REPORT TO THE CITY COUNCIL
FROM: JENNIFER K. CLARK, AICP, Director
Planning and Development Department
BY: PHILLIP SIEGRIST, Manager
Planning and Development Department
SUBJECT
Title
Consideration of an appeal related to Zoning Inquiry No. P23-02357 for Bauer’s Towing located on approximately 0.71 acres between West Voorman and West Nielsen Avenues, west of North Thorne Avenue in Fresno, California (Council District 3) - Planning and Development Department.
1. DENY the appeal and UPHOLD the determination that Bauer’s Towing is not in conformance with Policy and Procedure No. C-002 as reflected in the Zoning Inquiry response dated September 26, 2023, as prepared by the Planning and Development Department Director; and
2. Deny the appeal and UPHOLD the determination in the Zoning Inquiry response dated September 26, 2023, that Bauer’s Towing is a legal non-conforming use and, absent any expansion and/or change in use, could continue to operate indefinitely.
Body
RECOMMENDATION
1. DENY the appeal and UPHOLD the determination that Bauer’s Towing is not in conformance with Policy and Procedure No. C-002 as reflected in the Zoning Inquiry response dated September 26, 2023, as prepared by the Planning and Development Department Director; and
2. Deny the appeal and UPHOLD the determination in the Zoning Inquiry response dated September 26, 2023, that Bauer’s Towing is a legal non-conforming use and, absent any expansion and/or change in use, could continue to operate indefinitely.
EXECUTIVE SUMMARY
Edward Mason, of Bauer’s Auto Wrecking, filed Zoning Inquiry Application No. P23-02357 requesting specific information for Bauer’s Towing with respect to compliance with the Fresno Municipal Code (FMC) Zoning Ordinance, applicable policies and procedures, prior approvals or permits, and whether the use of the subject property for a Tow Yard satisfies relevant zoning laws of the City, based on the following facts and evidence.
Staff prepared a response letter dated September 26, 2023 (Exhibit E) which concluded that while the business and site as it currently exists is not in conformance with the standards and requirements for paving of vehicle storage areas per Policy and Procedure No. C-002 dated June 14, 2011, according to the current zoning ordinance the business is a legal non-conforming use and, absent any expansion and/or change in use, could continue to operate indefinitely.
On October 10, 2023, the Planning and Development Department’s zoning inquiry response was appealed by the applicant (Exhibit F).
On February 7, 2024, the Planning Commission considered the subject appeal as presented by staff. Two (2) members of the public spoke in support of the appeal and no members of the public spoke in opposition during the hearing. After public comment closed and deliberation by the Planning Commission, the Planning Commission voted to continue the appeal to March 6, 2024, and encouraged the applicant to work with staff to prove that the site is paved.
On March 6, 2024, the Planning Commission upheld the Director’s response and on March 19, 2024, Councilmember Arias appealed the Planning Commission’s decision to create opportunity for public comment (Exhibit T). Therefore, the subject application has been referred to the City Council for consideration.
Staff recommends that the City Council uphold the Planning Commission’s decision based on evidence detailed in this staff report.
BACKGROUND
Zoning Inquiries
Pursuant to Section 15-5019 of the FMC, Zoning Inquiries are requests for formal interpretations of the Development Code, verifications relating to prior approvals or permits, or confirmation of the applicable zone district for a parcel. According to the development code, Zoning Inquiry decisions may be appealed under Section 15-5017 (Appeals).
Zoning Inquiry Application No. P23-02357
On July 6, 2023, Ed Mason filed the subject Zoning Inquiry Application No. P23-02357 (Exhibit D) which requested specific information about compliance with the Fresno Municipal Code, applicable policies and procedures, prior approvals and determinations for Bauer’s Towing located 371 West Voorman Avenue.
Specifically, the applicant requested written confirmation that the use of the subject property for a Tow Yard satisfies relevant zoning laws of the City based on the following facts and evidence. Alternatively, the applicant requested the Planning Director provide a written statement of the specific circumstances that exist that result in a violation of zoning laws, and particularly any violations of Policy and Procedures No. C-002.
Staff conducted research of the subject property and prepared a Zoning Inquiry response letter dated September 26, 2023 (Exhibit E) based on available records and information submitted by the applicant. In summary, the response letter determined the following:
Land Use and Zoning
The subject 2.19-acre property is located within boundaries of the Fresno General Plan and the Downtown Neighborhoods Community Plan which designate the property as Employment - Heavy Industrial planned land use.
The subject property is located in the IH (Heavy Industrial) zoning district which is consistent with the Employment - Heavy Industrial planned land use designation.
It’s noted that a citywide rezoning was passed by the Fresno City Council on February 4, 2016, and became effective on March 7, 2016. Prior to the citywide rezone, the subject property was zoned M-3 (Heavy Industrial). The former M-3 zoning designation is considered consistent with the current IH zoning designation.
