Milpitas Zoning Code § 61.03 Basic Rule of Construction and Administration

It is the intent of the City Council that this Chapter shall be construed and administered so as to provide the City with a maximum degree of control over zoning matters (see Government Code 65800).

(Ordinance 38.92, 12/6/66)

Section 62 - Reasonable Accommodation

XI-10-62.01 - Purpose

This Section establishes a procedure for requesting Reasonable Accommodation for persons with disabilities seeking equal access to housing. A Reasonable Accommodation is typically an adjustment to physical design standards to accommodate the placement of wheelchair ramps or other exterior modifications to a dwelling in response to the needs of a disabled resident.

(Ord. No. 38.810, § 3, 12/3/13)

XI-10-62.02 - Applicability

A.

Eligible Applicants. A request for Reasonable Accommodation may be made by any person with a disability, their representative, or any entity, when the application of the Zoning Ordinance or other land use regulations, policy, or practice acts as a barrier to fair housing opportunities.

B.

Definition. A person with a disability is a person who has a physical or mental impairment that limits or substantially limits one or more major life activities, anyone who is regarded as having this type of impairment, or anyone who has a record of this type of impairment as further defined under Section 12102 of the Americans with Disabilities Act and applicable State law, as may be amended.

C.

Eligible Request. A request for Reasonable Accommodation may include a modification or exception to the rules, standards, and practices for the siting, development, and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing of their choice.

(Ord. No. 38.810, § 3, 12/3/13)

XI-10-62.03 - Review Authority

A.

The Planning Division shall take action on all Reasonable Accommodation applications.

B.

The Planning Division may choose to refer any Reasonable Accommodation application to the Planning Commission for review and final decision.

(Ord. No. 38.810, § 3, 12/3/13)

XI-10-62.04 - Application Submittal and Review

An application for Reasonable Accommodation shall be filed and processed in the same manner as required for a Minor Site Development permit, as described in sections 10-57 (Applications) and 10-64 (Development Review Process).

(Ord. No. 38.810, § 3, 12/3/13)

XI-10-62.05 - Criteria for Decision

The Planning Division shall make a written decision and either approve, approve with modifications, or deny a request for Reasonable Accommodation based on consideration of all of the following factors:

A.

Whether the housing which is the subject of the request will be used by an individual with a disability thereunder;

B.

Whether the request for Reasonable Accommodation is necessary to make specific housing available to an individual with a disability;

C.

Whether the requested Reasonable Accommodation would impose an undue financial or administrative burden on the City;

D.

Whether the requested Reasonable Accommodation would require a fundamental alteration in the nature of a City program or law, including but not limited to land use and zoning;

E.

Potential impacts on surrounding uses;

F.

Physical attributes of the property and structures; and

G.

Other Reasonable Accommodations that may provide an equivalent level of benefit.

(Ord. No. 38.810, § 3, 12/3/13)

In approving a request for Reasonable Accommodation, the Planning Division may impose conditions of approval deemed reasonable and necessary to ensure that the Reasonable Accommodation will comply with the criteria required by Section 10-62.05 (Criteria for Decision).

(Ord. No. 38.810, § 3, 12/3/13)

XI-10-62.07 - Post-Decision Procedures

The procedures and requirements relating to notices of decision, effective dates, permit expiration, permit revocation, and changed plans shall apply to Reasonable Accommodations as provided in Section 64 (Development Review Process).

(Ord. No. 38.810, § 3, 12/3/13)

Section 63 - Enforcement and Penalty

Footnotes:

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Editor's note— Ord. No. 38.788, § 10, adopted September 7, 2010, amended the Code by repealing former § 63, and adding a new § 63. Former § 63 pertained to similar subject matter, and derived from Ord. 38, adopted March 15, 1955; Ord. 38.92, adopted December 6, 1966; Ord. 38.600, adopted March 4, 1986; Ord. 38.706, adopted July 16, 1996; Ord. 38.761, adopted May 20, 2003; Ord. 38.776, adopted March 18, 2008; Ord. No. 38.795, adopted April 6, 2010; and Ord. 124.27, adopted August 2, 2005.

All departments, officials and public employees of the City of Milpitas vested with the duty or authority to issue permits shall conform to the provisions of this Chapter and shall issue no permit or license for uses, buildings, or purposes in conflict with the provisions of this Chapter; and any permit or any business license issued in conflict with the provisions of this Chapter shall be null and void.

(Ord. No. 38.788, § 10, 9/7/10)

XI-10-63.02 - Penalty

It shall be unlawful for any person to violate any of the provisions of this Chapter. Any person convicted of violating any of the provisions of this Chapter shall, upon conviction, be punished by a fine not-to-exceed the sum of five hundred dollars ($500) or by imprisonment in the County Jail not to exceed six (6) months or by both such fine and imprisonment. Each day that a violation of this Chapter continues shall be considered a separate offense.

Any use of a premises or a building which deviates from or violates any of the provisions of this Chapter shall be termed an illegal occupancy and the person or persons responsible therefore, shall be subject to the penalties herein provided.

(Ord. No. 38.788, § 10, 9/7/10)

XI-10-63.03 - Declaration of Public Nuisance

General. The use of any land, building or other structure hereafter established or conducted or the present use of any land, building or other structure hereafter extended or enlarged or the erection, construction, moving, conversion, remodeling or alteration of any building or other structure contrary to the provisions of this Chapter shall be and the same is hereby declared to be a public nuisance, and the Attorney for the City of Milpitas shall, upon order of the City Council, immediately commence action or proceedings for the abatement or removal or enjoinment thereof in the manner provided by law.

2.

