Chapter 11.73 — WIRELESS TELECOMMUNICATIONS FACILITIES[[11]]

Sections:

Footnotes:

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Editor's note— Ord. No. 21-998, § II, adopted September 20, 2021, repealed Ch. 11.73, §§ 11.73.010— 11.73.120, and enacted a new Ch. 11.73, §§ 11.73.010—11.73.170, as set out herein. The former chapter pertained to similar subject matter and derived from Ord. 02-829 § 1 (part); and Ord. No. 19-980, §§ IV— VII, adopted March 18, 2019.

The purpose and intent of this chapter is to establish standards for the review, siting and development of wireless telecommunications facilities on public and private property throughout the City. A primary intent is to ensure that wireless networks are implemented with the fewest possible facilities, in the least visible manner, and with the least disruptive impact on the City's neighborhoods. This shall be accomplished through allowing collocation of multiple wireless providers at approved locations, requiring creative, stealth facility designs in zones where facilities are allowed, and prohibiting facilities within, and immediately adjacent to, certain limited City zoning districts where such facilities on public and private property would be highly incompatible with the predominant existing uses in those zoning districts. The regulations set forth in this chapter are intended to protect and promote the public health, safety and general welfare, and to promote and enhance the aesthetic qualities of the community as set forth in the goals, objectives, and policies of the general plan, while concurrently allowing for the orderly and efficient development of a wireless telecommunications infrastructure in accordance with state and federal law and Federal Communications Commission regulations.

(Ord. No. 21-998, § II, 9-20-21)

This chapter applies to all wireless telecommunications facilities existing and proposed to be located within the corporate boundary of the City of Montclair, except wireless telecommunications facilities in the public right-of-way that are subject to Chapter 9.105 and antennas and satellite dish antennas that are subject to Chapter 11.46 of the City Code.

(Ord. No. 21-998, § II, 9-20-21)

The following facilities are exempt from the requirements of this Chapter 11.73, and may be governed by other laws:

A.

Amateur radio antennas:

1.

That are completely enclosed within a permitted building; or

2.

That consist of a single wire not exceeding one-fourth inch in diameter. Such wire antennas may be located in setback areas provided the antenna does not extend above the maximum building height in the district.

3.

That consist of a single ground-mounted vertical pole or whip antenna not exceeding the maximum building height allowable for the zone measured from finish grade at the base of the antenna, and not located in any required setback area. Support structures or masts for pole or whip antennas shall conform to standards set out in the current California Building Code. A building permit may be required for the support structure or mast.

B.

"Like kind" equipment meaning the replacement or changing of equipment in an existing shroud, cabinet, vault, or secured ground lease area, which was approved by an entitlement and/or permit issued by the City that is substantially similar in appearance, size, dimensions, weight, and RF emissions to the thenexisting and approved equipment. This exemption does not apply to generators.

C.

The following temporary facilities that will be placed for less than seven consecutive days, provided any necessary building permit or other approval is obtained and the landowner's written consent is provided to the Director prior to installation:

1.

Facilities installed and operated for large-scale events; and

2.

Facilities needed for coverage during the temporary relocation of an existing and already approved facility.

(Ord. No. 21-998, § II, 9-20-21)

11.73.040 - Nonconforming wireless telecommunications facilities.

A.

Legal Nonconforming Facility. Any facility that is lawfully constructed, erected, or approved prior to the effective date of Ordinance 21-998, in compliance with applicable laws, and which facility does not conform to the requirements of this chapter shall be accepted and allowed as a legal nonconforming facility. Legal nonconforming wireless telecommunications facilities shall comply at all times with the laws, ordinances, and regulations in effect at the time that the application was granted, and any applicable federal or state laws as they may be amended or enacted from time to time, and shall at all times comply with the conditions of approval. Any legal nonconforming facility which fails to comply with applicable laws, ordinances, regulations, or conditions of approval may be required to conform to the provisions of this chapter.

B.

Illegal Nonconforming Facility. Any facility constructed or erected prior to the effective date of Ordinance 21-998 in violation of applicable laws, ordinances, or regulations shall be considered an illegal nonconforming facility and shall be abated as a public nuisance pursuant to Chapter 1.12 and Section 7.24.020.H of the Montclair Municipal Code.

(Ord. No. 21-998, § II, 9-20-21)

11.73.050 - Definitions.

For the purposes of this chapter, the following definitions shall apply:

Administrative permit means a permit obtained pursuant to Chapter 11.77.

Alternative tower structure means clock or bell towers, steeples, spires, monoliths, light poles, artificial trees and similar alternative design mounting structures that camouflage or conceal the presence of an antenna or antenna arrays.

Antenna means any exterior transmitting or receiving device mounted on a tower, building structure, pole or alternative tower structure and used in communication that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies, wireless telecommunications signals or other communications signals.

Antenna array means a set of one or more antennas.

Applicant means the person filing an application for placement or modification of a wireless telecommunications facility on public or private property in the City of Montclair.

Building-mounted means mounted to the side or integrated into the façade, but not the roof, of a building or another structure such as a water tank, pump station, church steeple, freestanding sign, or similar structure.

CUP means conditional use permit.

City shall mean the City of Montclair, California, a municipal corporation.

Code means Montclair Municipal Code.

Collocation means (a) for the purposes of any eligible facilities request, the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(2), as may be amended, which defines that term as "[t]he mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes." As an illustration and not a limitation, the FCC's definition means to add transmission equipment to an existing facility and does not necessarily refer to two or more different facility operators in the same location; and (b) for all other purposes, the same as defined in 47 C.F.R. § 1.6002(g)(1) and (2), as may be amended, which defines "collocation" as (1) mounting or installing an antenna facility on a pre-existing structure, and/or (2) modifying a structure for the purpose of mounting or installing an antenna facility on that structure.

Design standards means those detailed design standards, specifications, and examples adopted by the City Council related to the design and installation of wireless telecommunications facilities.

Director means the Director of Community of Development of the City of Montclair or his or her designee.

Eligible facilities request means the same as in 47 C.F.R. § 1.6100(b)(3), or any successor provision.

FCC means the Federal Communications Commission or its lawful successor.

Fall zone means the area on the ground within a prescribed radius from the base of a wireless telecommunications facility. The fall zone is the area within which there is a potential hazard from falling debris, collapsing material, or the collapse of the tower itself.

Freestanding telecommunications tower or structure means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, such as a monopole tower.

Height means, when referring to a tower or other structure, the vertical distance measured from the finished grade level to the highest point on the tower or other structure, even if said highest point is an antenna. The finished grade shall not be artificially or unnecessarily raised to achieve a taller height for the tower or structure.

Macro cell facility (or site) means a large wireless communication facility that provides radio frequency coverage for a personal wireless service. Generally, macro cell antennas are mounted on ground-based towers, rooftops and other existing structures, at a height that provides a clear view over the surrounding buildings and terrain. Macro cell facilities typically contain antennas that are greater than three cubic feet per antenna and typically cover large geographic areas with relatively high capacity and may be capable of hosting multiple wireless service providers. For purposes of this chapter, a macrocell is anything other than a small cell, microcell or in-strand antenna. In addition to the requirements found in this chapter, a macrocell shall comply with the applicable zoning and use requirements as a "wireless telecommunications facility or wireless facility."

Modification means any change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, a change in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement, or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation.

Monopalm means a stealth tower structure resembling a palm tree constructed and designed for the sole purpose of supporting and concealing a wireless telecommunications antenna or antenna array.

Monopine means a stealth tower structure resembling a pine tree constructed and designed for the sole purpose of supporting and concealing a wireless telecommunications antenna or antenna array.

Monopole means a structure comprised of a single spire for the sole purpose of supporting a wireless telecommunications antenna or antenna array.

Roof-mounted means an antenna or antenna array directly attached or affixed to the roof of an existing building, tower or structure other than a lattice tower, monopole, monopalm or monopine.

Stealth, or a stealth facility, means a facility that is designed to look like something other than a wireless tower, base station or facility.

Temporary facility means a wireless facility intended or used to provide wireless services on a temporary or emergency basis, such as a large-scale special event in which more users than usual gather in a single location or following a duly proclaimed local or state emergency as defined in California Government Code Section 8558 requiring additional service capabilities. Temporary facilities include without limitation, cells

on wheels (COW), sites on wheels (SOW), cells on light trucks (COLTs), or other similar wireless facilities: (1) that will be in place for no more than six months (or such other longer time as the City may allow in light of the event or emergency); (2) for which required notice is provided to the FAA; (3) that do not require marking or lighting under FAA regulations; (4) that will be less than 200 feet in height; and (5) that will either involve no excavation or involve excavation only as required to safely anchor the facility, where the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet.

Wireless telecommunications facility (or wireless facility) means antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower, support structure(s), and base station(s) accessory equipment associated with the installation of a wireless telecommunications facility includes, but is not limited to, cabling, generators, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers, service roads and other similar improvements.

(Ord. No. 21-998, § II, 9-20-21)

An administrative permit or conditional use permit (CUP) in compliance with the design guidelines, as applicable, processed in accordance with Chapter 11.77 or Chapter 11.78 of the Montclair Municipal Code shall be required for all wireless telecommunications facilities on public and private property within the City that are not exempt pursuant to Section 11.73.030. A CUP is required for installations involving a new freestanding support structure and for certain collocations that the Director has deemed complex based on the nature of the installation. All other wireless installations on public and private property require an administration permit.

Building Permits. All improvements associated with a new wireless telecommunications facility and all modifications to existing facilities, shall require City review and the issuance of building permits.

(Ord. No. 21-998, § II, 9-20-21)

Wireless telecommunications facility shall be permitted only as an accessory use on real property that is presently developed with a legal, conforming primary land use. Applications for facilities on undeveloped parcels shall not be considered unless the application is filed concurrently with an application for development of a conforming land use on the parcel. A variance application requesting that development of the primary land use on the parcel be permitted to deviate from any of the City's development standards solely to accommodate a wireless telecommunications facility on the same parcel shall not be considered.