Use Classification
The subject property is currently developed and utilized as a Tow/Automobile Impound Yard (Bauer’s Towing/Auto Wrecking).
Pursuant to FMC Section 15-6704 (Commercial Use Classifications), the existing use (Tow/Automobile Impound Yard) is classified as Towing and Impound, which is a sub classification of the more general Automobile/Vehicle Sales and Services. Towing and impound is defined as establishments primarily engaged in towing light or heavy motor vehicles, both local and long distance. These establishments may provide incidental services, such as vehicle storage and emergency road repair services (for automobile dismantling, see Salvage and Wrecking).
Establishment of Use
The subject property was annexed into the City of Fresno in 1980 and there are no records which demonstrate the property being operated as a Tow Yard prior to being annexed into the City of Fresno. However, according to City of Fresno Business Tax Division records, Bauer’s Towing has been continually operating at this site and has maintained a valid Business Tax Certificate since August 1, 1984.
Prior Policies and Procedures and Applications
1. Director’s Classification No. 208
Director’s Classification No. 208, as approved by the Planning and Development Director on June 16, 2010 (Exhibit G), established the use of “Towing, Storage and Lien Sales of Impounded Motor Vehicles” as being permitted in the M-3 zone district subject to a site plan review and the following conditions listed below.
Conditions:
1. The operator shall be approved by an established Governmental Law Enforcement Agency.
2. Storage lots must provide either a minimum of 5,000 square feet in area, or the capability to store a minimum of 20 vehicles.
3. A minimum six-foot high solid fence or wall shall enclose any outside storage area to screen the stored vehicles and other property from public view.
4. The operator shall provide adequate security for vehicles and property at the storage site.
5. Property other than motor vehicles is limited to personal property found inside the impounded vehicle.
6. A paved surface, or other approved alternative surface, shall be provided for any outside vehicle or vehicle parts storage area.
7. Retail sales shall be limited to lien sales of vehicles and/or personal property not claimed by the owner.
8. There shall be no dismantling of motor vehicles.
9. In the C-M zone district, these uses are not permitted on property that is within 200-feet of property planned or zoned for residential uses.
10. In the C-M zone district, this use shall not be allowed on property that is in or within 200-feet of an integrated office/industrial business park or shopping center.
Given the business had been continually operating at the site and maintained a valid Business Tax Certificate since August 1, 1984 (prior to adoption of DC No. 208), the use was considered legal non-conforming.
2. Policy and Procedure No. C-002
Planning and Development (formerly Development & Resource Management) Policy and Procedure No. C-002 dated June 14, 2011 (Exhibit H), provided City staff, the Fresno Police Department, tow yard business owners and the general public the ability to verify whether a Tow Yard was legally established and/or a legally allowable use on a specific site.
According to item No. 3 of Policy and Procedure No. C-002 and as it relates to the subject property and use, existing tow yards established prior to January 24, 2006, that were not previously required to file a special permit application may be determined to be a legally operating tow yard if the following conditions are met:
i. The applicant must have a legal business license for a tow yard with the City of Fresno for the year 2005 that shows that the specific site in question was in operation as a tow yard at that time. If no such license exists, all business license fees must be paid, and the operator must provide proof to the satisfaction of the Director that the tow facility was in operation prior to January 26, 2006.
ii. The site must have no open or previous code enforcement cases related to the operation of a tow yard; and
iii. If the site is in compliance with items 3-i and 3-ii above, the applicant must submit a request with the City to verify compliance and pay a fee of $510. The applicant must submit a site plan and pictures showing that the following two requirements have been met:
a. The areas where cars or vehicle parts are stored, and vehicles drive must be paved. This pavement must be constructed to Public Works Standard P-21 (Exhibit I). A grading plan and permit will be required for the installation of pavement on the site.
b. The area where cars are stored must be completely screened from view from the public right-of-way or residential areas by a solid fence or wall. A chain link fence with slats is acceptable.
A complete request must include: A City of Fresno Special Permit application signed by the property owner, a site plan drawing (this site plan does not need to be drawn by a professional, but must be to scale and show all buildings, structures, and storage areas), a detailed operational statement, and pictures of the site showing that the site is in compliance with the conditions noted above.
iv. A tow yard must comply with following operational conditions contained in Director’s Classification No. 208 as applicable:
a. The operator shall provide adequate security for vehicles and property at the storage site.
b. The storage of property other than motor vehicles is limited to personal property found inside the impounded vehicles.
c. Retail sales shall be limited to lien sales of vehicles and/or personal property not claimed by the owner.
d. There shall be no dismantling of motor vehicles.
v. A site that is not in compliance with items 3-i and 3-ii above must file a full special permit application in order to legally establish and operate as a tow yard in accordance with item #1 above.
