Milpitas Zoning Code § 39.02 XI-1-7.02 - Utilities

The following are permitted as accessory uses in a POS District:

39.02-4 One mobile food vehicle, subject to approval of a minor site development permit pursuant to Subsection XI-10-57.03(B)(2) of this Chapter. See also Subsection XI-10-13.18.

39.02-5 Two or more mobile food vehicles operating together for a period of seven consecutive days or less, subject to approval of a special event permit pursuant to Section 15 of this Chapter. See also Subsection XI-10-13.18.

(Ord. No. 38.845, § 12, 6/21/22; Ord. 38.733, 1/6/98)

XI-10-39.03 - Conditional Uses

The following uses may also be permitted if their location is first approved by the Planning Commission, as provided for in Section 57, after considering a recommendation from the Parks, Recreation, and Cultural Resources Commission:

39.03-1 Public community centers and public indoor sports centers.

39.03-2 Day care centers.

39.03-3 Public utility facilities.

39.03-4 Radio or television transmitters.

(Ord. 38.733 (part), 1/6/98)

XI-10-39.04 - Height Restrictions

No structures shall exceed either two and one-half (2 ½) stories or thirty (30) feet in height. This does not include light standards, public utility facilities, and radio or television transmitters.

(Ord. 38.733 (part), 1/6/98)

XI-10-39.05 - Area, Lot Width and Yard Requirements

The following minimum requirements shall be observed:

39.05-1 Lot size: No requirement is established.

39.05-2 Lot width: No requirement is established.

39.05-3 Yards: The minimum front, side and rear yards in the POS district shall be equal to the respective front, side and rear yards required in the most restrictive abutting district; provided that no yard adjoining a street shall be less than twenty (20) feet, and that no side yard shall be less than ten (10) feet.

(Ord. 38.733 (part), 1/6/98)

XI-10-39.06 - Off-Street Parking Requirements

There shall be provided off-street parking spaces for automobiles in accordance with the requirements of Section 53, except that neighborhood-serving parks, trails and open space areas are not required to provide parking unless required by the City Council.

(Ord. 38.733 (part), 1/6/98)

XI-10-39.07 - Amortization

Notwithstanding Section XI-10-56.08, every non-conforming use in a POS District shall be removed or otherwise brought into conformance within four (4) months of the effective date of this Chapter.

(Ord. 38.733 (part), 1/6/98)

Section 40 - Agricultural Zones and Standards

Footnotes:

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Editor's note— Ord. No. 38.789, § 23, adopted April 21, 2009, amended the Code by repealing former Section 40, XI-10-40.01—XI-10-40.09, and adding a new Section 40. Former Section 40 pertained to the A Agricultural District, and derived from Ord. 38, adopted March 15, 1955; Ord. 38.35, adopted July 18, 1963; Ord. 38.185, adopted August 5, 1969; Ord. 38.207, adopted November 17, 1970; Ord. 38.384, adopted October 26, 1976; Ord. 38.711, adopted August 20, 1996; Ord. 38.760, adopted September 17, 2002; and Ord. 38.761, adopted May 20, 2003.

To preserve lands best suited for agricultural use from the encroachment of incompatible uses, and to preserve in agricultural use land suited to eventual development in other uses, pending proper timing for the economical provision of utilities, major streets, and other facilities so that compact, orderly development will occur. Change of zoning district from A to any other zoning district shall only be made in general accord with the General Plan.

(Ord. No. 38.789, § 23, 4-21-09)

XI-10-40.02 - Agricultural Use Regulations

A.

Permitted and Conditionally Permitted Uses.

1.

General Requirements. The uses identified in Table 40.02-1, Agricultural Zone Uses, shall be the primary uses allowed to occur on a property. The primary uses identified in Table 40.02-1 shall be permitted or conditionally permitted, as indicated:

2.

Accessory Uses. The following are the accessory uses permitted in all agricultural zoning districts:

a.

Living quarters of persons regularly employed on the premises; but not including labor camps and labor dwellings, accommodations, or areas for transient labor.

b.

Guest houses, not rented or otherwise conducted as a business.

c.

Home occupations and professional offices in the home.

d.

Offices incidental and necessary to the conduct of a permitted use.

e.

Private garages, parking areas and stables.

f.

Roadside stands not exceeding four hundred square feet in floor area, for the sale of agricultural products grown on the premises.

g.

Other accessory uses and buildings customarily appurtenant to a permitted use.

B.

Prohibited Uses. The following uses are prohibited:

Uses where the symbol "NP" appears within Table 40.02-1.

2.

Adult Businesses as defined in Subsection 13.04, Adult Businesses, of this Chapter.

3.

Uses that have been excluded from Table 40.02-1, unless they are found by the City to be similar to permitted or conditionally permitted uses in accordance with C below.

C.

Other Uses. Any other uses may be considered by the Planning Commission that are similar in accordance with the procedure prescribed in Subsection 10-54.02, Other Uses Permitted by Commission, of this Chapter.

Agricultural Zone Uses

1. Refer to Subsection 13.06, Large Family Child Care and Child Care Centers, of this Chapter for standards.

2. Refer to Subsection 40.02(D), Agricultural Special Uses

3. When ancillary to primary agricultural use.

4. No tract signs shall be permitted within 600 feet of a Santa Clara County expressway.

D.

Agricultural Special Uses

1.

Commercial recreational facilities including, but not limited to, outdoor theaters, golf driving ranges, commercial swimming pools (but not including such facilities in which the principal use is enclosed in a building, such as bowling alleys and skating rinks) may be allowed with the approval of a Conditional Use Permit.

Incidental to commercial recreation facilities, there may also be permitted hotels, restaurants, and similar commercial facilities when the same are located on a minimum twenty (20) acre site under single ownership, provided that the total floor area of all enclosed structures and roofed areas upon the total site shall not exceed forty thousand (40,000) square feet.

(Ord. No. 38.789, § 23, 4-21-09)

XI-10-40.03 - Agricultural Zone General Development Standards

The following property development standards shall apply to all land and permitted or conditionally permitted buildings located within their respective agricultural zone.

A.

General Requirements. Table 40.03-1, Agricultural Zone Development Standards, lists the site development standards required for agricultural development projects.

Exception: Conditionally permitted uses as indicated in Table 40.02-1, Agricultural Zone Uses, may deviate from the development standards through the Conditional Use Permit process.

Agricultural Zone Development Standards

XI-10-40.04, - Agricultural Zone Special Development Standards

The following additional conditions shall apply in an Agricultural District:

1.

Any building or enclosure in which animals or fowl, except domestic pets in household numbers, are contained shall be distant at least two hundred feet from any lot in any Residential, Mixed Use or Commercial District, or from any school or institution for human care.

2.

Site plan and architectural approval are required of all conditional uses.

The minimum lot area per dwelling unit shall be not less than two and one-half acres, except as herein specified for labor camps.

(Ord. No. 38.789, § 23, 4-21-09)

XI-10-40.05 - Conformance with Specific Plans

Properties located within Specific Plans shall conform to the underlying Specific Plan in accordance with Section XI-10-11.06, Conformance with Specific Plans, of this Chapter.

(Ord. No. 38.795, § 33, 4/6/10; Ord. No. 38.789, § 23, 4/21/09)

Section 45 - "H" Hillside Combining District*

• Prior ordinance history: Ord. 38, as amended by portions of Ords. 38.536, 38.633, 38.635 and 38.646.

The City Council of the City of Milpitas finds and declares:

45.01-1 The hillsides which are a part of the City and within its urban planning area represent a unique scenic asset to the community and a part of the history and tradition of the community.

45.01-2 The inventory of open space and natural scenery in the City and County is rapidly diminishing.

45.01-3 The congestion of traffic, commerce, development and people may require a counterbalance of pleasant vistas bearing in mind preservation and conservation of the natural landscaping and open space while at the same time permitting orderly and regulated residential development.

45.01-4 Pleasant communities attract business, industry and people. They improve public morale and pride and encourage public support for safe, healthful and productive development.

45.01-5 Citizens have shown that they wish this community to be attractive as well as clean and safe and that they want to avoid hillside visual pollution. Therefore, it is necessary to create a special zoning district which insures an orderly and harmonious residential development that will minimize the amount of disturbance to the natural terrain.

45.01-6 If Milpitas is to avoid the hillside safety, ecological/environmental, and financial disasters which have occurred elsewhere in California, seismic risk, geologic hazards, fire protection, groundwater protection, flood prevention and erosion control require the regulation of hillside development as to density, construction practices, building sites and landscaping.

45.01-7 That all environmental concerns be included in hillside development (in order to take into account nationally recognized Pacific Flyway Habitat designations and not to disturb nesting areas or resting areas).

45.01-8 The purpose of the "H" Hillside Combining District is to promote and encourage the orderly development of the hillside area of the City by the application of regulations and requirements established to meet the particular problems associated with development of hillside areas, including but not limited to geologic problems, slope, safe access and visibility.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.02 - Establishment and Designation

"H" Hillside Combining Districts shall be established only in conjunction with other districts. An "H" designation shall be required in areas designated in the adopted General Plan as "Hillside" and may be combined with "R1" Single-Family Residential District.

The provisions of this section shall apply in the "H" Hillside Combining District, in addition to those conditions specified for the basic zone classification. Where there is a conflict between these regulations and the regulations specified in the basic zone, the provisions in this section shall prevail.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.03 - Maximum Allowable Densities and Minimum Lot Sizes

The following requirements shall apply in the "H" Hillside Combining District:

45.03-1 The average land area per dwelling unit is determined by calculating the average slope of the parcel and then using this figure in the slope density equation to get minimum average land area per dwelling unit.

45.03-2 The slope density equation. If the parcel has an average slope of ten (10) percent or less, the average land area per dwelling unit shall be no less than ten (10) acres. If the parcel has an average slope of fifty (50) percent or more, the minimum average land area per dwelling unit shall be no less than eighty (80) acres. If the parcel has an average slope of ten (10) percent to fifty (50) percent, the average land area per dwelling unit shall be determined by the following equation:

a = 1 0.121875 - 0.0021875 S

Where: a is the average land area per dwelling; and S is the average slope of the lot in percent.

45.03-3 Average slope shall be based on existing contours as shown on aerial maps on file in the office of the City Engineer dated April 1964. Where slope cannot be directly determined by observation, the average slope will be determined by the formula:

S = 100 I L

A

Where: I is the contour interval in feet;

L is the combined length of the contour lines in scale feet; and A is the net area of the lot in square feet.

Exhibit "B" is an example of the use of this formula.

45.03-4 The maximum number of dwelling units permitted in a subdivision shall be determined by dividing the gross land area by the average land area per dwelling unit, computed to the third significant figure, and then rounded to the nearest whole number.

45.03-5 Reduction of Density. The City may require a reduction in the number of dwelling units below the maximum otherwise permitted under this Section if the City determines that such reduction is necessary or appropriate by reason of site restrictions or geologic hazards.

45.03-6 Further Subdivision Prohibited. Upon recordation of a final subdivision or parcel map covering any site zoned "R1-H," no lots or parcels shown on such map may be thereafter further subdivided so as to increase the total density permitted under this Section for the entire subdivision or parcel depicted on the final map.

45.03-7 Exempted Lots. Any lot shown as a unit on a recorded subdivision or land division, or any lot otherwise legally created, is exempt from the density requirements set forth in this Section provided such lot was created prior to the effective date of the ordinance codified in this chapter. Any lot so exempted will not lose its exempt status if either of the following events takes place subsequent to the effective date of the ordinance codified in this chapter:

(a)

A portion of the lot is exchanged for a portion of any adjoining lot, the result of which does not decrease the original square footage of the lot; or

(b)

The lot is enlarged by the addition of land from any adjoining parcel.

Under no circumstances shall the number of dwelling units be greater than the number permitted prior to any modification for lot line adjustment.

45.03-8 Density Exception. Notwithstanding the density provisions of the "H" District set forth in Section XI-10-45.03, a commercial development which was approved prior to the October 15, 1992 effective date of the ordinance codified in this section may, upon site and architectural approval, pursuant to Section XI10-45.03, be replaced with one less intensive single-family residential dwelling that complies with all other conditions of Section 45 and all other relevant provisions of the Municipal Code.

(Ord. 38.732, 10/7/97; Ord. 38.672 (part), 9/15/92)

XI-10-45.04 - Height Regulations

45.04-1 Under no circumstances shall any main building on the west side of the crestline exceed a height of seventeen (17) feet and one (1) story (excluding basements) from the lowest finished grade to the highest ridgeline of the building.

45.04-2 Under no circumstances shall any main building on the east side of the crestline exceed a height of twenty-seven (27) feet and two (2) stories from the lowest finished grade to the highest ridgeline of the

45.04-3 Accessory structure(s) shall not exceed seventeen (17) feet and one (1) story from the lowest finished grade to the highest ridgeline of the building anywhere in the hillside.

(Ord. 38.672 (part), 9/15/92)

(Image not reproduced in this text.)

XI-10-45.05 - Yard Requirements

For lands in the R1 residential zoning district, the following requirements shall apply:

45.05-1 All dwellings shall have a minimum side yard of forty (40) feet.

45.05-2 Minimum front yard setbacks shall be twenty-five (25) feet when the average slope of the lot is less than sixteen (16) percent, or when the front yard slope does not exceed sixteen (16) percent; otherwise, the minimum front yard setback shall be forty (40) feet.

45.05-3 The minimum rear yard setback for the principal dwelling shall be forty (40) feet.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.06 - Crestline Zone of Protection

45.06-1 The purpose of the crestline zone of protection is to preserve the natural quality of the crestline and the slopes immediately below, when viewed from the valley floor.

45.06-2 The crestline zone of protection is defined as the area westerly of the perceived crestline and between the perceived crestline and an elevation one hundred (100) feet below. In the area within three hundred (300) feet easterly of the crestline, structure heights shall be restricted so that no structure extends above the crestline site line.

45.06-3 The perceived crestline is the crestline identified when viewed from the three (3) closest viewpoints of those nine (9) shown on the zoning map and designated as "VP."

45.06-4 The land within the crestline zone of protection shall remain in a natural condition and structures, grading and non-native plant materials are prohibited. All fences constructed within the crestline zone of protection shall be subject to review and approval by the Planning Commission.

45.06-5 In demonstrating compliance with the crestline zone of protection, an applicant shall submit crosssections from each of the three (3) closest viewpoints from their site. Each cross-section shall include the viewpoint, any proposed structure(s) on the applicant's site, the perceived crestline, and the lower edge of the zone of protection. Each cross-section shall be drawn commencing from the closest viewpoint with lines projecting through the highest point of any and all structures. No structure may visually intrude into the "crestline zone of protection" area. Exception may be granted where development would not be visible from the three (3) closest viewpoints.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.07 - Special Provisions for PUD's in Hillside

45.07-1 When land in Hillside is to be subdivided and is also approved as a PUD, the following rules shall apply in addition to those specified elsewhere in this chapter for PUD's.

45.07-2 There shall be no minimum lot size requirements for PUD's. Clustering of development for PUD's is encouraged and shall be located on not more than ten (10) percent of the total lot area that exists prior to any subdivision.

45.07-3 Land included in a PUD but not included in lots shall be held in common and shall be encumbered with an open space easement in favor of the City unless such common ownership and easement would be inconsistent with approved uses such as public streets or public utilities.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.08 - Open Space Easements

45.08-1 In any subdivision which is not approved as a PUD, at least fifty (50) percent of the gross area within the subdivision shall be encumbered with an open space easement in favor of the City. Side yard and front yard setback areas will not be allowed to be a part of nor encroach on the open space easement. Said easement shall be identified at the time of submittal of the tentative map.

45.08-2 Reconfiguration of the open space easement may be granted, at a public hearing, by the City Council provided that the area (net acreage) is not decreased.

45.08-3 No open space easement dedicated to the City within the "H" Hillside Combining District shall be abandoned by resolution of the City Council without a majority of those voting on the matter in a City election approving of such abandonment. The election shall be held at one (1) of the regularly scheduled election dates for general law cities.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.09 - Site and Architectural Approval

45.09-1 Purpose. It is the policy of the City to review the proposed construction or expansion of singlefamily dwellings and certain accessory structures under circumstances where such structures might constitute an invasion of privacy, unreasonable interference with views, light and air, and create adverse impacts upon the aesthetic character of neighboring residential structures. The purpose of this Section is to establish standards and procedures to be followed with respect to the design review of single-family dwellings and certain accessory structures to ensure that new development occurs in a manner which is consistent with the objectives of this Chapter and the policies of the General Plan.

45.09-2 Applicability-Requirement for Site and Architectural Review. In each of the following cases, no building permit shall be issued for the construction or expansion of a single-family structure or accessory structure in any "H" District, until such structure has received a site and architectural review approval by the Planning Commission and City Council pursuant to this Section:

(a)

Prior to any grading;

(b)

Prior to construction of any new structure; or

(c)

Prior to any modification that requires a building permit, any interior alteration, or any alteration or conversion where such alteration or conversion does not result in any exterior modifications to the existing structure beyond the installation of skylights in the roof, installation of new windows or doors, fireplaces or chimneys, or any other minor alteration which in the opinion of the Community Development Manager meets the intent of this Subsection.

45.09-3 Application Requirements-Public Hearing. Site plan and building elevations, which portray as accurately as possible the ultimate development of the lot, shall be submitted to the City. The plans shall include all structures, grading, landscaping, colors and materials.

45.09-4 The applicant shall in addition propose a "building envelope" within which all development other than specified minor improvements such as fences (permitted by Section XI-10-45.13, Fences) and driveways shall be located.

45.09-5 A public hearing on the site and architectural review application shall be required at the planning commission level only. The review before the city council shall not be a public hearing. Provided, however, that any modifications or addition onto an existing structure, on parcels twenty thousand (20,000) square feet or less, shall not require a review by either the Planning Commission or City Council but said modifications or addition must comply with the site and architectural guidelines contained in this Section.

45.09-6 Application Materials. Application for site and architectural review ("S" Zone Approval) shall be made, with the Community Development Department, on a form prescribed for this purpose.

The application shall include the following exhibits such as, but not limited to:

Site plan

Building envelope and open space plan

Existing topographic plan

Architectural plan(s)

Roof plan

Floor plan(s)

Line of sight-view restriction/obstruction analysis

Landscape plan

Crestline zone of protection plan, where appropriate

Grading plan

The application shall be accompanied by the payment of a processing fee(s), in such amount(s) as established by the City Council.

45.09-7 Site and Architectural Guidelines. The Planning Commission and City Council shall consider the following guidelines in its review process:

(a)

Avoid Unreasonable Interference with Views and Privacy. The height, elevations and placement on the site of the proposed main or accessory structure, when considered with reference to the nature and location of residential structures on adjacent lots, will avoid unreasonable interference with views and privacy.

(b)

Preserve Natural Landscape. The natural landscape will be preserved insofar as practicable by designing structures to follow the natural contours of the site and minimizing tree and soil removal.

(c)

Minimize Perception of Excessive Bulk. The design of the proposed main and/or accessory structure(s) in relation to the immediate neighborhood should minimize the perception of excessive bulk.

(d)

Impairment of Light and Air. The proposed main or accessory structure(s) shall not unreasonably impair the light and air of adjacent properties nor unreasonably impair the ability of adjacent properties to utilize solar energy.

(e)

Grading. All grading shall be kept to an absolute minimum and shall comply with the grading ordinance criteria.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.10 - Slope Planting

The face of all cut-and-fill slopes may be required to be planted and maintained with a ground cover as recommended by the geotechnical report in order to protect the slopes against erosion as soon as practical and prior to the final approval of the grading. This plant material shall be shown on the landscape plan.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.11 - Residential Driveways and Parking

45.11-1 Privately owned and maintained access from the public road to each single-family dwelling shall be a minimum of fourteen (14) feet in width. Turning radius shall be designed to meet the Fire Department's requirements.

45.11-2 Turnout space shall be provided on driveways over one hundred fifty (150) feet in length with a maximum spacing of one hundred fifty (150) feet if driveway is less than eighteen (18) feet wide.