(Ord. No. 21-998, § II, 9-20-21)

In addition to complying with the standard application submittal requirements and design guidelines for an administrative permit or CUP as provided for in Chapters 11.77, 11.78, and 11.73 of the Montclair

Municipal Code, the applicant shall also provide all information required on a form published, and from time to time updated, by the Director.

(Ord. No. 21-998, § II, 9-20-21)

Wireless telecommunications facilities on public and private property may be located within the following zoning districts, subject to the approval of a CUP and compliance with the design standards of Section 11.73.110:

A.

Residential Zones.

1.

R-1 Zone (Single-Family Residential). On properties two acres in size or larger where the primary use is not residential such as a religious institution, public utility facility, public park, or other similar non-residential use as determined by the Community Development Director. Qualifying properties may be comprised of one or more abutting parcels under the same ownership.

2.

R-3 Zone (Multiple-Family Residential). When integrated into the existing architectural framework of a building or structure—such as the backside of parapet walls, within towers or wall setbacks, in roof attic space, etc.—so that the presence of an antenna or antenna arrays are concealed. Ground mounted support equipment shall not be located in required parking spaces and/or required setbacks. Freestanding wireless telecommunications facilities shall be not be permitted.

B.

Non-Residential Zones.

1.

AP (Administrative Professional Zone);

2.

C-3 (General Commercial Zone);

3.

MIP (Manufacturing Industrial Zone);

4.

M-1 (Limited Manufacturing Zone);

M-2 (General Manufacturing Zone).

C.

Specific Plans.

1.

North Montclair Downtown Specific Plan (NMDSP)

2.

Montclair Place District Specific Plan (MPDSP)

3.

Arrow Highway Mixed-Use District (AHMUD)

4.

Auto mall," "business park," "commercial," "commercial/office" and "industrial" zones of the Holt Boulevard Specific Plan (HBSP).

(Ord. No. 21-998, § II, 9-20-21)

Wireless telecommunications facilities on public and private property shall be expressly prohibited within the following zoning district designations:

A.

R-1 Zone—where the primary use of the site is residential and the site does not meet the minimum parcel size requirement as identified in Section 11.73.090.A.1;

B.

R-2 (Two-Family Residential);

C.

C-2 (Restricted Commercial).

(Ord. No. 21-998, § II, 9-20-21)

Design and development standards for wireless telecommunications facilities on public and private property are provided as a separate document which may be updated from time to time by the Community Development Director.

(Ord. No. 21-998, § II, 9-20-21)

The owner of the wireless telecommunications facility shall routinely monitor the site to ensure the facility is maintained in good condition at all times in accordance with all approved plans and conditions of approval. Such maintenance shall include, but shall not be limited to, routine inspections to verify the facility and its components are structurally sound, is free of: general dirt and grease; chipped, faded, peeling or cracked paint; trash, debris, litter, graffiti and other forms of vandalism; cracks, dents, blemishes and discolorations; visible rust or corrosion on any unpainted metal areas; and, the health and operation of associated landscaping and irrigation.

The owner of the facility shall also be responsible for maintaining the integrity and appearance of their facility making sure that any deficiencies (e.g., missing or defective parts, faux branches and foliage, stealth components, etc.) are routinely replaced in a timely manner with matching material and functioning parts, with or without notification from the City.

Any damage from any cause shall be repaired by the permittee within 30 days of notice. Weathered, faded or missing parts/materials used to disguise/camouflage the facility shall be maintained and/or replaced by the permittee within 30 days of notice. All graffiti on facilities must be removed at the sole expense of the permittee within 72 hours after notification from the City. All other forms of vandalism and damage shall be removed and/or repaired within 72 hours of notice by the City.

(Ord. No. 21-998, § II, 9-20-21)

11.73.130 - Special standards for temporary facilities.

A.

The proposed temporary facility must comply with all applicable laws and regulations, and submit proof of compliance, as proposed for use, with FCC regulations governing radio frequency emissions.

B.

The proposed facility will be placed and protected to prevent hazard to the public and property, and so as not to unreasonably interfere with pedestrian vehicular traffic, and all ADA space and path of travel requirements.

C.

The proposed facility must comply with all conditions for a temporary wireless facility, and there must be an appropriate plan for removal of the facility and restoration of property affected by it.

D.

The permit is sought for the minimum period required, and no greater than the maximum period permitted by the City.

E.

Any permit issued shall identify where the temporary wireless facility will be placed, and the period for which it may remain in place.

(Ord. No. 21-998, § II, 9-20-21)

A.

Other than eligible facilities requests and temporary wireless facilities, the Director, City Manager, or Planning Commission, as the case may be, shall approve the installation or modification of a wireless telecommunications facility if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following: These are in addition to any applicable findings in Title 11 of the Montclair Municipal Code associated with a conditional use permit, when applicable.

1.

There is adequate space on the property for the wireless telecommunications facility without conflicting with existing buildings or other improvements on the property or reducing required parking or landscaping;

2.

The design and placement of the wireless telecommunications facility complies with all applicable design and location standards, and will not adversely impact the use of the property, buildings and structures located on the property, or the surrounding area or neighborhood;

3.

The wireless telecommunications facility as proposed is consistent with the provisions of this chapter and complies with all other applicable requirements of Title 11 of the Montclair Municipal Code; and

4.

The wireless telecommunications facility meets applicable requirements and standards of state and federal law.

B.

For eligible facilities requests, the Director or Planning Commission, as the case may be, shall approve the installation or modification of a wireless telecommunications facility if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:

1.

The application qualifies as an eligible facilities request subject to this chapter.

2.

The proposed facility will comply with all generally applicable laws.

C.

For temporary facilities not exempt pursuant to Section 11.73.030(C), the Director, or Planning Commission, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:

1.

The facility qualifies as a temporary facility;

2.

There is an adequate need for the facility (e.g., wireless facility relocation or large-scale event);

3.

The facility is not detrimental to the public health, safety, and welfare;

4.

The facility complies with all applicable design and location standards; and

5.

The facility meets all applicable requirements of state and federal law.

(Ord. No. 21-998, § II, 9-20-21)

11.73.150 - Exceptions.

A.

The approving authority may grant an exception to any of the requirements of this chapter and/or the applicable design and location standards if it determines that the applicant has established that denial of an application would:

1.

Within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services; or

2.

Otherwise violate applicable laws or regulations; or

3.

Require a technically infeasible design or installation of a wireless telecommunications facility.

B.

If that determination is made, the requirements of this chapter and/or the applicable design and location standards may be waived, but only to the minimum extent required to avoid the prohibition, violation, or

technically infeasible design or installation.

(Ord. No. 21-998, § II, 9-20-21)

A.

Conditions of approval shall be imposed by the approving authority on all permits granted pursuant to this chapter to ensure compliance with the intent of Title 11 of the City Code, the required standards and findings, and the protection of the public health, safety, general welfare, and aesthetics.

B.

In addition to any supplemental conditions imposed by the approving authority, all permits granted pursuant to this chapter shall be subject to the following conditions, unless modified by the approving authority:

1.

This permit shall be valid for a period of ten years, unless pursuant to another provision of the Code or these conditions, it expires sooner or is terminated. At the end of ten years from the date of issuance, this permit shall automatically expire, unless an extension or renewal has been granted. A person holding this permit must either (1) remove the facility within 30 days following this permit's expiration (provided that removal of any support structure owned by City, a utility, or another entity need not be removed, but must be restored to its prior condition, except as specifically permitted by the City); or (2) at least 90 days prior to expiration, submit an application to renew this permit, which application must, among all other requirements, demonstrate that the impact of the wireless telecommunications facility cannot be reduced. The wireless facility must remain in place until it is acted upon by the City and all appeals from the City's decision exhausted.

2.

Timing of Installation. The installation and construction authorized by this permit shall begin within one year after its approval, or such approval shall expire without further action by the City. The installation and construction authorized by this permit shall conclude, including any necessary post-installation repairs and/or restoration to the installation site, within 30 days following the day construction commenced. If the wireless facility is to be installed adjacent to residences, construction and maintenance of the facility shall be limited to the hours as per City of Montclair Municipal Code Section 6.12.060.D. Emergency repairs of the wireless facility may occur at any time.

3.

The operation of the approved facility shall commence no later than one month after the completion of installation, or this permit will expire without further action by the City.

The permittee shall submit an as-built drawing within 90 days after installation of the facility, in a format acceptable to the City.

5.

The wireless telecommunications facility shall be constructed in substantial compliance with plans reviewed and approved by the Director.

6.

No advertising, signs or lighting shall be incorporated or attached to the antenna array or support facilities, except as required by the City's Building Division or federal regulations.

7.

All electrical and utility connections serving the facility shall be placed underground in accordance with the requirements of the Montclair Municipal Code.

8.

A back-up generator authorized by this permit must comply with City Code Chapter 6.12—"Noise Control."

9.

The permittee shall submit to the City certification of continued use of the approved facility on an annual basis at the time of business license renewal for as long as the facility remains in operation. The certification shall indicate that the facility is operating as approved and that the facility complies with the most current FCC safety standards. Facilities that are no longer in operation shall be completely removed within 90 days after the date cessation of operation.

10.

If no annual certification is provided, the permit for the facility may be revoked by the Director. Prior to revoking a permit, the Director shall provide the owners of record written notice of their failure to provide the annual certification and an opportunity for a hearing.

11.

Written notice of change of ownership and contact information of the facility shall be provided in writing to the Director within 30 days of said change. Failure to provide the information may cause for grounds to revoke the entitlements by the Director.

12.

Radio Frequency Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the facility, permittee or its representative must conduct on-site post-installation RF emissions testing to demonstrate actual compliance with the FCC OET Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be operating at

maximum operating power, and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit.

13.

All future changes and modifications to an approved facility shall require prior review and approval by Chapter 11.73.

14.

Prior to construction of the facility, the permittee shall:

a.

Obtain a building permit that complies with all requirements of the Building and Engineering Divisions and the Montclair Fire Department.

b.