According to procedures outlined in Policy and Procedure No. C-002, requests for verification are to be filed as a Zoning Inquiry and the applicant is to be given a letter (after all documentation is submitted and staff is able to verify compliance) that indicates that the subject tow yard is legally in operation.
It’s noted that Director’s Classification No. 208 established surface standards for new Tow Yards which required a paved surface, or other approved “alternative surface” (e.g., gravel or base rock) be provided for any outside vehicle or vehicle parts storage area whereas Policy and Procedure No. C-002 required qualifying business to pave the areas where car or vehicle parts are stored and driven per Public Works Standard P-21.
It is further noted that gravel or base rock material does not meet the standards detailed in Public Works Standard P-21.
3. Zoning Inquiry No. Q-11-035
In response to Policy and Procedure No. C-002, Edward Mason of Bauer’s Auto Wrecking filed Zoning Inquiry Application No. Q-11-035 (submitted under HTE Naviline No. PZ11-80000105) on July 7, 2011.
Staff researched the subject site in accordance with the zoning in effect at that time, available records, applicable policies, regulations, and development standards, and determined the existing use of the subject site was considered a legal non-conforming use.
Furthermore, the inquiry response letter (Exhibit J) dated August 5, 2011, noted that all tow yards shall comply with the following minimum conditions:
a. The areas where cars or vehicle parts are stored, and vehicles drive must be paved. The Applicant shall maintain a paved surface pursuant to the attached Exhibit A-1. The applicant shall also apply an additional layer of base rock, as necessary, within six months of the date of this letter, to those areas where towed vehicles will be stored.
b. The area where cars are stored must be completely screened from view from the public right-of-way or residential areas by a solid fence or wall. A chain link fence with slats is acceptable. All graffiti must be removed from these fences within 48 hours. Staff has verified that this condition has been met.
c. The operator shall provide adequate security for vehicles and property at the storage site.
d. The storage of property other than motor vehicles is limited to personal property found inside the impounded vehicles.
e. Retail sales shall be limited to lien sales of vehicles and/or personal property not claimed by the owner.
It’s noted that upon further review, the condition to apply an additional layer of base rock as necessary to the areas where towed vehicles will be stored is not consistent with Policy & Procedure C-002 which requires the areas where car or vehicle parts are stored and driven be paved per Public Works Standard P-21.
Current Zoning
As mentioned earlier, the subject property was previously zoned M-3 (Heavy Industrial). However, following the citywide rezoning (effective on March 7, 2016) the subject property was zone IH (Heavy Industrial).
Pursuant to FMC Table 15-1302 (Land Use Regulations - Employment Districts), Towing and Impound is permitted in the IH zone district with an approved Conditional Use Permit and subject to additional regulations in accordance with FMC Section 15-2765 (Vehicle Impound Yard (Tow Yard) and Transit Storage. Pursuant to Sub-Section-A, existing tow yard facilities established prior to January 24, 2006, may continue to operate subject to the following conditions:
1) Compliance with all Conditions of Project Approval per the pertinent entitlement.
2) If an entitlement was not required per zoning regulations, the applicant shall provide evidence, satisfactory to the Director, that the facility:
a. Was established prior to January 24, 2006, and that the use has been in continuous use.
b. The site has had a valid business license since January 24, 2006; and
c. The site does not have any outstanding items from Code Enforcement.
As demonstrated in the sections above, the existing use was not established with an approved Conditional Use Permit or other land use entitlement. However, the existing use was established prior to January 24, 2006 (as evidenced in the Zoning Inquiry No. Q-11-035) and has been in continuous use, has maintained a valid business license since January 24, 2006, and has no outstanding Code Enforcement violations related to the use (Tow Yard).
Therefore, according to the current zoning ordinance and regulations for the IH zone district, the current use (Tow Yard) of the subject property is a legal non-conforming use which is subject to the provisions of FMC Section 15-404, Legal Non-Conforming Uses. Specifically, any Legal Non- Conforming use may be continued indefinitely. No Illegal Non-Conforming use shall be continued unless such use subsequently comes into conformity with the applicable provisions of this Code.
Appeals
On October 10, 2023, the Planning and Development Department’s zoning inquiry response was appealed by the applicant (Exhibit F). Pursuant to FMC Section 15-5017(A)(1), appeals of Director’s decisions shall be referred to the Planning Commission for consideration.
The basis for the appeal is that the response letter for Zoning Inquiry No. Q-11-035 dated August 5, 2011, verified that the tow yard establishment (Bauer’s Towing) complied with the requirements of Policy and Procedure No. C-002.
