Chapter 4 — CULTURAL RESOURCES PRESERVATION PROGRAM

Milpitas is a community with a rich historical and cultural heritage. The price of rapid growth has been the untimely alteration, demolition or removal of buildings that are a part of that history and heritage. Historic buildings and historic sites might be preserved and incorporated into the development of land if the owner and the community are aware of their value. Historic buildings and sites about to be altered, demolished, removed or eradicated may be saved (by purchase, lease, rehabilitation or otherwise) through the efforts of interested owners or community groups if there were a reasonable opportunity to do so.

This Chapter seeks to balance the needs of the community for preservation and the needs of the community for development by:

a. The creation of a Parks, Recreation and Cultural Resources Commission;

b. A hearing procedure allowing the inventory of and classification of community cultural resources;

c. A permit procedure to allow guidance to owners in the preservation of valuable cultural assets; and

d. To provide provision for a reasonable time during which cultural assets (that might otherwise be lost) can be acquired for preservation by interested individuals or organizations; and

e. Utilizing statutes and ordinances heretofore or hereafter enacted providing for the preservation of cultural assets;

f. The recognition of the right of a landowner to develop property on which cultural assets are located if there are no practical preservation alternatives available.

(Ord. 226.2 (part), 8/4/92; Ord. 226, 4/16/85)

The purpose of this Chapter is to promote the public health, safety, and general welfare by providing for the identification, protection, enhancement, perpetuation, and use of improvements, buildings, structures, signs, objects, features, sites, places, and areas within the City and its unincorporated sphere of influence that reflect special elements of the City's architectural, artistic, cultural, engineering, esthetic, historical, political, social, and other heritage for the following reasons:

a. To safeguard the City's heritage as embodied and reflected in such resources;

b. To encourage public knowledge, understanding, and appreciation of the City's past;

c. To foster civic and neighborhood pride and a sense of identity based on the recognition and use of cultural resources;

d. To promote the enjoyment and use of cultural resources appropriate for the education and recreation of the people of the City;

e. To preserve diverse and harmonious architectural styles and design preferences reflecting phases of the City's history and to encourage complementary design and construction;

f. To protect historic trees and plants;

g. To enhance property values and to increase economic and financial benefits to the City and its inhabitants;

h. To protect and enhance the City's attraction to tourists and visitors (thereby stimulating business and industry);

i. To identify as early as possible and resolve conflicts between the preservation of cultural resources and alternative land uses;

j. To integrate the preservation of cultural resources and the extraction of relevant data from such resources into public and private land management and development processes;

k. To conserve valuable material and energy resources by ongoing use and maintenance of the existing built environment.

(Ord. 226.1 (A)(1), 11/7/89: Ord. 226 (part), 4/16/85)

This Chapter shall apply to all cultural resources within the City of Milpitas.

(Ord. 226 (part), 4/16/85)

4.01 "Alteration" means any exterior change or modification, through public or private action, of any cultural resource or of any property located within an historic district including, but not limited to, exterior changes to or modification of structure, architectural details or visual characteristics such as paint color and surface texture, grading, surface paving, new structures, cutting or removal of trees and other natural features, disturbance of archeological sites or areas, and the placement or removal of any exterior objects such as signs, plaques, light fixtures, street furniture, walls, fences, steps, plantings and landscape accessories affecting the exterior visual qualities of the property.

4.02 "Commission" means Parks, Recreation and Cultural Resources Commission.

4.03 "Cultural resource" means improvements, buildings, structures, signs, features, sites, places, areas or other objects of scientific, aesthetic, educational, cultural, architectural, or historical significance to the citizens of the City.

4.04 "Exterior architectural feature" means the architectural elements embodying style, design, general arrangement and components of all of the outer surfaces of an improvement, including but not limited to the kind, color, and texture of the building materials and the type and style of all windows; doors, lights, signs and other fixtures appurtenant to such improvement.