Remit to the City a performance bond, or other form or surety acceptable to the City in an amount to be determined by the Director for the purpose of removing the subject facility and all associated support equipment in the event the facility becomes abandoned, this permit is revoked by the Director, or the permittee does not or is unable to remove the facility.

c.

Submit a copy of the lease with the property owner. If the lease is extended or terminated, notice and evidence thereof shall be provided to the Director. Upon termination or expiration of the lease, this permit for the facility shall become null and void and the facility shall be completely removed within 90 days.

15.

Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility.

16.

If, as a result of the operation of the subject facility, existing or future residential, commercial or industrial properties near the site experience interference difficulties with electronic equipment (such as radios, televisions, telephones, home computers, etc.), or if public safety personnel experience interference with communications systems, the permittee shall be solely and fully responsible to correct any and all problems upon proof of such interference.

17.

The site and the facility, including, but not limited to, all landscaping, fencing, and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans and shall remain free of: general dirt and grease; chipped, faded, peeling or cracked paint; trash, debris, litter, graffiti and other forms of vandalism; cracks, dents, blemishes and discolorations; visible rust or corrosion

on any unpainted metal areas. Any damage from any cause shall be repaired by the permittee within 30 days of notice. Weathered, faded, or missing parts/materials used to disguise/camouflage the facility shall be maintained and/or replaced by the permittee within 30 days of notice. All graffiti on facilities must be removed at the sole expense of the permittee within 72 hours after notification from the City. All other forms of vandalism and damage shall be removed and/or repaired within 72 hours of notice by the City.

18.

To ensure compliance with the conditions of the approval, a final inspection is required from the Building and Planning Divisions upon completion of construction and all improvements. The permittee shall contact the City to schedule an appointment for such inspections. Further, after the initial inspection, the City or its designee may enter onto the facility area to inspect the facility upon 24 hours' prior notice to the permittee. The permittee shall cooperate with all inspections and may be present for any inspection of its facility by the City. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The City shall make an effort to contact the permittee prior to disabling or removing any facility elements, but in any case shall notify permittee within 24 hours of doing so.

19.

The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one natural person. The FCC Antenna Structure Registration site number, City permit number, primary leaseholder's, and facility manager's contact information shall be kept current and prominently displayed on the facility where it can be easily viewed from ground level.

20.

Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.

21.

No possessory interest is created by this permit. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, permittee acknowledges that City has given to permittee notice pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property pursuant to this permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interact taxes or other taxes, fees, and assessments levied against permittee's right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this permit.

22.

The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any

ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the City, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.

23.

The permittee shall agree to defend, at its sole expense, any action brought against the City, its agents, officers, or employees because of the issuance of this approval; or in the alternative, to relinquish such approval. The permittee shall reimburse the City, its agents, officers, or employees for any court costs and attorney fees that the City, its agents, officers, or employees may be required by a court to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve permittee of its obligations under this condition.

24.

In the event that the City determines that it is necessary to take legal action to enforce any of these conditions, or to revoke this permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney's fees, incurred by the City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the City should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.

(Ord. No. 21-998, § II, 9-20-21)

11.73.170 - Eligible facilities requests.

A.

Eligible Facilities Requests. In addition to the conditions provided in Section 11.73.150 of this chapter (with the exception of 11.73.150(b) which shall not apply to eligible facilities requests) and any supplemental conditions imposed by the Director, all permits for eligible facilities requests granted pursuant to this chapter shall be subject to the following additional conditions, unless modified by the approving authority:

1.

Permit Subject to Conditions of Underlying Permit. Any permit or wireless telecommunications facility authorization granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit;

2.

No Permit Term Extension. The City's grant or grant by operation of law of an eligible facilities request permit constitutes a federally mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition, the City's grant or grant by operation of law of an eligible facilities request permit will not extend the permit

term for the underlying permit or any other underlying regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.

3.

No Waiver of Standing. The City's grant or grant by operation of law of an eligible facilities request does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the Spectrum Act.

(Ord. No. 21-998, § II, 9-20-21)

Chapter 11.74 - YARD SALES[[12]]

Footnotes:

--- ( 12 ) ---

Editor's note— Ord. No. 12-931, § 1, adopted June 4, 2012, repealed the former Chapter 11.74, §§ 11.74.010—11.74.040, and enacted a new Chapter 11.74 as set out herein. The former Chapter 11.74 pertained to similar subject matter and derived from prior code § 9-4.1817 and Ord. No. 99-791.

This chapter is intended to set forth guidelines under which yard sales may be conducted on properties legally developed with single- and multifamily residential uses. Yard or rummage sales that are conducted on property legally developed with private educational institutions or houses of worship shall be required to obtain a special event permit subject to the guidelines set forth in Chapter 11.68 of this title. Yard sales shall be prohibited on undeveloped properties or properties developed with land uses not specified above, except as provided for herein.

(Ord. No. 12-931, § 1, 6-4-12)

A.

Every property owner or tenant desiring to exhibit, for sale purposes, identifiable or tangible personal property at a yard sale, moving sale, or estate sale shall, prior to conducting said sale, obtain a yard sale permit from the Community Development Department. Applications for yard sale permits shall be made on application forms furnished by the Department. At the time of application submission, applicants shall present a valid photo identification indicating they are a resident of the subject property. The yard sale permit application fee shall be established by resolution of the City Council.

B.

The property owner or tenant of the subject property where an approved yard sale is being conducted shall be present for the entire duration of said yard sale.

(Ord. No. 12-931, § 1, 6-4-12)

Properties legally developed with single- or multifamily residential uses shall be permitted to conduct yard sales a maximum of four times per calendar year for a maximum duration of three consecutive days. Sales shall be permitted only on the first full weekends of the months of February, May, August, and November. As used in this chapter, "weekend" is defined as being from dawn Friday morning until dusk Sunday evening. Further, "first full weekend of the month" is defined as the first weekend where all three days are within the month in which a yard sale is allowed. For example, if January 31 were to fall on a Friday, then the February yard sale weekend would occur on the subsequent full weekend falling within the month of February (February 7 through 9).

(Ord. No. 12-931, § 1, 6-4-12)

A.

Moving Sales. Residents of single-family dwellings who have sold, or entered into a contract to sell their home, shall be entitled to one moving sale per calendar year in addition to the four yard sales described in this chapter. Moving sales shall be for a maximum duration of three consecutive days with no restriction on days of the week. At the time of permit application, applicants shall provide proof that a real property sale agreement has been entered into or consummated for the subject property. The existence of a "for sale" sign on the subject property is not adequate substantiation for a moving sale.

B.

Estate Sales. The family of a resident or residents of a single-family dwelling who has/have passed away is entitled to conduct one estate sale per calendar year in addition to the four yard sales described in this chapter. Estate sales shall be for a maximum duration of three consecutive days with no restriction on days of the week. At the time of permit application, applicants shall provide sufficient proof that the deceased person(s) lived at the subject property and shall also provide a copy of a death certificate indicating that the person(s) has/have passed within the previous six months.

Single-family residential properties meeting the criteria described herein shall be entitled to either one moving sale or one estate sale in the same calendar year.

(Ord. No. 12-931, § 1, 6-4-12)

Yard sales that are sponsored or cosponsored by the City, a City department, and/or the Montclair Chamber of Commerce may occur on property developed with land uses other than those specifically identified in Section 11.74.010 herein. Said community-sponsored yard sales shall be permitted only on the four weekends identified in Section 11.74.030 herein. The property owner or business hosting the event on its property shall obtain a special event permit pursuant to Chapter 11.68 of this title. Individual yard sale permits as described herein shall not be required of vendors participating in a community-sponsored yard

sale. Community-sponsored yard sales shall comply with all other criteria and guidelines contained in this chapter.

(Ord. No. 12-931, § 1, 6-4-12)

All merchandise offered for sale at yard, moving, and estate sales shall meet the following criteria:

A.

Merchandise shall be limited to household goods that were previously purchased, made, or grown onsite by the property owner or tenant conducting the sale. The sale of new merchandise or large quantities of commercially-obtained merchandise is not permitted.

B.

Merchandise shall not be stacked, hung, piled, or otherwise displayed so as to adversely affect the residential appearance and/or property values of the surrounding neighborhood.

C.

Merchandise shall not be stacked or piled at a height greater than five feet above natural grade and shall be displayed in a reasonably neat and orderly manner.

D.

Merchandise shall not be stacked, hung, piled, or otherwise displayed in a manner that may reasonably impede the accessibility of emergency personnel to the residence.

E.

Merchandise shall not be displayed on fences and walls or hung from trees or other appurtenances.

F.

The display of merchandise shall not extend into the public right-of-way.

G.

Property owners or tenants shall not be permitted to "sublet" their yard to outside individuals, companies, groups, entities, etc., for the express purpose of conducting a yard sale pursuant to this chapter.

(Ord. No. 12-931, § 1, 6-4-12)

In the event of inclement weather lasting longer than one day on a designated yard sale weekend, the Community Development Director may, at his or her discretion, allow permitted yard sales to occur on the subsequent weekend. Similar postponements of approved moving or estate sales shall be at the discretion

of the Community Development Director. No additional permit or fees shall be required for a sale postponed solely because of inclement weather.

(Ord. No. 12-931, § 1, 6-4-12)

Two City-issued "Yard Sale" signs will be distributed with each yard sale permit. A maximum of two additional signs (for a maximum total of four signs per yard sale location) may be purchased from the Community Development Department. Signs shall only be placed, displayed, or affixed as follows:

A.

Permitted Sign. Only "Yard Sale" signs issued by the City shall be permitted to be displayed.

B.

Copy. Signs shall contain the City logo, the words "Yard Sale," and the street address of the event. Applicants may add other relevant or helpful information, such as a directional arrow. Homemade "Yard Sale" or directional signs shall be prohibited.

C.

Placement.

1.

Signs may be attached to wooden, metal, or plastic stakes and placed in a landscaped area on private property with the permission of the property owner or in a landscaped parkway adjacent to private property with the permission of the adjacent property owner.

2.

