Article 4 — Administrative Decision for Outdoor Use

The purpose of this procedure is to ensure that outdoor uses conform to City standards. Examples of outdoor use include outdoor dining, food and drink carts, seasonal sales on vacant lots, and certified farmers' markets as provided in Section 10-3.212.

The Director may grant an administrative decision for a outdoor use, with or without conditions, only after determining that the project will be in compliance with the policies and goals of the General Plan and the Zoning Regulations.

Article 5. - Administrative Exceptions

The purposes of administrative exceptions are to:

(a)

Allow the Director to grant minor deviations from development standards required by this chapter.

(b)

Provide appropriate and reasonable criteria to allow the Director to grant an administrative exception.

The Director may grant an administrative exception for a deviation of less than ten (10) percent from the required development standard, with or without conditions, only after determining that:

(a)

No practical alternative exists;

(b)

The purpose of the subject zone would not be compromised;

(c)

No detrimental impact would result to the project site or neighboring properties; and

(d)

The proposed project would otherwise be in compliance with all applicable Zoning Regulation standards and requirements.

Administrative exceptions shall be documented by the Director.

Article 6. - Variances

The Board may grant variances, when practical difficulties, unnecessary hardships or inconsistencies with the general purpose of this Title result from the strict and literal interpretation and enforcement of its provisions. The sole purpose of a variance shall be to prevent discrimination, and no variance shall be granted which would have the effect of granting a special privilege not shared by other property in the same zone and immediate vicinity.

The applicant for a variance shall have the burden of proof of showing that:

(a)

There are special circumstances or conditions applicable to the property or buildings in question which do not exist for other property or buildings in the same zone and immediate vicinity;

(b)

The special circumstances or conditions are such that strict application of the provisions of this Title would deprive the applicant of practical use of the property or buildings; and,

(c)

Granting the variance will be consistent with the intent and purpose of this Title and will not be detrimental to the neighborhood or public welfare.

Article 7. - Conditional Use Permits

The purpose of a conditional use permit is to allow conditional uses subject to conditions the Board may determine necessary to ensure compatibility with other uses in the area.

If a zone boundary line divides a lot, the Board may grant a conditional use permit for a use permitted in either zone to extend a maximum of seventy-five (75) feet into the other zone.

The applicant for a conditional use permit shall have the burden of proof of showing that:

(a)

The proposed conditional use is consistent with the objectives and requirements of this Title;

(b)

The proposed conditional use and the conditions under which it will operate is consistent with the General Plan;

(c)

The proposed conditional use will not be detrimental to the public health, safety, or welfare or materially injurious to uses, properties or improvements in the vicinity; and,

(d)

The proposed conditions of approval will ensure compatibility with surrounding uses.

Article 8. - Zoning Boundary Amendments

This Article provides for the amendment of zoning boundaries (rezone) whenever public necessity, convenience and general welfare require. A zoning boundary amendment has the effect of rezoning property from one zone to another and will amend the Zoning Map or a section of it.

(a)

Zone boundary changes may be initiated by either of the following:

(1)

An application verified by the owner(s) of all or a part of the property affected by the amendments.

(2)

By the Director, Commission or Council.

The applicant for a zone boundary change shall have the burden of proof of showing that:

(a)

The requested change will not be detrimental to the public health, safety, or welfare;

(b)

The requested change will result in an orderly planned use of land ; and,

(c)

The requested change is in accordance with the community's objectives as set forth in the General Plan and any applicable specific plan(s).

(a)

The City may prezone unincorporated area for the purpose of determining the zoning that will apply to the property upon annexation.

(b)

The procedure for establishing prezones shall be the same as provided in this Article for the establishment of zones within the City.

Article 9. - Zoning Regulation Amendments

This Article provides for amendments to this Title whenever public necessity, convenience and general welfare require. An amendment to the zoning regulations may modify a standard, requirement, or procedure applicable to land use or development within the City. Amendments shall be adopted by ordinance.

Changes in other provisions of the Zoning Regulations may be initiated only by the Council or Commission, or by the Director.

Changes to the Zoning Regulations shall show that:

(a)

The proposed change will not be detrimental to the public health, safety, or welfare;

(b)

The proposed change will result in an orderly planned use of land;

(c)

The proposed change is in accordance with the community's objectives as set forth in the General Plan and any applicable specific plans.