Signs. Any sign or structure erected, constructed, maintained, marked, posted, pasted, painted, printed, altered or repaired in violation of the provisions of the Chapter or after a permit or variance therefore has been revoked or expired is hereby found and declared to be a public nuisance subject to abatement and lien for recovery of abatement costs.

a.

Without limitation to the generality of the foregoing, any sign or structure erected, constructed, maintained, marked, posted, pasted, painted, altered or repaired:

i.

So as to be unsafe and so as to constitute an immediate peril to persons or property; or

ii.

Upon public property without written permission of the Planning Department or City Manager of the City of Milpitas.

(Ord. No. 315, § 2, 1/7/25; Ord. No. 38.788, § 10, 9/7/10)

Whenever any work is being done contrary to the provisions of this Chapter, the Building Official may order the work stopped by notice in writing served on any person engaged in the doing of such work or in the causing of such work to be done, and any such person shall forthwith stop such work until authorized in writing by the Building Official to proceed with such work.

(Ord. No. 38.788, § 10, 9/7/10)

XI-10-63.05 - Remedies Cumulative

The remedies herein contained shall be cumulative and in addition to such other remedies as provided by law. Resort to one remedy shall not preclude resort to any other remedy as may be allowed by law.

(Ord. No. 38.788, § 10, 9/7/10)

XI-10-63.06 - Revocation, Suspension, Modification

Modifications.

a.

Initiation and review. The Planning Commission or City Council may initiate review of a permit (including, but not limited to Conditional Use Permit, Variances, or Site Development Permits) for the purpose of deciding whether modification is needed, only after written notice of a violation or public nuisance is mailed to the holder of the permit.

i.

After initiation, a public hearing before the Planning Commission shall be noticed and held in compliance with Section XI-10-64, Development Review Process, of this Chapter.

ii.

After completion of the public hearing, the Planning Commission may modify the Permit.

iii.

An aggrieved party may appeal this decision to the City Council in accordance with Section XI-10-64, Development Review Process, of this Chapter.

2.

Revocations or Suspensions

a.

Initiation and Review. The City Council may initiate review of a Permit (including, but not limited to Conditional Use Permit, Variance or Site Development Permit) or receive a recommendation from the Planning Commission for the purpose of deciding whether modification and/or suspension or revocation are needed.

i.

If the City Council does request review, a public hearing before the Planning Commission shall be noticed and held in compliance with Section XI-10-64, Development Review Process, of this Chapter.

ii.

After completion of the Planning Commission hearing, the Planning Commission shall recommend to the City Council, by resolution, whether the Permit shall be modified or revoked.

iii.

Following receipt of a recommendation on the Permit from the Planning Commission (when requested) or following City Council initiation, the City Council shall conduct a public hearing in compliance with Section XI-10-64, Development Review Process, of this Chapter.

iv.

After completion of the public hearing, the City Council may modify or revoke the Permit.

3.

Required Findings.

a.

General Findings for Modifications/Revocation. A Permit may be modified or revoked if any of the following conditions exist:

i.

Conditions of approval of the Permit are being violated or are not being satisfied; or

ii.

The Permit or approval is being exercised in a manner that constitutes a public nuisance; or

iii.

The application contained incorrect, false or misleading information; or

iv.

The permit or approval is being exercised in a manner which is contrary to the public health, safety and welfare.

(Ord. No. 38.788, § 10, 9/7/10)

XI-10-63.07 - Abatement Procedure

A.

Notification of Nuisance. Whenever the City Manager determines that any property within the City is being maintained contrary to one or more of the provisions of this Chapter, he or she will give written notice ("Notice to Abate") to the owner/occupant(s) of said property stating the section(s) being violated. Such notice shall set forth a reasonable time limit, in no event less than or equal to 30 calendar days, for correcting the violation(s) of Chapter XI-10, Zoning, for correcting the violation(s) and may also set forth suggested methods of correcting the same unless the City Manager determines that the condition constitutes a threat to the health and safety of any person, in which event, the City Manager may designate a shorter time limit for correcting the violation. Such notice shall be served upon the owner/occupant in accordance with provisions of Section XI-10-63.07(D), Notice of Hearing, of this Chapter, covering service in person or by mail.

B.

Exception for Undue Hardship. The notice shall also inform the owner/occupant (excluding an owner acting in a capacity of landlord of rental property) that, upon written request of the owner/occupant submitted within seven calendar days of the "Notice to Abate," the City Manager, in his or her sole discretion, may

allow for a time limit in excess of 30 days for correcting the violation in cases where strict enforcement of the time limit would result in an undue hardship on the owner/occupant. In the written request, the owner/occupant shall state the reasons why strict enforcement of the time limit would result in an undue hardship.

C.

Administrative Hearing to Abate Nuisance. In the event said owner/occupant shall fail, neglect or refuse to comply with the "Notice to Abate," the City Manager shall conduct an administrative hearing to ascertain whether said violation constitutes a public nuisance.

D.

Notice of Hearing. Notice of said administrative hearing shall be served upon the owner/occupant not less than seven calendar days before the time fixed for hearing. Notice of the hearing shall be served in person or by certified mail to the owner/occupant's last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. Notice shall be substantially in the format set forth below:

This is a notice of hearing before the City Manager (or his/her designees) to ascertain whether certain property situated in the City of Milpitas, State of California, known and designated as (public right-of-way address) _______, in said City, and more particularly described as (Assessor's Parcel Number) _____ constitutes a violation or public nuisance subject to abatement pursuant to Section XI-10-63.07, Abatement Procedure, of the Milpitas Municipal Code. If said property, in whole or part, is found to constitute a public nuisance as defined in the Milpitas Municipal Code and if the same is not properly abated by the owner/occupant, such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair, or abatement will be assessed upon such property and such costs, together with interest thereon, may constitute a special assessment or lien upon such property until paid. In addition, you may be cited for violation of the provisions of the Municipal Code and subject to an administrative fine.

