SR-8-A (18)
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1-14
JAN 2 4 1989
Santa Monica, California
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CA:RMM:11483jhpc
City Council Meeting 1-24-89
STAFF REPORT
TO:
Mayor and City council
FROM:
City Attorney
SUBJECT:
Ordinance Amending Municipal Code sections 9304,
9311, 9312, and 9346 Relating to city Subdivision
Requirements and Adding section 4812a Relating to
Local Land Use Requirements Applicable to Rental
Units Withdrawn from the Rental Housing Market
Pursuant to the Ellis Act
At its meeting on January 10, 1989, the City council held a
public hearing on a proposed ordinance regulating the use of
properties from which tenants have been evicted pursuant to the
Ellis Act. Following the public hearing, the City Council voted
unanimously to continue the public hearing for two weeks in order
to allow for further public input. In addition, the city Council
directed the City Attorney to mail notice of the public hearing
to interested organizations in the City.
In response to this
direction, the ordinance was mailed to a number of tenant and
landlord groups as well as to a number of interested individuals.
The notice indicated that revisions of the ordinance might occur
prior to the January 24, 1989 City Council meeting, but that the
concept of the ordinance would remain the same. In response to
comments made by the public and the city Council at the January
10, 1989 meeting, various revisions were made to the ordinance as
described in more detail below. Copies of this staff Report and
the accompanying ordinance were also mailed on January 19, 1989,
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JAN 2 4 1989
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to the same interested organizations and individuals who received
the previous ordinance.
RESPONSE TO PUBLIC AND CITY COUNCILMEMBER COMMENTS
1. Lack of Conflict Between State and Local Law.
In Adler v. Elphick, 184 Cal. App. 3d 642 (1986), when three
co-owners acquired a two-unit residential property with the
intent of having two co-owners occupy one unit and the other
co-owner occupy the second unit, the Court held that a community
apartment was not created because the right to exclusive
occupancy of a particular unit was not specified on the face of
the deed. In Bakananauskas v. Urdan, 88 Daily Journal D.A.R.
15645 (Opinion filed December 14, 1988), two co-owners executed a
written agreement pursuant to which one owner was entitled to
exclusive occupancy of one unit, and a second owner was entitled
to exclusive occupancy of a second unit. The Court held that
this arrangement did not create a "community apartment II for
purposes of state law, reaffirming the earlier holding in Adler.
The ordinance which was initially prepared was intended to
respond to these two cases. The courts have determined that an
arrangement involving co-ownership of real property coupled with
the right to exclusive occupancy of a particular unit does not
constitute a "community apartment II unless such right appears on
the face of the deed for purposes of state law. The Adler and
Bakananauskas decisions do not limit local regulation of the
types of situations addressed therein. The City clearly has the
authority to regulate subdivisions that are not regulated by the
Subdivision Map Act. Government Code Section 66411 states:
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66411. Regulation and control of the
design and improvement of subdivisions are
vested in the legislative bodies of local
agencies. Each local agency shall by
ordinance regulate and control
subdivisions for which this division
requires a tentative and final or parcel
map. In the development, adoption,
revision, and application of such
ordinance, the local agency shall comply
with the provisions of section 65913.2.
Such ordinance shall specifically provide
for proper grading and erosion control,
including the prevention of sedimentation
or damage to offsite property. Each local
agency may by ordinance regulate and
control other subdivisions, provided that
such regulations are not more restrictive
than the regulations for those
subdivisions for which a tentative and
final or parcel map are required by this
division, and provided further that such
regulations shall not be applied to
short-term leases (terminable by either
party on not more than 30 days' notice in
writing) of a portion of the operating
right-of-way of a railroad corporation
defined as such by section 230 of the
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Public utilities Code unless a showing is
made in individual cases, under
substantial evidence, that public policy
necessitates the application of such
regulations to such short-term leases in
such individual cases.
Since significant confusion has arisen because of the use of
the term "community apartment II to refer to situations in which an
undivided interest in land is coupled with the right of occupancy
of an apartment thereon, where such right is contained in the
form. of a written or oral agreement separate from the deed
itself, the proposed revised ordinance refers to such situations
as "cooperative apartments II instead of "community apartments. II
Therefore, there is no longer any appearance of conflict between
the interests regulated by the state Subdivision Map Act and the
city's Subdivision Ordinance.
2. Incremental Leqislation.
Several members of the public have asserted that the
proposed ordinance unfairly discriminates against those owners of
properties who have opted to withdraw their properties from the
rental housing market pursuant to the Ellis Act. This claim is
without merit.