Signs shall not be attached to utility, streetlight, traffic signal, or regulatory sign poles in the public right-ofway, or to improvements on private property other than that where the yard sale is being conducted. Such placement of signs shall be prohibited and subject to removal by City staff.

3.

Signs shall not be attached to trees on public or private property, regardless of method of attachment.

4.

Signs shall not be placed in the landscaped center medians of any street.

D.

Removal. At the conclusion of the yard sale, applicants shall be responsible for removing all signs and methods of attachment or display. Violators may be subject to citation and fine.

(Ord. No. 12-931, § 1, 6-4-12)

Yard, moving, and estate sales are subject to inspection by Code Enforcement, Building, Police, Fire, and other City officials at all times during the operation to ensure compliance with this title. Violations of any parts of this Title may require immediate correction by the property owner(s) or tenant(s) conducting the sale. Failure to correct such violations may result in immediate cessation of the sale, citation, fine, and/or prohibition from conducting a yard sale at the subject location for up to a one-year period.

(Ord. No. 12-931, § 1, 6-4-12)

Chapter 11.75 - UNDERGROUNDING OF UTILITIES

The intent and purpose of this chapter is to establish uniform regulations for the installation of underground utilities. For purposes of this chapter, any person, entity, agency, or property owner responsible for building on or remodeling, developing, or redeveloping any property within the City of Montclair is hereinafter referred to as "developer." Property upon which the work is taking place is hereinafter referred to as "property."

(Ord. No. 11-923, § 1, 7-5-11)

The California Public Utilities Commission's Rule 20 sets policies and procedures for the conversion of overhead power lines and other equipment to underground facilities.

(Ord. No. 11-923, § 1, 7-5-11)

The provisions of this chapter shall apply to subdivisions and residential, commercial, industrial, and mobilehome park development, redevelopment, remodeling, and building additions. No developer shall construct a new structure or structures; or modify, remodel, or add to any existing structure; or add an additional attached or detached dwelling structure upon any parcel of land unless:

All of the existing utility lines including, but not limited to, electrical, street lighting, data/communication/telephone, and cable television within the street frontage of the property or limits of the subdivision are placed underground and one of the following conditions has been complied with:

A.

All utility lines and/or services including, but not limited to, electrical, data/ communication/telephone, and cable television that provide direct service to the existing structure and/or the new structure on the parcel of land, have been installed underground.

B.

The existing main utility lines are located to the rear or side of the parcel of land on which the existing structure and/or new structure is constructed unless located in a public right-of-way.

C.

The modification, remodeling, or addition is to an existing structure and no structure(s) is/are being added and the area of the work to be performed is equal to or less than 50 percent of the total square footage of the existing structures upon the parcel.

D.

An exception of the foregoing requirements has been granted in accordance with the provisions of Section 11.75.050.

When utility undergrounding is required, no poles, wires, guy wires, pole supports or appurtenances, except as noted in Section 11.75.035, shall be permitted to remain within the property frontage or parkways. Development on corner lots will require undergrounding through the adjacent intersection.

(Ord. No. 11-923, § 1, 7-5-11)

For the purposes of this chapter, appurtenances and associated equipment, such as, but not limited to, surface-mounted or pad-mounted transformers, pedestal-mounted terminal boxes and meter cabinets, and streetlights (with underground service) may be placed above ground if permitted by and in accordance with the rules of the California Public Utilities Commission.

(Ord. No. 11-923, § 1, 7-5-11)

If the width of the frontage of property is equal to or less than 600 feet, developer may opt to pay an in-lieu undergrounding payment to City. If property includes two or more street frontages, the 600-foot limitation shall apply to each street individually. The in-lieu undergrounding payment shall be determined as the product of the width of the property along each street and a cost per foot set forth by a resolution of the City Council. In-lieu payments collected by the City may be used for utility undergrounding anywhere within the City.

(Ord. No. 11-923, § 1, 7-5-11)

A.

The provisions of this chapter shall not include or apply to the following:

1.

Primary electrical energy transmission facilities operated at nominal voltages in excess of 20,000 volts.

Facilities necessary to the transmission or reception of radiated wireless communication media.

3.

Temporary facilities to supply electrical power or communication services for construction purposes.

4.

Temporary facilities to supply electrical power to communication services interrupted by damage or destruction of existing underground facilities.

B.

Where the enforcement of the provisions of this section would result in severe economic hardships requiring underground expenditures or in-lieu utility undergrounding payments that are substantially disproportionate to the improvement being remodeled or erected and served, property owners may make an application for exception from the provisions of this section in the following manner:

1.

An exception application shall be filed with the City Manager for consideration. An exception application filing fee shall be submitted concurrent with the exception application, said fee being set by City Council Resolution. The fee shall be paid to the City at the time of filing. No application shall be considered filed unless the established fees have been paid to the City.

2.

Such application shall include all information necessary to properly apprise the City Manager of the circumstances existing that require such an exception.

3.

Within 30 working days after the filing of such application, the City Manager shall consider the application and shall make his/her findings regarding the acceptance or rejection of the exception application. Failure of the City Manager to respond within 30 working days shall be deemed denial of the application.

4.

The exception application may be further appealed to the City Council by submitting the application to the City Clerk to agendize for City Council consideration. An exception appeal application filing fee shall be submitted concurrent with the exception application, said fee being set by City Council Resolution. The fee shall be paid to the City at the time of filing. No appeal application shall be considered filed unless the established fees have been paid to the City. The City Council's decision to uphold or overturn the City Manager's decision shall be deemed final.

(Ord. No. 11-923, § 1, 7-5-11)

Division IV. - Entitlements

Chapter 11.76 - ADMINISTRATIVE ADJUSTMENTS

Sections:

It is the intent and purpose of this chapter to provide for the granting of administrative adjustments or minor exceptions to the development standards of this Code by the Community Development Director in those cases where such minor deviations or exceptions are warranted by practical difficulties, unnecessary hardships, or results that without the administrative adjustment may be inconsistent with the general intent of this Code.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1930)

The Community Development Director may grant an administrative adjustment for the following requests upon receipt of a complete application in accordance with procedures set forth in this chapter:

A.

Fence, wall or hedge over 42 inches in height within or on the required side yard on the street side of a reversed corner lot as prescribed under Section 11.38.050(N)(1) of this title;

B.

Fence or structure over 6 feet in height to enclose a tennis court or other game area located within the rear one-half of the lot as prescribed under Section 11.38.050(N)(2) of this title;

C.

Fence, wall or hedge not greater than 8 feet in height on or within all rear and side property lines and on or to the rear of all front yard setback lines in special circumstances prescribed under Section 11.38.050(N)(4) of this title;

D.

Construction of patios on residential lots within small-lot (SL) zoned areas, open on at least two sides and having a minimum rear yard setback of 5 feet;

E.

Other minor deviation from the required yard areas, building coverage, open space, building separation, building height and size of accessory structure by not more than 10 percent of the minimum or maximum requirements of the development standards under any residential zones;

F.

Keeping of exotic animals within residential zones as specified under provisions of Section 11.18.030(C)(5) of this title.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1931)

A.

The applicant for an administrative adjustment shall have on file with the Department of Community Development a complete application on a form furnished by the City, including all appropriate scaled drawings and detailed description of the request to be considered.

B.

In the case of an administrative adjustment request for the keeping of exotic animals within residential zones as qualified under Section 11.76.020(F) of this chapter, the applicant shall also submit a signed statement by the County Health Officer that the keeping of such animals will not be detrimental to the health, safety and welfare of the abutting property owners and that the keeping of such animals is not in any way inconsistent with any federal, State or local laws regulating and protecting rare, endangered or extinct species.

C.

An administrative adjustment review fee shall also be accompanied with the application in an amount determined by resolution of the City Council.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1932)

A.

Within 10 working days from the acceptance of the application for administrative adjustment which is deemed complete, the Director of Community Development shall conduct a full review of the request to ensure compliance with the general intent of this Code and that the necessary findings can be met. Such review may include site inspection, notification of and consultation with abutting property owners, various City departments or outside agencies.

B.

The Director of Community Development shall notify the applicant of the decision, in writing, within 40 days from the acceptance of a completed application.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1933)

11.76.050 - Findings required to grant administrative adjustment.

No administrative adjustment shall be granted unless the Director of Community Development makes the following four findings:

A.

Because of special circumstances applicable to the subject property, that the strict application of the zoning provisions is found to deprive the subject property of privileges enjoyed by properties in the vicinity under an identical zone classification;

B.

That such administrative adjustment is necessary for the preservation and enjoyment of a substantial property right enjoyed by other property owners in the vicinity and under the exact zone classification;

C.

That the granting of the administrative adjustment will not be materially detrimental to the public welfare; and

D.

That the granting of the administrative adjustment is not contrary to the adopted General Plan.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1934)

A.

The Director of Community Development may attach conditions of approval deemed necessary to mitigate the appearance or potential impact of any structures or uses as permitted under the administrative adjustment procedure and to safeguard the public safety, health and welfare.

B.

In the case of approval for keeping of exotic animals, additional conditions shall be imposed subjecting the adjustment to automatic revocation should the animals become a valid and verified nuisance due to noise, odor etc., or if the animal(s) becomes a danger to the neighborhood.

(Prior code § 9-4.1935)

A.

A time limit of six months, or a shorter period if deemed necessary by the Director of Community Development, shall be imposed on each administrative adjustment granted by the Director after the effective date thereof. If the privilege is not utilized within such time, this authorization shall be void and any privileged permit granted hereby shall be deemed to have lapsed. The Director, however, shall have the authority to extend the time limit for a maximum of an additional 60 days for good cause upon submittal of written request and time extension fee equaling one-half of the original filing fee for administrative adjustment at least 10 days prior to the expiration date.

B.

The privileges of an administrative adjustment shall lapse and become null and void if the adjustment is abandoned for a period of six months or more.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1936)

A.

Any aggrieved person may appeal the decision of the Director of Community Development in conjunction with approval, conditional approval, or denial of an administrative adjustment application to the Planning Division within 10 days after the Director's decision in accordance with the provisions of this title and said appeal shall be accompanied by an appeal fee, which shall be one-half of the original filing fee.