Said alleged conditions consist of the following:

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The method(s) of abatement are:

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All persons having an interest in said matters may attend the hearing and their testimony and evidence will be heard to determine whether certain conditions constitute a public nuisance and whether such conditions shall be abated as a public nuisance.

Dated this _______ day of ____, 20.

---

City Manager

Time and Date of Hearing: _____

Location of Hearing: _____

E.

Administrative Hearing by City Manager or His/Her Designees. At the time stated in the notice, the City Manager shall hear and consider all relevant evidence, objections or protests, and shall receive testimony relative to such alleged public nuisance and to proposed rehabilitation, repair, removal or abatement of such property. Said hearing may be continued from time to time.

If the City Manager finds that such public nuisance does exist and that there is sufficient cause to rehabilitate, abate, remove or repair the same, the City Manager shall prepare findings and an order, which shall specify the nature of the nuisance, the method(s) of abatement and the time within which the work shall be commenced and completed. A copy of the findings and order shall be served on all owner/occupants of the subject property in accordance with the provisions of Section XI-10-63.07(D), Notice of Hearing, of this Chapter. In addition, a copy of the findings and order shall be forthwith conspicuously posted on the property. The order shall set forth the time within which such work shall be completed by the owner/occupant, in no event less than 15 calendar days.

In the event the owner/occupant fails to abate the nuisance as ordered, the City Manager shall cause the same to be abated by City employees or private contract. The costs shall be billed to the owner/occupant, as specified in Sections XI-10-63.08(A) through XI-10-63.08(E), Cost Recovery, of this Chapter. In appropriate circumstances, the City Manager shall request the City Attorney to obtain all necessary judicial approval for entry onto the subject premises for abatement purposes.

F.

Hearing Procedure Before City Manager and His/Her Designees. All hearings shall be tape recorded.

Hearings need not be conducted according to the technical rules of evidence.

Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this State. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.

Irrelevant and unduly repetitious evidence shall be excluded.

G.

Appeal of Decision by City Manager and His/Her Designees to the City Council. The decision of the City Manager and His/Her Designees may be appealed to the City Council in conformance with the provisions of Milpitas Municipal Code Section I-20-5.

H.

Limitation on Filing Judicial Action. Any judicial action appealing the City Council's decision and order shall be commenced within 30 calendar days of the date of service of the decision.

I.

Summary Abatement of Immediate Hazard or Obstruction. In the event of:

1.

A nuisance defined by statute, ordinance or resolution as a public nuisance which constitutes an immediate danger to persons or property;

2.

A nuisance defined by statute, ordinance or resolution as a public nuisance which is located or maintained on public property including, but not limited to, any public right-of-way, highway, sidewalk, easement, park or building; or

3.

Any obstruction or encroachment to free passage upon any public property (which is hereby declared to be a public nuisance) including, but not limited to, any public right-of-way, highway, easement, sidewalk, park or building, the City Manager may, forthwith and without notice, abate said nuisance and recover the cost of abatement as provided for in Section XI-10-63.08, Cost Recovery, of this Chapter. Summary abatement may include the temporary removal to a safe location of persons placed in immediate danger from a public nuisance. In such event, the City shall be entitled to recover all costs related to the removal, including but not limited to, storage of possessions and rental of living accommodations, as well as any other recoverable cost provided for in Section XI-10-63.08, Cost Recovery, of this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Editor's note— Ord. No. 290, § 3, adopted May 17, 2016, amended the Code by repealing former XI-1063.07, and renumbering former XI-10-63.09—XI-10-63.13 as new XI-10-63.07—XI-10-63.11. Former XI-1063.07 pertained to administrative citation procedures, and derived from Ord. No. 38.788, adopted September 7, 2010.

XI-10-63.08 - Cost Recovery

A.

Recovery of Costs. This Section establishes procedures for the recovery of administrative costs, as well as attorneys' fees and costs, incurred by the City in the enforcement process, for the abatement of conditions defined as a nuisance or violation by Section XI-21-1.01, Administrative Citation Procedure, of this Chapter.

B.

Definition of Costs. For the purposes of this Chapter, "costs" shall mean administrative costs, including staff time expended and reasonably related to nuisance abatement cases, for items including, but not limited to, investigation, site inspection and monitoring, testing, reports, telephone contacts, correspondence and meetings with affected parties, as well as all attorneys' fees incurred pursuant to any action, administrative proceeding, or special proceeding to abate the nuisance including, but not limited to, filing fees and fees for witnesses. Pursuant to Government Code Section 38773.5(a), where the City seeks to recover attorneys' fees at the initiation of any action or proceeding, a prevailing opposing party may recover its reasonable attorneys' fees to the extent that the amount of said fees does not exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding.

C.

Cost Accounting and Recovery Required. The City shall maintain records of all costs incurred by

responsible City departments associated with the enforcement process pursuant to this Chapter and shall recover the costs from the property owner/occupant as provided by this Section.

D.

Notice of Cost Recovery Requirements. The City Manager shall include in the "Notice to Abate" a statement of the intent of the City to charge the property owner/occupant for all costs incurred by the City if the violation is not corrected as required. The notice shall state that the property owner/occupant will receive at the conclusion of the enforcement case a summary of enforcement costs associated with the processing of the case.

E.

Collection of Charges. Such costs shall be recoverable as provided for in Sections XI-10-63.09(A) through XI-10-63.09(B), Record of Cost Abatement and Assessment and Lien, of this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.10. See editor's note, XI-10-63.07.

XI-10-63.09 - Lien Procedure

A.

