Milpitas Municipal Code Ch. D.2 Procedures

The purpose of this Chapter is to identify the assignment of authority and review procedures for zoning decisions related to land use and development applications as defined in this Title.

(Ord. No. 38.858, § 4, 9/2/25)

Review Authorities are authorized to administer this Title as follows.

A. Director. The Director shall have the duties assigned by this Title as may be required to fulfill the purposes of this Title. These duties include environmental determinations on any approval that is exempt from environmental review under the California Environmental Quality Act and where the final approval for the project is made by the Director. These duties shall be in addition to those contained in California Government Code section 65900 et seq.

B. Zoning Administrator. The Zoning Administrator shall have the duties assigned by this Title as may be required to fulfill the purposes of this Title. These duties include environmental determinations on any approval that is exempt from environmental review under the California Environmental Quality Act and where the final approval for the project is made by the Zoning Administrator.

C. Planning Commission. The Planning Commission is established by Milpitas Municipal Code Chapter I-500 (Planning Commission) with duties and powers outlined in Section I-500-1.12. The authority and responsibilities of the Planning Commission shall also include, but are not limited to the following:

1. Authority to hear and decide:

a. Applications identified in Table D.2.030-A (Review Authorities); and

b. Environmental determinations on any approval that is subject to environmental review, and not exempt, under the California Environmental Quality Act.

2. Authority to review and make recommendations to the Council on:

a. Applications for Zoning Amendments;

b. Applications for General Plan Amendments;

c. Applications for Specific Plans;

d. Development Agreements;

e. Environmental determinations on any approval that is subject to environmental review under the California Environmental Quality Act and where the final approval for the project is made by the Council; and

f. Any other action that state law requires the Planning Commission to consider and recommend before Council consideration.

3. Authority to hear an appeal from any determination made by an administrative or appointed official, such as the Director or Zoning Administrator, in the administration or enforcement of this Title. See also Table D.2.030-A (Review Authorities) and Section D.2.040.N (Appeals).

4. Other powers and responsibilities assigned by this Title or directed by the Council.

D. City Council. The Council is established through the incorporation of the City and has final review and decision-making authority on matters relating to planning and zoning, subject to delegation of this authority as provided in this Title. These duties shall be in addition to those contained in California Government Code section 65900 et seq.

(Ord. No. 38.858, § 4, 9/2/25)

Table D.2.030-A (Review Authorities) identifies the types of applications authorized by this Title and the Review Authority responsible for recommending and making decisions on each type of application.

Table D.2.030-A: Review Authorities 1

Table Notes:

1 For projects that require multiple applications, see Subsection D.2.040.B.3 (Multiple Applications).

2 See Subsection D.4.020.B (Applicability) for when the Director or the Zoning Administrator is the decision-making body.

3 Minor Deviation refers to modifications or adjustments to zoning standards, not a modification to an approved permit or project. See Subsection D.4.050 (Minor Deviation).

4 The Council is the decision-making body for Sign Permits and Sign Programs in the "H" Hillside Combining District.

5 See Subsection D.4.070.D (Authority) for when the Director or the Zoning Administrator is the decision-making body.

(Ord. No. 38.858, § 4, 9/2/25)

A. Purpose. The purpose of this Section is to establish common procedures and requirements for the preparation, filing, and processing of development applications required by this Title. These common procedures and the development review processes established in this Part XIII-D (Procedures and Administration) are intended to provide a consistent and efficient method for the City to implement the General Plan and other adopted goals, policies, and standards. For procedures specific to individual permit types, refer to Chapter D.4 (Permits and Approvals).

B. Application Process and Fees.

1. Applicant. Only the following persons or entities may apply for a permit or other approval:

a. The owner of the property;

b. An authorized agent or representative of the owner; or

c. A person acting in accordance with a purchase contract or exclusive option to purchase the property.

