code §§ 65870 et seq. A Covenant of Easement may be:

(1) Required to provide for emergency access, ingress and egress, landscaping, light and air access, open space, parking, or for solar access; and

(2) Imposed as a condition of approval by the review authority.

(b) Form of Covenant. The form of the Covenant shall be approved by the County Counsel, and the Covenant of Easement shall:

• (1) Describe the real property subject to the easement and the real property to be benefitted by the easement;

• (2) Identify the County approval or planning permit granted that relied on or required the Covenant; and

• (3) Identify the purposes of the easement.

• (c) Recordation. A Covenant of Easement shall be recorded in the County Recorder’s Office.

• (d) Effect of covenant.

• (1) From and after the time of its recordation, a Covenant of Easement shall:

• (A) Act as an easement in compliance with Civil Code §§ 801 et seq. , except that it shall not merge into any

other interest in the real property. Civil Code § 1104 shall be applicable to the conveyance of the affected real property; and

• (B) Impart notice to all persons to the extent afforded by the recording laws of the State.

• (2) Upon recordation, the burdens of the Covenant shall be binding on, and the Covenant shall benefit all successors-in-interest to the real property.

(e) Enforceability. A Covenant of Easement shall be enforceable by the successors-in-interest to the real property benefitted by the Covenant and the County. Nothing in this Section creates standing in any person, other than the County, and any owner of the real property burdened or benefitted by the Covenant, to enforce or to challenge the Covenant or any requested amendment or release.

(f) Release of Covenant. A Covenant of Easement may be released by the Director, or by another appropriate

review authority in the event of an appeal, at the request of any person, including the County, or an affected property owner.

• (1) Process for Release. The release of a Covenant of Easement shall require that the review authority first:

• (A) Conduct a noticed public hearing in compliance with Chapter 86.07 (Public Hearings); and

• (B) Find that the Covenant on the site is no longer necessary to achieve the land use goals of the County.

• (2) Recordation. A notice of the release of the Covenant of Easement shall be recorded by the Director in the County Recorder’s Office.

(3) Fees. The applicant for a release of a Covenant of Easement shall pay the fee for the processing of the release in compliance with the Planning Fee Schedule.

(Ord. 4011, passed - -2007)