Record of Cost of Abatement. The City Manager shall keep an account of the costs, as defined in Section XI-10-63.08(B), Definition of Costs, of this Chapter, for abating such nuisance on each separate lot or parcel of land where the work is done by the City and shall render an itemized report in writing showing the cost of abatement, including the rehabilitation or repair of said property, including any salvage value relating thereto. A copy of the same shall be posted for at least five calendar days upon such property, together with a notice of the right to appeal to the City Manager. A copy of said report and notice shall be served

upon the owner/occupants of said property, based on the last equalized assessment roll or the supplemental roll, whichever is more current. If the owner/occupant of record, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the county in which the property is located. Proof of said posting and service shall be made by affidavit filed with the City Clerk. The owner/occupant shall have 30 calendar days from the date upon which the notice is served to reimburse the City for its costs or to otherwise make arrangements for repayment as to which the City, in its sole discretion, may agree.

B.

Assessment and Lien. The total cost for abating such nuisance, as so confirmed by the City Manager, shall, upon failure to pay the costs as specified in Section XI-10-63.09(A), Record of Cost Abatement, of this Chapter, constitute a lien or special assessment pursuant to Government Code Sections 38773.1 (nuisance abatement lien), 38773.2 (graffiti nuisance abatement lien) or 38773.5 (special assessment), or 38773.6 (graffiti special assessment) against the respective lot or parcel of land to which it relates. After confirmation and recordation of a Notice of Special Assessment, a certified copy of the City Manager's decision shall be filed with the Santa Clara County Assessor's Office on or before August 1 of each year, whereupon it shall be the duty of said Assessor to add the amounts of the respective assessments to the next regular tax bills levied against said respective lots and parcels of land for municipal purposes and thereafter said amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided of ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessments. Upon recordation in the Office of the County Recorder, a Notice of Lien, as so made and confirmed, shall constitute a lien on said property and from the date of recording shall have the force, effect, and priority of a judgment lien.

In the alternative, after such recordation, such lien may be foreclosed by an action brought by the City for a money judgment or by any other means provided by law.

A Notice of Lien for recordation shall be in form substantially as follows:

(Claim of City of Milpitas)

Pursuant to the authority vested by the provisions of Section XI-10-63.03, Declaration of Public Nuisance, of the Milpitas Municipal Code, the City Manager of the City of Milpitas did on or about the _______ day of _, 20_, cause the property hereinafter described to be rehabilitated or the building or structure on the property hereinafter described, to be repaired or demolished in order to abate a public nuisance on said real property, pursuant to an order to abate issued by on; and the City Manager of the City of Milpitas did on the _______ day of _, 20, assess the cost of such rehabilitation, repair, demolition, or abatement upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Milpitas does hereby claim a lien on such rehabilitation, repair, or abatement in the amount of said assessment, to wit; the sum of $: and the same, shall be a lien upon said real property until the same has been paid in full and discharged of record.

The real property hereinabove mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Milpitas, County of Santa Clara, State of California, owned by and more particularly described as follows (legal description):

(description)

Dated this _______ day of ____, 20.

_______

In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the amount of the lien, the name of the agency on whose behalf the lien was imposed, the date of the abatement order, the public right-of-way address, legal description, and the name and address of the recorded owner/occupant of the property shall be recorded by the governmental agency. A nuisance abatement and the release of the lien shall be indexed in the grantor-grantee index.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.11. See editor's note, XI-10-63.07.

XI-10-63.10 - Interest on Liens

A.

Amount of Interest on City Liens and Assessments—Findings. The City Council finds and declares that the establishment of an interest accrual requirement as to unpaid City liens and assessments upon real property which are of record with the County Recorder for Santa Clara County is a necessary and appropriate exercise of the City Council's police power.

B.

Accrual of Interest on Liens and Assessments. Unless otherwise prohibited by law or regulation, all liens and assessments which are imposed by the City against any real property located in the City of Milpitas that are recorded on and after the effective date of this regulation shall accrue interest at the rate of eight percent annually until the lien or assessment, including interest thereon, is paid in full.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.12. See editor's note, XI-10-63.07.

XI-10-63.11 - Miscellaneous

A.

Alternative Actions Available; Violation an Infraction. Nothing in this Chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate a public nuisance pursuant to applicable law or from pursuing any other remedy available under applicable law. Violation of the provisions of this Chapter constitutes an infraction, as set forth in Section I-1-4.09 of the Municipal Code. The City Manager is designated as the enforcement authority.

B.

Additional Costs of Abatement. The City Council provides that a court may order the owner/occupant of property responsible for a condition that may be abated in accordance with this Chapter to pay three times the costs of abatement pursuant to Government Code 38773.7 upon the entry of a second civil court judgment for violation of this Chapter within a two-year period.

C.

Residential Rental Housing. The notice sent to the owner/occupant of residential rental housing pursuant to Section XI-10-63.07(A), Notification of Nuisance, of this Chapter, shall contain the statement required by Health and Safety Code Section 17980 regarding the application of Revenue and Taxation Code Sections 17274 and 24436.5, which allow the Franchise Tax Board to deny state income tax deductions to taxpayers who fail to bring substandard residential rental property into compliance with this Chapter.

(Ord. No. 290, § 3, 5/17/16; Ord. No. 38.788, § 10, 9/7/10)

Note— Former XI-10-63.13. See editor's note, XI-10-63.07.

• Prior ordinance history: Ords. 38, 38.92, 38.205, 38.542, 38.579, 38.600, 38.706 and 38.763.

XI-10-64.01 - Purpose and Intent.

This Chapter is intended to describe the general procedures for filing applications when required or permitted by this title.

(Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10; Ord. 38.776 (31) (part), 3/18/08)

XI-10-64.02 - Authority for Land Use and Zoning Decisions.