B.

Any such appeal shall stay the administrative adjustment proceedings until resolution by the Planning Commission.

C.

The Planning Commission, upon receipt of the appeal, shall conduct a hearing within 40 days. The appellant and the abutting property owners shall be notified of the hearing at least 10 days prior to the hearing date.

D.

The Planning Commission may, upon conducting its own investigation of the evidence presented at the hearing, affirm, reverse, or modify in whole or in part any decision or requirement of the Director of Community Development. The decision of the Planning Commission shall be final.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1937)

No application concerning the administrative adjustment provisions of this chapter for the same property, which application has been recommended for denial by the Director of Community Development and/or the Planning Commission on appeal, shall be received or processed by the City within 12 months after such denial.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1938)

Chapter 11.77 - ADMINISTRATIVE PERMIT

Sections:

11.77.010 - Purpose.

This chapter is intended to allow for administrative review and decisions for: (1) specific projects involving less complex installations, smaller installations, or less new construction; or (2) applications for which there is no discretion.

(Ord. No. 21-998, § III, 9-20-21)

11.77.020 - Scope.

The following permit and application types shall undergo an administrative review pursuant to this chapter rather than requiring a conditional use permit pursuant to Chapter 11.78:

A.

Applications to install or modify wireless facilities on public or private property; except for proposed installations requiring new support structures and,

B.

At the Director's discretion, certain collocations based on their complexity.

C.

Applications to install monitored electrified security fences pursuant to the requirements and findings contained in Chapter 11.38.100 of the MMC.

(Ord. No. 21-998, § III, 9-20-21; Ord. No. 24-1005, § IV, 2-5-24)

The Director of Community Development (Director), or its designee, is responsible for administering this chapter. As part of the administration of this chapter, the Director may:

A.

Interpret the provisions of this chapter and related chapters in Title XI—Zoning and Development;

B.

Develop forms and procedures for submission of applications consistent with this chapter;

C.

Determine the amount of and collect, as a condition of the completeness of any application, any fee established by this chapter;

D.

Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations;

E.

Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued;

F.

Require, as part of, and as a condition of completeness of any application, notice to members of the public that may be affected by proposed work or project;

G.

Determine whether to approve, approve subject to conditions, or deny an application; and

H.

Take such other steps as may be required to timely act upon applications, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.

(Ord. No. 21-998, § III, 9-20-21)

A.

Any person adversely affected by the decision of the Director pursuant to this chapter may appeal the Director's decision to the City Manager, who may decide the issues de novo, and whose written decision will be the final decision of the City.

B.

Where the Director grants an application based on a finding that denial would result in a prohibition or effective prohibition under applicable federal law, the decision shall be automatically appealed to the City Manager.

C.

All appeals must be filed within two business days of the issuance of the written decision of the Director, unless the Director extends the time therefore. An extension may not be granted where extension would result in approval of the application by operation of law.

(Ord. No. 21-998, § III, 9-20-21)

A.

Submissions. Applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to notices of incompleteness and requests for information regarding an application to: Director of Community Development, at City Hall.

B.

Content. An applicant shall submit an application on the form approved by the Director, which may be updated from time to time. If no form has been approved, applications must contain all required fee(s), documents, information, and any other materials necessary to allow the Director to make required findings and ensure that the proposed project will comply with applicable federal and state law, the City Code, and will not endanger the public health, safety, or welfare (including proof of compliance with the FCC's radio frequency emissions standards) and must specify whether the applicant believes state or federal law requires action on the application within a specified time period. If applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all information on which the applicant relies on in support of that claim.

C.

Fees. Application fee(s) shall be required to be submitted with any application for an administrative permit. The City Council is hereby authorized to determine, or cause to be determined, the amount, type, and other terms of such fee(s) from time to time by means of resolution. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for an administrative permit unless paid as a refundable deposit.

D.

Waivers. Requests for waivers from any application requirement shall be made in writing to the Director or his or her designee. The Director may grant or deny a request for a waiver pursuant to this subsection. The Director may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of a waiver, the City will be provided all information necessary to understand the nature of the project or other activity to be conducted pursuant to the permit sought. All waivers approved pursuant to this subsection shall be (1) granted only on a case by case basis, and (2) narrowly tailored to minimize deviation from the application requirements.

(Ord. No. 21-998, § III, 9-20-21)

11.77.060 - Findings, decisions, and consultants.

A.

The findings required for approval can be found in the respective sections of the Code for each application or project type.

B.

Decisions. Decisions on an application shall be in writing and include the reasons for the decision.

C.

Independent Consultants. The Director or City Manager, as the case may be, is authorized, in its discretion, to select and retain independent consultant(s) with expertise in relevant fields in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application.

pendent Consultants. The Director or City Manager, as the case may be, is authorized, in its discretion, to select and retain independent consultant(s) with expertise in relevant fields in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application.

(Ord. No. 21-998, § III, 9-20-21)

11.77.070 - Conditions of approval.

The Director or City Manager, as the case may be, may impose conditions of approval on all permits granted pursuant to this chapter.

(Ord. No. 21-998, § III, 9-20-21)

11.77.080 - Breach; termination of permit.

A.

An administrative permit may be revoked for failure to comply with the conditions of the permit and applicable law. Upon revocation, any construction or installations made under the permit must be removed; provided that removal of a support structure owned by a City, a utility, or another entity authorized to maintain the support structure need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the project or installation.

B.

For projects or installations without a permit. Any work or installations performed without an administrative permit (except for those exempted by this chapter or respective chapters for a specific project type) must be removed; provided that removal of support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the project or installation.

C.

Municipal Infraction. Any violation of this chapter will be subject to the penalties set forth in Chapter 1.12 of the City Code.

(Ord. No. 21-998, § III, 9-20-21)

Chapter 11.78 - CONDITIONAL USE PERMITS[[13]]

Footnotes:

--- ( 13 ) ---

Editor's note— Ord. No. 13-933, §§ 4, 6, adopted June 17, 2013, repealed the former Chapter 11.78, §§ 11.78.010—11.78.030 and 11.78.040—11.78.120, and §§ 4—6 of Ord. No. 13-933 enacted a new Chapter 11.78 as set out herein. The former Chapter 11.78 pertained to similar subject matter and derived from prior code §§ 9-4.1910—9-4.16; Ord. No. 99-791; Ord. No. 02-828; Ord. No. 05-868, 2005; Ord. No. 06-871 and Ord. 06-873.

11.78.010 - Purpose and authorization.

This chapter is intended to provide the flexibility and procedures necessary for certain uses and activities that are not allowed as a matter of right within a zoning district by reason of uniqueness, size, scope, or possible negative effect on public facilities or surrounding uses but may be permitted after special consideration and public review of each request in order to ensure conformity and compatibility with the goals and objectives of the adopted General Plan and zoning code, subject to a conditional use permit (CUP) or administrative conditional use permit (ACUP). In granting such permits, the Planning Commission (CUP) or Director of Community Development (ACUP) may stipulate conditions, in addition to those required by the provisions of this title, which would tend to safeguard the health, safety, and property value in the area.

(Ord. No. 13-933, § 4, 6-17-13)

A conditional use permit may be granted by the Planning Commission or an administrative conditional use permit may be granted by the Director of Community Development, for those uses stated in Sections 11.78.030 through 11.78.050 of this chapter and other uses identified in this title requiring approval of a conditional use permit or administrative conditional use permit.

(Ord. No. 13-933, § 4, 6-17-13)

11.78.030 - Permitted uses.

In addition to those uses specifically identified in Chapters 11.22 through 11.30 of this Title as requiring a conditional use permit, the Planning Commission may grant a conditional use permit for any use listed in this Section as a permitted use subject to a conditional use permit:

A.

Residential Uses.

1.

Assisted living facilities (AP, C-2, C-3);

2.

Convalescent care (AP, C-2, C-3);

3.

Conversions of apartments to condominiums (R-3);

4.

Student housing, dormitories, group quarters (AP, C-2, C-3).

B.

Commercial Uses (Animal Services).

1.

Animal hospitals, boarding facilities, and kennels (MIP, M-1, M-2);

2.

Animal shelters (M-1, M-2);

3.

Feed and tackle supplies with outdoor storage (C-3, M-1, M-2);

4.

Pet sales and supplies - retail (MIP).

C.

Commercial Uses (Alcoholic Beverage Sales). The uses identified in this subsection shall also be subject to the applicable requirements of Chapter 11.42 of this title.

1.

Off-sale alcoholic beverages within an overall floor area of less than 15,000 square feet, except those retail businesses specifically identified in Section 11.78.035(B)(1) of this chapter as requiring an administrative conditional use permit (C-2, C-3);

2.

Off-sale alcoholic beverages within an overall floor area of 15,000 square feet or greater (C-2);

3.

On-sale alcoholic beverages in conjunction with a bona fide eating establishment (C-2, C-3, MIP);

4.

Microbrewery with on-site tasting (C-3);

5.

Microbrewery in conjunction with a bona fide eating establishment (C-2, C-3).

D.

Commercial Uses (General Merchandise).

1.

Antiques — retail (MIP);

Auction houses (MIP, M-1, M-2);

3.

Carpet and floor covering stores — retail (MIP, M-1, M-2);

4.

Cigar/cigarette/electronic cigarette/smoke shops (C-2, C-3), subject to the following criteria:

a.

Such establishments shall be located a minimum of 1,000 feet, measured property line to property line, from any public or private school serving students in grades Pre-K through 12; and

b.

Such establishments shall be located a minimum of 1,000 feet, measured property line to property line, from one another;

5.

Commercial plant nursery — wholesale (MIP, M-1, M-2);

6.

Construction equipment sales with outdoor storage (C-3, MIP, M-1, M-2);

7.

Construction equipment sales without outdoor storage (MIP);

8.

Convenience stores (C-2, C-3);

9.

Firearms, ammunition and related products as a stand-alone use — retail (C-3, MIP, M-1);

10.

Furniture, office and home furnishings (MIP);

11.