4.05 "Historic district" means any area containing improvements which have a special character, historical interest or aesthetic value or which represent one or more architectural periods or styles typical of the history of the City, and which improvements constitute a distinct section of the City that has been designated an historic district pursuant to this Chapter.

4.06 "Improvement" means any building, structure, place, parking facility, fence, gate, wall, work of art of other object constituting a physical betterment of real property, or any part of such betterment.

4.07 "Structure" (landmark, cultural resource, historic structure) means any improvement that has special historical, cultural, aesthetic or architectural character, interest or value as part of the development, heritage or history of the City, the State of California, or the nation and that has been designated pursuant to this Chapter.

4.08 "Site" (historic site, cultural resource site, landmark site), means a parcel or part thereof on which a cultural resource is situated and any abutting parcel or part thereof constituting part of the premises on which the cultural resource is situated, and which has been designated a designated site pursuant to this Chapter. Site includes historic trees and plants.

4.09 "Object" means a material thing of functional, aesthetic, cultural, symbolic or scientific value, usually by design or nature movable.

4.10 "Preservation" means the identification, study, protection, restoration, rehabilitation or enhancement of cultural resources.

(Ord. 226.2 (part), 8/4/92; Ord. 226 (part), 4/16/85)

5.01 There is hereby established in the City a Parks, Recreation and Cultural Resources Commission (hereinafter referred to as the Commission) consisting of nine (9) unpaid members appointed by the Mayor and approved by the City Council.

5.02 The members of the Commission should include members of preservation related organizations such as historical societies, museums, heritage groups and civic clubs, as well as members of professional bodies such as licensed architects, attorneys, and urban planners. All members must have a demonstrated interest in and knowledge of the cultural heritage of the City.

5.03 The appointment of the members of the Commission shall be for a three (3) year term.

5.04 In the event of a vacancy occurring during the term of a member of the Commission, the Mayor shall make an interim appointment to fill the unexpired term of such member subject to the approval of the City Council.

(Ord. 226.2 (part), 8/4/92: Ord. 226 (part), 4/16/85)

The Board shall have the following powers and duties:

6.01 Propose to the City Council criteria for and conduct or cause to be conducted a comprehensive survey of properties within the boundaries of the City. Publicize and periodically update survey results.

6.02 Propose specific guidelines for the designation of cultural resources including landmarks, landmark sites, and historic districts.

6.03 Maintain a local register of cultural resources including historic districts, landmark sites, and landmarks within the City.

6.04 Propose standards to be used by the City of Milpitas in reviewing applications for permits to construct, change, alter, modify, remodel, remove, or significantly affect any cultural resource.

6.05 Recommend to the City Council the purchase of fee or less-than-fee interests in property for purposes of cultural resource preservation.

6.06 Investigate and report to the City Council on the use of various federal, State, local, or private funding sources and mechanisms available to promote cultural resource preservation in the City.

6.07 Cooperate with Local, County, State and Federal Governments in the pursuit of the objectives of historic preservation.

6.08 Keep minutes and records of all meetings and proceedings including voting records, attendance, resolutions, findings, determinations and decisions. All such material shall be public record.

6.09 Render advice and guidance, upon the request of the property owner or occupant, on the restoration, alteration, decoration, landscaping or maintenance of any cultural resource including landmark, landmark site, historic district, or neighboring property within public view.

6.10 Participate in, promote, and conduct public information, educational, and interpretive programs pertaining to cultural resources.

6.11 Recommend to the City Council the official recognition of sites, buildings, landscape features, etc., located in the City's unincorporated sphere of influence as cultural resources and notify the appropriate County agencies and commissions of such recognition.