Table XI-10-64.02-1 (Decision-Making Body and Role) identifies the city official or body responsible for reviewing and making decisions on each type of application, land use permit, and other entitlements required by this Zoning Ordinance.

Decision-Making Body and Role[1]

1[ "Recommend" means that the decision-making body makes a recommendation to a higher decision-making body; "issuance" means that] the permit is a ministerial action that is issued by the decision-making body; "decision" means that the decision-making body makes the final decision on the matter; "appeal" means that the decision-making body may consider and decide upon appeals to the decision of an earlier decision-making body. Any decision by the Zoning Administrator may be appealed to the Planning Commission and any decision by the Planning Commission may be appealed to the City Council as specified in Section XI-10-64.05, Appeals and Title I, Chapter 20, of the City's Municipal Code.

2 Includes Home Occupation Permits (Section XI-10-13.05), Minor Site Development Permits (Section XI-10-57.03) reviews requiring building permits and other reviews by Planning Division staff not requiring a building permit or review by other decision-making bodies. Any appeal shall first be to the Planning Commission. The Planning Commission's decision, in turn, may be appealed to the City Council, whose decision shall be final.

3 Refer to Section XI-10-45.09 regarding the process for projects within the "H" Hillside Overlay District.

(Ord. No. 38.834, § 17, 8/20/19; Ord. No. 38.823, § 3, 11/17/15; Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.788, § 11, 9/7/10; Ord. No. 38.795, § 42, 4/6/10; Ord. No. 38.790, § 2, 6/2/09; Ord. 38.780 (29), 8/19/08; Ord. 38.776 (31) (part), 3/18/08)

XI-10-64.03 - Consideration of Concurrent Applications

A project that includes more than one application may be combined and processed concurrently, as long as all applicable processing requirements are satisfied. The purpose of allowing concurrent review is to consolidate final action on the project with the highest review authority responsible for making a decision on the applications for a project. The following shall apply to concurrently processed applications:

A.

Public Hearing and Nonpublic Hearing Applications. When an application requiring a public hearing is combined with an application that does not require a public hearing, the combined applications shall require a public hearing.

B.

City Council and/or Planning Commission as Highest Review Authority. When City Council and/or Planning Commission review is required for at least one (1) of the applications for a project, the final decision on all applications shall be made by the highest review authority.

When the City Council is the highest review authority for a project, all review by other bodies with approval authority over the applications shall be in the form of a recommendation to the City Council.

When the Planning Commission is the highest review authority for a project, all review by other bodies with approval authority over the applications shall be in the form of a recommendation to the Planning Commission.

C.

Omitting Zoning Administrator Review. In order to eliminate redundant review and an unnecessary lengthening of the discretionary review process, it is appropriate to eliminate Zoning Administrator review of some applications. When combined applications are being processed for a project, and both Planning Commission and Zoning Administrator review are required, Zoning Administrator review shall be omitted and Planning Commission review substituted.

(Ord. No. 38.834, § 18, 8/20/19; Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10; Ord. No. 38.790, § 2, 6/2/09; Ord. 38.776 (31) (part), 3/18/08)

A.

Time. Time of Giving Notice. Whenever notice of hearing is required by this Chapter, it shall be given at least ten (10) calendar days before the hearing.

B.

Manner. Manner of giving notice. Whenever notice of hearing is required by this Chapter for any of the following matters, unless otherwise provided by law:

Table XI-10-64.04-1

Public Hearing Requirements

1 Amendments to Conditional Use Permits, Development Agreements, Site Development Permits and Variances shall have the same requirements, unless otherwise noted.

2 A community meeting shall be held prior to the public hearing.

3 Follow the requirements of the California Environmental Quality Act.

4 Only for Minor Conditional Use Permits issued by the Zoning Administrator.

1.

For projects requiring a public hearing and/or a community meeting identified within Table XI-10-64.04-1, or for revocation, suspension or modification of the same, or an appeal from the action taken thereon, notice shall be given as per State of California Government Code Section 65091 and by the following:

a.

Publishing the notice in a newspaper of general circulation within the City. In addition, for General Plan amendments, Zoning amendments, Conditional Use Permits and Variances, a second notice being a quarter (¼) page advertisement shall be published in a newspaper of general circulation.

b.

Posting one (1) sign notice per 1,000 lineal feet of property street frontage in a conspicuous place on the affected property visible from the street frontage. If the affected property has no street frontage, no less than one (1) sign notice shall be required to be posted.

c.

Mailing the notice. It shall be the responsibility of the applicant to furnish the labor and materials regarding copies, postage, envelopes and labels for mailing of the notice.

i.

Mailing the notice, in accordance with Section I-20-2.02 of the Milpitas Municipal Code to all property owners and residential renters as specified in Table 10-64.04-1. The Planning Division staff shall have the discretion to require a 1,000 feet notification requirement for public hearings, if the project is deemed to be potentially controversial.

ii.

Mailing the notice, in accordance with Section I-20-2.02 of the Milpitas Municipal Code, to the owner of the subject real estate property and the applicant, respondent or appellant.

iii.

Mailing the notice, in accordance with Section I-20-2.02 of the Milpitas Municipal Code to the Milpitas Unified School District and, in addition, to any other local agency expected to provide essential facilities and services to the project and whose ability to provide said facilities and services may be significantly affected.

(Ord. No. 38.834, § 19, 8/20/19; Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10; Ord. No. 38.790, § 2, 6/2/09; Ord. 38.776 (31) (part), 3/18/08)

XI-10-64.05 - Effective Date of Approval

Unless there is an appeal the date of approval is the date on which the decision-making body votes on the motion of approval. When there is an appeal, the date of approval is the date of the administrative vote on the motion finally determining the appeal.

(Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10; Ord. No. 38.790, § 2, 6/2/09; Ord. 38.780 (30), 8/19/08; Ord. 38.776 (31) (part), 3/18/08)

XI-10-64.06 - Expiration of Permit or Approvals

A.

Expiration of an Approved Application. An application approved in accordance with this Chapter shall be deemed to have expired, when either of the following occurs:

1.

When the activity permitted by the approved application is not commenced, as defined in Subsection B of this Section, Commencement of a Permitted Activity, within two (2) years, or for projects submitted with tentative maps, within the time limits of the tentative map. The time period during which a project must be commenced starts on the effective date of a decision approving a project, as defined in Section XI-1064.05, Effective Date of Approval, of this Chapter.

When the activity permitted by the approved application has lapsed, as defined in Subsection C of this Section, Lapse of a Permitted Activity.

B.

Commencement of a Permitted Activity. An activity permitted by an approved application shall be deemed to have commenced when the project:

1.

Completes a foundation associated with the project, or

2.

Dedicates any land or easement as required from the zoning action, or

3.

Complies with all legal requirements necessary to commence the use, or obtains an occupancy permit, whichever is sooner.

C.

Lapse of a Permitted Activity. An activity permitted by an approved application shall be deemed to have lapsed at the following times:

1.

In accordance with Section XI-10-56.03(A)(3), Continuation, expansion and change of use, of this Chapter, regarding nonconforming uses.

2.

When that activity ceases operation and/or the business closes at such location for a period of at least one (1) year.

D.

Renewal of an Expired Application. Any approved application which has been allowed to expire shall be subject to the filing of a new application pursuant to Section XI-10-57, Applications, of this Chapter.

(Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10; Ord. No. 38.790, § 2, 6/2/09; Ord. 38.780 (31), 8/19/08: Ord. 38.776 (31) (part), 3/18/08)

XI-10-64.07 - Extension of Time

A.

Authority. An extension of time may be issued for approved applications by the Planning Commission.

B.

Submittal of Extension Requests.

1.

Time Limits on Submitting Extension Requests. Unless otherwise provided by State law, extension requests for approved applications described in Section XI-10-57, Applications, of this Chapter shall only be considered if the written request for the extension is filed with the Planning Division prior to the approved application's expiration date.

2.

Method of Request. Requests for extensions shall be made in writing and shall state the reasons why an extension is needed.

C.

Processing Extension Requests. Extension requests for approved applications described in Section XI-1057, Applications, of this Chapter shall be processed in the same manner as a new application, except that the extension request shall only be reviewed by the Planning Commission or Zoning Administrator for Minor Conditional Use Permits, as the decision-making authority. A request for an extension of time may be approved, conditionally approved or denied. If approved, conditions may be added to the approved application.

D.

Circumstances Under Which Extensions May Be Granted. An extension of the approval of a project may be granted if the current findings for the specific type of permit be made by the decision-making authority.

E.

Length of extension. The Planning Commission or Zoning Administrator shall only grant a single time extension within the time period specified in the approval or for eighteen (18) months if no time is specified.

(Ord. No. 38.834, § 20, 8/20/19; Ord. No. 38.803, § 10, 4/17/12; Ord. No. 38.795, § 42, 4/6/10)

Section 65 - Procedural Rules for the Conduct of Hearings

All hearings before the Planning Commission and City Council relating to zoning matters shall follow the procedures set forth in Section 3 entitled "Hearings" of Chapter 20, Title I (Standards Procedures) of the Milpitas Municipal Code. Said zoning hearings may be held in accordance with the standards established in Section I-20-3.01 entitled "Application of Chapters: Limitations." Nothing herein contained is intended to establish for zoning hearings any standard whatever greater than that required by Section 65801 of the Government Code of the State of California or by said Section 3.01 of Chapter 20, Title I of the Milpitas Municipal Code.

(Ord. 38.229, 7/5/72; Ord. 38 (part), 3/15/55)

Chapter 11 - PLANNING COMMISSION

(Repealed by Ordinance 41.8, 9/16/97)

Chapter 13 - JUNK CARS* Section 1 - Intent

In addition to and in accordance with the determination made and the authority granted by the State of California under Section 22660 of the Vehicle Code to remove abandoned, wrecked, dismantled or inoperative vehicles or parts thereof as public nuisances the City Council of the City of Milpitas hereby makes the following findings and declarations:

The accumulation and storage of abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof on private or public property not including highways is hereby found to create a condition tending to reduce the value of private property, to promote blight and deterioration, to invite plundering, to create fire hazards, to constitute an attractive nuisance creating a hazard to the health and safety of minors, to create a harborage for rodents and insects and to be injurious to the health, safety and general welfare. Therefore, the presence of an abandoned, wrecked, dismantled or inoperative vehicle or parts thereof, on private or public property not including highways, except as expressly hereinafter permitted, is hereby declared to constitute a public nuisance which may be abated as such in accordance with the provisions of this Chapter.

(Ord. 114.2 (part), 6/15/71)

Section 2 - Definitions

As used in this Chapter:

The term "vehicle" means a device by which any person or property may be propelled, moved, or drawn upon a highway, except a device moved by human power or used exclusively upon stationary rails or tracks.

(Ord. 114.2 (part), 6/15/71)

XI-13-2.02

The term "highway" means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.

(Ord. 114.2 (part), 6/15/71)

XI-13-2.03

The term "public property" does not include "highway."

(Ord. 114.2 (part), 6/15/71)

XI-13-2.04

The term "owner of the land" means the owner of the land on which the vehicle, or parts thereof, is located, as shown on the last equalized assessment roll.

(Ord. 114.2 (part), 6/15/71)

The term "owner of the vehicle" means the last registered owner and legal owner of record.