Garden supply, hardware/home improvement center, plant nursery with outdoor display area (C-2, C-3, MIP);

12.

Hobby, toy and game shops with more than four personal computers for customer use (C-2, C-3);

Newsstands — staffed (C-2, C-3);

14.

Sporting goods and equipment with firearms and/or ammunition sales (C-2, C-3);

15.

Swap meets, marketplaces, concession malls (C-3);

16.

Thrift stores and second-hand merchandise stores (C-3; BP and C within HBSP).

E.

Commercial Uses (Lodging Facilities).

1.

Bed and breakfast facilities (AP, C-2, C-3);

2.

Hotels and motels (AP, C-2, C-3).

F.

Commercial Uses (Medical/Health Services).

1.

Hospitals (AP).

G.

Commercial Uses (Motor Vehicle/Watercraft Sales and Service).

1.

Automobile/watercraft body and painting as a primary use (MIP, M-1, M-2);

2.

Automobile, motorcycle, RV and watercraft sales and service - new and/or used with outdoor display (C-3, MIP);

3.

Automobile rental agencies with on-site parking for rental vehicles (C-2, C-3, MIP);

Car washes (C-2, C-3, MIP);

5.

Commercial parking lots, garages and structures as a primary use (AP, C-2, C-3);

6.

Fueling/service stations with or without ancillary uses, such as minimart, auto repairs, car wash, or quickserve food establishment (C-2, C-3, MIP, M-1, M-2);

7.

Limousine, charter bus, shuttle or taxicab service with on-site fleet vehicle storage (AP, C-2, C-3, MIP, M-1, M-2);

8.

Quick lube facilities (C-3, MIP, M-1, M-2);

9.

Truck, trailer, moving van, and equipment rentals (C-2, C-3, MIP, M-1, M-2).

H.

Commercial Uses (Personal Services).

1.

Cemeteries, crematories, mausoleums, columbaria (M-1, M-2);

2.

Coin laundries (C-2, C-3);

3.

Fortune telling, palm or card reading (C-3);

4.

Funeral homes and mortuaries (C-3, MIP);

5.

Pawn shops (C-3);

Tattoo, dermagraphics, or body piercing as a primary use (C-3, MIP);

7.

Massage establishments (C-3, MIP; C within HBSP; C-3 and MIP within NMSP).

I.

Commercial Uses (Recreation/Entertainment).

1.

Banquet halls as a stand-alone use (C-3, MIP, M-1);

2.

Billiards and pool halls (C-2, C-3);

3.

Cyber cafés, internet access, and electronic game arcades (C-2, C-3);

4.

Golf courses and driving ranges (C-3, MIP, M-1, M-2);

5.

Hookah establishments as a stand-alone use (C-3);

6.

Indoor amusement facilities, batting cages, bike/skate parks, bowling centers, go-kart facilities, karaoke establishments, recreation/sports/gyms/health clubs, roller/ice hockey facilities, and skating rinks (C-2, C- 3, MIP)

7.

Outdoor amusement parks and facilities, bike/skate parks, go-kart facilities, miniature golf, recreation/sports/health clubs, skating rinks, batting cages, roller/ice hockey facilities, miniature and remote control car tracks, and remote control hobby facilities (C-2, C-3, MIP, M-1, M-2);

8.

Public assembly, auditoriums, and meeting halls (C-2, C-3, MIP);

9.

Theaters (live stage and motion picture) and concert halls (C-3, MIP).

J.

Commercial Uses (Religious Institutions).

1.

Houses of worship (AP, C-2, C-3, MIP, M-1, M-2);

2.

Monasteries and religious group quarters as a primary use (C-3, MIP).

K.

Community Uses (Special Uses)

1.

Certified farmers' markets (R-1, on property developed with civic or public uses only when sponsored or co-sponsored by the City; R-1, on property developed with religious or public educational uses; C-3)

2.

Wireless telecommunications facilities (AP, C-2, C-3, MIP, M-1, M-2)

L.

Educational/Instructional/Day Care Uses.

1.

Colleges (AP, C-3, MIP);

2.

Elementary, middle and high schools — private (AP, MIP);

3.

Preschools and children's day care facilities (AP, C-2, C-3).

M.

Manufacturing and Industrial Uses.

1.

Automobile wrecking yards, salvage and junkyards (M-2);

2.

Chemical manufacturing and processing (M-2);

Concrete batch plants (M-2);

4.

Detergent and soap manufacturing (M-2);

5.

Explosives and fireworks manufacturing and storage (M-2);

6.

Laundries and dry cleaners — commercial (M-1, M-2);

7.

Lumber and wood products with outdoor storage (MIP, M-1, M-2);

8.

Metal or iron work fabrication (M-1, M-2);

9.

Outdoor business operations with permitted manufacturing/industrial use (MIP, M-1, M-2);

10.

Recycling/transfer facilities and material recovery facilities (M-2);

11.

Research, development, and testing of products with outdoor operations (M-1, M-2);

12.

Rock, sand, gravel, and mineral extraction and recycling (M-2);

13.

Stone, clay, and glass manufacturing (M-2);

14.

Tire retreading (M-2);

15.

Vehicle battery manufacturing (M-2);

N.

Warehouse and Storage Uses.

Building materials with outdoor storage (MIP, M-1, M-2);

2.

Lumber/contractor storage yard as a primary use (MIP, M-1, M-2);

3.

Outdoor storage as a primary use (M-1, M-2);

4.

Outdoor storage as an ancillary use to a permitted use in a building (MIP, M-1, M-2);

5.

Outdoor storage for gardening/landscape companies and contractors (MIP, M-1, M-2);

6.

Self-storage, mini-storage warehouse facilities (C-3, MIP, M-1, M-2).

(Ord. No. 13-933, § 4, 6-17-13; Ord. No. 13-935, § 2, 7-7-14; Ord. No. 14-942, § 2, 5-19-14; Ord. No. 14946, § 1, 10-6-14; Ord. No. 15-951, § 2, 7-6-15)

The Director of Community Development may grant an administrative conditional use permit (ACUP) for any use listed in this section as a permitted use only in the zoning districts noted and subject to conditions related to the use, construction, implementation, operation, and automatic revocation as the Director may deem appropriate and necessary for the general welfare of the community, provided the use is deemed to be exempt from the provisions of the California Environmental Quality Act (CEQA):

A.

Residential Uses.

1.

Caretaker quarters (C-3, MIP, M-1, M-2);

2.

Residential care facilities — seven or more persons (AP, C-2, C-3);

B.

Commercial Uses (Alcoholic Beverage Sales).

Off-sale beer and wine (ABC Type 20) as an incidental use to a retail business and where display of alcoholic beverages constitutes an aggregate of four square feet or less of the public area of the demised tenant space and subject to the applicable requirements of Chapter 11.42 of this title (C-2, C-3).

C.

Commercial Uses (Temporary and Special Uses).

1.

Collocation of an additional carrier on an existing wireless telecommunications facility, provided the collocation would not result in any of the following (AP, C-2, C-3, MIP, M-1, M-2):

a.

An increase in height of the existing facility;

b.

A substantial change to the visual appearance of the existing facility;

c.

An increase in the area of the ground lease space that results in a reduction of required landscape area or required parking.

2.

Fruit, vegetable, and flower stands — product grown on-site (MIP, M-1, M-2);

3.

Mobile recycling and reverse vending units (C-2, C-3, MIP, M-1, M-2);

4.

Outdoor seating in conjunction with an approved restaurant/food use — eight seats or more (C-2, C-3, MIP);

5.

Temporary parking lots (AP, C-2, C-3, MIP, M-1, M-2);

6.

Temporary structures in conjunction with carnivals, farmers' markets, fairs, circuses, and religious gatherings (C-3, MIP, M-1, M-2);

7.

Temporary use of storage and sea containers in conjunction with a legally established use (MIP, M-1, M-2);

8.

Temporary use of structures, trailers, and facilities in conjunction with a legally established use (AP, C-2, C- 3, MIP, M-1, M-2).

9.

Temporary use of undeveloped/vacant property by contractors performing public infrastructure work and/or repairs.

D.

Educational/Instructional/Day Care Uses.

1.

Adult day care (C-2, C-3; C-2, C-3 and MIP within NMSP; BP and C within HBSP);

2.

Adult vocational classes, trade schools, computer training, traffic and driving schools (AP, C-2, C-3; C-3 and MIP within NMSP; BP, C and CO within HBSP);

3.

Children's tutorial classes (AP, C-2, C-3; C-3 and MIP within NMSP; BP, C and CO within HBSP);

4.

Music, art, dance, gymnastics, martial arts instruction, personal fitness, Pilates, talent/acting studio, and yoga — greater than 2,000 square feet (AP, C-2, C-3, MIP; C-3 & MIP within NMSP; BP, C & CO within HBSP).

(Ord. No. 13-933, § 5, 6-17-13)

A.

Nonconforming Structures. All structures, including main buildings, accessory structures, walls, fences, signs, and other structures, that do not comply with height, setback, density, and/or lot coverage standards specified by this title, or for which the number of parking spaces provided is less than required, or any residential structures within any commercial or industrial zone, except as may be permitted by this title, are hereby deemed to be nonconforming structures; and the following provisions shall apply:

1.

Enlargement and Extension. No enlargement, extension, or expansion shall be made to a nonconforming structure unless otherwise permitted by this title. Building additions to a single-family residence in the R-1 Zone shall be permitted, provided that the addition observes the setbacks currently required by this title and that all other development standards of the underlying zone can be met.

2.

Building additions to Single-Family Residences Without Required Covered Parking. In the R-1 Zone, singlefamily residences without required covered parking pursuant to Chapter 11.66 of this title may be expanded as follows:

a.

The floor area of the main residential structure is not increased by more than 25 percent or 500 square feet, whichever is less, over a period of five years or less.

b.

The new construction shall not occupy the only available area(s) suitable for required parking and access thereto.

3.