2. Applications.

a. The Director shall specify the form and content of all applications for permits or approvals required by this Title.

b. Applications for development approvals and amendments shall be submitted to the Director on a prescribed City application form and shall include all the information that is necessary for review of the application, such as plans, elevations, facts, and information deemed by the Director to be necessary to show details of the proposed use or development as specified in the application checklist attached to the application form.

c. Applications shall be accompanied by applicable fees as identified in the City's Master Fee Schedule, deposits, and other materials required by this Title and Department handouts.

d. Applications shall include the property owner's written authorization for any permit, permit amendment, permit extension, or other approval required by this Title.

e. Unless precluded by law, the Director may require the submission of supplemental materials and information as part of an application submittal, including statements, photographs, plans, drawings, renderings, models, material samples, special studies, and other information necessary to describe existing conditions and the proposed project, and to determine the level of environmental review in accordance with Subsection D.2.040.E (Environmental Review).

f. The Director may waive the submission of specific material or information upon a finding that it is not needed to reach a decision on the application.

g. It is the responsibility of the applicant to provide the necessary information in support of the findings required for approval as identified in Chapter D.4 (Permits and Approvals).

h. The Director may adopt regulations or guidelines for the form, content, and processing of all applications for permits or approvals required by this Title.

3. Multiple Applications. A project that includes more than one application may be combined and processed concurrently provided all applicable processing requirements are satisfied. The purpose for 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 provisions apply to concurrently processed applications:

a. If a project requires more than one discretionary permit or other approval, all permits or other approvals shall be processed concurrently.

b. 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.

c. When more than one discretionary permit or other approval is required and the Review Authority is both the Planning Commission and Council, the final action on all discretionary permits or other approvals shall be taken by the Council. In these cases, the Planning Commission's actions shall consist of a recommendation to the Council.

d. When the Planning Commission is the highest Review Authority for a project, the review by all other Review Authorities shall be in the form of a recommendation to the Planning Commission.

e. When concurrently processed applications are needed for a project, and both a review by the Planning Commission and Zoning Administrator are required, the Zoning Administrator review shall be omitted and the Planning Commission review substituted.

f. When a subdivision is proposed, the provisions of Milpitas Municipal Code Chapter XI-1 (Subdivisions) and this Title shall apply. Review Authorities may combine review and decisions in a single action, provided the required procedures of Milpitas Municipal Code Chapter XI-1 and this Title are followed; the single approval shall have the same effect as though each action were taken individually, provided each separate approval required is appropriately entered in the record.

4. Withdrawn and Denied Applications.

a. Withdrawn applications. An application may be withdrawn by the applicant prior to the opening of the public hearing or thereafter with the consent of the Review Authority. A request to withdraw an application must be submitted by the applicant in writing. Withdrawal of an application shall terminate all further action on the application.

b. Effect of withdrawn or denied applications. Where an application has been withdrawn by the applicant or denied by the Review Authority, an application for the same or substantially similar project may not be filed within one year from the date of withdrawal or denial. Any subsequent application shall be considered a new application and shall be processed accordingly.

5. Fees. A schedule of fees shall be maintained by the Director and made available to the public. All applications required by this Title shall be accompanied by the required fees set by resolution of the Council. Applications shall not be accepted without payment of all required fees. If an application is erroneously accepted without payment of all required fees, or if an applicant fails to promptly pay further fees as they become due, an application may be deemed withdrawn if the applicant fails to pay all required fees within 30 days of being mailed notice by the Department or such other time as may be agreed to in writing by the Director.

C. Pre-Application Review.

1. Pre-Application Review.

a. A Pre-Application Review is an optional process that occurs prior to the submittal of any new development application.

b. The purpose of a Pre-Application Review is generally to:

(i) Familiarize the Director and other City staff, as may be applicable, with the development proposal;

(ii) Discuss application requirements and familiarize the applicant with the review process and procedures;

(iii) Identify any potential problems as early in the process as possible; and

(iv) Identify land use and development policies which may apply to or affect the development proposal.

c. Failure by the Director or other City staff to identify all required studies or all applicable requirements in the Pre-Application Review shall not constitute a waiver of those studies or requirements. A Pre-Application Review is meant to be informative but is not a substitute for the applicant's responsibility to know and comply with the law.

2. Application Requirements. An application for a Pre-Application Review shall be submitted on a form prescribed by the City in accordance with Section D.2.040.B (Application Process and Fees).