The City is currently experiencing an abuse of its land use
regulations by owners who have wi thdrawn properties from the
rental housing market pursuant to the Ellis Act. In connection
with properties which are vacated by means other than the Ellis
Act, other City laws, including the Rent Control removal permit
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requirement, already exist to regulate the conversion of those
properties to other uses. For these reasons, the proposed
ordinance principally addresses properties withdrawn pursuant to
the Ellis Act. It is well-established that legislative reform
need only proceed one step at a time: it need not address all
similar problems at one time. In addition, the accompanying
revisions to the City's subdivision requirements relating to
cooperative apartments apply to all units.
3. Rights of Family Members of OWners of Properties
Withdrawn Pursuant to the Ellis Act.
Confusion was expressed about the ability of family members
to occupy properties withdrawn pursuant to the Ellis Act. The
language of the ordinance has been re-drafted to clarify the
rights of family members to occupy former rental units so long as
such family members are neither renters nor owners.
4. Occupancy Permit as Alternative to Conditional Use
Permit.
The Ordinance has been revised to require that an occupancy
permit be obtained from the Planning Department instead of a
conditional use permit. This means that the Planning Director
can grant the permit in all cases except those requiring a
subdivision or parcel map.
SECTION-BY-SECTION ANALYSIS
Section 9304(c). This section retains the current Municipal
Code definition of "community apartment" which corresponds with
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the definition of this term under the Subdivision Map Act, as
interpreted by the courts.
Section 9304(e). This Section amends the Currer.t Municipal
Code definition of "conversion" to include "cooperative
apartments.tt
Section 9304(f). This Section creates a new definition for
a "cooperative apartment." This section defines a cooperative
apartment as an undivided interest in land coupled with the right
of occupancy of any apartment, where the occupancy right is
contained in a written or oral agreement other than on the face
of the deed.
Section 9304(u).
Code definition of
This Section amends the current Municipal
"subdivision" to include "cooperative
apartments."
Section 9311. This Section has been amended to include
cooperative apartments containing five or more units as a
category for which tentative subdivision maps and final
subdivision maps shall be required. This requirement currently
exists for condominiums, community apartments, and stock
cooperatives.
Section 9312. This Section has been amended to include
cooperative apartments containing four or less units as a
category for which tentative parcel maps and final parcels maps
shall be required. This requirement currently exists for
condominiums, community apartments, and stock cooperatives.
Section 9346. This section has been amended to provide that
the Planning commission may not waive the requirements for a
tentative and final parcel map for cooperative apartments. This
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restriction currently applies to condominiums, community
apartments, and stock cooperatives.
Section 4812(a). This Section requires that an occupancy
permit be obtained where property owners seek to occupy a
property which has been withdrawn from the rental housing market
pursuant to the Ellis Act. An occupancy permit is required
whether the owners seek authorization to occupy the property for
a commercial use or a residential use.
section 4812(b). An occupancy permit for commercial
occupancy of a property withdrawn pursuant to the Ellis Act shall
be granted by the Planning Director if the findings are made that
the occupancy is in conformity with the General Plan and with the
Zoning Ordinance.
section 4812(c). An occupancy permit for residential
occupancy may be granted in anyone of three situations.
First, the Planning Director may grant a permit if he or she
finds that no more than one unit on the property will be occupied
by owners of the property. (This subsection would not preclude
owners from making alterations to the property to enlarge that
unit if desired.) This subsection clarifies that family members
may occupy other units on the property so long as they are not
owners and no rent is being paid. (If family members who are
also owners wish to occupy more than one unit on the property,
section 4812(c) (3) applies. If family members pay rent to live
in units on the property, Section 4812(c) (2) applies.) A deed
restriction is required as a condition of approval of such an
occupancy.
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Second, an occupancy permit may be granted by the Planning
Director for use of the property as multifamily rental housing so
long as the owner has obtained certification from the Rent
Control Board of compliance with the requirements set forth in
the Ellis Act and Rent Control Board regulations regarding
re-entry into the rental housing market.
Finally, an occupancy permit for occupancy of the property
as mUltifamily housing by more than one owner of the property may
be granted, but only if a subdivision or parcel map has been
obtained pursuant to applicable sections of the Municipal Code
and a conditional use permit is obtained in accordance with
certain provisions in Section 9061.1.
Section 4812(d).
This subsection establishes a process
whereby the Planning Director's decision on an occupancy permit
may be appealed to the Planning Commission.
A Planning
Commission decision on an occupancy permit may be appealed to the
City Council.
Section 4812(e). This subsection provides that this Section
does not apply to any occupancy following a lawful demolition of
units withdrawn pursuant to the Ellis Act.