6.12 Perform any other functions that may be designated by resolution or motion of the City Council.

(Ord. 226.1 (A)(2), 10/18/89: Ord. 226 (part), 4/16/85)

For the purposes of this Chapter, an improvement may be designated a cultural resource by the City Council, and any area within the City may be designated an historic district by the City Council pursuant to Section XI-4-8.00 if it meets the following criteria:

A. It exemplifies or reflects special elements of the City's cultural, social, economic, political, aesthetic, engineering, or architectural history; or

B. It is identified with persons or events significant in local, State, or national history; or

C. It embodies distinctive characteristics of a style, type, period, or method of construction, or is a valuable example of the use of indigenous materials or craftsmanship; or

D. It is representative of the notable work of a builder, designer, or architect.

(Ord. 226 (part), 4/16/85)

Cultural resources and historic districts shall be established by the City Council in the following manner:

8.01 Any person may request the designation of an improvement as a cultural resource or the designation of an historic district by submitting an application for such designation to the Commission. The Planning Commission or City Council may also initiate such proceedings on their own motion by request to the Commission.

8.02 The Commission shall conduct a study of the proposed designation as it may require as to its appropriateness for consideration. The Commission shall schedule a public hearing within sixty (60) days of the submission of the application.

8.03 No building, alteration, demolition or removal permits for any improvement, building or structure within the proposed historic district or relative to a proposed cultural resource shall be issued pending the determination by the City Council under this Section.

8.04 In the case of a proposed cultural resource and cultural resource site, notice of the date, place, time and purpose of the hearing shall be given by first class mail to the applicants, owners, and occupants of the improvement at least ten (10) days prior to the date of the public hearing (using the name and address of such owners as shown on the latest equalized assessment rolls) and shall be advertised once in a newspaper of general circulation in the City at least ten (10) days prior to the date of the public hearing.

8.05 In the case of a proposed historic district, notice of the date, place, time and purpose of the hearing shall be given by first class mail to the applicant, owner and occupant of all properties within the proposed district at least ten (10) days prior to the date of the public hearing (using the name and address of such owners as shown on the latest equalized assessment rolls) and shall be advertised once at least ten (10) days prior to the date in a newspaper of general circulation in the City.

8.06 At the conclusion of the public hearing, but in no event more than thirty (30) days from the date set for the initial public hearing for the designation of a proposed cultural resource or historic district, the Commission shall recommend approval (in whole or in part) or disapproval (in whole or in part) of the application in writing.

8.07 Upon receipt of the recommendations of the Commission, the Planning Commission shall review them for the sole purpose of determining whether they are in conformance with the general plan and with any applicable specific plan (including zoning). The Planning Commission shall report thereon to the City Council within thirty (30) days of the receipt of the recommendations of the Commission. The Planning Commission may, but shall not be required to, make any additional recommendations relating to the application that it desires and that it believes are relevant to the consideration of the application by the City Council.

8.08 The City Council, within thirty (30) days of receipt of the recommendations from the Commission, shall approve the application (in whole or in part), or shall disapprove it (in whole or in part). Its decision shall be final.

8.09 Failure to send any notice by mail to any property owner where the address of such owner is not on the last equalized assessment roll shall not invalidate any proceedings in connection with the proposed designation.

8.10 The Council may establish a fee for the filing of applications under this Section. No fee shall be paid for applications filed by the Commission or Council.

8.11 The provisions of this Section are not subject to appeal except the application of the provisions of Subsection 8.03 in a given case.

8.12 When a recognized cultural resource is annexed to the City, it must be designated as a cultural resource in accordance with this Section before it is subject to the permit procedures of this Chapter.

(Ord. 226.2 (part), 8/4/92; Ord. 226.1 (A)(3), 10/18/89: Ord. 226 (part), 4/16/85)

It is unlawful for any person to tear down, demolish, construct, alter, remove, or relocate any improvement, or any portion thereof, which has been designated a cultural resource or cultural resource site pursuant to the provisions of this Chapter, or which lies within an historic district so designated pursuant to the provisions of this Chapter, or to alter in any manner any exterior architectural feature of such a cultural resource, cultural resource site or improvement within such an historic district, or to place, erect, alter or relocate any sign within such an historic district or on such a cultural resource or cultural resource site, without first obtaining a permit to do so in the manner provided in this Chapter, nor shall the Building Department or Planning Commission grant any permit to carry out such work on a cultural resource or cultural resource site or within an historic district, except in conformity to the provisions of this Chapter.