45.11-3 Turnaround. All dwelling units shall provide an on-site area for vehicles to turn around if served by a driveway over one hundred fifty (150) feet in length to meet Fire Department's requirements.

45.11-4 Vertical Clearance. All privately owned and maintained roads and drives shall assure a minimum fourteen (14) foot vertical clearance.

45.11-5 There shall be provided at the time of erection of any dwelling at least two (2) permanently maintained parking spaces on the same lot with the dwelling, for each dwelling unit. Said parking spaces shall be not less than ten (10) feet wide and twenty (20) feet long with adequate provisions for ingress and egress.

45.11-6 Private parking may be required to be located to the rear of the front setback line. Criteria used to determine need for parking to be located behind the front setback line shall be based on providing safe access which is harmonious with adjacent natural land slope, and structures existing and proposed.

45.11-7 The design of the driveway and parking areas shall consist of an all-weather surface conforming to Section II-13-18, Paving Standards, and Section XI-10-54.03, Improvement of: Parking Areas, Auto Sales Areas and Loading Areas, of this Code.

45.11-8 The Planning Commission and City Council may grant exceptions to the above requirements pursuant to the guidelines set forth in Subsection 45.09-7, Site and Architectural Guidelines, of this Section.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.12 - Non-Residential Off-Street Parking

Off-street parking shall be provided on-site for all nonresidential uses. The number and design of parking spaces shall be in accordance with Section XI-10-53, Off-Street Parking Regulations, and Section XI-1054.03, Improvement of: Parking Areas, Auto Sales Areas and Loading Areas.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.13 - Fencing

Fencing on hillside lots shall be minimized and shall be of an open variety, except fencing around the immediate vicinity of each house. Fencing criteria will be found in Section XI-10-54.11, Fences.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.14 - Recreation Courts

45.14-1 Grading for tennis courts and other recreation courts shall not exceed six (6) feet of fill or twelve (12) feet of cut and fill. A site development application for a tennis or other recreation court which proposes grading in excess of the limits of this Chapter may be approved by the City upon finding that the excess cut or fill:

(a)

Will not result in slopes prone to landslides or soil creep;

(b)

Can be landscaped and/or contours rounded to render the cut or fill inconspicuous when viewed from off the site; and

(c)

Can be properly drained according to methods approved by the Building Division.

45.14-2 Screening. Recreation courts shall be landscaped and screened so as to be unobtrusive from offsite. The structure will not be permitted unless this screening can be accomplished without interfering with the function of the structure.

45.14-3 Color. All surface and retaining walls shall be colored in natural tones and screened as appropriate so that the court is not conspicuous when viewed from off-site.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.15 - Outdoor Lighting.

45.15-1 Tennis—Recreation Courts. No artificial lighting shall be permitted for tennis and other recreation courts.

45.15-2 Swimming Pools and Spas. Artificial lighting of swimming pools and spas shall be permitted only under the following conditions:

(a)

Light(s) are placed beneath the surface of water in the pool or spa to illuminate the water;

(b)

Other exterior lights used to illuminate the surrounding area;

(c)

Light(s) use the minimum wattage which will safely illuminate the area;

(d)

No direct light is cast beyond the immediate area of the pool or spa; and

(e)

No light sources are directly visible from off the site.

45.15-3 Outdoor Lighting-General. Outdoor lighting should use the minimum wattage lights which will safely illuminate the area. Outdoor light sources shall be shielded so as not to be directly visible from offsite. This section does not pertain to motion-induced/activated or motion-sensor security-type lights.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.16 - Underfloor Clearance

All new single-family main structures and accessory buildings, or additions thereto, shall be designed to follow the slope of the site so as to reduce the clearance between ground-floor levels and finish grade to not more than five (5) feet. This underfloor clearance shall not be enclosed. The Planning Commission and City Council may grant exceptions to this requirement pursuant to the guidelines set forth in Subsection 45.09-7 of this Section.

XI-10-45.17 - Maximum Size of Residence, Accessory Structures, and Impervious Surface Coverage

45.17-1 Purpose and Intent. The purpose and intent of limiting the amount of impervious surface coverage allows for the site and area to remain in its natural setting, as much as possible, without incorporating unnatural man-made features. Impervious surfaces also increase stormwater runoff, which is to be considered in the design of drainage systems.

45.17-2 Definition. "Impervious surfaces" are meant to include surfaces that will not allow or will greatly reduce the penetration of water into the ground. Impervious surfaces include the following: concrete, asphalt, bricks, paving stones, swimming pools, "turf stones," plastic sheeting, compacted gravel and rock areas, and similar surfaces. Impervious surfaces shall also include any and/or accessory structures located on a specific site.

45.17-3 On parcels less than three (3) acres, the amount of impervious surface on the site is limited to eight thousand (8,000) square feet or ten (10) percent of the total lot area, whichever is greater (including the building footprint). The maximum size of the main residence shall not exceed six thousand (6,000) square feet.

45.17-4 On parcels three (3) acres or greater, the amount of impervious surface on the site is limited to ten (10) percent of the total lot area (including the building footprint). Under no circumstances shall the impervious surface coverage exceed thirty thousand (30,000) square feet. The maximum size of the main residence shall not exceed ten thousand (10,000) square feet.

45.17-5 The maximum size of an accessory structure shall not exceed one thousand two hundred (1,200) square feet.

(Ord. 38.672 (part), 9/15/92)

XI-10-45.18 - Grading Requirements

45.18-1 Purpose and Intent. The intent of this Section is to regulate use, development and alteration of land in hill areas so that essential natural characteristics such as land form, vegetation and wildlife communities, scenic qualities, and open space can substantially be maintained; to preserve unique and significant geologic, biologic and hydrologic features of public value; to encourage alternative approaches to conventional hillside construction practices by achieving land use patterns and intensities that are consistent with the natural characteristics of hill areas such as slope land form, vegetation and scenic quality. It is further the intent of this Chapter to protect predominant views of and from hill areas in order to maintain the identity, image and environmental quality of the City; and to achieve land use densities that are in keeping with the General Plan.

45.18-2 Definition. "Grading" means an excavation or fill, or the stockpiling or any combination thereof, or the conditions resulting from any excavation or fill. All grading quantities shall be measured in their compacted state.

45.18-3 Design Standards and Requirements.

(a)

Grading will "blend" in with the natural land forms and native vegetation to the maximum extent feasible.

(b)

No grading cut or embankment with a slope greater than three (3) feet horizontal to one (1) foot vertical shall be located adjacent to a publicly maintained right-of-way. The applicant shall provide suitable guarantees, satisfactory to the Planning Commission, for landscaping and perpetual maintenance, at no cost to the City, of all slopes greater than fifteen (15) feet in total elevation.

(c)

Within six (6) months, or such other period established by the Planning Commission, after the commencement of grading activities, all graded areas not covered by an impervious surface shall be stabilized in such manner as shall be approved by the Community Development Manager.

(d)

Landscaping coverage and stabilization of graded slopes shall be selected and designed to be compatible with surrounding natural vegetation or to replace removed natural vegetation and should recognize climatic, soil and ecologic characteristics of the region. Plant materials that require excessive water after becoming established should be avoided. (Refer to illustrations.)

(e)

Trees which have a six (6) inch or greater diameter trunk size at a point three (3) feet above grade should not be removed. The location of all such trees shall be shown on all plans submitted for approval. The Planning Commission, upon review of an "S" Zone application approval, shall have the power to authorize removal, relocation or replacement if the applicant can show that such requirement is unreasonable as applied to the particular property. If the removal is permitted, the replacement of any trees removed pursuant to this Section shall be at a five to one (5:1) ratio.

(f)

The overall shape, height, grade or any cut-or-fill slopes shall be developed in concert with existing natural contours and scale of the natural terrain of a particular site. (Refer to illustrations.)

(g)

Where two cut-or-fill slopes intersect, the intersection shall be horizontally rounded and blended. (Refer to illustrations.)

(h)

Where any cut-or-fill slopes intersect the natural grade, the intersection of each slope shall be vertically and/or horizontally rounded and blended with the natural contours so as to present a natural slope appearance. (Refer to illustrations.)

(i)

Provide sites which fit into the terrain and allow for minimal amount of grading. Grading of any area of a site with a natural slope greater than forty (40) percent shall be prohibited.

(j)

Stepped building foundations shall be required to minimize grading on building pads. (Refer to illustrations.)

Streets shall be designed to generally follow the natural contours and land form in order to minimize cut and fill. Exposed walls and fences facing roadways and retaining walls shall be no greater than six (6) feet in height. Crib walls fencing roadways shall be no greater than fifteen (15) feet in height. (Refer to illustrations.)

(l)

Structures shall be designed to fit with the contours of the hillside and relate to overall form of the terrain. Structures shall be designed to fit into the hillside rather than altering the hillside to fit the structure. (Refer to illustrations.)

45.18-4 Development Plan Review Procedures. To further the specific purposes of this chapter, the following procedures are established:

(a)

Development Plan With Grading Under Five Hundred (500) Cubic Yards. Where the aggregate volume of grading on any site or contiguous group of sites is under five hundred (500) cubic yards, the Community Development Manager shall review the proposed Grading Plan. If the plan is found to be in conformance with the provisions of this chapter, the Grading Plan shall be approved. In approving the plan, such conditions as are reasonably necessary to ensure compliance with the objectives of the chapter may be imposed.

(b)

Development Plan With Grading in Excess of Five Hundred (500) Cubic Yards. Where the aggregate volume of grading exceeds five hundred (500) cubic yards but is under one thousand five hundred (1,500) cubic yards, the Planning Commission shall review the proposed Grading Plan. If the plan is found to be in conformance with the provisions of the chapter, the Grading Plan shall be approved. In approving the plan, such conditions as are reasonably necessary to ensure compliance with the objectives of this chapter may be imposed. On receipt of the recommendations of the Planning staff, the Planning Commission shall approve or deny the application.

(c)

Development Plan With Grading in Excess of One Thousand Five Hundred (1,500) Cubic Yards. Where the aggregate volume of grading exceeds one thousand five hundred (1,500) cubic yards, the Planning Commission shall review the proposed Grading Plan and recommend approval or denial to the City Council. If approval is recommended, such conditions as are reasonably necessary to secure substantially the objective of this chapter may be included. On receipt of the recommendations of the Planning Commission, the City Council shall approve or deny the application.

45.18-5 Grading Plan Requirements. Wherever proposed grading in the hillsides exceeds five hundred (500) cubic yards, the applicant shall submit grading plans prepared by a licensed Civil Engineer. Said grading plans shall include, but not be limited to, the following:

(a)

Property lines and accurate contours of existing and proposed elevations;

(b)

Cross-sections taken through at least two (2) planes normal to each other. Horizontal and vertical depictions shall be made in the same scale;

(c)

Quantities of fill and excavating proposed in cubic yards;

(d)

Location of all existing and proposed structures; and

(e)

Location of existing trees which have a six (6) inch or greater trunk diameter at a point three (3) feet above grade, and details of the measures proposed to conserve such trees.

(Ord. 38.672 (part), 9/15/92)

(Image not reproduced in this text.)

Section 53 - Off-Street Parking Regulations

Footnotes:

--- ( 22 ) ---

Editor's note— Ord. No. 38.785, § 7, adopted April 7, 2009, amended the Code by repealing former Section 53, §§ XI-10-53.01—XI-10-53.23, and adding a new Section 53. Former Section 53 pertained to similar subject matter, and derived from Ord. 38, adopted March 15, 1955; Ord. 38.384, adopted October 26, 1976; Ord. 38.530, adopted July 21, 1981; Ord. 38.546, adopted May, 1982; Ord. 38.665, adopted October 29, 1991; Ord. 38.675, October 20, 1992; Ord. 38.702, adopted August 15, 1995; Ord. 38.708, adopted August 6, 1996; Ord. 38.716, adopted September 15, 1998; Ord. 38.759, adopted April 2, 2002; Ord. 38.760, adopted September 17, 2002; Ord. 38.761, adopted May 20, 2003; Ord. 38.763, adopted April 20, 2004; and Ord. 38.776, adopted March 18, 2008.

The following off-street parking requirements are regulations which are established in order to achieve, among others, the following purposes:

1.

To establish minimum requirements for the off-street parking of motor vehicles in accordance with the use established on the property;

2.

To relieve congestion on streets, and to provide more fully for movement of traffic, maneuvering of emergency vehicles or street maintenance equipment;

3.

To protect neighborhoods from vehicular traffic congestion generated by the adjacent nonresidential uses of land; and

4.

To promote the general welfare and convenience and prosperity of residential, commercial and manufacturing developments which depend upon the availability of off-street parking facilities.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.03 - Applicability

Off-street parking spaces shall be provided in accordance with the schedule in Table 53.09-3, Number of Parking Spaces Required, of this Section and improved as per Section 54.03 as a condition precedent to the occupancy of an institutional, commercial or manufacturing use and in conformance with other provisions of this Chapter:

1.

Whenever a building is constructed; or

Whenever an existing building or use is altered, resulting in an increase in floor area, seating capacity or other units of measurement specified herein for required parking or loading facilities; or

3.

Whenever the use of an existing building is changed to a use requiring fifty percent (50%) or more off-street parking spaces, as determined by the provisions of Table 53.09-3, Number of Parking Spaces Required, of this Section.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.05 - Maintenance of Off-Street Parking

A.

Continuation of Off-Street Parking. All off-street parking spaces shall continue unobstructed in operation, shall not be used for vehicle repair work of any kind unless within a building, and shall not be reduced below the required size as long as the primary use remains, unless an equivalent number of spaces is provided for said use in another approved location. This does not apply to those parking spaces which are established on a voluntary basis which are in excess of the requirements of this Chapter.

B.

Temporary Sales, Storage and Advertising. The sale or storage of merchandise in permissive parking areas may be allowed by the Zoning Administrator through the approval of a Minor Site Development Permit and subject to such reasonable conditions as may be deemed necessary by the Planning Commission to ensure adequate parking, access and circulation.

In no event shall any off-street parking space (permissive or otherwise) or lot be used for the stopping, standing or parking of any vehicle(s) for either the purpose of selling such vehicle (excluding an approved car sales lot), or advertising any other property, services or products on said vehicle.

C.

Maintenance. All parking areas shall be kept clean and free of dirt, oil, mud or trash; pavement and striping shall be maintained in a continuous state of good repair.

D.

Acknowledgment of Parking Spaces in Residential Projects. For new residential tract, multi-family or condominium projects, the amount and type of parking available to each dwelling unit shall be clearly stated within the CC&Rs in large font and bold lettering to the approval of the City Attorney or designee.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.834, § 8, 8/20/19; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.07 - Types of Parking Allowed

A.

Standard Parking Spaces. The number of parking spaces required for various land uses shall be as required in Table 53.09-3, Number of Parking Spaces Required. Parking spaces shall be designed as required in Subsection 53.13, Design Standards for Off-Street Parking Facilities, of this Chapter.

B.

Compact Parking Spaces. For parking areas and garages containing ten (10) or more stalls serving the following uses in Subsection 53.07(B)(1), up to forty percent (40%) of the required and non-required stalls may be designed as compact stalls to accommodate compact cars.

1.

Applicable uses.

a.

Commercial uses (CO, C1, C2, HS, TC zones).

i.

Standards. Compact stalls shall be dispersed throughout the parking lot.

b.

Industrial uses.

i.

Research and Development (R and D) facilities.

ii.

Manufacturing facilities.

iii.

Warehouse/distribution facilities.

iv.

Other industrial uses deemed appropriate by the Planning Commission.

c.

Multi-Family Residential uses.

i.

Projects within R3, R4, and R5 zones.

Design Standards. See Subsection 53.13, Design Standards for Off-Street Parking Facilities, of this Section.

C.

Disabled Accessible Parking Spaces. Parking spaces for the disabled shall comply in all respects with the requirements of the California Code of Regulations (State Building Code) or Federal law, where such prevails over State law.

D.

Tandem Parking Spaces.

1.

Applicability. Tandem parking may be allowed with the approval of a Conditional Use Permit, in accordance with Section 57.04, Conditional Use Permits, of this Chapter.

2.

Standards.

a.

Maximum allowed.

i.

A maximum of seventy-five percent (75%) of parking required for residential uses may be tandem parking in projects with open structured parking facilities (e.g. single level or multi-level parking structures).

ii.

A maximum of fifty percent (50%) of parking required for residential uses may be tandem parking in projects with private individual garages.

b.

Tandem parking spaces shall be a maximum of two (2) parking spaces deep.

c.

When tandem parking spaces are used in private garages or other parking facilities with more than two (2) parking spaces, they shall be assigned and marked for resident use.

E.

Bicycle or Motorcycle Parking Spaces. The number of parking spaces required for various land uses shall be as required in Table 53.09-3, Number of Parking Spaces Required. Parking spaces shall be designed as required in Subsection 53.13, Design Standards for Off-Street Parking Facilities, of this Chapter.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.09 - Off-Street Parking Required by Land Use

A.

Enforcement and Interpretation of Parking Requirements.

1.

Number of Off-Street Parking Spaces Required. The number of off-street parking spaces required for the land uses identified in the Permitted and Conditional Use Tables of this Chapter are listed in Table 53.09-3, Number of Parking Spaces Required, except where parking requirements are established in Section 13, Special Uses, of this Chapter, or exceptions to these requirements are granted in accordance with this Section.

2.

Uses not specified. In the case of a use not specifically mentioned in Table 53.09-3, Number of Parking Spaces Required, or elsewhere in this Chapter, the requirements for off-street parking facilities shall be determined by the Planning Commission through the Interpretation process, in accordance with Section 61, Interpretation, of this Chapter, based on uses which create similar demands for off-street parking spaces. The Planning Commission may draw upon the experience of other local cities to make their decision.

3.

New Buildings Without Tenants. If the type of tenants that will occupy a nonresidential building, or the nonresidential portion of a mixed-use building, is not known at the time the new building is being proposed, the number of parking spaces required for the nonresidential uses will be determined through the discretionary review process.

4.

Mixed occupancies and uses. When two or more uses are located in the same lot or parcel of land or within the same building, the number of off-street parking spaces required shall be the sum total of the requirements of the various individual uses computed separately in accordance with the provisions of this Section and Section 13, Special Uses, when applicable.

Exception: For alternative parking computation in accordance with Subsection 53.11, Shared Parking, of this Chapter.

5.

Measurement Standards and Definitions. For the purpose of determining off-street parking requirements, the following definitions and standards shall apply:

a.

Gross Floor Area: The total of all the floors measured from the interior faces of the building, and outdoor areas used for retail purposes.

b.

Net Floor Area (NFA): Net Floor Area shall mean the Gross Floor Areas less twenty percent (20%).

c.

Seat: The number of seating units installed or indicated, or each twenty-four (24) lineal inches of benches, pews, or space for loose chairs. For places of meeting or assembly that do not include fixed seating, seven (7) square feet shall equal one (1) seat.

d.

Employees/students: The maximum number of employees/students on the principal shift or period.

e.

Fractional Measurements: When units or measurements determining the number of required off-street parking spaces result in a requirement of fractional space, any fraction up to and including (.49) shall be rounded down to the nearest whole number and fractions including and over (.50) shall be rounded up to the nearest whole number. For example, 7.41 would be rounded to 7 and 7.61 would be rounded to 8.

6.

More than One Parking Ratio. Where more than one (1) parking ratio is shown for a particular use, the required number of spaces shall be the total of all ratios shown. For example, the parking requirement for hotel is "1 per unit, 2 for the manager's unit." The total parking requirement for a hotel is the sum of the required parking for the units and two (2) spaces for the manager's unit.

B.

Permissive Parking Facilities. Nothing in this Section shall prevent the voluntary establishment of off-street parking facilities in excess of the requirements of this Section to serve any existing use of land or buildings, provided that all regulations herein governing the location, size and access design, improvement and operation of such facilities are adhered to.

C.