3. Pre-Application Review Meeting. After reviewing the application, the Director shall meet with the applicant or representative. Neither the Pre-Application Review nor the provision of information by the Director and the discussion of City policies shall be construed as either a recommendation for approval or denial of the application or development. No formal action is taken by the Director at a Pre-Application Review meeting. Following the meeting, the Director may provide the applicant with a written summary of comments.

D. Review of Planning Applications.

1. Initial Completeness Review. The Director shall determine whether an application is complete within 30 days of the date the application is filed and the required fee is received in accordance with California Government Code section 65943 et seq.

2. Incomplete Application.

a. Incomplete application. If an application is deemed incomplete, the Director shall provide a written notification to the applicant listing information necessary to complete the application.

b. Submittal of additional information. The applicant shall provide the additional information within 180 days from the date the application is deemed to be incomplete. The Director may grant one extension of up to 90 days.

c. Expiration of application. If an applicant fails to correct the identified deficiencies within the specified time limit, the application shall expire and be deemed withdrawn, unless the Director grants an extension. After the expiration of an application, a new complete application, together with all required fees, shall be submitted for review.

3. Complete Application. When a planning application is deemed complete, the Director shall make a record of that date and proceed with processing the application. If an application requires a public hearing, the Director shall schedule a hearing when the project is ready and notify the applicant of the date and time, in accordance with Section D.2.040.F (Public Hearing Notice).

4. Referral of Application.

a. When the Director or Zoning Administrator is the Review Authority, the Director may determine that based on a unique or special circumstance, it is in the public interest for an application to be considered by the Planning Commission. In this case, the Director shall forward the application to the Planning Commission for review at a public hearing.

b. At the discretion of the Director, or where otherwise required by this Title, state or federal law, any application filed in compliance with this Title may be referred to any City department, public agency, or interest group that may be affected by, or have an interest in, the proposed project for review and comment on the application.

5. Extensions for Review of Application. The Director may, upon written request, grant extensions of any time limit for review of applications imposed by this Title unless precluded by state or federal law.

E. Environmental Review. The City has the responsibility to comply with the California Environmental Quality Act (California Public Resources Code section 21000 et seq.) and California Environmental Quality Act Guidelines (California Code of Regulations, Title 14), collectively referred to as California Environmental Quality Act. The City shall evaluate each project according to California Environmental Quality Act before any recommendation or decision on a project is made.

F. Public Hearing Notice.

1. Applicability.

a. Notice for public hearings is required as part of the approval process for all applications subject to a public hearing.

b. Any changes to state law notice requirements, in accordance with California Government Code section 65090 et seq., shall control over the requirements in this Section regarding the manner for providing notice.

2. Public Hearing Notice Requirements. Unless otherwise required by law, whenever notice of hearing is required by this Title, notice shall be mailed and community meetings shall be held as provided in Table D.2.040-A (Public Hearing Notice Requirements).

Table D.2.040-A: Public Hearing Notice Requirements

Table Notes:

1 For revisions to an approved project, see Subsection D.2.040.M (Revisions to an Approved Project).

2 The Director may expand the notification area based on the location and context of the subject property if it is determined that the potential impact of the project extends beyond the required notification boundary or if the proposed project is deemed to be potentially controversial.

3 A community meeting shall be held a minimum of 30 days prior to the public hearing.

4 A public hearing is only required when subject to Zoning Administrator approval. See Subsection D.4.020 (Site Development Permits).

5 A public hearing is only required when subject to Zoning Administrator approval. See Subsection D.4.030 (Use Permits).

3. Contents. Every posted, published, or mailed notice for a public hearing shall be consistent with the requirements of Milpitas Municipal Code Subsection I-310-2.40 (Public Notice Requirements) and include:

a. The date, time, location, and purpose of the hearing;

b. The name of the Review Authority conducting the hearing;

c. Contact information to receive additional information;

d. A brief description of the matter to be considered and the approval(s) requested;

e. The address or location of the subject property;

f. A statement that any interested person or authorized agent may appear and be heard; and

g. A statement describing how and when to submit written comments.