Construction of Accessory Structures and Second Dwelling Units On R-1 Lots Without Required Covered Parking. The construction of a detached accessory structure pursuant to Chapter 11.19 of this title, or an attached or detached second dwelling unit pursuant to Chapter 11.23 of this title, on a lot in the R-1 Zone developed with a single-family residence upon which required covered parking is not provided shall be prohibited unless the required covered parking is constructed prior to, or concurrently with, said accessory structure or second dwelling unit. A certificate of occupancy for an accessory structure or second dwelling unit shall not be issued by the Building Official until a certificate of occupancy has been issued for the structure providing the required covered parking.

4.

Maintenance and Repairs. General maintenance and necessary repairs that are not structural in nature may be made to legal nonconforming structures in all zoning districts. Structural repairs to a legal nonconforming structure may be authorized by the Building Official if it is determined that said repairs are necessary to protect the health and safety of the occupants, public at-large, or adjacent property and the cost does not exceed 50 percent of the replacement cost of the legal nonconforming structure. Improvements required to strengthen unreinforced masonry structures shall be permitted without replacement cost limitations, provided that such work is limited strictly to compliance with seismic safety standards.

5.

Abandonment of Nonconforming Structures. Any nonconforming building, structure, sign, or improvement that has been vacated or not utilized for a continuous period of 180 days or more shall be deemed to have lost its nonconforming status and shall, at the discretion of the Director of Community Development, be demolished, removed, or modified to such extent that it would be in conformance with the current development standards for the zone in which the building, structure, sign, or improvement is located. Additionally, any sign that became nonconforming on March 21, 2001, pursuant to Ordinance No. 94-733 and the criteria set forth in Section 11.72.140 of this Title, or any sign that has been subsequently

determined to be nonconforming, shall not be refaced or reestablished to identify a different business than was identified on the previously legal nonconforming sign.

6.

Replacement of Nonconforming Structures. Any nonconforming single-family residential, commercial, industrial, or institutional structure that is involuntarily damaged by fire or other catastrophic event may be restored or reconstructed to its original condition provided that the cost of such restoration/reconstruction does not exceed 50 percent of the replacement value of the structure as determined by the Director of Community Development and that the restoration shall commence within one year from the date the damage occurred.

7.

Replacement of Nonconforming Multifamily Structures. Any non-conforming multifamily residential dwelling unit that is involuntarily damaged or destroyed by fire or other catastrophic event may be restored subject to the provisions set forth in California Government Code Section 65852.25.

8.

Relocation of a Nonconforming Structure. A nonconforming structure shall not be moved to any other lot or to any other portion of the lot on which it is located unless, as a result of the move, the structure would then conform to the regulations of the zoning district.

9.

Nonconforming Historic Structures. Repairs, alterations, and additions necessary for the preservation, restoration, rehabilitation, or continued use of a nonconforming historic structure may be made when authorized by the Director of Community Development and Building Official or their designees, provided that:

a.

The structure has been designated as having significant historical or architectural significance by the City Council, State of California, or federal government or was constructed in, or prior to, 1940;

b.

Any unsafe conditions are corrected; and

c.

The use(s) therein shall be in conformance with all applicable provisions of this chapter.

B.

Nonconforming Uses. Nonconforming uses are those that were legally established but that are not currently listed as permitted or conditionally permitted in the zoning district in which they are located or those that currently require a conditional use permit but at the time of their initiation did not require a conditional use permit. The following provisions shall apply to legal nonconforming uses:

No nonconforming use shall be expanded or moved in whole or part to any portion of the lot or parcel upon which it is located or other structure other than that occupied by such use at the time it was established.

2.

No nonconforming use shall be changed to a different nonconforming use.

3.

If a nonconforming use is discontinued or abandoned for a continuous period of 180 days or more, such use shall be deemed to have lost its nonconforming status and shall not be reestablished.

4.

Adult-oriented businesses. The amortization of nonconforming adult-oriented businesses shall be subject to the provisions set forth in Section 11.40.060 of this title.

C.

Permits or Certificates of Occupancy Prohibited. When any nonconforming structure or use is no longer permitted pursuant to the provisions of this title, no building or sign permit or certificate of occupancy shall thereafter be issued for further continuance, alteration, or expansion. Any permit or certificate of occupancy issued in error shall not be construed as allowing the continuation of the nonconforming structure or use.

D.

Removal of illegal nonconforming structures and uses. Nothing contained in this section shall be construed or implied so as to allow for the continuation of illegal nonconforming structures and uses.

E.

Burden of Proof. The burden of proof regarding nonconforming structures and uses shall be with the property owner to the satisfaction of the Director of Community Development.

(Ord. No. 13-933, § 6, 6-17-13)

The Director of Community Development may grant an administrative conditional use permit as follows:

A.

For temporary structures within planned rights-of-way when the property owner applying for such permit signs an agreement with the City to remove any such temporary building or structure at his/her expense whenever so requested by the City for street widening or opening; or

B.

Upon evidence that the entire property of the owner, of which the area of the planned right-of-way forms a part, cannot reasonably be used for a permitted use and yield a reasonable return to the owner without a new or improved structure within such planned right-of-way.

(Ord. No. 13-933, § 6, 6-17-13)

A.

Any property owner or his/her authorized representative desiring a conditional use permit or administrative conditional use permit may file an application for such permit with the Planning Division on forms furnished by the City. Additional submittal requirements as designated by Planning Division staff shall accompany said application form in order to constitute a complete application. The additional submittal requirements may include, but not be limited to, the following:

1.

A legal description of the subject property;

2.

A site plan, floor plans, elevations, and other appropriate drawings illustrating existing and proposed buildings or facilities;

3.

A narrative describing the nature of the proposed use, hours of operation, estimated occupancy, and other relevant information;

4.

A reference to the specific provisions of this title that are applicable to the conditional use permit or administrative conditional use permit sought;

5.

A filing fee, the amount of which is determined by resolution of the City Council;

6.

Conditional use permit justification form;

7.

Environmental assessment form;

8.

Names and mailing addresses, printed on mailing labels, of all owners of real property within 300 feet of the external boundaries of the subject property, as shown on the latest adopted, publicly available tax roll of

the County of San Bernardino.

B.

No application for the same general purpose concerning the same property, which application has been recommended for denial by the Planning Commission or denied by the Director of Community Development, Planning Commission, and/or City Council on appeal, shall be received or processed by the Planning Division within 12 months after such denial except by the consent of at least four members of the Planning Commission present at a regular meeting of the Planning Commission.

(Ord. No. 13-933, § 6, 6-17-13)

11.78.070 - Hearing.

A.

Upon the acceptance of a completed application for a conditional use permit (CUP) or administrative conditional use permit (ACUP), Planning Division staff shall forward the application to the Development Review Commit-tee for review and comments and shall communicate to the applicant said recommendations and comments from the Development Review Committee. If no major changes are recommended, then the City Planner shall, in the case of a CUP, set a date for a public hearing before the Planning Commission. For an ACUP, the City Planner shall forward the application to the Director of Community Development for consideration and action. If major changes to the proposal are recommended or required, then the submitted plans shall be returned to the applicant for revision and resubmittal. When the necessary corrections have been made, the application shall be deemed complete. For CUPs, the City Planner shall set a date for a public hearing; for ACUPs, the application shall be forwarded to the Director for consideration and action.

B.

For conditional use permits, the Secretary of the Planning Commission shall give notice of such requested CUP and of the time and place of such public hearing as follows:

1.

By one publication in a newspaper having a general circulation in the City at least 10 days, but no more than 15 days, prior to the date set for the public hearing; and

2.

By mailed notice not less than 10 days prior to the date set for the public hearing to all owners of real property within a radius of 300 feet of the external boundaries of the property described in the application, using the last known name and mailing address of such owners as shown on the most recent available tax roll for the County of San Bernardino. Notice may be given to property owners within a greater radius at the discretion of the Planning Commission or the Director of Community Development.

3.

The Planning Commission shall cause to be made by its own members, or members of staff, such investigation of facts bearing upon such application set for hearing including an analysis of precedent cases as in the opinion of the Planning Commission will serve to provide the necessary information to enable the Commission to act.

4.

A copy of the staff report shall be made available to the applicant and to the general public upon request prior to the hearing.

5.

At the time and place so fixed and noticed, the public hearing shall be conducted before the Planning Commission. The Commission shall consider all pertinent oral and written evidence and information prior to adoption of a formal and numbered resolution granting or denying such conditional use permit. A summary of all pertinent testimony offered at the hearing; the names and addresses of persons testifying; and copies of all notices, affidavits of newspaper publication(s), and records of action taken shall be a part of the permanent case file.

C.

For administrative conditional use permits, the Director of Community Development shall give notice of such requested ACUP as follows:

1.

By mailed notice not less than 10 days prior to the date set for a final decision by the Director to all owners of real property within a radius of 300 feet of the external boundaries of the property described in the application, using the last known name and mailing address of such owners as shown on the most recent available tax roll for the County of San Bernardino. Notice may be given to property owners within a greater radius at the discretion of the Director of Community Development.

2.

The Director of Community Development shall conduct an investigation of facts bearing upon such application including an analysis of precedent cases as, in the opinion of the Director, will serve to provide the necessary information to enable him/her to act.

3.

The Director of Community Development shall consider all pertinent oral, written, and electronic communications received by Planning Division staff related to the subject application prior to granting or denying such administrative conditional use permit. A summary of all pertinent communication received by staff, copies of all notices, affidavits of newspaper publication(s), and records of action taken shall be a part of the permanent case file.

(Ord. No. 13-933, § 6, 6-17-13)

A.

Findings. The Planning Commission, prior to approval of a request for a conditional use permit, shall adopt a resolution stating that the evidence presented shows that each of the findings below have been made. In the case of an administrative conditional use permit, the Director of Community Development shall prepare an approval letter stating the evidence presented shows that each of the following findings have been made:

1.

That the use is essential or desirable to the public convenience and public welfare;

2.

That granting the permit will not be materially detrimental to the public welfare and to other property in the vicinity;

3.

That the use conforms to good zoning practices and development standards; and

4.