Number of Parking Spaces Required. The number of off-street parking spaces required for various land uses shall be as listed in Table 53.09-3, Number of Parking Spaces Required, except for those listed specifically elsewhere in this Chapter. Unless otherwise indicated, the parking requirements are for square feet of gross floor area occupied by the use and, in the case of nonresidential uses, include the parking required for customers and employees.

Exceptions:

1.

Where a portion of a structure is used for automobile parking, that portion shall not be counted in calculating the required parking for the structure. If parking is eliminated and the space is occupied by another use, parking shall be required for the use as indicated for the use in this Chapter.

Metro Specific Plan Area. Off-street parking requirements and bicycle parking requirements for all uses in the Metro Specific Plan area are as follows:

Vehicle Parking Requirements in the Metro Zones

1 Valet, tandem spaces, and mechanical lift stalls are counted as individual spaces.

Table 53.09-2

Bicycle Parking Requirements in the Metro Zones

Number of Parking Spaces Required

1 Refer to Subsection 2.03, Definitions, of this Chapter for a full description of "Commercial Services."

2 For loading and unloading: One (1) parking space per six (6) children up to five (5) spaces and thereafter one (1) space per ten (10) children. Driveways, garage aprons and street frontage may be counted if appropriate permits are first received when calculating spaces for child care homes. Tandem spaces are prohibited.

3 Exceptions for Child Care Requirements: The parking and loading/unloading requirements for child care facilities may in the Planning Commission's discretion be reduced, based on an empirical study (provided by the applicant) which establishes no adverse effects will occur

as a result. The required number of loading/unloading spaces may be reduced without a study by one (1) space for each employee permanently assigned to load and unload children from vehicles.

4 Applicable to new and existing projects being remodeled resulting in additional bedrooms submitted for approval after April 7, 2009. Existing projects or projects either entitled or submitted active planning applications prior to April 7, 2009 shall use the parking regulations in effect at the time of entitlement or application submittal. For R4, R5, MXD/MXD2/MXD3 zones, 15% guest parking is legal and conforming for projects entitled or active planning applications submitted prior to April 7, 2009.

5 Refer to Subsection XI-10-53.15, Parking Standards for Hotels and Motels, of this Chapter for allowed reductions to minimum parking requirements.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.848, § 9, 11/15/22; Ord. No. 38.845, § 13, 6/21/22; Ord. No. 38.841, § 5, 5/4/21; Ord. No. 38.835, § 8, 3/3/20; Ord. No. 38.839, § 14, 12/3/19; Ord. No. 38.808, § 5, 5/21/13; Ord. No. 38.785, § 7, 4/7/09)

XI-10-53.11 - Shared Parking

A.

Purpose and Intent. Dedicated parking areas for individual uses, especially when provided in new developments, can result in less efficient land usage, lower floor area ratios, and more environmental/water quality impacts.

Shared parking is typically applied when land uses have different parking demand patterns and are able to use the same parking spaces/areas throughout the day. Shared parking is most effective when these land uses have significantly different peak parking characteristics that vary by time of day, day of week, and/or season of the year. In these situations, shared parking strategies will result in fewer total parking spaces needed when compared to the total number of spaces needed for each land use or business separately.

B.

Applicability. Shared parking may be applied in the following situations:

1.

In mixed-use developments, which include one or more businesses that are complementary, ancillary, or support other activities. A typical mix of uses includes, but is not limited to: residential, office, restaurants, retail, colleges, churches, cinemas, and special event situations if they can demonstrate that demand patterns vary among uses.

2.

In shopping centers, when more than twenty percent (20%) of gross leasable area is occupied by dining and entertainment uses, (not including pad restaurants, unless they are located within 300 feet of the main shopping center building) shared parking may be applied.

C.

Required Review. Shared parking proposals may be allowed with the approval of a Conditional Use Permit, in accordance with Subsection 57.04, Conditional Use Permits, of this Chapter.

D.

Calculation of Parking Spaces Required with Shared Parking. The minimum number of parking spaces for a mixed use development or where shared parking strategies are proposed shall be determined by a study prepared following the procedures of the Urban Land Institute Shared Parking Report, ITE Shared Parking Guidelines, or other approved procedures. A formal study may be waived for small developments where there is established experience with the land use mix and its impact is expected to be minimal. The actual number of parking spaces required shall be based on well-recognized sources of parking data such as the ULI or ITE reports. If standard rates are not available or limited, the applicant may collect data at similar sites to establish local parking demand rates. If the shared parking plan assumes use of an existing parking facility, then field surveys may be conducted to determine actual parking accumulation. If possible, these surveys should consider the seasonal peak period for the combination of land uses involved.

E.

Location of Shared Parking Spaces. Shared spaces shall be located within three hundred (300) feet of the use entrances they serve. Up to fifty percent (50%) of nonresidential spaces may be provided at greater distances if dedicated shuttle bus or van service is provided. Clear, safe pedestrian connections must be provided.

F.

Captive Market Parking Requirements. For uses that are considered ancillary to a larger business, no additional parking may be required. Examples of this case include a coffee or snack shop within an office or hotel development, a copy/package store within a business park or redevelopment of small retail uses in a large business district. Parking requirements for similar ancillary uses may be reduced to account for the likely cross patronage among the adjacent uses located within a maximum walking distance of three hundred (300) feet. Parking requirements may be reduced up to ninety percent (90%) as appropriate.

G.

Agreement Between Sharing Property Owners. If a parking facility is to serve two (2) or more separate properties, a legal agreement between property owners guaranteeing access to, use of, and management of designated spaces shall be executed to the satisfaction of the City.

H.

Shared Parking Plan. A shared parking plan shall be submitted to the Planning Division with the following information:

1.

Site plan and required parking calculations of parking spaces intended for shared parking and their proximity to land uses that they will serve.

2.

A signage plan that directs drivers to the most convenient parking areas for each particular use or group of uses (if such distinctions can be made).

A pedestrian circulation plan that shows connections and walkways between parking areas and land uses. These paths should be as direct and short as possible.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.13 - Design Standards

A.

Location of Parking.

1.

Location of Parking in Relationship to a Use.

a.

Residential Uses: Parking required for all residential uses shall conform with all of the following: (i) be located within the same project site as the use; (ii) be less than 300 feet away from the residential unit it serves; and (iii) shall not be located on any public street, public right-of-way or in any other public area.

b.

Commercial Services and Retail Stores in the Metro or Midtown Specific Plan Areas: Commercial service and retail uses may meet its parking requirements with on-street parking if the project satisfies all of the following conditions: (i) the project site is located within the Metro or Midtown Specific Plan Areas; (ii) the on-street parking space is located along the project site frontage directly serving and adjacent to the use; (iii) no more than 50 percent of the required parking spaces shall be allocated on-street unless the commercial or retail use requires ten or less parking spaces; (iv) the on-street parking space is located less than 300 feet away from the use it serves; and (v) the on-street parking space shall be designated as limited time parking in accordance with the California Vehicle Code.

c.

Other Uses: Required parking for all other uses shall conform with all of the following: (i) be located within the same project site as the use; (ii) be less than 300 feet away from the use for which the parking is required, as provided for in Table 53.09-3 Number of Parking Spaces Required or Section 13, Special Uses, of this Chapter; and, (iii) shall not be located on any public street, public right-of-way or in any other public area.

2.

Location of Residential Parking, Permitted. Vehicles on private property used for residential purposes shall be parked only in paved parking spaces or in driveways which comply with the following standards:

a.

The driveway provides access to required parking spaces; and

b.

The vehicle is not blocking access to parking for other residential units.

3.

Each automobile parking stall shall be so located that no automobile is required to back onto any public street or sidewalk to leave the parking stall, parking bay or driveway except from a lot in an "R2" or more restrictive zone containing not more than two (2) dwelling units.

4.

Parking Location for R5, MXD2 and MXD3 projects.

a.

No parking spaces area allowed within the front or street side setback areas.

b.

Parking must be located behind buildings to minimize visibility from public streets.

c.

At least seventy percent (70%) of the street facing perimeter of above-ground parking shall be wrapped with habitable space.

Exception: Exceptions may be allowed through the approval of a Conditional Use Permit, if the design quality of the structure is equivalent to habitable space.

d.

Parking may be partially above grade along the street, provided that no more than four (4) feet of the structure is above grade. The above-grade area must be wrapped with continuous landscaping that screens parking garage openings.

5.

Parking Structure access for R5, MXD2 and MXD3 projects.

a.

No more than one curb cut per street frontage is allowed.

b.

Parking structure entrances shall be no greater than twenty-two (22) feet wide.

c.

Parking structure access points shall be set back from the curb so that a car can pull up to the entry gate or ticket machine without blocking the sidewalk.

B.

Parking Space Size.

1.

Individual garage.

a.

Each parking space with a minimum width of ten (10) feet and a minimum length of twenty (20) feet shall be required in residential garages meeting both of the following criteria:

i.

The individual garage contains four (4) or fewer parking spaces;

ii.

The individual garage does not include circulation elements such as driveway aisles, but consists primarily of parking spaces.

2.

Compact Spaces

a.

Each stall shall be legibly marked "compact stall" or "small car" on the stall surface. Compact stalls may be used only for the above-listed buildings and uses and only within the Industrial zoning district.

b.

Parking stalls shall be dispersed throughout the parking lot and not concentrated to discourage oversized vehicles from using the stalls.

3.

Tandem Spaces

a.

Each residential garage tandem (two parking spaces) shall have a minimum width of ten (10) feet and a minimum length of thirty-eight (38) feet.

4.

Bicycle or Motorcycle Spaces. Any existing or proposed parking facility may utilize, on a substitution basis, on-site parking spaces for bicycle or motorcycle spaces.

a.

Said bicycle spaces shall be raised a minimum of six (6) inches from grade of the adjacent parking facility.

b.

One parking space may be omitted for each eight (8) bicycle spaces provided.

c.

One parking space may be omitted for each two (2) motorcycle spaces provided.

d.

Bicycle spaces shall measure at least two (2) feet by seven (7) feet and shall be located in groups of four (4) and shall be of the following three types:

i.

A rack which secures the frame, or

ii.

An enclosed bike locker, or

iii.

A fenced, covered, locked or guarded bike storage area.

e.

Motorcycle spaces shall measure four (4) feet by eight (8) feet and shall be provided with adequate unobstructed maneuvering areas to permit easy access to the space.

f.

In no instance shall credit for motorcycle or bicycle parking or combination thereof exceed five percent (5%) of the total required parking spaces.

C.

Required Improvements. All parking areas and access driveways shall have a smoothly graded, stabilized and dustless surface with adequate drainage so that injury will not be caused to adjacent properties. Bumper guards or curbs shall be provided in order to define parking spaces or limits of paved areas.

Also refer to Section 54.03 of this Chapter for Improvement of Parking Areas.

D.

Screening and Landscaping. All open automobile parking areas which abut upon a public street right-ofway shall provide landscaping to a depth of at least ten (10) feet of said street right-of-way and of any adopted plan line, with openings for walkway or drive purposes. Each landscaped planter in said parking

facility shall be contained with a six (6) inch raised concrete curb (extruded curbing not permitted). Installation of an irrigation system shall be provided for in each planter area.

E.

Lighting. All lights used to illuminate a parking area shall be designed, located and arranged so as to reflect the light away from any street and any adjacent premises.

F.

Signs. Directional signs are permitted in parking areas in accordance with the adopted Sign Ordinance.

G.

Fencing. A solid masonry wall a minimum height of six (6) feet shall be required on all common property lines when any parking area is established abutting residentially zoned property or property shown on the adopted General Plan as being Residential. The architectural design of said wall shall be to the approval of the Planning Commission through the Site Development Permit process in accordance with Subsection 57.03, Site Development Permits and Minor Site Development Permits, of this Chapter.

H.

Angles and Dimensions

1.

Vehicle Overhang. Vehicles may overhang two (2) feet into any landscape area or private walkway if the walkway is a minimum six (6) feet in width, but in no event shall the overhang be permitted within any public right-of-way.

2.

Stall and drive aisle dimensions. The stall and drive aisle dimensions shall be as follows:

Table 53.13-1\Parking Stall and Drive Aisle Dimensions

1 Reference to Figure 53.13-1, Parking Stall and Drive Aisle Dimensions

Figure 53.13-1 Parking Stall and Drive Aisle Dimensions

(Image not reproduced in this text.)

3.

Backing Space in Residential Projects. A minimum unobstructed vehicular maneuvering distance of 25 feet measured from the opening of the garage or carport shall be provided, except as otherwise permitted in this section.

4.

Parking Structures. The parking stall and drive aisle dimensions for Parking Structures, as defined in this Chapter, may be modified with the approval of a Conditional Use Permit in accordance with Section 57 of this Chapter.

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.815, § 2, 9-2-14; Ord. No. 38.785, § 7, 4-7-09)

XI-10-53.15 - Allowed Reductions to Required Parking for Lodging Uses

A.

Allowed Reductions to Minimum Required Parking. The required parking for lodging uses, including hotels, motels, and extended stay hotels, may be reduced by up to 30 percent at the discretion of the decisionmaking authority based on a demonstrated program to reduce demand for on-site parking and maximize the efficient use of parking areas. A reduction in required parking shall be granted based on a point system as described in Subsection XI-10-53.15.C.

B.

An applicant requesting a reduction to the minimum required parking for a lodging use shall submit a written description of all proposed parking demand reduction and site design measures and a written justification of the anticipated reduction in parking demand that would result from implementation of such measures.

C.

Point System for Calculation of Parking Reduction. The decision-making authority may grant a reduction in the required number of parking spaces for lodging uses, as outlined in Table 53.15-1, according to the total number of points scored for implementation of parking demand reduction and site design measures.

Point System for Parking Reduction for Lodging Uses

1.

Parking Reduction for Lodging Near Fixed Guideway Transit. A parking reduction may be granted for a lodging establishment within one-half (0.5) mile of a fixed guideway transit station. Fixed guideway transit means a public transit facility that uses and occupies a separate right-of-way or rail line for the exclusive use of public transit vehicles (15 points).

2.

On-Site Parking Demand Reduction and Site Design Measures for Lodging Uses. Any combination of the following measures may be incorporated into the site plan and operational plan for a hotel, motel, or extended stay hotel to support a reduction in the minimum required on-site parking:

a.

Shared parking agreement with owners of other property or properties in the vicinity of the lodging establishment pursuant to Subsection XI-10-53.11, Shared Parking, of this Chapter. The shared parking spaces must be located within 0.25 mile of the lodging use (10 points for a number of shared parking

spaces totaling between 10 and 20 percent of the base parking space requirement for the lodging use; 15 points for a number of shared parking spaces totaling more than 20 percent of the base parking space requirement for the lodging use).

b.

Providing free monthly transit passes for employees. To qualify for this measure a lodging use must be located within 0.5 mile of a transit route (bus or rail) with service frequency of every 15 minutes or less between the hours of 7:00 a.m. and 7:00 p.m. (10 points).

c.

Providing free 24-hour airport guest shuttle service (10 points).

d.

Providing free guest shuttle service to other key destinations (including but not limited to BART and VTA light rail stations, San Jose Diridon Caltrain Station, Levi's Stadium, and major commercial centers) (5 points for shuttle service serving one or two destinations, 10 points for shuttle service serving three or more destinations).

e.

Providing free shared cars for guest use with dedicated, permanent on-site parking spaces for the shared cars . To qualify for this measure the lodging use must provide at least one shared car for every 50 guest rooms (when applying this calculation, any fractional number of required shared cars shall be rounded up to the nearest whole number) (10 points).

f.

Providing on-site, free micromobility devices for guest use. To qualify for this measure the lodging use must provide at least one shared micromobility device for every 50 guest rooms (when applying this calculation, any fractional number of required shared micromobility devices shall be rounded up to the nearest whole number). The operator of the lodging establishment shall obtain approval from the Planning Director or designee for the proposed placement and use of micromobility devices prior to commencing operations. The operator of the lodging establishment shall maintain micromobility devices in good working order at all times (5 points).

g.

Providing valet parking (on-site or at an off-site shared parking location) (5 points for a number of valet parking spaces totaling between 10 and 20 percent of the base parking space requirement for the lodging use; 10 points for a number of valet parking spaces totaling more than 20 percent of the base parking space requirement for the lodging use).

h.

Mechanical lifts for vehicles (if provided, lifts must be operated by staff of the lodging establishment) (5 points for a number of mechanical lift spaces totaling between 10 and 20 percent of the base parking

space requirement for the lodging use; 10 points for a number of mechanical lift spaces totaling more than 20 percent of the base parking space requirement for the lodging use).

i.

Charging a daily fee of $25 or more for on-site parking of guest vehicles (10 points).

j.

Offering prepaid transit cards (Clipper) to guests (5 points).

k.

Featuring public transportation information and links on lodging establishment's website (schedules and route maps for Valley Transportation Authority [VTA] bus and light rail and/or Bay Area Rapid Transit [BART] regional rail) (3 points).

l.

Providing dedicated on-site passenger pickup/dropoff zones (3 points).

Active marketing of guest shuttle services, on-site shared cars, and/or on-site shared micromobility devices, via the lodging establishment's website and other electronic and/or print advertising materials (3 points).

n.

Other measures as proposed by lodging establishment operator (points to be determined by the decisionmaking authority based on the potential for parking demand reduction of the proposed measure).

(Ord. No. 38.855, § 8, 6/18/24; Ord. No. 38.841, § 6, 5/4/21)

• Prior ordinance history: Ords. 38, 38.19, 38.68, 38.89, 38.92, 38.164, 38.175, 38.196, 38.342, 38.347, 38.355, 38.367, 38.377, 38.389, 38.505, 38.526, 38.541, 38.547, 38.553, 38.610, 38.616, 38.652, 38.667, 38.672, 38.675, 38.687, 38.702, 38.703, 38.704, 38.706, 38.711, 38.716, 38.760, 38.761, 38.762, 38.767 and 38.776.

XI-10-54.01 - Purpose and Intent

The intent of this chapter is to provide general development standards for the City, resulting in new development that is harmonious with existing development in the surrounding area. The standards provided in this chapter apply to all zones, unless otherwise indicated. The standards and may be modified to be more stringent through the review process, when it is required for a project.

A.

Conformance with All Sections of This Code. No building or structure shall be erected, reconstructed, structurally altered, enlarged, moved or maintained, nor shall any building, structure or land be used or

designed to be used for any use other than is permitted in the district in which such building, structure or land is located and then only after applying for and securing all permits and licenses required by all laws and ordinances.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.02 - Other Uses Permitted by Commission

Where the term "other uses similar to the above" is mentioned, it shall be deemed to mean other uses which, in the judgment of the Commission as evidenced by a written decision, are similar to the uses listed in the same section and are not objectionable to the general welfare. "Other Uses" so determined by the Commission shall be regarded as listed uses. In no instance, however, shall these regulations be so interpreted to permit a use in a district when such use is specifically listed and permitted in a less restricted district: e.g., a use specifically set forth in the "C2" District shall not be permitted in the "C1" District.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.03 - Improvement of Parking Areas, Auto Sales Areas and Loading Areas

Every parcel of land hereafter used as a private or public parking area, automobile and trailer sales area, or loading area shall be improved in accordance with Section II-13-18 of Title II (Building Regulations) of the Milpitas Municipal Code and Section XI-10-53 of Chapter 10 (Zoning, Planning and Annexation) and landscaped as per Section XI-10-53.09 of Chapter 10 (Zoning, Planning and Annexation) and landscaping requirements specific to the zoning district in which the parking area, automobile and trailer sales area or loading area is located, unless otherwise exempted by the City's land use or zoning regulations.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.04 - Zoning of Annexed Areas

Any area annexed to the City after the effective date of this amendment shall immediately upon such annexation be automatically classified as an Agricultural District with the "S" Overlay District ("A-S" Zone), unless said area is located east of the alignment of Piedmont Road, Evans Road, North Park Victoria Drive and Interstate 680 Freeway as shown on the adopted General Plan and more specifically defined as the westerly boundary of the "Hillside Area" as defined in the General Plan, in which case said area shall be classified as Single-Family District—Hillside with the "H" Combining District (specifically "R1-H").