4. Noticing Procedures. The following noticing procedures shall be observed when a public hearing is required by this Title.

a. Timing. All forms of notice shall be given not less than 10 days prior to the public hearing, except that for a Zoning Amendment that would affect the permitted uses of real property, all forms of notice shall be given not less than 20 days prior to the public hearing.

b. Mailed notice. Mailed notice in accordance with Milpitas Municipal Code Subsection I-20.2.02 (Notice by Mail) shall be given to the following:

(i) All property owners as specified in Table D.2.040-A (Public Hearing Notice Requirements);

(ii) Any person or group who has filed a written request for notice regarding the specific application;

(iii) The owner of the property that is the subject of the application;

(iv) The applicant; and

(v) Any other person or entity the Director deems necessary or desirable, including any other local agency expected to provide essential facilities and services to the project and whose ability to provide those facilities and services may be significantly affected.

c. Newspaper notice. A notice shall be published in at least one newspaper of general circulation in the city, or, if no such newspaper is available, by posting in at least three public places within the city.

d. Posted notice. A notice sign shall be posted in a format approved by the Department, in a prominent place on or near the subject property. At minimum, this shall include the posting of one sign per 1,000 lineal feet of the subject property's street frontage that is visible from the public right-of-way. If the subject property has no street frontage, no less than one sign shall be posted.

e. Additional notice. In additional to the types of notice required above, the Director may require or provide additional notice using alternative methods including, but not limited to the following:

(i) Posting on the City's website;

(ii) Electronic mail to persons that have signed up or subscribed for electronic mail notifications;

(iii) Placing an insert with any generalized mailing sent by the City to property owners or residents in the area affected by the proposed application;

(iv) Posting through City accounts on social media platforms; or

(v) Messaging on City electronic message signs.

5. Failure to Receive Notice. The validity of the proceedings shall not be affected by the failure of any property owner, resident, or organization to receive notice.

G. Public Hearings.

1. Requirements. When a public hearing is required by this Title, public notice shall be given consistent with Subsection D.2.040.F (Public Hearing Notice), and the public hearing shall be conducted as provided by this Subsection and Milpitas Municipal Code Section I-20-3 (Hearings).

2. Scheduling of Hearing. After an application is deemed complete, any environmental document required by California Environmental Quality Act has been prepared, and a Department staff report has been prepared, a matter requiring a public hearing shall be scheduled at the Director's discretion on an agenda reserved for public hearings.

3. Decision. When the public hearing is closed, the Review Authority shall approve (with or without conditions) or deny the application in compliance with the required findings provided in Chapter D.4 (Permits and Approvals) and this Title.

4. Continuance. The Review Authority, by motion, may continue a public hearing. No additional notice shall be required for the continuance of a noticed public hearing to a specific date and time. At their own discretion, applicants may request the Review Authority to act upon their project rather than be continued.

5. Recommendation by Planning Commission. At the conclusion of any public hearing on a project that requires Council approval, the Planning Commission shall forward a written recommendation, including all required findings, to the Council for final action. The Planning Commission's recommendation could be to approve, approve in modified form, or deny the application.

6. Council Hearings. Upon receiving the Planning Commission's recommendation on a project that requires Council approval, the Council shall hold a public hearing. When the public hearing is closed, the Council shall make a final decision, which could be to approve, approve in modified form, or deny the application.

H. Findings and Decision.

1. When making a decision to approve, approve with modifications and/or conditions, or deny any application, the Review Authority shall make findings as required by this Title to support their decision. Findings shall be based upon consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record. Findings may be stated, including in any resolution or record of the action, or may be implied from the administrative record and the record of proceedings taken as a whole.

2. If the Review Authority imposes conditions of approval, the conditions shall be consistent with Subsection D.2.040.I (Conditions of Approval).

I. Conditions of Approval.

1. In considering an application authorized by this Title, a Review Authority may require changes and impose conditions of approval in order to implement the policies of the General Plan and this Title. Conditions of approval, which may include dedication of land; installation of specific improvements; limitations on the size, design and placement of buildings or structures; landscaping; or limitations on use and hours of operation; or other similar requirements, shall be reasonably related to the type of impacts caused by the use of the property for which the application is requested. Conditions of approval may be necessary to ensure the proposed use or project satisfies the required findings for approval and complies with any applicable environmental mitigation measures. See Section D.2.040.E (Environmental Review).

2. All conditions of approval shall be binding upon the applicant, their successors, and assigns; shall run with the land; shall limit and control the issuance and validity of Certificates of Occupancy; and shall restrict and limit the construction, location, use, and maintenance of all land and structures within the project.