Appeal Response
The areas in which vehicles and parts are stored or driven at Bauer’s Towing are paved with base rock material which was an approved alternative surface under Director’s Classification No. 208. However, Policy and Procedure No. C-002 requires vehicle and parts storage areas to be paved with asphalt concrete in accordance with Public Works Standard P-21. The City of Fresno Public Works Department has confirmed that base rock does not comply with the paving specifications required under Public Works Standard P-21. Furthermore, the information submitted by the applicant as part of the Zoning Inquiry application, and which was considered in staff’s determination was insufficient to determine the site is paved in accordance with Public Works Standard P-21. Therefore, the establishment does not comply with the conditions required under Policy and Procedure No. C-002.
Planning Commission Hearing
In accordance with Section 15-5007 of the FMC, the Planning and Development Department mailed notices of the Planning Commission Hearing to surrounding property owners within 1,000 feet of the subject property on December 20, 2023 (Exhibit M). The applicant provided supplemental material which is included as Exhibit N. On January 3, 2024, the appeal was continued to February 7, 2024.
The Planning and Development Department mailed notices of this Planning Commission Hearing to surrounding property owners within 1,000 feet of the subject property on January 26, 2023 (Exhibit M).
On February 7, 2024, the Planning Commission considered the subject appeal as presented by staff. Two (2) members of the public spoke in support of the appeal and no members of the public spoke in opposition during the hearing. After public comment closed and deliberation by the Planning Commission, the Planning Commission voted to continue the appeal to March 6, 2024, and encouraged the applicant to work with staff to prove that the site is paved.
On March 6, 2024, the Planning Commission upheld the Director’s response.
Appeal of Planning Commission Decision
On March 19, 2024, Councilmember Arias appealed the Planning Commission’s decision in order to create an opportunity for public comment.
On April 19, 2024, notices of the City Council Hearing were mailed to surrounding property owners within 1,000 feet of the subject property (Exhibit M).
It’s noted that the are no appeal rights for old/prior verifications. Both Director’s Classification No. 208 (2010) and Policy and Procedure No. C-002 (2011) have been superseded by the codification of the City of Fresno Development Code (2016). Therefore, the City Council shall only consider the appeal of the Director’s Determination that the subject tow yard is a legal non-conforming use pursuant to FMC Sections 15-2765 and 15-404.
ENVIRONMENTAL FINDINGS
Pursuant to Section 15378 of the State of California Environmental Quality Act (CEQA) Guidelines, the subject zoning inquiry response is not a project and therefore not subject to further environmental review. As such, an environmental finding was not made.
FRESNO MUNICIPAL CODE FINDINGS
Pursuant to FMC Section 15-5019, there are no required findings to be made for Zoning Inquires.
LOCAL PREFERENCE
Local preference was not considered because this ordinance does not include a bid or award of a construction or service contract.
FISCAL IMPACT
Affirmative action by the Council will result in timely deliverance of the review and processing of the applications as is reasonably expected by the applicant. Prudent financial management is demonstrated by the expeditious completion of this land use application inasmuch as the applicant has paid to the City a fee for the processing of this application and that fee is, in turn, funding the respective operations of the Planning and Development Department.
CONCLUSION
Staff maintains that the information included in the response letter for Zoning Inquiry Application P23- 02357, as it relates to compliance with the Fresno Municipal Code (FMC) Zoning Ordinance, applicable policies and procedures, and prior approvals or permits is accurate and that according to the current zoning ordinance the business (as it currently exists) is a legal non-conforming use and, absent any expansion and/or change in use, could continue to operate indefinitely. Therefore, Staff recommends that the Planning Commission uphold the Planning and Development Department Director’s response based on evidence detailed in this staff report.
Attachments:
Exhibit A - Vicinity Map
Exhibit B - Aerial Photograph
Exhibit C - Planned Land Use & Zoning Map
Exhibit D - Zoning Inquiry Application
Exhibit E - Zoning Inquiry P23-02357 Response Letter
Exhibit F - Appeal Letter
Exhibit G - Director’s Classification No. 208
Exhibit H - Planning & Development Policy & Procedure C-002
Exhibit I - COF Public Works Department Standard P-21 (Parking Lot Paving Details)
Exhibit J - Zoning Inquiry Q-11-035
Exhibit K - Non-Exclusive Franchise Tow Agreement for the Fresno Police Department
Exhibit L - FMC Section 15-2765 - Vehicle Impound Yard (Tow Yard) & Transit Storage
Exhibit M - Public Hearing Notices & Maps
Exhibit N - Letter from Applicant / Appellant to PC [12/28/2023]
Exhibit O - Independent Hearing Decision & Order
Exhibit P - Applicant Supplemental Letter & Presentation [1.2.2024]
Exhibit Q - Additional Information from Applicant
Exhibit R - Letter from Applicant [7-7-2023]
Exhibit S - Planning Commission Resolution No. 13840
Exhibit T - Councilmember Appeal Letter