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.05 - Height: Height Conformance

Except as hereinafter provided, no building or structure shall hereafter be erected or reconstructed which exceeds the height limit established for the district wherein such building or structure is located.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.06 - Area: Area Requirements

Except as hereinafter provided, no building or structure shall be hereafter erected or located on a lot unless such building, structure or enlargement conforms with the area regulations of the district in which it is located.

1.

No parcel of land held under separate ownership at the time the ordinance codified in this Section became effective shall be reduced in any manner below the minimum lot width and lot area required by this Chapter.

2.

No lot area shall be so reduced or diminished that the yards or other open spaces are smaller than prescribed by this Chapter, nor shall the occupancy be increased in any manner except in conformity with the regulations herein established.

3.

No required yard or other open space around an existing building, or which is hereafter provided around any building for the purpose of complying with the provisions of this Chapter, shall be considered as providing a yard or open space for any other building; nor shall any yard or other required open space on an adjoining lot be considered as providing a yard or open space on a lot whereon a building is to be erected.

4.

Every building hereafter erected shall be located on a lot as herein defined. In no case shall there be more than one (1) main residential building and its accessory buildings on one (1) lot. Group dwellings, court apartments and semi-detached dwellings shall be considered as one (1) main residential building on one lot.

5.

No parking area, parking space or loading space which existed at the time the ordinance codified in this Section became effective, or which subsequent thereto is provided for the purpose of complying with the provisions of this Chapter, shall thereafter be relinquished or reduced in any manner below the requirements established in this Section, unless equivalent facilities are provided elsewhere.

6.

No building permit shall be issued for a building or structure on a lot which abuts a street dedicated to a portion of its required width and which lot is located on that side thereof from which no dedication was secured, unless the yards provided on such lot include both that portion of the lot lying within the future street and the required yards.

7.

No building permit shall be issued for a building or structure on a corner lot when such building or structure is to be oriented in such a manner as to reduce the front yard requirement on the street on which such corner lot had its frontage at the time the Ordinance codified in this section became effective.

8.

Every required front, side and rear yard shall be open unobstructed from the ground to the sky.

9.

At each end of a through lot there shall be a front yard of the depth required by this Chapter for the district in which each street frontage is located; provided, however, that one of such front yards may serve as a required rear yard.

10.

Any lot of record, whether developed or undeveloped, existing in accordance with law at the time of reclassification by the City of Milpitas, which after said reclassification is less than the minimum lot area required by the zoning district to which it is reclassified shall notwithstanding have all the rights and privileges of said zoning district.

a.

Said rights and privileges shall only remain valid where said lot of record is not modified as to size, shape or area subsequent to said reclassification.

b.

Where the yard regulations, as required by the zoning district to which said lot of record is reclassified, cannot reasonably be complied with because of insufficient minimum lot area by virtue of said reclassification, said regulations may be modified or determined by the Commission as provided for in Section XI-10-57.06, Variances, of this Chapter.

XI-10-54.07 - Planned Unit Development

A.

Purpose and Intent. The purpose of Planned Unit Development approval is to allow diversification in the relationships of various buildings, structures, and open spaces in planned building groups and the allowable heights of said buildings and structures, while insuring substantial compliance to the District Regulations and other provisions of this Chapter, in order that the intent of this Chapter, in requiring adequate standards related to the public health, safety and general welfare, shall be observed without unduly inhibiting the advantages of modern site planning for residential, commercial, or industrial purposes. Where use is made of the planned unit development process as provided in this section, a building permit shall not be issued for such development, or part thereof, until the City has approved said development as herein provided.

B.

Review Requirements.

Application for Planned Unit Developments shall be made on a form prescribed for this purpose by the City of Milpitas.

No application shall be accepted for a use which will require change of zoning district, unless said application is accompanied for an application for a zoning amendment, as provided in Section XI-10-57.02, General Plan/Specific Plan/Zoning Amendments, of this Chapter.

2.

Application shall be accompanied by a general development plan showing the use or uses, dimensions and locations of proposed structures and of acres to be reserved for vehicular and pedestrian circulation, parking, public uses such as schools and playgrounds, landscaping, and other open spaces, and architectural drawings and sketches demonstrating the design and character of the proposed uses and the physical relationship of the uses. Such other pertinent information shall be included as may be required by the Commission.

3.

Application shall be accompanied by a fee which shall be established by City Council Resolution.

4.

The Planning Commission shall hold at least one public hearing, prior to making its recommendations to the City Council. Upon receipt of the recommendation of the Planning Commission, the City Council shall hold at least one public hearing, prior to any final action on an application.

5.

Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

6.

In order to grant a Planned Unit Development permit the Planning Commission and City Council shall determine that the following standard requirements have been met:

a.

The proposed development will result in an intensity of land utilization no higher than and standards of open spaces at least as high as permitted or specified otherwise for such development in the General Plan, Zoning Ordinance and Subdivision Ordinance.

b.

The development will not create traffic congestion pursuant to the California Environment Quality Act (CEQA). However, if traffic congestion is created by the proposed development, the traffic impacts will be mitigated by traffic improvements proposed by the developer or by funding capital projects and by on-site provisions for traffic circulation and parking or, if it cannot be mitigated, the Planning Commission and City Council shall issue any necessary findings pursuant to CEQA.

c.

For residential development in the Valley Floor Planning Area, as defined in the Milpitas General Plan Land Use Element, the maximum dwelling unit density per gross acre shall be the upper limit of the corresponding General Plan density range within each zoning designation. In the case of the Valley Floor Planning Area residential developments proposed on land zoned "R3" (Multiple Family Residential) an overall density of up to forty (40) units per gross acre can be approved if the following criteria are found by the City Council to be met.

i.

Sewer capacity and water availability will be sufficient to accommodate the proposed project density as well as other future planned unit development downstream from the project site. Any improvements to the sewer or water system that would be required to accommodate any higher density proposals may be made conditions of project approval;

d.

Required Findings. In addition to the finding that standard requirements in this section have been met, the Planning Commission and City Council must also make the following findings based on evidence in the record in order to approve the Planned Unit Development application:

i.

Development of the site under the provisions of the Planned Unit Development will result in public benefit not otherwise attainable by application of the regulations of general zoning districts.

ii.

The proposed Planned Unit Development is consistent with the Milpitas General Plan; and

iii.

The proposed development will be in harmony with the character of the surrounding neighborhood and will have no adverse effects upon the adjacent or surrounding development, such as shadows, view obstruction, or loss of privacy that are not mitigated to acceptable levels.

7.

The Planning Commission shall make its recommendation to the City Council within 45 days of the date of the filing of said application (pending any necessary zoning amendment). The Commission may recommend to the City Council that the permit be denied, that permit be approved as submitted, or that the permit be approved, subject to various conditions. Within 30 days of the receipt of the recommendation from the Planning Commission, the City Council shall hold a hearing, as required by Subsections XI-1054.07(B)(3) and XI-10-54.07(B)(4) of this section. The City Council shall consider the report of the Planning Commission but shall not be bound thereby. Upon the close of the hearing, the City Council may deny the permit, approve the permit as submitted, or approve the permit subject to such conditions as it deems necessary (in addition to or other than those recommended by the Planning Commission).

Any Planned Unit Development, as authorized, shall be subject to all conditions imposed by the City and shall be excepted from other provisions of this Chapter, only to the extent specified in said permit.

8.

Following the issuance of a planned unit development by the City Council, the Building Inspector shall issue a building permit and shall insure the development is undertaken and completed in conformance with the approved plans.

9.

A Planned Unit Development permit may be revoked after notice to the permittee and hearing in any case where the conditions of such permit have not been complied with. The revocation of the permit shall only be made after written notice of violation is mailed to the holder of the permit. The permit holder shall be given the opportunity to explain why the permit should not be revoked. The Planning Commission and City Council shall hold a public hearing regarding the permit. After receiving the Planning Commission's recommendations on permit, the City Council at its discretion may revoke the permit issued if they determine that the previous conditions of approval have not been complied with. The public hearing shall be held in accordance with Section XI-10-64, Development Review Process, of this Chapter.

If a Planned Unit Development is submitted in conjunction with the Tentative Map application, then the approval of the Planned Unit Development shall run concurrent with and expire with the approved Tentative Map.

Where no Tentative Map is submitted in conjunction with the Planned Unit Development application, and the Planned Unit Development permit has not been used within one (1) year after the date of granting thereof, the permit granted shall be null and void.

10.

No area designated for use as a "Common Green" or "Park" upon any map or plat or plan which has been approved as part of a Planned Unit Development may be used for any purpose other than a common green or park or playground, including but not limited to a school playground as approved by the City Planning Commission.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.08 - Accessory Buildings and Structures

A.

General Requirements.

1.

Exempted. Fences, walls, latticework screen and guard railings are exempt from the accessory building and structure provisions.

All accessory buildings and structures, as well as building additions as described in Subsection 55.03(7), Rear Yard—Building Additions in R1 and R2, of this Chapter, in the rear yard are limited cumulatively to a total area not exceeding thirty percent (30%) of the area of the required rear yard, except where noted below. Projection of eaves of accessory buildings and structures shall not be closer than three (3) feet to any side or rear lot line.

3.

Attached or Detached. An accessory building may be erected detached from the principal building, or erected as an integral part of the principal building, or it may be connected by a breezeway or similar structure.

a.

Attached Accessory Building. An accessory building attached to the main building shall be made structurally a part and have a common wall with the main building and shall comply in all respects with the requirements of this Chapter applicable to the main building.

b.

Detached Accessory Building. A detached accessory building in an "R" District shall be located on the rear one-half (½) of the lot and at least six (6) feet from any dwelling building existing or under construction on the same lot and at least fourteen (14) feet from a residential structure existing or under construction on any adjacent lot.

Any detached accessory building shall not be located within three (3) feet of any rear lot line or side line of the rear half of an adjacent lot or within seven (7) feet of the side line of the front half (½) of any adjacent lot; and, in the case of a corner lot, shall not project beyond the front line required or existing on the adjacent lot.

B.

Standards by Type of Building or Structure.

1.

Recreation shelters and storage shelters shall be permitted as accessory buildings provided that these uses are not equipped for use as living quarters.

2.

Guest house accessory buildings shall not be closer than six (6) feet from the nearest point of the main building. There shall be not more than one (1) guest house on any one (1) building site.

3.

A porte-cochere may be permitted over a driveway in a side yard provided such structure is not more than fifteen (15) feet in height, twenty-four (24) feet in length, not closer than three (3) feet from the side lot line, and is entirely open on at least three (3) sides, except for the necessary supporting columns.

4.

Open, unenclosed stairways, or balconies, not covered by a roof or canopy, may extend or project into a required rear yard not more than four (4) feet, and such balconies may extend into a required front yard not more than thirty (30) inches. Openwork type railing not more than three and one-half (3-½) feet in height may be installed or constructed on any open, unenclosed stairways, or balconies, not covered by a roof or canopy.

5.

Open, unenclosed porches, and decks, not covered by a roof or canopy, which do not extend above the finished floor level of the first floor of the building, may extend or project into any rear or side yard, but in no event shall the structure come closer than three (3) feet to any adjoining property line. Openwork type railing not more than three and one-half (3-½) feet in height may be installed or constructed on any porch or deck.

6.

Platforms, landing places, concrete slabs, walkways and paved areas not covered by a roof or canopy and up to eighteen (18) inches above the ground may extend or project into any rear or side yard but in no event shall the projection come closer than three (3) feet to any adjoining property line with the exception of walkways four (4) feet in width or less which may extend to the property line. These projections are excluded from the 30% maximum required rear yard coverage.

7.

Patio covers, including but not limited to gazebos and pergolas shall not exceed twelve (12) feet in height. Built-in barbecue pits and fountains shall not exceed six (6) feet in height. None of these structures shall come closer than three (3) feet to any side or rear property line. Patio covers are as defined in Section XI10-2.03, Definitions, of this chapter.

8.

In-ground pools, in-ground spas, and associated decking no more than eighteen (18) inches above ground shall not come closer than three (3) feet to any side or rear property line. These accessory structures are excluded from the 30% maximum allowed rear yard coverage.

9.

Depressed ramps and handicap ramps, may be located in any front, side or rear yard but in no case shall come closer than three (3) feet to any adjoining property line. Openwork type railing and guard railing for safety protection around depressed ramps not more than three and one-half (3-½) feet in height above ground level adjacent thereto may be installed or constructed on any ramp.

10.

Open, unenclosed fire escapes may extend or project into any front, side or rear yard not more than four (4) feet.

11.

Utility or mechanical equipment structures, such as pool equipment units and air conditioning units shall not come closer than three (3) feet to any side or rear property line.

12.

Community Emergency Caches. Shall be exempt from discretionary review when they meet the definition in Section XI-10-2.03, Definitions, of this Chapter and do not displace required parking for the site and are located in the rear half of the property.

(Ord. 38.780 (25) (part), 8/19/08)

(Ord. No. 38.789, § 24, 4-21-09)

Any zoning application proposed for new real estate development or structure for human occupancy shall be subject to approval in accordance with the policies and criteria established by the State Mining and Geology Board and findings of the State Geologist in conformance with the requirements of the Public Resources Code, Section 2621, et seq.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.10 - Fences and Walls

A.

Purpose and Intent. The purpose and intent of this section is to establish standards for fences and walls and similar screening that limit their visual and traffic impacts, but allow for the privacy and architectural interest afforded by such structures. The purpose of a stricter fence or wall height limit in the front yard is to provide for an open street scene, to allow the primary structures on a street to be visible and to contribute to the visual character of the neighborhood, and to allow for unobstructed views of traffic to and from driveways.

This section establishes standards for all fences and walls, including those not requiring a Building Permit. (For information regarding whether a fence or wall requires a Building Permit, please contact the City's Building Division).

B.

Standards for Fences and Walls in All Zones. Unless otherwise provided for in the specific standards for individual zones, the following standards shall apply to fences and walls and to all structural elements supporting the fences, walls and hedges, including pilasters, trellises, etc. In addition to the regulations set forth in this section, all fences and walls shall be constructed and maintained so that they do not constitute a hazard to traffic, persons or property.

Measurement of Fence and Wall Height. The height of a fence or wall shall be measured from the finished grade to the top of fence or wall at any point (including barbed-wire tops). Where the finished grade is a different elevation on either side of the fence or wall, the height may be measured from the side having the highest elevation.

2.

Prohibited Fences. Barbed wire fences within four (4) feet of a public sidewalk, electrically charged fences and fences which interfere with public utilities or public easements are not permitted.

C.

Standards for Fences and Walls on the Valley Floor.

1.

Height Limitations. Fences and walls shall not exceed six (6) feet in height at the rear and side yards, and forty-two (42) inches in height at the front yard.

2.

Exceptions:

a.

For any nonresidential or new multi-family projects and single-family tract projects within a zoning district combined with the "S" Overlay District, fences at the rear and side yards may be eight (8) feet maximum height when approved by the Zoning Administrator through a Site Development Permit.

b.

In all zoning districts, fences at the rear or side yard adjacent to recreational areas, athletic fields or courts may be twelve (12) feet maximum height provided that the portion of the fence higher than six (6) feet is of approved openwork.

c.

In all zoning districts, fences at the front yard and within thirty-five (35) feet of a street corner shall be of approved openwork.

d.

In residential zoning districts fences at the rear and side yards may exceed six (6) feet but not exceed eight (8) feet in height provided written consent of adjoining residential property owners is received. See Building Code for permit requirements for fences exceeding six (6) feet in height.

e.

In any Commercial or Industrial zoning district, fences or walls used for the purpose of screening or providing security to mechanical equipment such as but not limited to air conditioning units, chemical tanks

or tank farms or the like, may exceed six (6) feet in height subject to the provisions of Section XI-10-54.16, Trash Enclosures, Equipment and their Screening of this Chapter.

D.

Standards for Fences and Walls within the Hillside District.

1.

Height Limitations. Fences or walls shall not exceed fifty-four (54) inches in height, and be an openwork design, and may be located anywhere on the parcel. No city review of this type fence is required.

2.

Construction Materials. All fence post and supporting framework material shall be wood in order to maintain the rural character of the hills. The Planning Commission, under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter), may approve any other type material for the posts with a Site Development Permit (Section XI-10-57.03, Site Development Permits, of this Chapter).

3.

Openwork Design. Openwork type fences shall be comprised of materials which results in a minimum of seventy-five percent (75%) visual transparency within every square foot area, posts excluded. Chain link fences and cyclone type fences are not considered an approved material in the area.

4.

Exceptions:

a.

In any zoning district combined with the "H" Combining District fences at the rear and side yards which exceed fifty-four (54) inches in height and those fences other than an openwork design may be constructed on a parcel or lot, if and when their location and design have first been approved by the Planning Commission under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter) with a Site Development Permit (Section XI-10-57.03, Site Development Permits, of this Chapter).

b.

In any zoning district combined with the "H" Combining District fences around tennis courts, and the like as determined by the Planning Commission, under the "H" Combining District review process (Section XI-1045.09, Site and Architectural Review, of this Chapter) with a Site Development Permit, (Section XI-10-57.03, Site Development Permits, of this Chapter), may be eight (8) feet maximum height provided that the portion of the fence higher than six (6) feet is an approved openwork design. Chain link fencing may be used, in this case, as an approved openwork design. The Planning Commission, under the "H" Combining District review process, may approve fences over eight (8) feet in height with a Site Development Permit.

All tennis courts and the like shall be screened from view from the valley floor with landscape materials, as outlined in the City Council Hillside Landscape Policy, with said landscaping to the approval of the Planning Commission under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter) with a Site Development Permit, (Section XI-10-57.03, Site Development Permits, of this Chapter).

c.

Barbed wire fences, using a post material other than wood, may be erected on any parcel two (2) acres or more without Planning Commission review or approval.

(Ord. No. 38.834, § 9, 8/20/19; Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.11 - Homebuyer Awareness of General Plan

At the time of initial sale of a newly constructed R1 home, the residential builder's sales staff shall be required to obtain the signatures of the buyers that they have been made aware of the adopted General Plan proposed land uses for the area within the general neighborhood of the proposed purchase site, and received a copy of said General Plan map.

If the buyer needs further detail of types of specific uses possible within a given General Plan designation, he shall be directed to make inquiry at the Milpitas Planning Department.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.12 - Areas for Collecting and Loading Recyclable Materials

A.

Recycling Areas at New Developments. Areas for collecting and loading recyclable materials are required for:

1.

Any project for which a building permit will be required for a commercial, industrial, or institutional building, or residential building having five (5) or more living units, where solid waste is collected and loaded; and any residential project where solid waste is collected and loaded in a location sewing five (5) or more units using containers of one (1) cubic yard or larger.

2.

Any new public facility where solid waste is collected and loaded and any improvements for areas of a public facility used for collecting and loading solid waste in containers of one (1) cubic yard or larger.

B.

Recycling Areas at Existing Developments. Recycling areas are required to be added to existing development projects if one or more of the following conditions occurs:

The area subject to modifications or amendment is that part of a development which is used for collecting and loading solid waste. This condition applies regardless of the size of the modification, or

2.

A single modification, or multiple modifications which are constructed within a twelve (12) month period, which collectively adds thirty (30%) percent or more to the existing gross floor area of the development project.

C.

Waiver of Parking Spaces, Encroachment into Landscaping or Open Space Areas for Voluntary Participation.

1.

When the property owner or tenant, with the property owner's approval, voluntarily participates in the recycling program in an existing development, the recyclable area may utilize up to two (2) parking spaces or encroach into any side or rear yard landscape setback or open space area for the location of the recycling container if no other area is available. The Planning Division may approve of the plan and shall provide a written decision supporting the decision.

2.

Provided further, if the Planning Division does not approve the property owner's or tenant's request, they have the right to appeal by filing a Site Development Permit application to the Planning Commission. There shall be no filing fee associated with this review.

3.

The loss of the two (2) parking spaces shall not be deducted from the total count of parking for the purpose of meeting the on-site parking criteria, from calculating the gross floor area of the building or seating requirement, or for any other use that is determined by the amount of parking space.

D.