J. Effect of Decisions.

1. Issuance of Approval. The issuance of a permit or approval described in this Title authorizes the holder to proceed in compliance with the terms of the permit or approval. The applicant must follow all City requirements and procedures for any additional applicable permits or approvals in order to complete the development project and to meet the occupancy requirements for the subject property.

2. Effective Date of Decision.

a. The effective date of a decision is the date the Review Authority approves or denies the permit or approval, except as otherwise provided in this Chapter for a specific approval or type of permit.

b. If the decision by the Review Authority is appealed in accordance with Section D.2.040.N (Appeals), the date of decision shall be the date the Review Authority makes a final determination on the Appeal.

3. Ownership and Transferability of Permits and Approvals. An approved permit or other approval applies to the subject property and runs with the land, except as specifically provided in this Title. Once approved, a permit or approval remains effective unless terminated, abandoned, revoked, or modified. An approved permit or other approval is transferable to any future owner of the subject property.

4. Inspections. All approvals may be subject to periodic review to determine compliance with the permit and applicable conditions. If a condition specifies that activities or uses allowed under the permit are subject to periodic reporting, monitoring, or assessments, it shall be the responsibility of the permit holder, the property owner, or successor property owners to comply with the conditions.

K. Expiration of Permits.

1. Lapse of Permit. Unless otherwise specified in the permit or approval, all permits and approvals for projects not subject to the Subdivision Map Act shall be implemented within two years following the effective date, or they shall expire and be deemed void unless a Time Extension is approved consistent with Subsection D.2.040.L (Extension of Time).

2. Time Limits.

a. A Review Authority may establish a time limit that differs from the time limit contained in Subsection D.2.040.K.1 (Lapse of Permit); however, the time limit shall be based upon the size and nature of the proposed project as described in the written findings for project approval.

b. For concurrent applications, the longest time limit associated with any one permit or approval shall apply to all of the other concurrent permits. All permits associated with the approval of a tentative map shall have the same expiration date as the tentative map.

3. Implementation.

a. A permit or approval shall not be deemed implemented until the applicant has obtained a grading permit and/or building permit and commenced construction, or where no grading or building permit is required, has commenced the allowed use on the subject site in compliance with the approval.

b. Construction shall be diligently pursued towards completion. If after construction commencement, work is discontinued for a minimum period of two years, the permit or approval shall expire and be deemed void.

c. If a project is phased, each phase shall be subject to a time limit during which construction must commence. Each subsequent phase shall have the same length of time allowed for the previous phase. The time limit for a subsequent phase shall begin when the previous phase commences construction, unless otherwise specified in the permit of approval.

d. "Commence construction" shall mean any of the following, whichever occurs soonest:

(i) Completes a foundation associated with the project;

(ii) Dedicates any land or easement as required from the approval; or

(iii) Complies with all legal requirements necessary to commence the use or obtains a Certificate of Occupancy permit.

4. Lapse of Approved Use. A permit or approval for a use or activity shall be deemed to have lapsed if the following applies:

a. When the use or activity ceases operation and/or the business closes at the permitted location for a period of at least one year; or

b. In compliance with Section C.18.030 (Nonconforming Uses) regarding nonconforming uses.

5. Renewal of an Expired Application. An approved permit or approval which has been allowed to expire shall require the filing of a new application in accordance with the procedures in Section D.2.040.B (Application Process and Fees).

L. Extension of Time.

1. Initiation. An application for a Time Extension of a previously approved permit or other approval may be initiated by the applicant who filed the original application or their successor.

2. Suspension of Expiration. The filing of a Time Extension request shall suspend the actual expiration of the permit or approval until the Time Extension has been acted upon by the Review Authority. No construction permits (e.g., grading or building permits) for the project shall be issued during the period of suspension.

3. Application Requirements. A Time Extension request shall be prepared, filed, and processed in compliance with Chapter D.2 (Procedures) and this Section.

4. Authority. The Director shall make the decision on a Time Extension.

5. Approval Procedures. After a Time Extension application has been filed with the Department, the Director shall review the application to determine whether it conforms with the provisions of this Section in accordance with Section D.2.040.D (Review of Planning Applications).