Article 10. - Development Plan Review

Where provisions of this chapter require development plan review by the Director or designee ("Director"), the requirements and procedures of this article shall apply. The purposes and intent of development plan review are to:

(a)

Ensure that new development or expansions of existing uses or structures occurs in a manner consistent with the overall objectives of the General Plan, the objectives of the Zoning Regulations and with the neighborhood or area in which the development is proposed to be located;

(b)

Ensure that all new development is consistent with the development standards contained in the Zoning Regulations and with City of Modesto standard specifications; and

(c)

Ensure that all new development is consistent with applicable design guidelines.

(a)

The following specific regulations shall apply to all development plan reviews. Where conflict in regulation occurs with other provisions of this chapter, the regulations in this article shall apply.

(b)

The following are subject to development plan review:

(1)

All development projects in the P-O, C-1, C-2, or C-3, C-M, M-1, M-2, or Downtown (Chapter 7, Article 5) zones which do not otherwise require a Conditional Use Permit or other similar approval unless exempted as provided in Section 10-9.1002(c) below.

(2)

In the P-D zone, for all Residential, Commercial and Industrial uses, changes in development plan pursuant to Section 10-7.108(c).

(3)

In the R-2 and R-3 zones, five (5) or more units.

(4)

Wireless Telecommunication Facilities pursuant to Chapter 3, Article 4.

(5)

All projects that exceed one (1) story in height in the R-1, R-2, and R-3 zones located next to the R-1 zone pursuant to Section 10-4.110.

(6)

A Large Family Day Care pursuant to Section 10-3.204(a)(2).

(c)

The following types of projects are exempt from Development Plan Review, provided they are consistent with the Municipal Code and any applicable design guidelines:

(1)

Repairs. Ordinary repairs and maintenance where the work does not result an expansion of the structure, and where exterior repairs employ the same materials and design as originally used;

(2)

Parking lot resurfacing or restriping provided that no change or alteration is made to trees, landscaping, onsite circulation or access points;

(3)

Tenant improvements affecting only the building interior;

(4)

Color Modifications. Repainting of an existing buildings;

(5)

Fences and Walls. The construction, modification or replacement of fences and walls;

(6)

Accessory Structures. Accessory structures less than or equal to one hundred twenty (120) square feet in size;

(7)

Window Modifications. Window modifications (except removal) which include new and replacement windows, frosting, tinting or the addition of other materials to obscure a window. This exemption excludes window modifications subject to Section 10-4.110;

(8)

Roof. A modification to the roof of a structure where the style is maintained (i.e. gable, mansard, parapet). Eligible modifications include new roofing materials, modifications to the parapet or roof screen, or a new parapet or roof screen; and,

(9)

Minor Landscape Modifications. The addition, replacement or removal of landscape materials that does not conflict with an approved landscape plan or approved storm water quality plan.

(Am. Ord. No. 3618-C.S., § 2(Exh. A), effective 6-25-15)

(a)

The Director may approve a waiver from development plan review to allow a minor modification to a site or structure, with or without a previously approved development plan, where the modification is consistent with the Municipal Code, applicable design guidelines and the project is exempt from the California Environmental Quality Act.

(b)

The following development projects are eligible to apply for a waiver from development plan review:

(1)

Minor Structural Additions. Additions which are less than ten (10) percent of the floor area of the structure;

(2)

Facade Modifications. Facade modifications where the character or design of the building is maintained or enhanced;

(3)

Concealed Modifications. Modifications that are not visible from any public street or area held open to the public;

(4)

Minor Site Layout Modifications. A minor modification of the layout of the site including new paving areas, sidewalks or other similar improvements; and,

(5)

Other. Any other improvements determined by the Director to be minor in nature.

Where development plan review is required for a use or structure under the provisions of this article, the following aspects of the project are to be reviewed by the Director:

(a)

Conformance of the proposed project to applicable development standards as established by this title and the standard specifications, and conformance of the proposed development with adopted design review guidelines applicable to the zone and development.

(b)

The location of the site and structures in relation to buildings on adjoining sites, with particular attention to privacy.

(c)

In granting development plan review, the Director may impose conditions deemed necessary or desirable to maintain neighborhood compatibility and to protect the public health, safety or welfare or to conform to applicable standards and guidelines.