(Ord. 226 (part), 4/16/85)

10.01 The Chief Building Inspector shall report to the Commission any application for a permit to work on a cultural resource, cultural resource site or within an historic district which has been designated as such pursuant to the provisions of this Chapter.

10.02 The application shall be accompanied by such fees as have been established by the City and by such materials as are required by the Commission and as are reasonably necessary for the proper review of the proposed project including, but not limited to, side elevations, exterior drawings, site plan, materials samples, photographs, historical data, illustrations of proposed grading or drainage, landscaping plans, and line drawings of adjacent properties.

10.03 Within thirty (30) days of the filing of a completed application with necessary fees and materials, the Commission shall review the same and make a recommendation to the City Council as to whether the permit shall be granted, granted conditionally or denied.

10.04 All applications must be signed by all owners of the real property on which the cultural resource is located who shall verify under penalty of perjury that the application lists the names and addresses of all owners.

10.05 In determining its recommendation, the Commission shall consider the following:

a) In the case of a designated cultural resource, whether the proposed work would detrimentally alter, destroy or adversely affect any exterior architectural feature; or

b) In the case of any property located within an historic district whether the proposed construction, removal, rehabilitation, alteration, remodeling, excavation or exterior alteration conforms to any prescriptive standards as adopted by the Commission or by the City, and does not adversely affect the character of the district; or

c) In the case of construction of a new improvement, building or structure upon a cultural resource site, whether the exterior of such improvements will not adversely affect and will be compatible with the external appearance of existing designated improvements, buildings and structures on said site.

The Commission shall make findings of facts and reasons relied on in reaching its recommendation.

10.06 Upon receipt of the recommendations of the Commission, the City Council shall hold a public hearing. Notice of said hearing shall be given at least ten (10) days before the hearing by:

a) Certified mail to the owners of the real property on which the cultural resource is located and to any other person named as an applicant on the application as said names and addresses appear on the application;

b) Certified mail to the owners of any real property located within three hundred (300) feet of the real property on which the cultural resource is located as said owners appear on the last equalized assessment roll in Santa Clara County;

c) Certified mail to the owners of any real property in any historical district in which the cultural resource is located as said names and addresses appear on the last equalized assessment roll in Santa Clara County;

d) Certified mail to any person or organization who has filed a request in writing for hearing notice with the City Clerk and Chief Building Inspector within the year immediately preceding the filing of the permit application;

e) By advertising at least one (1) time in a newspaper of general circulation in the City of Milpitas.

10.07 At the conclusion of the public hearing, the City Council may grant the permit forthwith or it may delay the granting of a permit for a period of time not to exceed one hundred eighty (180) days. In granting a permit (whether immediately or delayed), the Council shall be empowered to impose reasonable conditions to protect the character of appearance (whether interior or exterior) of the resource or of the neighborhood or district in which it is located. Provided, however, no permit shall be granted in violation of any applicable statute, ordinance, resolution, regulation, code or design criteria. Provided, further, the grant of a permit hereunder shall not constitute a waiver of any requirement of any other statute, ordinance, resolution, regulation, code or design criteria.

10.08 The purpose of the delay in the issuance of the permit is to give any person or organization an opportunity to negotiate with the owner or owners of the subject of the permit for its preservation (through purchase, lease, dedication or otherwise).