Design Guidelines. The design and construction of recycling areas shall be reviewed in accordance with the guidelines adopted by Council Resolution for recycling areas.

XI-10-54.13 - Reserved

XI-10-54.14 - Condominium Conversions

A.

Purpose and Intent. The City of Milpitas is concerned with maintaining an adequate supply of housing for its citizens including rental housing. The adopted Housing Element of the Milpitas General Plan contains the following goal statements, pertinent to this matter:

1.

To encourage the provision of a variety of individual choice of tenure, housing type, and location.

2.

To provide within our ability, opportunities for Milpitas citizens to meet their housing needs in the housing market.

3.

To encourage the cooperation within the housing market so that suppliers and consumers can function more effectively, consistent with community growth goals.

4.

To use zoning in ways which will encourage variety and mix in housing types and provide adequate sites for housing persons of all races, ages, ethnic groups, and income levels in Milpitas. Housing is considered a basic necessity and any scarcity within the community area has both a direct and indirect adverse impact on public safety, health and welfare (including but not limited to, health and safety problems relating to the quality of housing). In times of low vacancy rate and high housing cost many people cannot afford to buy homes within the community or its nearby market area and are forced to rent housing in apartments or other multiple dwellings. The unregulated conversion of rental apartment units to condominiums ownership may aggravate such a serious situation and force citizens to move out of the community.

B.

Determination—Allowance of Converting Apartment Units.

1.

Declaration of Housing Shortage. When the number of vacant apartments being offered for rent or lease in the City is equal to or less than six (6) percent of the total number of such dwelling units offered for and under rental or lease agreement in the City, a housing shortage exists which is inconsistent with the purposes of this chapter and with the declared goals of the City relating to its Housing Element of its adopted General Plan.

2.

Determination of Vacancy Rate and Surplus. Whenever an application for a condominium conversion is filed, the Planning Division shall conduct a vacancy rate survey of the existing rental apartment dwelling units in the City. This survey shall be completed within forty-five (45) days from the date the application for condominium conversion is deemed complete.

3.

Surplus Required for Conversion Application. An application for condominium conversion of existing multiple family rental housing units to residential condominium ownership shall not be approved unless there is a vacancy surplus of existing apartments which equals six (6%) percent or greater of the total

number of such units, within the City, and if all of the adult tenants lawfully in possession of two-thirds of the units indicate their desire to convert such project to condominium ownership, in writing, to the City. In no event shall a number of lots, parcels, units, or rights of exclusive occupancy proposed exceed the vacancy surplus by forty (40%) percent. Nothing herein contained shall be construed to prevent the payment of any consideration by landlord to tenant, provided however, consent obtained by payment to a tenant shall not be considered by the Council to be a free and willing consent unless payment of the same consideration is made to all tenants regardless of consent.

C.

Development Standards. The following standards are required for any Residential Condominium Conversion development.

1.

Off-Street Parking. Conformance to the current off-street parking standards.

2.

Landscape and Open Space. Conformance to the current landscape and open space requirements.

3.

Housing and Fire. Conformance to the current Housing codes and Fire Regulations of the City of Milpitas.

4.

Meters and Control Valves. The consumption of gas and electricity within each unit shall be separately metered so that the unit owner can be separately billed for each utility. A water shut-off valve shall be provided for each unit or for each plumbing fixture.

5.

Overcurrent Protection. Each unit shall have its own panel board for all electrical circuits which serve the unit.

6.

Impact Sound Insulation. Wall and floor-ceiling assemblies shall conform to the sound installation performance criteria promulgated in Title 25, California Administrative Code, Section 1092, or its successor, and may be only replaced by another floor covering that provides the same or greater insulation.

7.

Prohibition of Discrimination Against Prospective Buyers with Children. In no case shall a project which can reasonably accommodate children, as determined by the Planning Commission, limit initial sales to households or individuals without children.

D.

Review Requirements. Condominium conversions are subject to a Conditional Use Permit in accordance to Section XI-10-57.04, Conditional Use Permits, of this Chapter and the filing of a Tentative Map in accordance with Chapter 1, Subdivisions, of Title XI.

1.

Protection of Tenant Rights. In addition to the general findings required for approval of a Conditional Use Permit, approval of a Conditional Use Permit for a condominium conversion is subject to the City Council finding that the requirements of Section 66427.1(a) and (b) of the California Subdivision Map Act have been completed in accordance with State Law. Said Sections deal with:

a.

Notice to tenant(s) of intention to convert; and

b.

Tenant(s) exclusive right to purchase their unit(s) upon the same terms and conditions that such unit(s) will be initially offered to the general public or terms more favorable to the tenant(s).

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.15 - Density Bonus for Affordable Housing Developments (entire section)

A.

Purpose and Intent. The Density Bonus regulations are intended to encourage the provision of affordable housing in the community by granting density bonuses and other incentives to developers of residential projects that construct or otherwise provide for housing units that will be available for purchase or rent by senior citizens and lower income persons and households. The ordinance codified in this section is adopted in conformance with Chapter 4.3 of Title 7 of the Government Code, Section 65915, et seq.

B.

Applicability. The Density Bonus provisions are applicable in all zoning districts that allow residential development. The density bonus referred to in this Section shall apply to housing developments consisting of five or more dwelling units.

C.

Review Requirements.

1.

Submittal Requirements. Requests for a density bonus shall require the submittal of a Density Bonus application. The applicant shall submit site and architectural plans for the project (per Section XI-1057.03(D), Submittal Requirements, of this Chapter) for review and approval in conjunction with the Planning Commission and City Council consideration of the Density Bonus application.

Public Hearings. The Planning Commission shall hold at least one public hearing, prior to making its recommendation to the City Council. Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

Upon receipt of the recommendation of the Planning Commission, the City Council and/or Redevelopment Agency shall hold at least one public hearing, prior to any final action on an application. Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

The City Council and/or Redevelopment Agency, after recommendation by the Planning Commission, may authorize an increase in allowable dwelling unit density for those residential projects that assist in meeting the lower income or senior housing needs of the community. When the Planning Commission and Council make a finding that a developer has complied with the requirements of Sections XI-10-54.15(D)(4), Standards, and XI-10-54.15(E), Density Bonus Conditions, of this Chapter, the City Council may award a density increase, with the approval of the project.

D.

Standards.

1.

Determination of Maximum Allowable Densities. The maximum allowable base density specified in the General Plan, including any other permitted increases to density.

2.

Unit Type and Location. All affordable units shall be reasonably dispersed throughout the project, shall contain on average the same number of bedrooms as the non-affordable units in the project, and shall be comparable with the non-affordable units in terms of appearance, materials and finished quality. The Planning Commission may recommend to the City Council and/or Redevelopment Agency modifying the requirements as to unit size or type, if it is found that such a modification would better serve the affordable housing need of Milpitas.

3.

Agreement. Prior to final building inspection and occupancy for a project containing affordable units, the applicant shall execute and record at the Santa Clara County Recorder's Office the City's Agreement Imposing Restrictions on Real Property, which Agreement shall explain the affordability requirements. The agreement shall be approved by the Milpitas City Attorney prior to recordation.

4.

Retaining Affordability. A developer shall agree to, and the City shall insure continued affordability of, all lower- or very low-income density bonus units for thirty (30) years or a longer period of time, if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. If the City does not grant at least one (1) additional concession or incentive, in addition to a density bonus as specified in Section XI-10-54.15(E), Density Bonus Conditions, of this Chapter, the

developer shall agree to, and the City shall ensure continued affordability for a minimum of ten (10) years of all lower or very low-income housing units receiving a density bonus.

5.

Affordable Rents. Those units targeted for lower-income households, as defined in Section 50079.5 of the Health and Safety Code shall be affordable at a rent that does not exceed thirty (30%) of sixty (60%) percent of the Santa Clara County median income. Those units targeted for very low-income households, as defined in Section 50105 of the Health and Safety Code, shall be affordable at a rent that does not exceed thirty (30%) of fifty (50%) percent of County median income.

6.

Relation to Statute. Density bonus requirements not specified in these regulations shall be governed by the State Density Bonus Law, Government Code section 65915, et seq.

E.

1.

When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the city shall provide the applicant incentives or concessions for the production of housing units and childcare facilities as prescribed in this section.

2.

The city shall grant a density bonus and incentives or concessions described in Section XI-10-54.15(F), Concessions and Incentives, of this Chapter, when the applicant for the housing development seeks and agrees to construct at least any one of the following criteria:

a.

Ten percent (10%) of the total units in a housing development for lower income households as defined in Section 50079.5 of the State Health and Safety Code.

b.

Five percent (5%) of the total units in a housing development for very low-income households as defined in Section 5015 of the State Health and Safety Code.

c.

A senior citizen housing development as defined in Sections 51.3 and 51.12 of the State Civil Code.

d.

Ten percent (10%) of the total dwelling units in a condominium project as defined in subdivision (f) or in a planned development project as defined in subdivision (k) of Section 1351 of the State Civil Code for

persons and families of moderate income, as defined in Section 50093 of the State Health and Safety Code.

3.

If the housing development meets criteria (a), (b), or (c) above, the density bonus shall be an increase of 20% over the maximum allowable residential density under the general plan and zoning ordinance. If the housing development meets criterion (d) above, the density bonus shall be an increase of five (5%) percent over the maximum allowable residential density under the general plan and zoning ordinance.

4.

If at least one of the above criteria is met, an additional density bonus shall be granted as per the following sliding scale:

a.

An additional two and one-half (2.5%) percent density bonus for each increase of one (1%) percent Very Low-Income units above the initial 5% threshold;

b.

A density increase of one and one-half (1.5%) percent for each one (1%) percent increase in Lower-Income units above the initial 10% threshold; and

c.

A one (1%) percent density increase for each one (1%) percent increase in Moderate-Income condominium or planned development units above the initial 10% threshold.

5.

The total of the density bonuses pursuant to paragraphs (3) and (4) above shall not exceed 35% for the proposed housing development.

F.

Concessions and Incentives. Any project that meets the minimum criteria specified in Subsection XI-1054.15(E)(2), Density Bonus Conditions, of this Chapter, for a density bonus is entitled to concessions depending upon the amount of affordable housing provided as follows:

1.

For projects that provide either five (5%) percent of the units affordable to Very Low-Income households, 10% of the units affordable to Low-Income households, or 10% Moderate-Income condominiums, the developer is entitled to one concession;

2.

When the number of affordable units is increased to 10% Very Low-Income units, 20% Lower-Income units, or 20% Moderate-Income condominiums, the developer is entitled to two concessions; and

3.

When the number of affordable units is increased to 15% Very Low-Income, 30% Low-Income, or 30% Moderate-Income household condominiums, the number of concessions is increased to three concessions.

Requested concessions shall be approved unless the City makes either of the following findings in writing and based on substantial evidence.

a.

The concession is not required in order to provide for affordable housing costs as defined in State Health and Safety Section 50052.2, or for rents for the affordable units pursuant to Section XI-10-54.15(D)(5), Standards, of this Chapter.

b.

The concession would have a specific adverse impact as defined in State Government Code Section 65589.5(d)(2) upon the public health and safety or the physical environment, or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households.

4.

Land Donation. A density bonus of 15% over the maximum allowable residential density under the general plan and zoning ordinance is available to projects that donate land for residential use. The land must satisfy all of the following requirements prior to granting the density bonus:

a.

Have the appropriate general plan designation and zoning to permit construction of units affordable to Very Low-Income households in an amount not less than 10% of the units in the residential development;

b.

Be at least one (1) acre in size or of sufficient size to permit development of at least 40 units; and

c.

Be served by adequate public facilities and infrastructure.

A density bonus based on land donation may be combined with the density bonus in Section XI-1054.15(E), Density Bonus Conditions, of this Chapter; however, the maximum combined density bonus that can be granted is 35%. When the land is transferred, it must have all the permits and approvals necessary for the development of the Very Low-Income housing units. The land transfer shall occur prior to or concurrent with approval of the final subdivision map, parcel map, or residential development application.

The land and affordable units must be subject to deed restrictions ensuring continued affordability. The city may require that the land be transferred to a developer instead of the city.

5.

Parking Standards. If a project qualifies for a density bonus, the developer may request and the City must grant the following parking standards for the entire development project:

a.

Zero to one (0-1) bedroom—one (1) on-site parking space;

b.

Two to three (2-3) bedrooms—two (2) on-site parking spaces;

c.

Four and more (4+) bedrooms—two and one-half (2.5) on-site parking spaces.

These numbers are inclusive of guest parking and handicapped parking and may be tandem or uncovered but cannot be on street. The parking standards may be requested even if no density bonus is requested.

6.

Waivers and Modifications of Development Standards. The City may not impose a development standard that makes it infeasible to construct the housing development with the proposed density bonus. In addition to requesting incentives and concessions, applicants may request the waiver of development standards and shall show that the waiver is necessary to make the housing units economically feasible.

For the purpose of this section, development standards are defined as site or construction conditions that apply to a residential development pursuant to any local policy, resolution or regulation. The requested waiver shall be approved unless the City makes either of the findings set forth in Section XI-10-54.15(F)(3), Concessions and Incentives, of this Chapter.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.16 - Trash Enclosures, Equipment and their Screening

A.

Purpose and Intent. The location of trash enclosures and mechanical and other similar types of equipment on private property can significantly affect the visual quality of a project. Particularly important is the view of projects and their related equipment and services from adjacent streets. The requirements of this subsection are meant to address the negative visual impacts resulting from the location of trash enclosures and mechanical equipment on private property, while recognizing that they are necessary aspects of development.

B.

Trash Enclosures. Trash enclosures which enclose dumpsters shall be of sufficient size to accommodate the trash and recyclable materials generated by the uses on the parcel(s) being served. The following standards shall apply:

1.

When located on the street side of corner lots, the enclosure must be set back at least as far as the main building.

2.

Colors and materials of the enclosure shall complement the building and shall consist of masonry wall such as split face block or masonry finished to match the building or other solid screening material utilizing colors and materials which complement the building.

3.

Gates shall be solid metal painted to match the enclosure.

4.

The enclosure shall screen the dumpsters, trash compactors or equipment.

5.

No net reduction in the number of on-site trees and no loss of protected trees, as defined in Section X-27.01 of the Milpitas Municipal Code, may be approved to accommodate an enclosure.

6.

When feasible, sides and rear of the enclosure shall be landscaped.

7.

On-site parking shall meet ordinance requirements, except as provided in Section XI-10-54.12(C), Areas for Collecting and Loading Recyclable Materials, of this Chapter.

8.

Trash enclosures shall be located as far away as possible from Residential or Mobile Home Park combining districts or uses.

9.

Follow the City's Engineering standards for trash enclosures.

C.

Ground- Mounted Equipment.

Ground-Mounted Equipment. Ground-mounted equipment, such as air conditioning units, landscape irrigation controls, transformers, fuse boxes, telephone equipment, gas meters, water meters, stand pipes, fire sprinkler connectors, and other exterior equipment shall comply with the following:

a.

Location. Outside the front yard setback and, when no front yard setback is required outside the area between the street and the building closest to the street and screened from public view as provided for in Subsection (b) below.

Where it is infeasible to locate ground-mounted equipment outside the front yard, ground-mounted equipment located in the front yard shall be screened from public view as provided for in Subsection (b) below.

b.

Screening. Equipment shall be completely screened from view by dense shrubbery, masonry wall such as split face block or masonry finished to match the building, or other solid screening material utilizing colors and materials which complement the building. Chain link fencing with or without slats may not be approved in the Mixed Use district, but may be approved in the Commercial and Industrial districts if it is an expansion of an existing approved chain link enclosure and it is not visible from public viewing points with a Minor Site Development Permit.

c.

On-site parking shall meet minimum standards.

d.

No net reduction in the number of on-site trees and no loss of protected trees, as defined in Section X-27.01 of the Milpitas Municipal Code, may be approved to accommodate a tank, transformer or equipment.

e.

Height of Equipment.

i.

In Commercial and Industrial districts, the installed height of the transformer, tank or equipment shall not exceed the height of the building. Equipment exceeding building height may be approved if it is proposed at the rear of the building, and the applicant can demonstrate with line-of-sight drawings that the equipment will not be seen from public viewing points.

ii.

In the Mixed Use district, the installed height shall not exceed six (6) feet.

iii.

If adjacent to a Residential or Mobile Home Park Overlay district or use, installed height of the equipment shall not exceed six (6) feet.

f.

Generators may not be approved if located adjacent to a Residential or Mobile Home Park Overlay district or use.

D.

Rooftop Equipment. All rooftop equipment including, but not limited to air conditioning units, and mechanical equipment shall be shielded and architecturally screened from view from on-site parking areas, adjacent public streets and adjacent residentially zoned property as follows:

1.

All rooftop equipment shall be located in an area which is screened by a screening wall, parapet wall or equipment well. The height of such equipment, mounted in the well, shall not exceed the height of the architectural element used to screen the equipment. Viewsheds and sightlines shall be taken into consideration and the equipment should be placed in a location, which effects maximum screening. The Planning Division may also require additional screening devices in conjunction with tenant improvements as deemed necessary where the screening wall, parapet wall or equipment well does not provide adequate screening from the above-referred views.

Exceptions: Rooftop equipment which exceeds the height of existing roof screens, if line-of-sight drawings demonstrate that the equipment will be visible from surrounding "worst case" view points from the above referred views shall only be allowed through the approval of a Site Development Permit.

2.

Roof screens shall be sheathed in a matching or complementary material and color to the exterior building and may include metal panels, parapet walls or screens constructed of exterior grade plywood or other durable materials.

(Ord. No. 38.795, § 34, 4/6/10; Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.17 - Lighting

Exterior lighting shall be shielded or recessed so that direct glare and reflections are contained within the boundaries of the parcel, and shall be directed downward and away from adjoining properties and public rights-of-way. Fixtures shall be appropriate in terms of height, style, design, scale and wattage to the use of the property. Fixtures shall be spaced appropriately to maximize pedestrian safety.

(Ord. 38.780 (25) (part), 8/19/08)

XI-10-54.18 - 2023-2031 Housing Element Sites

A.

Reused Sites. Reused sites are opportunity and rezone sites listed in the City of Milpitas 2023-2031 Housing Element, Appendix E, Tables E-13 and E-14 that are identified for lower-income housing capacity and as a 5th Cycle Housing Element site. On these reused sites, owner-occupied and rental multi-family housing uses shall be allowed by right (i.e., without any discretionary review) when at least 20 percent of the units will be affordable to lower income households.

B.

Rezone Sites. Rezone sites are listed in the City of Milpitas 2023-2031 Housing Element, Appendix E, Table E-14 that are identified for lower-income housing capacity. On these rezone sites, the following shall apply:

1.

Owner-occupied and rental multi-family housing uses shall be allowed by right (i.e., without any discretionary review) when at least 20 percent of the units will be affordable to lower income households.

2.

100 percent residential use is allowed.

3.

A minimum of 50 percent of the floor area in mixed-use projects must be occupied by residential use.

(Ord. No. 38.855, § 9, 6/18/24; )

XI-10-54.19 - Reserved.

Editor's note— Ord. No. 38.795, § 36, adopted April 6, 2010, amended the Code by repealing former § XI10-54.19 in its entirety. Former § XI-10-54.19 pertained to model home complexes and sales offices, and derived from Ord. 38.780 (25) (part), adopted August 19, 2008.

Section 55 - Exceptions

Footnotes:

--- ( 23 ) ---

Editor's note— Ord. No. 38.789, § 25, adopted April 21, 2009, amended the Code by repealing former Section 55, XI-10-55.01—XI-10-55.04, and adding a new Section 55. Former Section 55 pertained to similar subject matter, and derived from Ord. 38, adopted March 15, 1955; Ord. 38.90, adopted September 1, 1966; Ord. 38.342, adopted July 2, 1974; Ord. 38.373, adopted May 4, 1976; Ord. 38.389, adopted April 5, 1977; Ord. 38.667, adopted January 21, 1992; Ord. 38.699, adopted May 16, 1995; Ord. 38.716, adopted September 15, 1998; Ord. 38.760, adopted September 17, 2002; Ord. 38.761, adopted May 20, 2003; and Ord. 38.763, adopted April 20, 2004.