This subsection
exists because in conjunction with a demolition permit,
compliance with other applicable City laws will have been
obtained.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be introduced for first reading.
PREPARED BY:
Robert M. Myers, City Attorney
Laurie Lieberman, Deputy city Attorney
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CA:RMM:LL:ll472/hpc
city Council Meeting 1-24-89
Santa Monica, California
ORDINANCE NUMBER
(city council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE
SECTIONS 9304, 9311, 9312, AND 9346 RELATING TO SUBDIVISION
REQUIREMENTS AND ADDING SECTION 4812a TO CLARIFY
LOCAL LAND USE REQUIREMENTS APPLICABLE TO
RENTAL UNITS WITHDRAWN FROM THE RENTAL HOUSING
MARKET PURSUANT TO THE ELLIS ACT
WHEREAS, the Subdivision Map Act, Government Code Section
66410 et seq. and the Subdivision Ordinance of the city of Santa
Monica, Santa Monica Municipal Code section 9300 et seq., serve
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to regulate and control the division of land within the City of
Santa Monica; and
WHEREAS, the provisions of state and local subdivision laws
have as their purposes the protection of purchasers of property
as well as the promotion of orderly growth, development, and land
use; and
WHEREAS, the attributes, uses, ownership structure, and
occupancy of a residential building differ depending upon whether
the building is tenant-occupied or owner-occupied; and
WHEREAS, the conversion of residential rental buildings to
owner-occupied residential buildings has historically required
City approval; and
WHEREAS, a property which has been utilized for residential
rental housing that is being converted to owner-occupancy has
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virtually identical attributes to those of a condominium
conversion or subdivision for which state and local law require a
subdivision or parcel map, a change of use permit, and a
conditional use permit; and
WHEREAS, several property owners have already evicted
tenants from residential rental properties pursuant to the Ellis
Act and subsequently occupied those properties without obtaining
necessary permits from the City and it is likely that others will
follow the same course; and
WHEREAS, occupancy by mUltiple owners of residential
buildings which were formerly operated as rental housing
constitutes the creation of a community apartment or some other
like interest which couples an ownership interest in property
with the right to occupy such property; and
WHEREAS, the creation of ownership interests and use
patterns which resemble community apartments , cooperatives, or
condominiums without obtaining city approvals circumvents the
purpose of the state Subdivision Map Act and of the City'S
Subdivision Ordinance; and
WHEREAS, the regulations set forth in this Ordinance are
necessary for the preservation of the pUblic health, safety and
general welfare, to promote orderly growth and development and to
promote and implement the General Plan, to protect unwary
purchasers of residential property, and to otherwise further the
purposes of the State Subdivision Map Act and the city's
Subdivision Ordinance and condominium regulations,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA
MONICA DOES ORDAIN AS FOLLOWS:
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SECTION 1. section 9304 of the Santa Monica Municipal Code
is amended to read as follows:
SECTION 9304. Definitions. The
following words or phrases as used in this
Chapter shall have the following meanings:
(a) Advisory Agency. A designated
official or an official body charged with
the duty of making investigations and
reports on the design and improvements of
proposed divisions of real property.
(b) Block. The area of land within
a subdivision which area is entirely
bounded by streets, highways or ways,
except alleys, or the exterior boundary or
boundaries of the subdivision.
(c) community Apartment. A project
as defined in Business and Professions
Code section 11004 in which an undivided
interest in the land is coupled with the
right of exclusive occupancy of any
apartment.
(d) Condominium. An estate in real
property consisting of an undivided
interest in common in a portion of a
parcel of real property together with a
separate interest in space in a
residential, industrial or commercial
building on such real property, such as an
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apartment, office, or store. A
condominium may include, in addition, a
separate interest in other portions of
such real property.
(e) conversion. The creation of
separate ownership of existing improved
real property together with a separate
interest in space of residential,
industrial or commercial buildings
thereon. A conversion may be accomplished
by condom.inium., stock cooperative,
community apartment, or cooperative
apartment.
(f) cooperative Apartment. Pursuant
to the city's authority to regulate
subdivisions not regulated by the
Subdivision Map Act as authorized by
Government Code Section 66411, a proj ect
in which an undivided interest in land is
coupled with the right of occupancy of any
apartment located thereon, whether such
right is contained in the form of a
written or oral agreement, when such
right does not appear on the face of the
deed.
(g) Design. street alignments,
grades and width; drainage and sanitary
facilities and utilities, including
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alignments and grades thereof; location
and size of all required easements and
rights-of-way; fire roads and fire breaks;
lot size and configuration; traffic
access; grading; land to be dedicated for
park or recreational purposes; and such
other specific requirements in the plan
and configuration of the entire
subdivision as may be necessary or
convenient to insure conformity to or
implementation of the General Plan or any
adopted specific plan.