10.09 The City Council shall be empowered to extend the time during which a permit cannot be issued for one hundred eighty (180) days in addition to the period provided in Subsection 10.07 of this Chapter upon showing satisfactory to the Council that the party requesting the delay:

a) Has undertaken good-faith negotiations with the owner or owners of the subject of the permit for its preservation;

b) Will assure its preservation in accordance with the decision of the City Council;

c) Has adequate resources with which to purchase, lease or otherwise acquire the subject of the permit from the owner or owners thereof.

(Ord. 226.2 (part), 8/4/92; Ord. 226 (part), 4/16/85)

Nothing in this Chapter shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in or on any property covered by this chapter that does not involve a change in design, material or external appearance thereof, nor does this Chapter prevent the construction, reconstruction, alteration, restoration, demolition or removal of any such feature when the Chief Building Inspector certifies that such action is required for the public safety due to an unsafe or dangerous condition which cannot be rectified through the use of the California Historical Building Code.

(Ord. 226 (part), 4/16/85)

The City Council need not disapprove an application for permit to carry out any proposed work in an historic district, or on a cultural resource or cultural resource site, if the applicant presents clear and convincing evidence of facts demonstrating to the satisfaction of the City Council that such disapproval will work immediate and substantial hardship on the applicant because of conditions peculiar to the person seeking to carry out the proposed work, whether this be property owner, tenant or resident, or because of conditions peculiar to the particular improvement, building or structure or other feature involved, and that failure to disapprove the application will be consistent with the purposes of this Chapter. If a hardship is found to exist under this Section, the City Council shall make a written finding to that effect, and shall specify the facts and reasons relied upon in making such finding.

(Ord. 226 (part), 4/16/85)

Unless otherwise provided herein, all notices shall be given and all hearings shall be held pursuant to the provisions of Chapter 20 of Title I (Standard Procedures) of the Milpitas Municipal Code.

(Ord. 226 (part), 4/16/85)

Except as otherwise provided by this Chapter and where hearing on the matter is not otherwise required to be had by the Council, any person aggrieved by a decision of any officer or department of the City of Milpitas may appeal to the City Council pursuant to the provisions of Section 5 of Chapter 20 of Title I (Standard Procedures) of the Milpitas Municipal Code.

(Ord. 226 (part), 4/16/85)

The City Council shall have the power to establish reasonable rules and regulations consistent with the provisions of this Chapter and for the purpose of the administration and enforcement of the provisions of this Chapter.

(Ord. 226 (part), 4/16/85)

It shall be unlawful to violate any of the provisions of this Chapter. Any person violating any of the provisions of this Chapter or failing to do any act herein required of said person shall be guilty of an infraction and, upon conviction, shall be punished in accordance with the penalties set forth in Section I-1-4.09-1 of the Milpitas Municipal Code.

(Ord. 226 (part), 4/16/85)

The violation of this Chapter is hereby declared to be a public nuisance, and the Attorney for the City of Milpitas shall, upon order of the City Council, commence action or proceedings for the abatement or removal or enjoinment thereof in the manner provided by law.

(Ord. 226 (part), 4/16/85)

Whenever any work is being done contrary to the provisions of this Chapter, the Chief Building Inspector 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; any person shall forthwith stop such work until authorized in writing by said Chief Building Inspector to proceed with such work.

(Ord. 226 (part), 4/16/85)

Every person causing or undertaking the alteration, moving or demolition of a designated cultural resource or intentionally damaging or destroying a designated cultural resource, or any part thereof, shall be subject to a civil penalty in a sum not to exceed Five Thousand Dollars ($5,000.00) in a civil action in a court of competent jurisdiction and to reasonable attorney fees to be fixed by the Court. Any civil penalty recovered shall be used by the City of Milpitas for the protection or preservation or acquisition of cultural resources.

(Ord. 226 (part), 4/16/85)

This Chapter is enacted as Chapter 4, Title XI, of the Milpitas Municipal Code and may be pleaded and cited as such or as the "Cultural Resources Preservation Ordinance" of the City of Milpitas.

(Ord. 226 (part), 4/16/85)