6. Findings. A Time Extension may be granted, with or without conditions, only after the following findings are made:

a. There have been no changes in circumstances, law, General Plan, or this Title that would preclude the Review Authority from making the findings upon which the original approval was based; or

b. The original conditions of approval have been modified or new conditions of approval have been imposed as deemed reasonable and necessary to ensure that the permit or approval will remain in compliance with the findings required by this Title; and

c. The applicant has made a good faith effort to implement the permit or approval and comply with any applicable conditions of approval in a timely manner.

7. Length of Time Extension. The Review Authority may grant a Time Extension for a period or periods not exceeding two years beyond the expiration date of the original permit or approval, or for as long as any subdivision concurrently approved is extended, whichever is longer.

M. Revisions to an Approved Project. If an applicant would like to revise or modify an approved permit for a use, structure, or other project, the Director shall determine the level of revision based on criteria, as follows:

1. Minor Revisions. Minor revisions to approved plans and permits may be approved by the Director if the revisions:

a. Are consistent with the original findings and conditions of approval;

b. Do not substantially expand the approved floor area, alter the number or type of dwelling unit(s), or height of a building; and

c. Would not result in any new or intensified detrimental effects, unless waived by the Director.

2. Major Revisions. Major revisions to approved plans and permits are any revisions not considered to be minor revisions. Major revisions shall be decided by the same Review Authority as the original approval, and a public hearing shall be required if a public hearing was required for the original approval.

N. Appeals. Any action by the Director, Zoning Administrator, or Planning Commission in the administration or enforcement of the provisions of this Title may be appealed in accordance with this Section. Failure to meet the deadlines and follow this procedure for appeal shall constitute a failure to exhaust administrative remedies and be sufficient grounds to reject the appeal.

1. Appeal Bodies.

a. Decisions of the Director. The Planning Commission is the appeal body for decisions of the Director unless the Zoning Administrator is specifically designated in this Title.

b. Decisions of the Zoning Administrator. The Planning Commission is the appeal body for decisions of the Zoning Administrator.

c. Decisions of the Planning Commission. The Council is the appeal body for decisions of the Planning Commission.

2. Who May File an Appeal. Any interested party may appeal a Review Authority's decision during the appeal period.

3. Time Limits. Unless otherwise specified by law, the appeal and all documents submitted in support of the appeal, shall be filed in writing within 14 days of the date which the action was taken.

4. Procedures for Filing an Appeal.

a. Filing. An application for an appeal shall be prepared, filed, and processed in compliance with Chapter D.2 (Procedures) and this Section.

b. Required Information. At minimum, the appeal shall include the following:

(i) The specific action being appealed and the reason for the appeal;

(ii) A written description of the specific grounds for the appeal, including why the appellant contends the action is not in accordance with this Title, where there was an error or abuse of discretion, where the record includes inaccurate information, or how a decision is not supported by evidence in the record;

(iii) A description of how the appellant requests the action be reversed or modified; and

(iv) The name, address, and telephone number of the appellant or contact person if there are multiple appellants.

5. Appeal Review. Within three working days of receipt of the appeal, the City Clerk shall examine the appeal, and if it is found to be incomplete, return it by certified mail to the appellant for revision. The appellant shall have five working days to file an amended appeal. Upon failure to file an amended appeal within the five-day period, the appeal shall be deemed withdrawn.

6. Appeal Hearing and Standards of Review.

a. The Director, upon the City Clerk finding the application for an appeal to be complete, shall schedule the appeal, together with City staff's report on the appeal, for a public hearing before the appeal body in compliance with Section D.2.040.G (Public Hearings).

b. When reviewing any decision on appeal, the appeal body shall use the same standards for decision-making required for the original decision. The appeal body shall render an independent judgment but may consider the decision being appealed and the grounds stated for the appeal. The appeal body shall consider all evidence submitted in support of the decision being appealed and, at its discretion, may also hear and consider new evidence, including testimony, that could not with reasonable diligence have been presented to the original Review Authority.

7. Decision on Appeal. The appeal body may affirm wholly or partly, reverse, or modify the prior decision.

(Ord. No. 38.858, § 4, 9/2/25)