(a)

Upon filing of any development plan subject to review under this article, the planning staff shall, make a determination as to completeness of the application and associated information. The Planning Division, Community and Economic Development Department, may refer the application and all accompanying maps, drawings, plans, elevations, tabulations and other information to various City departments for review and comment.

(b)

Following a determination that the application is complete, the Director shall review the application for compliance to Section 10-9.1004 and shall, following completion of such review, provide written notice of the decision to the applicant and/or owner, which may include conditions and corrections required to establish conformance with regulations as described above. A copy of this decision shall be mailed to the applicant.

(c)

At the discretion of the Director, a development plan subject to review under this article may be referred to the Planning Commission for decision.

(d)

Projects that require a Mitigated Negative Declaration (MND) or Environmental Impact Report (EIR) shall be referred to the Planning Commission or City Council for a decision.

(e)

The administrative decisions shall be final and effective fifteen (15) days after the date of approval or denial, unless the decision is appealed in writing to the Planning Commission within the 15-day period pursuant to Section 10-9.301.

(f)

For residential projects, subject to development plan review pursuant to Section 10-4.110(a) for compliance with the neighborhood compatibility guidelines, the following notification procedures shall be followed:

(1)

Within fifteen (15) days following application for an administrative decision by the Director, a notice shall be mailed to every property owner, as shown on the updated equalized assessment role of the County of Stanislaus, who owns property, any part of which is within one hundred fifty (150) feet of the property involved. This notice, shall at a minimum, identify the location of the subject property, describe the proposal, and explain where the proposed plans are available for public review.

(2)

At the time of administrative decision by the Director, a second notice shall be mailed to all those who received the first notice, plus any other interested parties requesting such notice. In addition to the information included on the first notice, the second notice shall indicate that a decision has been made, whether for approval or denial, and explain the 15-day appeal period which starts as of the date of Director decision (see Section 10-9.301).

Article 11. - Specific Plan Reimbursement Fees

It is the intent of the City Council in providing Specific Plan Reimbursement Fees to charge persons who benefit from Specific Plans for the costs of developing those Specific Plans and to reimburse those persons, including the City, who have provided funds to prepare the Specific Plan and related documentation. Specific Plans result in savings to such persons to reducing the cost of documenting environmental consequences and advocating changed land uses which may be authorized pursuant to the Specific Plan.

Pursuant to Government Code Section 65456, the City Council may, by resolution adopted from time to time, fix a specific plan fee to reimburse any person, including the City, for the cost of preparation, adoption, and administration of any Specific Plan prepared pursuant to Government Code Section 65450, et seq.

(a)

In adopting a specific plan fee, the City Council shall make the following findings:

(1)

That the costs for which the specific plan fee is being assessed are reasonable and were necessarily incurred in the preparation, adoption and administration of the specific plan, including environmental review and annexation;

(2)

That the specific plan fee defrays but does not exceed the actual cost of the services and/or expenses incurred in the preparation, adoption and administration of the specific plan; and

(3)

That the specific plan fee is being fairly prorated among the parcels included in the specific plan based on the relative benefit that each parcel has derived from the specific plan based upon the savings resulting from reducing the cost of documenting environmental consequences and advocating changed land uses which may be authorized pursuant to the specific plan.

(b)

The resolution establishing fees pursuant to this chapter shall contain the following:

(1)

An itemized list, together with a specific description, of the costs for which the Specific Plan fees are being assessed and the total amount of the assessment;

(2)

A description of the specific parcels of land which are benefited and against which the fees are assessed;

(3)

A statement indicating the amount of the total assessment that is allocated against each parcel of property in the Specific Plan area and the method of allocation, including any exemptions or credits against the assessment.

The fee established pursuant to this article shall be paid upon application to the City for any tentative subdivision map, tentative parcel map, annexation, general or specific plan amendment, precise plan, conditional use permit, rezoning, planned development zoning, development plan review second-story addition to a single-family house, or any other land use entitlement which implements, utilizes, or amends the specific plan or supporting documentation, for the property upon which the fee has been assessed.

If any person or entity other than the City pays all or a portion of the costs for which assessments have been made pursuant to this article, the City Council may, by resolution, provide that all or a portion of the monies that the City receives from the specific plan fee be paid to such person or entity as full or partial reimbursement for the costs that person or entity has incurred.