(h) Final Map. A map showing a
subdivision for which a tentative and
final map is required by this Chapter,
prepared in accordance with the provisions
of this Chapter and the Subdivision Map
Act and designed to be recorded in the
office of the County Recorder.
(i) Final Parcel Map. A final map
for a parcel.
(j) Final Subdivision Map. A final
map for a subdivision.
(k) General Plan. The General Plan
of the City of Santa Monica.
(1) Improvement. street work,
storm drainage, utilities and landscaping
to be installed, or agreed to be
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installed, by the subdivider on the land
to be used for public or private streets,
highways, and easements, as are necessary
for the general use of the lot owners in
the subdivision and local neighborhood
traffic and drainage needs as a condition
precedent to the approval and acceptance
of the final map thereof; or to such other
speci f ic improvements or type of
improvements, the installation of which,
either by the subdivider, by public
agencies, by private utilities, by any
other entity approved by the local agency
or by a combination thereof, is necessary
to convenient to insure conformity to or
implementation of the General Plan or any
adopted specific plan.
(m) Lot. A parcel or portion of
land separated from other parcels or
portions by description, as on a
subdivision or record of survey map, or by
metes and bounds, for purpose of sale,
lease, or separate use.
(n) Lot Line Adjustment. A minor
shift or rotation of an existing lot line
or other adjustments where a greater
number of parcels than originally existed
is not created.
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(0) Merger. The joining of two (2)
or more contiguous parcels of land under
one ownership into one parcel.
(p) SUbdivision Map Act. The
Subdivision Map Act of the state of
California.
(q) Parcel Hap. A map showing a
division of land of four (4) or less
parcels as required by this Chapter,
prepared in accordance with the provisions
of this Chapter and the Subdivision Map
Act.
(r) peripheral Street. An existing
street whose right-of-way is contiguous to
the exterior boundary of the subdivision.
(s) Remainder. That portion of an
existing parcel which is not included as
part of the subdivided land. The
remainder is not considered as part of the
subdivision but must be shown on the
required maps as part of the area
surrounding subdivision development.
(t) stock Cooperative. A
corporation as defined in Business and
Professions Code section 11003.2 which is
primarily for the purpose of holding title
to property if shareholders receive the
right to exclusive occupancy in a portion
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of property and whose right to occupancy
transfers concurrently with the transfer
of an interest in the corporation.
(u) Subdivider. A person who
proposes to divide, divides, or causes to
be divided real property into a
subdivision for the subdivider or for
others; except employees and consul tants
of such persons or entities, acting in
such capacity, are not "subdividers."
(v) Subdivision~ The division, by
any subdivider, of any units or unit of
improved or unimproved contiguous land
shown on the latest equalized County
assessment roll as a unit or as contiguous
units for the purpose of sale, lease or
financing, whether immediate or future.
Property shall be considered as contiguous
units, even if it is separated by roads,
streets, utility easements or railroad
rights-of-way. Subdivision includes a
condominium project, as defined herein or
in California civil Code section 1350, a
community apartment project, as defined
herein or in California civil Code Section
1351 (d), a stock cooperative, as defined
herein or in California Business &
Professions Code section 1103.2, or a
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cooperative apartment as defined herein.
Any conveyance of land to a governmental
agency, publ ic entity I or publ ic util i ty
shall not be considered a division of land
for purposes of computing the number of
parcels. "Subdivision" does not include
anything excluded from the definition of
subdivision in the Subdivision Map Act
unless otherwise provided for herein.
(w) Subdivision Map. A map showing
a division of land of five (5) or more
parcels as required by this Chapter,
prepared in accordance with the provisions
of this Chapter and the Subdivision Map
Act.
(x) Tentative Map. A map made for
the purpose of showing the design and
improvements of a proposed subdivision and
the existing conditions in and around it.
(y)
Tentative
Parcel
Hap.
A
tentative map for a parcel.
(z) Tent.ative Subdivision Hap. A
tentative map for a subdivision.
(aa) Zoning ordinance. Article IX
of the Municipal Code.
SECTION 2. Section 9311 of the Santa Monica Municipal Code
is amended to read as follows:
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SECTION 9311. Five or More Parcels.
A tentative subdivision map and final
subdivision map shall be required for all
divisions of land into five (5) or more
parcels, five (5) or more condominiums as
defined in civil Code section 783, a
community apartment project containing
five (5) or more units, a stock
cooperative containing five (5) or more
units, or a cooperative apartment
containing five (5) or more units.