XI-10-55.01 - Purpose and Intent

The regulations included in this section provide for the encroachment of architectural and functional features into setback areas. This section also provides for exceptions from certain development standards in this Chapter under unique situations.

XI-10-55.02 - Height

A.

Measurement of Height for Through Lots.

1.

Through Lots 150 Feet or Less in Depth. On a through lot one hundred fifty (150) feet or less in depth, the height of a building may be measured from the adjoining curb level on either street.

2.

Through Lots More Than 150 Feet in Depth. On a through lot more than one hundred fifty (150) feet in depth, the height regulation and basis of height measurement for the street permitting the greater height shall apply to a depth of not more than one hundred fifty (150) feet from that street.

B.

Structures Permitted Above Height Limit. Penthouses or roof structures for the housing of elevators, stairways, tanks, ventilating fans or similar equipment required to operate and maintain the building. Parapet walls, skylights, towers, process towers and columns, including appurtenant working structures, steeples, roof signs, flagpoles, chimneys, smokestacks, wireless masts (provided such masts comply with Section 13.09, Wireless Communications Facilities, of this Chapter.), water tanks, gas tanks, silos, or similar structures may be erected above the height limits herein prescribed, but no penthouse or roof structure, or any space above the height limit shall be allowed for the purpose of providing additional floor space.

(Ord. No. 38.785, § 7, 4-7-09)

1.

Front Yard — Infill Development Between Projecting Buildings. Where a lot is situated between two lots, each of which has a main building [within twenty-five (25) feet of its side lot lines], which projects beyond the established front yard line and has been so maintained since the Ordinance codified in this Section became effective (March 15, 1955), the front yard requirement on such lot may be the average of the front yards of said existing buildings.

2.

Front Yard — Adjoining Projecting Building. Where a lot adjoins only one lot having a main building [within twenty-five (25) feet of its side lot lines], which projects beyond the established front yard line and has been

so maintained since the Ordinance codified in this Section became effective (March 15, 1955), the front yard of said existing building and the established front yard line.

3.

Front Yard — Sloping Lot. Where the elevation of the ground at a point fifty (50) feet from the front line of a lot, and midway between the side lines, differs ten (10) feet or more from the curb level, or where the slope (measured in the general direction of the side lot lines) is twenty (20) percent or more on at least onequarter (1/4) of the depth of the lot, the front yard need not exceed fifty (50) percent of that required in the district.

4.

Front Yard and Side Yard Waived — Dwelling Over Commercial. The front and side yards shall be waived for mixed use buildings that include dwellings and hotels erected above the ground floor of a building when said ground floor is designed exclusively for commercial purposes.

5.

Side Yard Waived — Semi-Detached Dwellings, Etc. For the purposes of side yard regulations, the following dwellings with common party walls shall be considered as one (1) building occupying one (1) lot semi-detached two (2) and four (4) family dwellings, row dwellings, group dwellings and court apartments.

6.

Rear Yard — Includes One-Half Alley. In computing the depth of a rear yard where such yard opens onto an alley, one-half (1/2) the width of such alley may be assumed to be a portion of the required rear yard.

7.

Rear Yard — Includes Loading Space. A required loading space may occupy a required rear yard, or any part thereof.

8.

Rear Yard—Building Additions for R1 and R2. Building additions into the required rear yard shall be allowed for all legal, conforming single-family and two-family dwellings in all Valley Floor Residential districts, when such dwelling has been constructed in accordance with law and a minimum period of one (1) year has elapsed since the final inspection as provided for in Title II of the Milpitas Municipal Code.

a.

Such building additions may be allowed into the required rear yard so that the remaining rear yard set back (measured perpendicular to the rear lot line at any point) is not less than the exterior height of the rear wall of said building addition and shall not encroach into a public utility easement.

b.

The exterior height of the rear wall at any point shall be measured vertically from the ground to top of the wall.

c.

All measurements in regards to yards for building additions shall be measured from the exterior face of wall.

d.

The cumulative total of all said building additions and any accessory buildings or structures noted in Section 54.08, Accessory Buildings and Structures, of this Chapter, shall not cover an area exceeding thirty percent (30%) of the required rear yard area specified by the regulations or PUD for the District in which this single-family or two-family dwelling is located.

e.

Applications for building permits pursuant to this section shall provide the Planning Division with sufficient information to determine the remaining rear yard setback and coverage of the required rear yard area as specified in (a) through (c) above. Building additions proposed for all legal, conforming single-family and two-family dwellings in the Valley Floor Residential districts require review and approval by the Planning Division or Zoning Administrator, pursuant to Section 57.03, Site Development Permits and Minor Site Development Permits, of this Chapter.

f.

This section is intended to apply to bona fide building additions not contemplated at the time of original construction, where the owner finds for personal or economic reasons (in a community of growing families and under economic conditions where the purchases of larger homes imposes a heavy financial burden) the need to expand his existing dwelling and would not otherwise be allowed to do so within the required set backs of the District or Planned Unit Development. The waiting period of one (1) year from final inspection is intended to insure that the addition is erected in good faith and in accordance with the intent of this section.

(Ord. No. 38.834, § 10, 8/20/19; Ord. No. 38.789, § 25, 4-21-09)

1.

Large Lots—Additional Dwelling. Where a lot has an area equivalent to two (2) or more times that required by this Ordinance, but without sufficient required frontage for two (2) or more lots, a dwelling shall be permitted on both the front and rear portions of said lot, provided that:

a.

All height and area requirements, except lot width, are complied with;

b.

A strip of land thirty (30) feet wide, measured at right angles from the rear lot line, is reserved for future access in addition to the required rear yard; and

c.

A strip of land at least fifteen (15) feet wide, measured at right angles to either side lot line and extending from the street line to the rear portion of the lot, is reserved as a means of access thereto.

2.

Lot Area — Includes One-Half Alley. In computing the lot area of a lot which rears upon an alley, one-half (1/2) the width of such alley may be assumed to be a portion of the lot.

3.

Through Lot — May Be Two Lots. Where a through lot has a depth of one hundred fifty (150) feet or more, said lot may be assumed to be two (2) lots with the rear lines of each approximately equidistant from the front lot lines, provided all area requirements are complied with. An accessory building shall not project beyond the front yard line of an existing main building along the frontage except that such accessory building need not be located more than twenty-five (25) feet from the street line.

(Ord. No. 38.789, § 25, 4-21-09)

XI-10-55.05 - Projections Allowed Into Required Yards/Setbacks

The following architectural and landscape features shall not be located and maintained so as to preclude complete access at all times around a main building. Gates or other suitable openings at least two and one-half (2-1/2) feet in width shall be deemed adequate for such access.

1.

Cornices, eaves, belt courses, sills, canopies, foundationless bay windows, garden, greenhouse, or planttype windows or other similar architectural features (not including bay windows) may extend or project into a required front, side or rear yard not more than thirty (30) inches.

a.

Chimneys may also extend or project into a required front, side or rear yard not more than thirty (30) inches.

b.

In no case shall any of the above projections be closer than three (3) feet to any side lot line.

(Ord. No. 38.789, § 25, 4-21-09)

Section 56 - Nonconforming Buildings, Uses, and Parcels

Footnotes:

--- ( 24 ) ---

Prior ordinance history—Ords. 38, 38.681 and 38.760.

XI-10-56.01 - Purpose and Intent

The purpose of this chapter is to establish regulations for nonconforming buildings, structures and uses. It is the intent of these regulations to result in the conversion of nonconforming buildings, structures, and uses to conforming buildings, structures and uses. However, the City recognizes that until nonconforming buildings, structures, and uses are converted, improvements to them which promote their compatibility with their neighborhoods, enhance the quality of development, and do not increase nonconformity should be encouraged and allowed.

(Ord. No. 38.855, § 10, 6/18/24; Ord. 38.777 (14) (part), 6/17/08)

XI-10-56.02 - Repair, Maintenance and Improvements to Nonconforming Buildings and Structures

A nonconforming building or structure may be maintained, except as otherwise provided in this section.

A.

Repair, Maintenance, Aesthetic Improvements. Repairs and alterations may be made to a nonconforming building or structure, provided that no structural alterations shall be made except those required by law or ordinance.

B.

Energy Efficiency and Sustainability Upgrades. Improvements may be made to a nonconforming building or structure related to improving the energy efficiency, reducing the energy usage, and reducing the greenhouse gas emissions impact of the building or structure.

C.

Restoration of Damaged Buildings. A nonconforming building or structure which is damaged or partially destroyed by fire, flood, wind, earthquake, or other calamity or act of God or the public enemy, to the extent of not more than seventy-five (75%) percent of its true value at that time, may be restored and the occupancy or use of such building, structure or part thereof, which existed at the time of such partial destruction, may be continued or resumed, provided the total cost of such restoration does not exceed seventy-five (75%) percent of the true value of the building or structure at the time of such damage and that such restoration is started within a period of one (1) year and is diligently prosecuted to completion.

In the event such damage or destruction exceeds seventy-five (75%) percent of the true value of such nonconforming building or structure, no repairs or reconstruction shall be made unless every portion of such building or structure is made to conform to all regulations for new buildings in the district in which it is located.

Provided, however, that any multistory single-family residence, which is subject to the provisions of the hillside section of this Title (Section XI-10-45), may be rebuilt to its approved height and setbacks and is not subject to the single-story height restrictions or other restrictions in the Zoning Title currently in effect, but shall conform to those regulations in effect at the time the structure was built.

D.

Additions to, Enlargements and Moving of Nonconforming Buildings and Structures.

1.

In the R1, R2 and R1-H Districts, a legal nonconforming building or structure shall not be added to or enlarged in any manner unless the addition or enlargement conforms to all development standards and regulations of the district in which it resides, including, but not limited to height, yard setbacks, maximum lot coverage, impervious surface coverage, and maximum size of residence regulations of said district. In addition, a legal nonconforming building or structure shall not be added to or enlarged unless existing front yard paving is brought into conformance.

2.

In all districts other than the R1, R2, and R1-H, a legal nonconforming building or structure may be added to or enlarged in a manner consistent with the criteria established in Table XI-10-57.04-1 and if a Conditional Use Permit is obtained.

3.

A building or structure lacking adequate automobile parking space in connection therewith may be altered or enlarged provided the required additional automobile parking space is supplied as per Section XI-10-53 for the entire building or use, including the addition or enlargement.

4.

A nonconforming building or structure shall not be moved in whole or in part to any other location on the lot unless every portion of such building or structure is made to conform to all regulations of the district in which it is located.

(Ord. No. 38.855, § 10, 6/18/24; Ord. No. 38.793, § 3, 5/17/11; Ord. 38.777 (14) (part), 6/17/08)

XI-10-56.03 - Nonconforming Use of Buildings and Structures

A.

The continuation or change of a nonconforming use of a building or structure shall meet the requirements provided below.

1.

Continuation of Existing Nonconforming Use. A legally established use that is no longer permitted in a particular zoning district because of a modification of this Chapter shall be allowed to continue indefinitely, absent discontinuation of the use for a year or more and failure to comply with the re-establishment provisions of Section XI-10-56.03(B) below.

2.

Discontinuation of Nonconforming Use. The nonconforming use of a building, structure or portion thereof, which is discontinued for a continuous period of one (1) year or more, may be replaced only with a conforming use, absent an approved nonconforming use reestablishment set forth in Section XI-1056.03(B) below. Nonconforming uses which have been discontinued for a period of less than one (1) year

may be replaced, if (1) with a nonconforming use of the same use classification as a matter of right or (2) a nonconforming use of a different use classification, subject to compliance with the findings and procedures set forth Section XI-10-56.03(B).

3.

Changes of Use Within the Same Use Classification. An existing, ongoing nonconforming use may be changed to a different use within the same use classification. For example, a nonconforming auto repair shop use may be changed to a tire shop use, since both uses fall within the same use classification (auto service uses).

4.

Change of Use to a Different Nonconforming Use Classification. An existing, ongoing nonconforming use may be changed to a nonconforming use of a different use classification only if it can be found that the proposed use is equivalent to or more appropriate than the existing nonconforming use at the project location. The proposed use may be allowed only by way of a conditional use permit and only if, in addition, all of the following findings can be made:

a.

The proposed nonconforming use would not cause a nuisance to the surrounding properties and district (e.g., excessive parking demand, traffic, noise, etc.).

b.

The proposed nonconforming use would be compatible with the general character of the surrounding neighborhood or district.

c.

The proposed nonconforming use is necessary to allow gainful economic use of structures or improvements until such structures or improvements can be permanently converted to conforming uses.

B.

Re-establishment of Discontinued Nonconforming Uses Within the Milpitas Metro Specific Plan Area (Sunsetting Provision).

1.

Once discontinued for a year or more, nonconforming uses only within the Milpitas Metro Specific Plan Area may be re-established if all of the following findings can be made:

a.

The proposed re-establishment of a nonconforming use would not cause a nuisance to the surrounding properties and district (e.g., excessive parking demand, traffic, noise, etc.).

b.

The proposed re-establishment of a nonconforming use would be compatible with the existing general character of the surrounding neighborhood or district.

c.

The proposed re-establishment of a nonconforming use is necessary to allow gainful economic use of structures or improvements until such structures or improvements can be permanently converted to conforming uses.

In addition to the above findings, the re-establishment of a discontinued nonconforming use may only be approved by the Planning Commission by way of a conditional use permit, with the above additional findings, if (1) the proposed use lies within 1,000 feet of any residential use or (2) the proposed use would require conditional use permit review under current zoning requirements for the zoning district listed in the zoning map in existence at the time the use became nonconforming. The re-establishment of a discontinued nonconforming use may be approved administratively by Planning Division staff in all other circumstances, contingent on the existence of findings by Planning Division staff that the above listed grounds for re-establishment exist.

2.

This Section XI-10-56.03(B) shall become inoperative July 1, 2026, and shall be considered repealed on that date, unless a later enacted ordinance that becomes effective on or before July 1, 2026, deletes or extends that date. All other provisions of Section XI-10-56.03 shall be unaffected by this sunset clause.

C.

Expansion of Assembly Uses in the Heavy Industrial (M2) Zoning District.

1.

Assembly uses approved after February 7, 2017, that are rendered legally non-conforming may expand in floor area up to 25 percent of existing floor area until December 31, 2020. Such expansions shall require approval of a Site Development Permit and Conditional Use Permit by the Planning Commission in accordance with the provisions of Section 57 "Applications."

(Ord. No. 38.855, § 10, 6/18/24; Ord. No. 38.837, § 10, 11/5/19; Ord. No. 38.817, § 2, 9/16/14; Ord. No. 38.793, § 3, 5/17/11; Ord. 38.777 (14) (part), 6/17/08)

XI-10-56.04 - Nonconforming Use of Land

1.

Continuation of Use. The nonconforming use of land (where no main building is involved), existing at the time the Ordinance codified in this section became effective, may be continued for a period of not more than five (5) years therefrom, provided:

a.

That no such nonconforming use of land shall, in any way, be expanded or extended either on the same or adjoining property.

b.

That, if such nonconforming use of land, or any portion thereof, is discontinued or changed, any future use of land shall be in conformity with the provisions of this Chapter.

c.

That any sign, billboard, commercial advertising structure or statuary, which is lawfully existing and maintained prior to January 26, 1954, may be continued, although such use does not conform with the provisions hereof; provided, however, that no structural alterations are made thereto and provided, further, that all such nonconforming signs, billboards, commercial advertising structures and statuary, and their supporting members, shall be completely removed from the premises not later than five (5) years from the effective date of the Ordinance codified in this section.

2.

Nonconforming Due to Reclassification. The foregoing provisions of this section shall also apply to buildings, structures, land, or uses which hereafter become nonconforming due to any reclassification of districts under this Chapter or any subsequent change in the regulations of this Chapter; provided, however, that where a period of years is specified in this section for the removal of nonconforming buildings, structures, or uses, said period shall be computed from the date of such reclassification or change.

(Ord. No. 38.855, § 10, 6/18/24; Ord. 38.777 (14) (part), 6/17/08)

XI-10-56.05 - Nonconforming Parcels

A.

Legal Building Site. A nonconforming parcel that does not comply with the applicable lot requirements for the zone (e.g., lot area, lot width, etc.) in which it is located shall be considered a legal building site if it meets at least one of the following:

1.

The parcel was created by a recorded subdivision;

2.

The parcel is under one ownership and of record, and was legally created by a recorded deed prior to the effective date of the zoning amendment that made the parcel nonconforming; or

3.

The parcel was approved through a variance procedure or resulted from a lot line adjustment.

B.

Development of Legal Building Sites. A legal building site may be developed provided that any structure or development compiles with the standards for the zone unless standards are specifically waived or altered through a variance or as otherwise allowed by the zoning ordinance.

C.

Subdivision or Adjustment of a Nonconforming Parcel. No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel.

Section 57 - Applications*

• Prior ordinance history: Ords. 38, 38.92, 38.180, 38.205, 38.395, 38.485, 38.491, 38.629, 38.633, 38.676, 38.706, 38.760 and 38.776.

XI-10-57.01 - Purpose and Intent

These provisions are intended to prescribe the procedures for filing and processing specific applications when required or permitted by this chapter.

(Ord. No. 38.803, § 9, 4/17/12; Ord. 38.780 (26) (part), 8/19/08)

XI-10-57.02 - General Plan/Specific Plan/Zoning Amendments

A.

Purpose and Intent. The purpose of this section is the establishment of procedures for amending the General Plan, Specific Plans and Zoning Ordinance.

1.

This section provides a method for amending the General Plan, as it may become necessary, or desirable from time to time, or as required by State law. It is intended that this section be consistent and in compliance with Section 65350 et seq. of the Government Code.

2.

This section provides a method for the adoption of specific plans. In addition, it is the purpose of this section to provide a method for amending specific plans to ensure their continued effectiveness and responsiveness to community concerns and market demands over time. It is intended that the provisions of this section shall be consistent with Section 65450 et seq. of the Government Code.

3.

Amendments to the Zoning Ordinance are necessary to maintain its effectiveness as a regulatory and informational document and to ensure its consistency with the General Plan, adopted specific plans and State law. Zoning amendments are also necessary to provide for the implementation of the City's General Plan.

B.

Authority. The City Council is the final authority on General Plan, Specific Plan and, Zoning amendments, including amendments to the Zoning Map. The Planning Commission shall provide recommendations to the City Council regarding zoning amendments.

Amendments to zone boundaries or text of this title that are not consistent with the General Plan must be accompanied by a General Plan amendment application.

C.

Applicability. A General Plan, Specific Plan and/or Zoning Amendment may be initiated for the following:

1.

In accordance with the provisions of the Government Code of the State of California, any amendment to this Chapter which changes any property from one zone to another or imposes any regulation or removes of modifies any regulation relating to land, buildings, structures, signs, billboards, lots, yards, courts, and open spaces, off-street parking and loading, building setback lines or civic districts or which prezones unincorporated land.

2.

Any other amendment to this Chapter, General Plan or Specific Plan may be adopted by the City Council as other ordinances are adopted.

3.

Nothing contained in this Chapter, however, shall be construed to be a limitation on the power of the City Council to adopt an interim zoning ordinance as an urgency measure in accordance with the procedures and relating to the subject matter set forth in the Government Code of the State of California. (Ord. 38.780 (26) (part), 8/19/08)

D.

Initiation of Amendments to the General Plan, a Specific Plan, Zoning Ordinance or Zoning Map.

An amendment to this Chapter under Subsection 57.02(C) may be initiated in any of the following ways:

1.

By a majority vote of the Planning Commission or the City Council.

2.

By a property owner who seeks to have his parcel rezoned.

3.

By the owners of fifty percent or more of the area of all the property sought to be rezoned.

E.

Submittal Requirements. Refer to the most recent submittal requirements required by the Planning Division.

F.

Review Procedures.

1.

Initiation by City Council or Planning Commission

a.

Any amendment initiated by the Planning Commission or City Council shall be first referred to the Planning Commission.

b.

