§ 10-3.506. Extension of Time for Termination of Nonconforming Prohibited Use.

The owner or operator of a nonconforming use as described in Section 10-3.505 may apply under the provisions of this section to the Community and Economic Development Director for an extension of time within which to terminate the nonconforming use.

(a)

Time and Manner of Application. An application for an extension of time within which to terminate a nonconforming use as described in Section 10-3.505, may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with the Community and Economic Development Director at least ninety (90) days but no more than one hundred eighty (180) days prior to the time established in Section 10-3.505 for termination of such use.

(b)

Content of Application; Fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the City Council.

(c)

Hearing Procedure. The City Manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within forty-five (45) days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.6.

(d)

Factors to be Considered by the Hearing Officer. In determining whether an extension of time under the provisions of this section shall be approved, the hearing officer shall consider the following:

(1)

The applicant's investment in the property or structure on or in which the nonconforming use is conducted;

(2)

The applicant's lease obligations in the property or structure on or in which the nonconforming use is conducted;

(3)

Whether such property or structure can be readily converted to another use;

(4)

Whether the applicant's investment in the property or structure on or in which the nonconforming use is conducted was made prior to the effective date of the ordinance codified in this article;

(5)

Whether the applicant will be able to recoup the applicant's investment in the property or structure on or in which the nonconforming use is conducted as of the date established for termination of the nonconforming use; and

(6)

Whether the applicant has made good faith efforts to recoup the applicant's investment and to relocate the nonconforming use to a location outside the City of Modesto.

(e)

Approval of Extension; Findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings:

(1)

The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to the effective date of the ordinance codified in this article;

(2)

The applicant will be unable to recoup said investment as of the date established for termination of the use; and

(3)

The applicant has made good faith efforts to recoup the investment and to relocate the use to a location outside the City of Modesto.