(Ord. 114.2 (part), 6/15/71)

Section 3 - Exclusions

This Chapter shall not apply to:

XI-13-3.01

A vehicle, or parts thereof, which is completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property; or

XI-13-3.02

A vehicle or parts thereof, which is stored or parked in a lawful manner on private property in connection with the business of a licensed dismantler, licensed vehicle dealer, a junk dealer, or when such storage or parking is necessary to the operation of a lawfully conducted business or commercial enterprise.

Nothing in this section shall authorize the maintenance of a public or private nuisance as defined under provisions of law other than Chapter 10 (commencing with Section 22650) of Division II of the Vehicle Code and this Chapter.

(Ord. 114.2 (part), 6/15/71)

Section 4 - Procedure

This Chapter is not the exclusive regulation of abandoned, wrecked, dismantled or inoperative vehicles within the City of Milpitas. It shall supplement and be in addition to the other regulatory codes, statutes and ordinances heretofore or hereafter enacted by the City of Milpitas, the State or any other legal entity or agency having jurisdiction.

(Ord. 114.2 (part), 6/15/71)

Section 5 - Enforcement

Except as otherwise provided herein, the provisions of this Chapter shall be administered and enforced by the Chief of Police. In the enforcement of this Chapter, such officer and his deputies may enter upon private

or public property to examine a vehicle, or parts thereof, or obtain information as to the identity of a vehicle declared to be a nuisance pursuant to this Chapter.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.02

When the City Council has contracted with or granted a franchise to any person or persons, such person or persons shall be authorized to enter upon private property or public property to remove or cause the removal of a vehicle, or parts thereof, declared to be a nuisance pursuant to this Chapter.

(Ord. 114.2 (part), 6/15/71)

The City Council shall from time to time determine and fix an amount to be assessed as administrative costs (excluding the actual cost of removal of any vehicle or parts thereof) under this Chapter.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.04

Upon discovering the existence of an abandoned, wrecked, dismantled, or inoperative vehicle, or parts thereof, on private property or public property within City, the Chief of Police shall have the authority to cause the abatement and removal thereof in accordance with the procedure described herein.

(Ord. 114.2 (part), 6/15/71)

A 10-day notice of intention to abate and remove the vehicle, or parts thereof, as a public nuisance shall be mailed by certified mail to the owner of the land and to the owner of the vehicle, unless the vehicle is in such condition that identification numbers are not available to determine ownership. The notices of intention shall be in substantially the following forms:

NOTICE OF INTENTION TO ABATE AND REMOVE AN ABANDONED, WRECKED, DISMANTLED, OR INOPERATIVE VEHICLE OR PARTS THEREOF AS A PUBLIC NUISANCE

(Name and address of owner of the land)

As owner shown on the last equalized assessment roll of the land located at (address), you are hereby notified that the undersigned, pursuant to Chapter 13, Title XI of the Milpitas Municipal Code, has determined that there exists upon said land an (or parts of an) abandoned, wrecked, dismantled or inoperative vehicle registered to _______, License Number _______, which constitutes a public nuisance pursuant to the provisions of Chapter 13, Title XI of the Milpitas Municipal Code.

You are hereby notified to abate said nuisance by the removal of said vehicle (or said parts of a vehicle) within 10 days from the date of mailing of this notice, and upon your failure to do so the same will be abated and removed by the City and the costs thereof, together with administrative costs, assessed to you as owner of the land on which said vehicle (or said parts of a vehicle) is located.

As owner of the land on which said vehicle (or said parts of a vehicle) is located, you are hereby notified that you may, within 10 days after the mailing of this notice of intention, request a public hearing and if such a request is not received by the City Council within such 10-day period, the Chief of Police shall have the authority to abate and remove said vehicle (or said parts of a vehicle) as a public nuisance and assess the costs as aforesaid without a public hearing. You may submit a sworn written statement within such 10-day period denying responsibility for the presence of said vehicle (or said parts of a vehicle) on said land, with your reasons for denial, and such statement shall be construed as a request for hearing at which your presence is not required. You may appear in person at any hearing requested by you or the owner of the vehicle or, in lieu thereof, may present a sworn written statement as aforesaid in time for consideration at such hearing.

Notice Mailed _____ (date)

/s _____ .

Chief of Police

(Name and address of last registered and/or legal owner of record of vehicle - notice should be given to both if different)

As last registered (and/or legal) owner of record of (description of vehicle, make, model, license, etc.), you are hereby notified that the undersigned, pursuant to Chapter 13, Title XI of the Milpitas Municipal Code, has determined that said vehicle (or parts of a vehicle) exists as an abandoned, wrecked, dismantled or inoperative vehicle at (describe location on public or private property) and constitutes a public nuisance pursuant to the provisions of Chapter 13, Title XI of the Milpitas Municipal Code.

You are hereby notified to abate said nuisance by the removal of said vehicle (or said parts of a vehicle) within 10 days from the date of mailing of this notice.

As registered (and/or legal) owner of record of said vehicle (or said parts of a vehicle), you are hereby notified that you may, within 10 days after the mailing of this notice of intention, request a public hearing and if such a request is not received by the City Council within such 10-day period, the Chief of Police shall have the authority to abate and remove said vehicle (or said parts of a vehicle) without a hearing.

Notice Mailed _____ (date)

/s/ _____ . Chief of Police (Ord. 114.2 (part), 6/15/71)

XI-13-5.06

Upon request by the owner of the vehicle or owner of the land received by the Chief of Police within 10 days after the mailing of the notices of intention to abate and remove, a public hearing shall be held by the City Council on the question of abatement and removal of the vehicle, or parts thereof, as an abandoned, wrecked, dismantled or inoperative vehicle, and the assessment of the administrative costs and the cost of removal of the vehicle, or parts thereof, against the property on which it is located.