The Planning Commission shall hold a public hearing on any said proposed amendment (whether initiated by Council or Planning Commission) after notice given in accordance with the provisions of Section 64, Development Review Process, of this Chapter.

c.

At the conclusion of the hearing, the Planning Commission shall make a recommendation to the City Council, including the reasons for its recommendation. A recommendation shall be made within forty days after the reference from the City Council on any said proposed amendment, unless the City Council consents to an extension of time. Failure of the Planning Commission to report to the City Council within forty days after the reference (unless the City Council shall have consented to an extension of time) shall be deemed to be an approval of the proposed amendment.

d.

On receipt of the Planning Commission recommendation, the City Council shall hold a public hearing thereon after notice (given in accordance with the provisions of Section 64, Development Review Process, of this Chapter).

i.

Provided, however, if the matter under consideration is an amendment to change property from one zone to another, and the Planning Commission has recommended against said amendment, the City Council shall not be required to hold a public hearing or take any further action unless an interested party shall request a hearing in writing filed (with the City Clerk) within ten days after the Planning Commission files its

recommendation with the City Council. Such a written request for a hearing shall be in lieu of appeal rights provided for in Subsection 64.05, Appeals, of this Chapter.

e.

After the conclusion of the hearing, the City Council may approve, modify or disapprove the recommendation of the Planning Commission.

i.

Provided, however, that any modification of the proposed amendment by the City Council shall be referred back to the Planning Commission for a report and recommendation; the Planning Commission shall not hold a public hearing thereon unless requested to do so by the City Council. Failure of the Planning Commission to report to the Council within forty days after the reference shall be deemed to be an approval of the proposed modification.

2.

Initiation by property owner.

a.

The Planning Commission shall hold a public hearing on any said proposed amendment (whether initiated by Council or Planning Commission) after notice given in accordance with the provisions of Section 64, Development Review Process, of this Chapter.

b.

At the conclusion of the hearing, the Planning Commission shall make a recommendation to the City Council, including the reasons for its recommendation.

c.

On receipt of the Planning Commission recommendation, the City Council shall hold a public hearing thereon after notice (given in accordance with the provisions of Section 64, Development Review Process, of this Chapter).

G.

Required Findings.

1.

Prior to the approval of a General Plan amendment, all of the following findings shall be made:

a.

The proposed amendment is internally consistent with those portions of the General Plan which are not being amended.

b.

The proposed amendment will not adversely affect the public health, safety, and welfare.

2.

Prior to the approval of a new specific plan or a specific plan amendment, the following findings shall be made:

a.

The proposed specific plan or specific plan amendment is consistent with the goals, objectives, policies, and programs of the General Plan, and is necessary and desirable to implement the provisions of the General Plan.

b.

The uses proposed in the specific plan or specific plan amendment are compatible with adjacent uses and properties.

c.

The proposed specific plan or specific plan amendment will not adversely affect the public health, safety and welfare.

In the case of a specific plan amendment, the following additional finding shall be made prior to its adoption:

d.

The proposed specific plan amendment will not create internal inconsistencies within the specific plan.

3.

Prior to approval of a zoning amendment or amendment to the zoning maps, the following findings shall be made:

a.

The proposed amendment is consistent with the General Plan.

b.

The proposed amendment will not adversely affect the public health, safety and welfare.

In the case of a zoning amendment or amendment to the zoning maps for a Planned Development Zoning District, the following additional findings shall be made prior to its adoption:

c.

The proposed zoning amendment will provide a significant public benefit to the community.

d.

Existing and proposed utility services are adequate to serve the proposed Planned Development Zoning District.

e.

The proposed development will be in character to the surrounding neighborhood and/or adjacent lands and will have no adverse effects upon the adjacent or surrounding properties, such as shadows, view obstruction, or loss of privacy that cannot be mitigated to acceptable levels.

H.

Approval Runs with the Land. The approval of a General Plan, Specific Plan and/or Zoning amendment shall run with the land, and shall continue to be valid upon a change of ownership of the site to which it applies.

I.

Expiration of Application and Time Extension. If an ordinance proposing to change the zoning of certain land (by amendment to the Zoning Ordinance of the City of Milpitas) is not adopted (by a second reading) within 12 months of the date of its introduction (by first reading), then the application giving rise to said ordinance shall be deemed to have expired (without notice to the applicant) and the unadopted ordinance shall not then be capable of adoption by second reading. Provided, however:

1.

Upon recommendation of the Planning Commission, the City Council may grant an extension of time for second reading and adoption not to exceed 12 months subject to the following requirements:

a.

no more than one such extension may be granted, and

b.

the extension must be granted by the Council within 12 months of the date of introduction of the ordinance, and

c.

new conditions may be imposed upon the zone change.

2.

Nothing herein contained shall be construed to prevent a subsequent application for a change of zone of the same land or the subsequent introduction of a new ordinance changing the zone of said land.

(Ord. No. 38.814, § 3, 4/15/14; Ord. No. 38.803, § 9, 4/17/12; Ord. 38.780(26) (part), 8/19/08)

XI-10-57.03 - Site Development Permits and Minor Site Development Permits

A.

Purpose and Intent. Development in areas designated by the Site and Architectural Overlay District (-S) or other development that is otherwise specified in this Chapter as requiring review is subject to either Site Development Permits or Minor Site Development Permits. The (-S) Overlay District is described in

Subsection XI-10-12.05, Site and Architectural Overlay District, of this Chapter. Signs are discussed in Section XI-10-24, Signs, of this Chapter. Depending on the scale of development proposed, other review may be required, as well. The purpose of architectural review shall vary, according to the following criteria:

1.

Site Development Permits. The Site Development Permit process provides for the review of physical improvements to a site which due to their scale, proximity to environmentally sensitive resource areas, or unique design features, require consideration. The Site Development Permit process is intended to encourage site and structural development which 1) respects the physical and environmental characteristics of the site, 2) ensures safe and convenient access and circulation for pedestrians and vehicles, 3) exemplifies the best professional design practices, 4) encourages individual identity for specific uses and structures, 5) encourages a distinct community or neighborhood identity, and 6) minimizes visual impacts.

2.

Minor Site Development Permits. The Minor Site Development Permit process provides for the streamlined review of certain minor classes of development projects which are large enough to require consideration, but due to their scale, nature or location do not require consideration by the Planning Commission.

B.

Authority.

1.

Site Development Permits.

a.

Review by Zoning Administrator. The Zoning Administrator has the authority to review Site Development Permits, subject to the concurrent review and appeal provisions of Section XI-10-64.04-1, Consideration of Concurrent Applications, and Section XI-10-64.05, Appeals, of this Chapter.

b.

Review by City Council. In addition to the provisions of Section XI-10-64.04-1, Consideration of Concurrent Applications, and Section XI-10-64.05, Appeals, of this Chapter, the City Council has the authority to review the following projects:

i.

Projects within the Hillside (-H) Overlay District, in accordance with Section XI-10-45, "H" Hillside Combining Districts, of this Chapter.

ii.

Any off site advertising structures adjacent to interstate freeway and state highways, and off site advertising directional signs, in accordance with Section XI-10-24.05(G) and (H), of this Chapter.

2.

Minor Site Development Permits. Either Planning staff or Zoning Administrator has the authority to review Minor Site Development Permits, subject to the concurrent review and appeal provisions listed above [Section XI-10-57.07(B)(1)] and Section XI-10-57.07(C)(2), Applicability, or when another section of this Title requires such review. When the Zoning Administrator determines that it is in the public interest for the Minor Site Development Permit application to be considered by the Planning Commission, the Zoning Administrator shall forward the application to the Planning Commission for review in the same manner as Site Development Permits, as described in subsection XI-10-57.03(E)(1), Review Procedures, Site Development Permits, below. No public hearing is necessary for a Minor Site Development Permit when heard by the Zoning Administrator.

C.

Applicability.

1.

Site Development Permits. A Site Development Permit is required for:

a.

New main buildings.

b.

New accessory buildings over 2,500 square feet.

c.

New parking lots.

d.

Roof top equipment which exceeds the height of existing roof screens, if line-of-sight drawings demonstrate that the equipment will be visible from surrounding "worst case" view points from on-site parking areas, adjacent public streets and adjacent residentially zoned property.

e.

Additions or alterations to multi-family residential, nonresidential and mixed-use buildings that include:

i.

Additions of 10,000 square feet or greater for non-residential and mixed-use buildings.

ii.

Additions of 5,000 square feet or greater or ten percent (10%) of the existing building gross floor area, whichever is less, to non-residential and mixed use buildings adjacent to residential or (-MHP) Overlay Districts or uses.

iii.

Additions 200 square feet or greater for multi-family residential buildings.

f.

Any deletion or amendment of a previously imposed condition of approval for a Site Development Permit.

g.

Any building color changes to designated cultural resources. Refer to Chapter 4, Cultural Resources Preservation Program, of this Title.

h.

Certain signs, in accordance with Section XI-10-24.04, Signs Subject to Review, of this Chapter.

i.

Sign programs, in accordance with Section XI-10-24.05(F), Sign Programs, of this Chapter.

j.

Any Off-site Advertising Displays Adjacent to Interstate Highways and State Routes, in accordance with Section XI-10-24.05(G).

k.

Any Off-Site Directional Signs adjacent to roadways other than Interstate Highways and State Routes, in accordance with Section XI-10-24.05(I).

2.

Minor Site Development Permits.

a.

Review by Zoning Administrator:

i.

Any deletion or amendment of a previously imposed condition of approval for a Minor Site Development Permit approved by the Zoning Administrator.

ii.

Review for certain alterations or additions to residential, nonresidential and mixed-use sites/buildings, as indicated in Table XI-10-57.03-1, Additions or Alterations Requiring Minor Site Development Permits. Projects that exceed the threshold for planning staff review, as indicated in Table XI-10-57.03-1, Additions or Alterations Requiring Minor Site Development Permits.

b.

i.

Certain signs, in accordance with Section XI-10-24.04, Signs Subject to Review, of this Chapter.

c.

Review for certain alterations or additions to residential, nonresidential and mixed-use sites/buildings, as indicated in Table XI-10-57.03-1, Additions or Alterations Requiring Minor Site Development Permits. Please refer to Section XI-10-54, General Provisions, of this Chapter, for development standards and review procedures for types of projects not listed in Table XI-10-57.03-1.

d.

Planning Division staff may require review by the Zoning Administrator at their discretion.

Additions or Alterations Requiring Minor Site Development Permits

D.

Submittal Requirements. No building permit shall be issued for a use, and no use of any parcel shall take place, in a district which is combined with the (-S) Overlay District unless those items listed below in have been submitted to and approved by the review authority or upon appeal to the City Council. Every application for Site Development Permit shall be in proper form and shall be accompanied by plans drawn to scale indicating clearly and with full dimensions the following information if applicable:

1.

Site plan — parcel dimensions in distance.

2.

Buildings and structures — their location, size, height, colors and materials.

3.

Dimensions of yards and open spaces between buildings.

4.

Fences and walls — their architectural design, location, height, colors and materials.

5.

Parking spaces — their location, number and dimensions.

6.

Access — vehicular, pedestrian and service, with points of ingress and egress and the internal circulation pattern of the parking lot area.

7.

Street dedications and improvements — existing and proposed, if any.

8.

Signs — their location, size, type of sign, types of materials and colors, and lighting method.

9.

Loading or service areas — their location and dimensions.

10.

Lighting — its architectural design, location and light patterns.

11.

Landscaping — its location, size, quantity and type of plant material.

12.

Shadow studies — drawings showing shadows of the building or structures (taken on December 22nd, between the hours of 10:00 a.m. and 2:00 p.m.).

13.

Such other data as may be required under the circumstances of the case to permit the City Council, Planning Commission, Planning Commission Subcommittee, or Planning Division staff to make the required approvals.

E.

Review Procedures.

1.

Site Development Permit.

a.

The Zoning Administrator shall hold a public hearing on said application upon such notice as is required in Section XI-10-64, Development Review Process, of this Chapter.

b.

After conclusion of the hearing, the Zoning Administrator may approve the application, approve it subject to such conditions as the Zoning Administrator may impose, or disapprove the application.

For applications requiring City Council approval, the Planning Commission shall forward its recommendation to the City Council.

i.

The Planning Commission may impose such conditions as it deems necessary to protect the best interests of the surrounding property, of the neighborhood, and as it deems in conformity with the requirements of the General Plan.

2.

Minor Site Development Permit.

a.

Review by Zoning Administrator. The Zoning Administrator shall indicate by action minutes whether the proposed site plan for a project shall be approved, approved with modifications and/or conditions, or denied.

i.

The Zoning Administrator may require review by the Planning Commission at its discretion.

b.

Review by Planning Division. The Planning Division staff shall make investigations as necessary to determine whether or not the proposed project conforms or may be conditioned to conform fully to the intent of the Zoning and Sign Ordinances.

F.

Required Findings.

1.

General Findings (except signs). Approval may be granted by the Planning Commission or the City Council if all of the following findings are made, based on evidence in the public record:

a.

The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.

b.

The project is consistent with the Milpitas Zoning Ordinance.

c.

The project is consistent with the Milpitas General Plan.

d.

In the case of a project located within a Specific Plan, the following additional finding shall be made:

i.

The project is consistent with the Specific Plan.

2.

Signs. Approval may be granted by the Planning Commission or the City Council if all of the following findings are made, based on evidence in the public record:

a.

All elements of the sign, including design, lighting, scale, length and materials, are consistent with the intent of the General Plan, the Sign Ordinance and any applicable Specific Plan;

b.

The design, scale and materials of the sign harmonize with the architectural design and details of the building or site it serves;

c.

The design and scale of the sign is appropriate to the distance from which the sign is normally viewed;

d.

The design and materials of the sign provide a contrast between the background and letters;

e.

If a freestanding sign is included in the sign application, the design, scale or location of the building dictates the use of freestanding signs, rather than building-mounted signs;

f.

For Sign Programs, in addition to the findings for signs, the following additional findings shall be made, based on evidence in the public record:

i.

The provisions of the Sign Program ensure consistency in design and style of all new signs,

ii.

The provisions of the Sign Program address compatibility of the design and style of any existing signs on the building or site, and

iii.

All new signs within the Sign Program are in compliance with the design guidelines of this Chapter.

G.

Planning Commission Subcommittee or Staff Approvals. In approving any project subject to this section, the Planning Division staff or Planning Commission Subcommittee shall find all of the following:

1.

The development recognizes and respects the nature of the neighborhood and site, development patterns, materials used, and the expectations of those who will see and use the building;

2.

The development assures that modifications satisfy functional requirements, and are screened with appropriate compatible materials; and

3.

The development assures that the modification will not interfere with the privacy, quiet enjoyment or view of the surrounding properties.

4.

For projects including signs, only the following findings shall be made:

a.

The design, including lighting, scale, length and materials, of the sign is consistent with the intent of the design elements of the General Plan, any applicable Design Guidelines, respective specific plan or Site and Architectural Overlay District in which the sign is to be located;

b.

The design, scale and materials of the sign harmonize with the architectural design and details of the building or site it serves;

c.

The design and scale of the sign is appropriate to the distance from which the sign is normally viewed;

d.

The design and materials of the sign provide a contrast between the background and letters;

e.

If a freestanding sign is included in the sign application, the design, scale or location of the building dictates the use of freestanding signs, rather than building-mounted signs;

For projects including signs within sign programs, only the following finding shall be made:

a.

The sign conforms to the approved sign program.

H.

Appeals. An appeal of the decision by staff or on Site Development Permits or Minor Site Development Permits shall be reviewed in accordance with Section XI-10-64.05, Appeals, of this Chapter.

I.

Compliance With Conditions. Whenever a plan for the development of a building site has been the subject of a Site Development and Permit process as hereinabove specified and has been given final approval, the building and site thereafter shall be constructed and perpetually maintained in compliance with the plan in conformance to all details specified thereon and subject to all the conditions set forth in the action of approval, unless modified or amended pursuant to Section XI-10-57.03(I), Applications for Modification of or Amendment, of this Chapter. Lack of compliance shall constitute a violation of Chapter 10 (Zoning, Planning and Annexation) and the Site Development Permit.

J.

Applications for Modification of or Amendment. Projects shall be developed in conformity with project approvals. If the applicant wishes to modify the project, as approved, the applicant shall submit revised plans and any other applicable information to the City for review by the Planning Division. The Planning Division staff shall make one of the following determinations regarding the request:

1.

Insignificant Modifications. If the Planning Division determines that the modifications are minor, the modifications may be approved administratively.

2.

Significant Modifications Without Public Impact or Concern. If the Planning Division determines that the modifications are significant enough to warrant discretionary review but will not have public impacts or cause public concern, then the modifications shall be referred to the Planning Commission Subcommittee for consideration. If the original application for a project required a public hearing, then the Planning Commission Subcommittee review of modifications shall not require a public hearing.

3.

Significant Modifications With Public Impact or Concern. If the Planning Division determines that the modifications are significant enough to warrant discretionary review and have the potential for public impact or concern, then the modifications shall be referred to the final decision-making authority for the original project. If the original application for a project required a public hearing, then the final decisionmaking authority's review of modifications shall require a public hearing, in accordance with Section XI-1064, Development Review Process, of this Chapter.

K.

Modifications, Suspensions and/or Revocations Initiated by the City. Refer to Section XI-10-63.06, Revocation, Suspension, Modification, of this Chapter.

(Ord. No. 38.840, § 7, 6/16/20; Ord. No. 38.834, §§ 11—15, 8/20/19; Ord. No. 38.833, § 7, 5/7/19; Ord. No. 38.803, § 9, 4/17/12; Ord. No. 38.788, § 8, 9/7/10; Ord. No. Ord. No. 38.795, §§ 37—39, 4/6/10; Ord. 38.780 (26) (part), 8/19/08)

XI-10-57.04 - Conditional Use Permits and Minor Conditional Use Permits

A.

Purpose and Intent.

1.

The purpose and intent of the Conditional Use Permit process is to provide a review of land uses which would not otherwise be permitted as a matter of right in a zoning district because of their nature, have an impact on the surrounding environment and for the determination of whether or not the proposed use is appropriate for its proposed location.

The Conditional Use Permit process is intended to encourage uses to be located in a manner that is:

a.

Consistent with the City's zones;

b.

Sensitive to community and neighborhood identity; and

c.

Minimizes impacts to adjacent uses, including traffic flow; circulation; safety for vehicular and pedestrian traffic; imposition of noises, odors and health and safety hazards upon nearby residential area; provision of adequate light, air and reasonable access; securing safety from fire and other dangers; prevent overcrowding of land; facilitating adequate provision for transportation and in general, to promote the public health, safety, peace, morals, comfort and welfare; prevention of neighborhood deterioration and blight; the objectives of zoning and planning in the community and the effect upon the City's general welfare of this proposed use in relation to surrounding uses and the community. Review of a use may require the consideration of site plan issues related to the use, as well.

2.

It is the purpose of the Minor Conditional Use Permit process to provide for the streamlined review of uses that may have an impact on the surrounding environment and require discretionary review, but due to their nature, scale or location, do not require discretionary consideration by the full Planning Commission. Either the Zoning Administrator or Planning staff has the authority to review Minor Conditional Use Permits. The

Minor Conditional Use Permit process has as its purpose the same goals for uses described for the Conditional Use Permit process above.

B.

Authority.

1.

Conditional Use Permits. The Planning Commission has the authority to approve Conditional Use Permits, subject to concurrent review and appeal provisions of Section XI-10-64, Development Review Process, of this Chapter.

2.

Minor Conditional Use Permits. Minor Conditional Use Permits may be approved either by the Zoning Administrator or administratively by Planning staff.

a.

Review by the Zoning Administrator. The Zoning Administrator has the authority to approve Minor Conditional Use Permits for those uses listed in the use tables of the Zoning Ordinance. Such approvals shall be subject to the concurrent review and appeal provisions of Section XI-10-64, Development Review Process, of this Chapter.

b.