SECTION 3. section 9312 of the Santa Monica Municipal Code
is amended to read as follows:
SECTION 9312. Four or Less Parcels.
A tentative parcel map and final parcel
map shall be required for all divisions of
land which create four (4) or less
parcels, four (4) or less condominiums as
defined in civil Code Section 783, a
community apartment project containing
four (4) or less units, a stock
cooperative containing four (4) or less
units, or a cooperative apartment
containing four (4) or less units.
SECTION 4. Section 9346 of the Santa Monica Municipal Code
is amended to read as follows:
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SECTION 9346. Waiver of Parcel Map.
The Planning Commission may waive the
requirements for a tentative and final
parcel map when it is demonstrated that
the waiver is consistent with the purpose
of this Chapter and the General Plan. No
parcel map may be waived for a
condominium, stock cooperative, community
apartment project, or cooperative
apartment, whether created by new
construction or conversion. The decision
of the Planning Commission shall not be
appealable.
SECTION 5. Section 48l2a is added to the Santa Monica
Municipal Code to read as follows:
SECTION 4812a. Permits Necessary
for occupancy of property Following
Withdrawal Pursuant to the Ellis Act.
(a) No property or rental units
therein which have been withdrawn pursuant
to the Ellis Act, Government Code sections
7060 et seg., shall be subsequently
occupied unless an occupancy permit is
obtained in accordance with the provisions
of this section.
(b) An occupancy permit for
commercial occupancy of a property or any
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rental unit therein shall be granted by
the Planning Director if the following
findings are made:
(1) The occupancy is in
conformity with the General Plan.
(2) The occupancy is in
conformity with the Comprehensive Land Use
and Zoning Ordinance.
(c) An occupancy permit for
residential occupancy of a property or any
rental unit therein may be granted:
(1) By the Planning
Director I if the Planning Director finds
that no more than one unit on the property
will be occupied by owners of the
property. Other units on the property may
be occupied by family members of the
owners, provided such family members do
not have any ownership interest in the
property and do not pay rent as defined in
Section 1aD1(f) of the city Charter. An
agreement restricting use of the property
to such purposes shall be executed by the
owner and the City as a condition of
approval.
(2) By the Planning
Director, if the Planning Director finds
that the property or rental unit therein
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is to be used for multifamily rental
housing, and the Rent Control Board has
certified that the owner has complied with
the requirements set forth in Government
Code Sections 7060.2 and 7060.4 and with
applicable regulations promulgated by the
Rent Control Board.
(3) If the property is to be
used as a cooperative apartment as defined
in section 9304, a subdi vision or parcel
map is obtained in accordance with Chapter
3 of Article IX of this Code, and a
conditional use permit is obtained in
accordance with the requirements of
Section 9061.1, except that subsections
(a), (b), ee), (h), and (i) (2) shall not
apply, and except that the requirements
regarding a Tenants' Notice of Intent to
Convert and Tenant Relocation Assistance
Plan contained in subsection (c) shall not
apply.
(d) Any decision of the Planning
Director approving, conditionally
approving, or denying an occupancy permit
may be appealed to the Planning Commission
in accordance with the provisions in
Subchapter 10L of Article IX of this Code.
Any decision of the Planning commission
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may be further appealed to
Council in accordance with
provisions.
(e) This Section shall not apply
to occupancy of any portion of a property
withdrawn pursuant to the Ellis Act
fOllowing lawful demolition of that
portion of the property, nor shall it
apply to an entire property withdrawn
pursuant to the Ellis Act following lawful
demolition of the entire property.
the
the
City
same
SECTION 6. Any provision of the Santa Monica Municipal Code
or appendices thereto inconsistent with the provisions of this
ordinance, to the extent of such inconsistencies and no further,
is hereby repealed or modified to that extent necessary to affect
the provisions of this ordinance.
SECTION 7. If any section, subsection, sentence, clause,
or phrase of this ordinance is for any reason held to be invalid
or unconsti tutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of the ordinance. The City council hereby
declares that it would have passed this ordinance and each and
every section, subsection, sentence, clause, or phrase not
declared inval id or unconstitutional without regard to whether
any portion of the ordinance would be subsequently declared
invalid or unconstitutional.
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SECTION 8. The Mayor shall sign and the City Clerk shall
attest to the passage of this ordinance. The city Clerk shall
cause the same to be publ ished once in the official newspaper
within 15 days after its adoption.
The ordinance shall be
effective 30 days from its adoption.
APPROVED AS TO FORM:
(l.r{n-A \..1"'. ~
ROBERT M. MYERS U
City Attorney
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