If the owner of the land submits a sworn written statement denying responsibility for the presence of the vehicle on his land within such 10-day period, said statement shall be construed as a request for a hearing which does not require his presence. Notice of the hearing shall be mailed, by certified mail, at least 10 days before the hearing to the owner of the land and to the owner of the vehicle, unless the vehicle is in such condition that identification numbers are not available to determine ownership. If such a request for hearing is not received within said 10 days after mailing of the notice of intention to abate and remove, the City shall have the authority to abate and remove the vehicle, or parts thereof, as a public nuisance without holding a public hearing.

(Ord. 114.2 (part), 6/15/71)

All hearings under this Chapter shall be held before the City Council which shall hear all facts and testimony it deems pertinent. Said facts and testimony may include testimony on the condition of the vehicle, or parts thereof, and the circumstances concerning its location on the said private property or public property. The City Council shall not be limited by the technical rules of evidence. The owner of the land may appear in person at the hearing or present a sworn written statement in time for consideration at the hearing and deny responsibility for the presence of the vehicle on the land, with his reasons for such denial.

(Ord. 114.2 (part), 6/15/71)

The City Council may impose such conditions and take such other action as it deems appropriate under the circumstances to carry out the purpose of this Chapter. It may delay the time for removal of the vehicle, or parts thereof, if, in its opinion, the circumstances justify it. At the conclusion of the public hearing, the City Council may find that a vehicle, or parts thereof, has been abandoned, wrecked, dismantled, or is inoperative on private or public property and order the same removed from the property as a public nuisance and disposed of as hereinafter provided and determine the administrative costs and the cost of removal to be charged against the owner of the land. The order requiring removal shall include a description of the vehicle, or parts thereof, and the correct identification number and license number of the vehicle, if available at the site.

(Ord. 114.2 (part), 6/15/71)

If it is determined at the hearing that the vehicle was placed on the land without the consent of the owner of the land and that he has not subsequently acquiesced in its presence, the City Council shall not assess the costs of administration or removal of the vehicle against the property upon which the vehicle is located or otherwise attempt to collect such costs from such owner of the land.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.10

If the owner of the land submits a sworn written statement denying responsibility for the presence of the vehicle on his land but does not appear, or if an interested party makes a written presentation to the City Council, but does not appear, he shall be notified in writing of the decision.

(Ord. 114.2 (part), 6/15/71)

Five days after adoption of the order declaring the vehicle, or parts thereof, to be a public nuisance, five days from the date of mailing of notice of the decision if such notice is required by Section 5.10, the vehicle, or parts thereof, may be disposed of by removal to a scrapyard or automobile dismantler's yard. After a vehicle has been removed it shall not thereafter be reconstructed or made operable.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.12

Within five days after the date of removal of the vehicle, or parts thereof, notice shall be given to the Department of Motor Vehicles identifying the vehicle, or parts thereof, removed. At the same time, there shall be transmitted to the Department of Motor Vehicles any evidence of registration available, including registration certificates, certificates of title and license plates.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.13

If the administrative costs and the cost of removal which are charged against the owner of a parcel of land pursuant to Section 5.05 are not paid within 30 days of the date of the order, such costs shall be assessed against the parcel of land pursuant to Section 38773.5 of the Government Code and shall be transmitted to the tax collector for collection. Said assessment shall have the same priority as other City taxes.

(Ord. 114.2 (part), 6/15/71)

XI-13-5.14

If a request for hearing is not received within 10 days after mailing of a notice of intention to abate and remove referred to in Sections 5.05 and 5.06, the Chief of Police will have the authority to abate and remove the vehicle, or parts thereof, as a public nuisance without the necessity of a public hearing. Within 10 days after the date of removal of the vehicle, or parts thereof, he shall cause a demand for said costs of removal together with any administrative costs established by the City Council in accordance with Section 5.03 to be mailed by certified mail to the owner of the land referred to in Section 5.05. Said demand shall state that if the administrative costs and the costs of removal are not paid within 30 days of the date of the demand, such costs will be assessed against the parcel of land pursuant to Section 38773.5 of the Government Code and shall be transmitted to the Tax Collector for collection. Said demand shall further state that the owner of said land may appeal the assessment of costs to the City Council by filing written

notice of appeal with the City Manager within 10 days of the date of the demand in accordance with the procedure set forth in Section 5, Chapter 20, Title I of the Milpitas Municipal Code. In the event said assessment is appealed to the City Council, the Council shall proceed in accordance with the procedure set forth in Sections 5.07, 5.09, 5.10 and 5.13 of this Chapter. If no appeal is filed or if said costs are not paid within 30 days of the date of demand of the Chief of Police, such costs shall be assessed against the parcel of land pursuant to Section 38773.5 of the Government Code and shall be transmitted to the Tax Collector for collection. Said assessment shall have the same priority as other city taxes.

(Ord. 114.3, 12/5/72)

XI-13-6.01

It shall be unlawful for any person to abandon, park, store or leave or permit the abandonment, parking, storing or leaving of any licensed or unlicensed vehicle, or parts thereof, which is in an abandoned, wrecked, dismantled or inoperative condition upon any private property or public property not including highways within the City for a period in excess of 120 hours unless such vehicle, or parts thereof, is excluded from the operation of this Chapter by the provisions of Section 3.00 of this Chapter.

(Ord. 114.2 (part), 6/15/71)

It shall be unlawful for any person to fail or refuse to remove an abandoned, wrecked, dismantled or inoperative vehicle, or parts thereof, or refuse to abate such nuisance when ordered to do so in accordance with the abatement provisions of this Chapter or State law where such State law is applicable.

(Ord. 114.2 (part), 6/15/71)