Review by Planning staff. Planning staff has the authority to administratively approve Minor Conditional Use Permits for those uses listed in the use tables of the Zoning Ordinance. Such approvals shall be subject to concurrent review and appeal provisions of Section XI-10-64, Development Review Process, of this Chapter. Planning staff-level issued Minor Conditional Use Permits shall not require a public hearing or notice.

C.

Applicability.

1.

Conditional Use Permits. Conditional Use Permits are required as indicated by the use tables in Residential, Mixed Use, Commercial, Industrial, Institutional, Park and Open Space, and other land use districts of this Chapter. Conditional Use Permits are also required for the following requests:

Table XI-10-57.04-1

1 Properties that are located within 500 feet of the boundary of a Single Family Residential (R1) or One and Two-Family Residential (R2) zone shall not be eligible for a request for a Conditional Use Permit to allow height exceeding the maximum standard for primary buildings as shown in Table XI-10-5.03-1 - Commercial Zone Development Standards.

2 In addition, the cumulative floor area included in all such additions or enlargements since the adoption of Ord. No. 38.760 (September 17, 2002) shall not exceed thirty (30%) percent of the floor area contained in said building or structure. Floor area, for the purposes of this Subsection, shall include all habitable space associated with a residential use and shall mean gross floor area associated with any nonresidential use. These criteria are established so as not to prolong the life of the original building or structure.

a.

Other Uses. The Planning Commission may, after a public hearing, permit the following uses in districts from which they are prohibited by this Chapter where such uses are deemed essential or desirable to the public convenience or welfare and are in harmony with the various elements or objectives of the General Plan.

However, any of the following uses which are marked with an asterisk shall not be allowed in the designated Hillside Combining District.

i.

Helicopter pads for medical evacuation purposes.

ii.

Development of natural resources (excluding the drilling for or producing of oil, gas or other hydrocarbon substances) together with the necessary buildings, apparatus, or appurtenances incident thereto.

iii.

Library or museum, public.

iv.

Park, playground, or recreational or community center.

v.

Public utility and public service use or structure.

vi.

vii.

Reverse vending machines or mobile recycling units except where the lot is being used for residential purposes.

2.

Minor Conditional Use Permits. Minor Conditional Use Permits are required as indicated by the use tables in Residential, Mixed Use, Commercial, Industrial, Institutional, Park and Open Space, and other land use districts of this Chapter.

D.

Submittal Requirements. Refer to the most recent submittal requirements required by the Planning Division.

E.

Review Procedures.

1.

Conditional Use Permits.

a.

The Planning Commission shall hold a public hearing on said application upon such notice as is required in Section XI-10-64, Development Review Process, of this Chapter.

b.

After the conclusion of the hearing, the Planning Commission may approve the application, approve it subject to such conditions as the Planning Commission may impose, or disapprove the application.

i.

The Planning Commission may impose such conditions as it deems necessary to protect the best interests of the surrounding property, of the neighborhood, and as it deems in conformity with the requirements of the General Plan.

2.

Minor Conditional Use Permits.

a.

Review by Planning Commission Subcommittee. The Planning Commission Subcommittee shall consider a Minor Conditional Use Permit application when authorized to do so under the use tables of the Zoning Ordinance and hold a public hearing on application upon such notice as is required in Section XI-10-64, Development Review Process, of this Chapter.

i.

After the conclusion of the hearing, the Planning Commission Subcommittee may approve the application, approve it subject to such conditions as the Planning Commission Subcommittee may impose, or disapprove the application.

a)

The Planning Commission Subcommittee may impose such conditions as it deems necessary to protect the best interests of the surrounding property, of the neighborhood, and as it deems in conformity with the requirements of the General Plan.

b)

If the Planning Commission Subcommittee members disagree on a decision for a project, then the project will be placed on the agenda for Planning Commission review, with no additional fees required.

b.

Review by Planning staff. The Planning Division shall administratively consider a Minor Conditional Use Permit when authorized to do so under the use tables of the Zoning Ordinance. Planning staff shall investigate as necessary to determine whether or not the proposed project conforms or may be conditioned to conform fully to the intent of this Chapter. No public hearing or notice shall be required for an administrative level Minor Conditional Use Permit.

If the project does not comply, a notice of correction shall be prepared and returned to the applicant. If the applicant resubmits for review and the project still does not comply with the required regulations or is not in accordance with the approved conditions of approval, the Planning Division shall deny the application.

F.

Required Findings for Conditional Use Permits and Minor Conditional Use Permits.

1.

General Findings. Approval may be granted by the appropriate decision-making body, of a Conditional Use Permit or Minor Conditional Use Permit application in accordance with this Chapter if all of the following findings are made, based on the evidence in the public record:

a.

The proposed use, at the proposed location will not be detrimental or injurious to property or improvements in the vicinity nor to the public health, safety, and general welfare;

b.

The proposed use is consistent with the Milpitas General Plan; and

c.

The proposed use is consistent with the Milpitas Zoning Ordinance.

In the case of a project located within a Specific Plan, the following additional finding shall be made:

d.

The proposed use is consistent with the Specific Plan.

2.

Specific Findings. In addition to the general findings required in Subsection (F)(1), above, specific findings shall be made prior to the approval of an application for a Conditional Use Permit for the following requests:

Table XI-10-57.04-2

G.

Consideration of Conditional Use Permit or Minor Conditional Use Permit Pending Zoning Amendment. Upon the close of a public hearing before the Planning Commission on the question of a Zoning Amendment to change property from one zone to another, and upon favorable report thereon by the Commission, the Commission may consider such matters and regulations as are set forth in Subsection XI10-57.04, Conditional Use Permits and Minor Conditional Use Permits, of this Chapter.

The Commission may conditionally impose such requirements and regulations upon the subject property and use as the Commission is authorized to impose by Subsection XI-10-57.04, Conditional Use Permits and Minor Conditional Use Permits, of this Chapter, and may conditionally approve Conditional Use Permits; said requirements and regulations shall be imposed and said approval shall be granted upon the express condition that said property shall be rezoned in accordance with the specific recommendation of the Planning Commission relating to zoning and shall not take effect unless and until said property is rezoned in accordance with specific recommendation of the Planning Commission and until the Ordinance amending this Chapter in accordance with the specific recommendation of the Planning Commission shall take effect.

H.

Appeals. An appeal of the action on a Conditional Use Permit or Minor Conditional Use Permit shall be reviewed in accordance with Section XI-10-64, Development Review Process, of this Chapter.

I.

Modifications Requested by the Applicant. Projects shall be developed in conformity with project approvals. If the applicant wishes to modify the project, as approved, the applicant shall submit revised plans and any other applicable information to the City for review by the Planning Division. The Planning Division staff shall make one of the following determinations regarding the request:

1.

Insignificant Modifications. If the Planning Division determines that the modifications are minor, the modifications may be approved administratively.

2.

Significant Modifications With or Without Public Impact or Concern. If the Planning Division determines that the modifications are significant enough to warrant discretionary review and have the potential for public impact or concern, then the modifications shall be referred to the final decision-making authority for the original project in the case of non-staff level issued permits, or to the Planning Commission in the case of staff-level issued Minor Conditional Use Permits. If the original application for a project required a public

hearing, then the final decision-making authority's review of modifications shall require a public hearing, in accordance with Section XI-10-64, Development Review Process, of this Chapter.

J.

Modifications, Suspensions and/or Revocations Initiated by the City. Refer to Section XI-10-63.06, Revocation, Suspension, Modification, of this Chapter.

K.

Approval Runs with the Land. The approval of a Conditional Use Permit or Minor Conditional Use Permit shall run with the land, and shall continue to be valid upon a change of ownership of the site to which it applies, unless the decision-making authority places limits on the effective time of the approval.

(Ord. No. 38.846, § 6, 10/19/22; Ord. No. 38.834, § 16, 8/20/19; Ord. No. 38.823, § 3, 11/17/15; Ord. No. 38.815, § 3, 9/2/14; Ord. No. 38.803, § 9, 4/17/12; Ord. No. 38.795, § 40, 4/6/10; Ord. 38.780 (26) (part), 8/19/08; Ord. No. 38.792, §§ 5, 6, 8/4/09)

XI-10-57.05 - Density Bonus Permits

A.

Purpose and Intent. The purpose and intent of the density bonus process is to ensure compliance with State regulations and regulations set forth in Subsection 54.15, Density Bonus for Affordable Housing Developments, of this Chapter.

B.

Review Procedures. Refer to Subsection 54.15(C), Review Requirements, of this Chapter.

(Ord. No. 38.803, § 9, 4/17/12; Ord. 38.780 (26) (part), 8/19/08)

XI-10-57.06 - Variances

A.

Purpose and Intent.

1.

Zoning variances. The purpose and intent of the variance process is to provide relief from the substantive provisions of this Chapter when the strict application of these provisions deprives the property for which the Variance is sought of privileges enjoyed by other property in the vicinity and under identical zoning classification because of special circumstances applicable to the property (including, but not limited to size, shape, topography, location or surroundings).

A Variance is a permit issued by the City that sanctions deviations from the adopted Zoning Ordinance regulations related to physical standards of development, such as lot size, building setback, and height limits. A Variance may not be granted to allow a use or density not otherwise allowed within the zoning district.

2.

Sign variances. The intent of this section is to establish a procedure for granting exceptions to the strict application of the size, number, height, length and location requirements for signs within Chapter 30 (Sign Ordinance) of this title. The granting of a variance requires findings to be met based on the site's or business' unique location or orientation in order to achieve adequate sign visibility.

B.

Authority.

1.

The Planning Commission shall have approval authority of Variances relating to development within all districts other than the Hillside (-H) Overlay district.

2.

The City Council shall have approval authority, upon recommendation by the Planning Commission, of Variances relating to developments within the Hillside (-H) Overlay district.

C.

Applicability.

1.

Zoning variances. Unless indicated otherwise by this title, a variance is required to deviate from any of the standards contained within the Zoning Ordinance.

2.

Sign variances. Unless indicated otherwise by Section XI-24, Signs, of this Chapter, a sign variance is required for the following:

a.

Any sign that exceeds the maximum standards;

b.

Any sign that exceeds the individual sign area allowed;

c.

Any business or site that exceeds the maximum sign area allowed;

d.

Any sign that exceeds the permitted sign height.

D.

Submittal Requirements. Refer to the most recent submittal requirements required by the Planning Division.

E.

1.

General Procedures. The Planning Commission, or where applicable, the City Council shall be empowered to impose such conditions upon the grant of a Variance as it deems desirable and shall impose such conditions as will assure that the Variance does not constitute a grant of special privilege inconsistent with limitations upon other properties in the vicinity and zone in which said property is located.

2.

The Planning Commission shall hold a public hearing on each application for a Variance upon such notice as is required in Section XI-10-64, Development Review Process, of this Chapter.

3.

For Variances not involving the Hillside (-H) Overlay district, the Planning Commission shall review the application and render its decision.

4.

For Variances involving the Hillside (-H) Overlay, the Planning Commission shall make a recommendation to the City Council. The City Council shall hold a public hearing, with notice as required in Section XI-10-64, Development Review Process, of this Chapter, review the application and the Commission's recommendation, and render its decision.

F.

Required Findings.

1.

Zoning variances. Prior to the approval of an application for a variance, all of the following findings shall be made:

a.

Due to special circumstances applicable to the subject property including size, shape, topography, location or surroundings, the strict application of the Zoning Ordinance is found to deprive the subject property of privileges enjoyed by other properties in the vicinity under identical zone classifications.

b.

The granting of the variance is necessary for the preservation of a substantial property right possessed by other property in the same vicinity and zone and otherwise denied the subject property.

c.

The required conditions of approval assure that the adjustment authorized will not constitute a grant of special privileges which are inconsistent with the limitations placed upon other properties in the vicinity subject to the same zoning regulations.

d.

The granting of the variance will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity.

e.

The granting of a variance is consistent with the General Plan and the intent of this title.

2.

Sign variances. Prior to the approval of an application for a sign variance, all of the following findings shall be made:

a.

Special conditions and extraordinary circumstances applicable to the property involved or its intended uses, which were not created by the owner or tenant, and which do not apply generally to other properties with the same land use exist that do not allow the site or business to achieve the goals and objectives of this Chapter for adequate business identification.

b.

Literal enforcement of the provisions of the City of Milpitas the Sign Ordinance will result in unnecessary hardship inconsistent with the spirit and intent of the Sign Ordinance.

c.

The granting of the variance is not contrary to the intent of the General Plan, Zoning or Sign Ordinance, or any applicable Specific Plan and will not be contrary to, nor materially detrimental to public interest and welfare, or injurious to conforming signs in the City.

d.

The variance to be granted is one that will require the least modification of the prescribed regulation, and the minimum variance that will accomplish that purpose.

e.

The granting of a variance is not considered a grant of special privileges inconsistent with the limitations of other similarly situated properties.

G.

Appeals. An appeal of the action on any variance shall be reviewed in accordance with Section XI-10-64, Development Review Process, of this Chapter.

H.

Modifications Requested by the Applicant. Projects shall be developed in conformity with project approvals. If the applicant wishes to modify the project, as approved, the applicant shall submit revised plans and any other applicable information to the City for review by the Planning Division. The Planning Division staff shall make one of the following determinations regarding the request:

1.

Insignificant Modifications. If the Planning Division determines that the modifications are minor, the modifications may be approved administratively.

2.

Significant Modifications with or without Public Impact or Concern. If the Planning Division determines that the modifications are significant enough to warrant discretionary review and have the potential for public impact or concern, then the modifications shall be referred to the final decision-making authority for the original project. If the original application for a project required a public hearing, then the final decisionmaking authority's review of modifications shall require a public hearing, in accordance with Section XI-1064, Development Review Process, of this Chapter.

I.

Modifications and/or Revocations Initiated by the City. Refer to Section XI-10-63.06, Revocation, Suspension, Modification, of this Chapter.

J.

Other Review Requirements. For other general requirements related to the review of applications, such as time limits on approvals and requests for extensions of approvals, please refer to Section XI-10-64, Development Review Process, of this Chapter.

K.

Approval Runs with the Land. The approval of a variance shall run with the land, and shall continue to be valid upon a change of ownership of the site to which it applies.

(Ord. No. 38.803, § 9, 4/17/12; Ord. No. 38.788, § 9, 9/7/10; Ord. 38.780 (26) (part), 8/19/08)

Section 59 - Certificate of Occupancy

No vacant land shall be occupied or used until a Certificate of Occupancy shall have been issued by the Building Official.

(Ord. 38 (part), 3/15/55)

XI-10-59.01 - Certificate of occupancy for a building

Certificate of Occupancy for a new building or the enlargement or alteration of an existing building shall be applied for coincident with the application for a building permit; said certificate shall be issued after the request for same shall have been made in writing to the Building Official after the erection or alteration of such building or part thereof shall have been completed in conformity with the provisions of these regulations. Pending the issuance of a regular certificate, a Temporary Certificate of Occupancy may be issued by the Building Official for a period not exceeding six (6) months, during the completion of alterations or during partial occupancy of a building pending its completion. Such temporary certificate shall not be constructed as in any way altering the respective rights, duties, or obligations of the owners or of the City relating to the use or Occupancy of the premises or any other matter covered by this Chapter, and such temporary certificate shall not be issued except under such restrictions and provisions as will adequately insure the safety of the occupants.

(Ord. 38 (part), 3/15/55)

XI-10-59.02 - Certificate of Occupancy for Land

Certificate of Occupancy for the use of vacant land or the change in the character of the use of land as herein provided, shall be applied for before any such land shall be occupied or used for any purpose except that of tilling the soil and growing therein of farm garden or orchard products, and a Certificate of Occupancy shall be issued after the Application has been made, provided such use is in conformity with the provisions of these regulations.

(Ord. 38 (part), 3/15/55)

XI-10-59.03 - Certificate of Occupancy—Contents Filing—Fee

Certificate of Occupancy shall state that the building or proposed use of a building or land complies with all the provisions and regulations of this Ordinance. A record of all certificates shall be kept on file in the office of the Building Official and copies shall be furnished, on request, to any person having a proprietary or tenancy interest in the building or the land affected. A fee of one dollar ($1.00) shall be charged for each extra copy of a Certificate of Occupancy, issued after the original has been furnished the owner or his agent.

59.03-1 Provided, however, no fee shall be required of the Milpitas Elementary School District, the Milpitas Fire Protection District, the Milpitas County Water District, and County Sanitation District No. 8 of Santa Clara County.

(Ord. 38.3, 7/49/56; Ord. 38 (part), 3/15/55)

XI-10-59.04 - Site Plans

All applications for a Certificate of Occupancy shall be made on a printed form to be furnished by the Building Official and shall contain accurate information and dimensions as to the size and location of the lot: the size and location of the building or structure or the lot; the dimensions of all yards and open spaces; and such other information as may be necessary to provide for the enforcement of these regulations. Where complete and accurate information is not readily available from existing records, the Building Official

may require the Applicant to furnish a survey of the lot prepared by a licensed surveyor. A careful record of the original copy of such applications and site plans shall be kept in the office of the Building Official and the duplicate copy shall be kept at any building under construction at all times during construction thereof.

XI-10-59.05

The issuance or granting of a Certificate of Occupancy shall not be construed to be a permit for or an approval of, any violation of this or any ordinance of the City of Milpitas. No Certificate of Occupancy purporting to violate or cancel the provisions of this or any ordinance of the City of Milpitas shall be valid except insofar as the use which it authorizes is lawful.

(Ord. 38 (part), 3/15/55)

Section 60 - Boundaries of Districts

Where uncertainty exists with respect to the boundaries of the various districts as shown on the district map accompanying and made a part of this Chapter, the following rules shall apply:

The district boundaries are either streets or alleys, unless otherwise shown, and where the indicated boundaries on said district map are approximately street or alley lines, said streets or alleys shall be construed to be the boundaries of such districts.

XI-10-60.02 - Lot Lines

Where the district boundaries are not shown to be streets or alleys, and where the property has been or may hereafter be divided into blocks and lots, the district boundaries shall be construed to be lot lines; and where the indicated boundaries on the district map are approximately lot lines, said lot lines shall be construed to be the boundaries of each district, unless said boundaries are otherwise indicated on the map.

Where the property is indicated on the district map as acreage and not subdivided into lots and blocks or where the district boundary lines on the district map shall be determined by the scale contained on such map, and where uncertainty exists, the district boundary line shall be determined by the Commission by written decision. In the event property which is shown as acreage on the district map has been or is subsequently subdivided into lots and blocks by a duly recorded subdivision map and the lot and block arrangement does not conform to that anticipated when the district boundaries were established, or property is resubdivided by a duly recorded subdivision map into district map, the Commission, after notice to the owners of property affected thereby and hearing, as required in Section 62 inclusive, may interpret

the district map and make minor readjustments in the district boundaries in such a way as to carry out the intent and purposes of these regulations and conform to the street and lot layout on the ground. Such interpretations or adjustments shall be by written decisions.

Where one symbol is used on the district map to indicate the district classification of an area divided by an alley or alleys, said symbol shall establish the classification of the whole of such area.

XI-10-60.05 - Street or Right-Of-Way—Allocation Or Division

A street, alley, railroad right-of-way, watercourse, channel or body of water, included on the district map shall, unless otherwise indicated, be included within the district of adjoining property on either side thereof; and where such street, alley, right-of-way, watercourse, channel or body of water serves as a boundary between two or more different districts, a line mid-way in such street, alley, right-of-way, watercourse, channel or body of water, and extending in the general direction of the long dimension thereof shall be considered the boundary between districts.

In the event a dedicated street or alley shown on the district map is vacated by ordinance, the property formerly in said street or alley shall be included within the district of the adjoining property on either side of the said vacated street or alley. In the event said street or alley was a district boundary between two or more different districts, the new district boundary shall be the former centerline of said vacated street or alley.

Section 61 - Interpretation

Subject to the provisions of this Chapter (including, but not limited to, the right of any aggrieved party to appeal), the Planning Commission shall be empowered to interpret, construe, and administer the provisions of this Chapter.

(Ord. 38.92, 12/6/66)