That the use is not contrary to any of the objectives of the adopted General Plan.

B.

Finding of Public Convenience and Necessity.

1.

In the event that a CUP is granted for a business establishment engaged in the sale of alcoholic beverages for on- or off-site consumption and that establishment is located in a census tract where there is "undue concentration" pursuant to Section 23958.4 of the Business and Professions Code, then the Planning Commission shall also make a finding of Public Convenience and Necessity in addition to the findings in subsection A of this section.

2.

In the event that an ACUP is granted for a business establishment engaged in the sale of beer and wine as an incidental use as defined in this Title and that establishment is located in a census tract where there is "undue concentration" pursuant to Section 23958.4 of the Business and Professions Code, then the Director of Community Development shall also make a finding of Public Convenience and Necessity in addition to the findings in subsection A of this section. In the alternative, the Director, at his/her sole discretion, may refer the application to the Planning Commission to make the required Finding of Public Convenience and Necessity.

C.

Conditions.

1.

The Planning Commission may grant the requested conditional use permit, or the Director of Community Development an administrative conditional use permit, in whole or in part upon such items and conditions as he/she/it may deem necessary to safeguard and protect the public health, safety, and general welfare, the existing and possible future uses on adjoining land in the neighborhood, the proper handling and regulation of traffic, and to ensure the eventual development of the property with respect to which the permit is granted.

2.

Prior to the issuance of any building or occupancy permit, the owner and anyone applying on his/her behalf shall agree, in writing, to meet and abide by all the conditions and requirements imposed on the conditional use permit or administrative conditional use permit.

D.

Time Limit.

1.

Each determination of the Planning Commission or Director of Community Development granting a conditional use permit or administrative conditional use permit shall be conditioned upon the privileges being utilized within six months after the effective date thereof unless a shorter or longer time period is established by the Planning Commission or Director; and if they are not utilized or preliminary construction work is not begun within such time and/or progressing adequately to the satisfaction of the Director of Community Development, this authorization shall become void and any privilege or permit granted shall be deemed to have lapsed. The Planning Commission, however, shall have the authority to extend the time limit required for a conditional use permit for good cause and in the case of unavoidable delay upon submittal of a written request and the required time extension filing fees by the applicant at least 10 days prior to the expiration date. Similarly, the Director shall have the authority to extend the time limit required for an administrative conditional use permit for good cause and in the case of unavoidable delay upon submittal of a written request and the required time extension filing fees by the applicant at least 10 days prior to the expiration date.

2.

As a condition for granting an extension of time, the Planning Commission (CUP) or Director of Community Development (ACUP) may revise existing conditions or impose additional conditions to ensure that the project will be in compliance with City standards in effect at the time such extension is granted.

3.

Once any portion of the conditional use permit or administrative conditional use permit is utilized, the other portions thereof shall become immediately operative and shall be strictly complied with.

4.

When a land use for which a conditional use permit or administrative conditional use permit was granted is discontinued for a period of six continuous months, such use shall not be reestablished unless a new CUP or ACUP, as applicable, is approved for the subject use. Further, if any land use legally established without the benefit of a CUP or ACUP is discontinued for six continuous months but, under the current requirements of this title, would require approval of a CUP or ACUP, said land use shall not be reestablished unless a CUP or ACUP, as applicable, is approved for the subject use.

(Ord. No. 13-933, § 6, 6-17-13)

A.

Conditional Use Permits.

1.

The action of the Planning Commission shall become final on the date the Planning Commission makes its final determination on the application. However, within 15 days after the date of the Planning Commission's decision, a written appeal therefrom may be taken to the City Council by any person aggrieved by the determination of the Planning Commission in connection with the application. Such appeal shall be accompanied by the required appeal fee, which shall be one half of the initial conditional use permit filing fee. The City Council, on its own motion, may appeal any determination of the Planning Commission within 15 days of the Planning Commission's decision or at the next regularly scheduled City Council meeting, whichever occurs later. An appeal fee shall not be required in the event of such City Council appeal.

2.

The appeal request shall stay any proceedings associated with the action appealed from. Upon receipt of the request for the appeal, Planning Division staff shall transmit to the City Council the appeal request and copies of all other papers constituting the official record, together with a written report stating why the appeal should or should not be granted.

3.

The City Council may, by resolution, affirm, reverse, or modify in whole or in part any decision, determination, or requirement of the Planning Commission; but before conducting a public hearing on granting any appeal of a Planning Commission decision, the City Council shall set the matter for hearing and give the same notice as that provided in Section 11.78.070(B) of this chapter.

4.

The appeal hearing by the City Council shall be based upon the record of the Planning Commission. In the event any new information or evidence is produced for consideration, the City Council shall refer the matter back to the Planning Commission for review and recommendation.

B.

Administrative Conditional Use Permits.

1.

The action of the Director of Community Development shall become final on the date he/she makes a final decision on the application. However, within 15 days after the date of the Director's decision, a written appeal therefrom may be taken to the Planning Commission by any person aggrieved by the determination of the Director in connection with the application. Such appeal shall be accompanied by the required appeal fee, which shall be one half of the initial administrative conditional use permit filing fee. The Planning Commission or City Council, on its own motion, may appeal any decision of the Director within 15 days of his/her decision or at the next regularly scheduled Planning Commission or City Council meeting, whichever occurs later. An appeal fee shall not be required in the event of such appeal by the Planning Commission or City Council.

2.

The appeal request shall stay any proceedings associated with the action appealed from. Upon receipt of the request for the appeal, Planning Division staff shall transmit to the Planning Commission the appeal request and copies of all other papers constituting the official record, together with a written report stating why the appeal should or should not be granted.

3.

The Planning Commission may, by resolution, affirm, reverse, or modify in whole or in part any decision, determination, or requirement of the Director of Community Development; but before conducting a public hearing on granting any appeal of the Director's decision, the Planning Commission shall set the matter for hearing and give the same notice as that provided in Section 11.78.070(B) of this chapter.

4.

The appeal hearing by the Planning Commission shall be based upon the record of the administrative decision by the Director of Community Development. In the event any new information or evidence is produced for consideration, the Planning Commission shall refer the matter back to the Director for review and recommendation.

5.

The action of the Planning Commission on an appeal of the Director's decision shall become final on the date the Planning Commission makes its determination on the appeal. Any person aggrieved by the determination of the Planning Commission in connection with the appeal, or the City Council on its own motion, may appeal the Planning Commission's decision, subject to the timeframe, fees, and criteria set forth in Section 11.78.090(A) of this chapter.

(Ord. No. 13-933, § 6, 6-17-13)

A.

Conditional Use Permits.

1.

The Planning Commission, on its own motion or upon the direction of the City Council, may conduct a hearing upon the question of the revocation of a conditional use permit granted under or pursuant to the provisions of this title.

2.

Notification of such public hearing shall be given in accordance with Section 11.78.070(B) of this chapter provided, however, the owner of the subject property shall have his/her notice mailed by certified mail, postage paid, return receipt requested.

3.

A conditional use permit granted pursuant to a hearing may be revoked and a nonconforming use may be terminated if the Planning Commission and City Council make any of the following findings:

a.

That any condition of a conditional use permit or an amended conditional use permit has not been complied with or has been violated;

b.

That the use is detrimental to the public health or safety or is a nuisance;

c.

That the conditional use permit was obtained by fraud;

d.

That the use for which the permit was granted is not being exercised;

e.

That the use for which the permit was granted has ceased or been suspended for six months or more; or

f.

That the condition of the improvements, if any, involved in a legal nonconforming use is such that the property, with or without alteration of any existing improvements, can be used for a nonconforming use without impairing the constitutional rights of any person.

4.

After a hearing upon the revocation of a conditional use permit, the Planning Commission shall report its findings of fact and recommendations to the City Council by a formal and numbered resolution; and upon receipt of such recommendations, the City Council shall determine the facts at a public hearing and may revoke, modify, or allow to remain unchanged the conditional use permit in accordance with the City Council's final determination in such matters.

B.

Administrative Conditional Use Permits.

1.

The Planning Commission, on its own motion, upon the recommendation of the Director of Community Development or upon the direction of the City Council, may conduct a hearing upon the question of the revocation of an administrative conditional use permit granted under or pursuant to the provisions of this title.

2.

Notification of such public hearing shall be given in accordance with Section 11.78.070(B) of this chapter provided, however, the owner of the subject property shall have his/her notice mailed by certified mail, postage paid, return receipt requested.

3.

An administrative conditional use permit may be revoked and a nonconforming use may be terminated if the Planning Commission and City Council make any of the following findings:

a.

That any condition of an administrative conditional use permit or an amended administrative conditional use permit has not been complied with or has been violated;

b.

That the use is detrimental to the public health or safety or is a nuisance;

c.

That the administrative conditional use permit was obtained by fraud;

d.

That the use for which the permit was granted is not being exercised;

e.

That the use for which the permit was granted has ceased or been suspended for six months or more; or

f.

That the condition of the improvements, if any, involved in a legal nonconforming use is such that the property, with or without alteration of any existing improvements, can be used for a nonconforming use without impairing the constitutional rights of any person.

After a hearing upon the revocation of an administrative conditional use permit, the Planning Commission shall report its findings of fact and recommendations to the City Council by a formal and numbered resolution, and upon receipt of such recommendations, the City Council shall determine the facts at a public hearing and may revoke, modify, or allow to remain unchanged the administrative conditional use permit in accordance with the City Council's final determination in such matters.

(Ord. No. 13-933, § 6, 6-17-13)

Chapter 11.80 - PRECISE PLAN OF DESIGN

Sections:

No person shall commence any use and no building permit shall be issued for any structure to be used for or in conjunction with any such use until a Precise Plan of Design covering the parcels to be so used shall be approved as provided in this title, and then such rise may be commenced and such building permit may be issued only in accordance with such specific, approved Precise Plan of Design, including the terms and conditions thereof.

(Prior code § 9-5.101)

11.80.020 - Requirements.

Such Precise Plan of Design shall specify and include:

A.

The location, size, height and type of all structures, including signs, walls and fences;

B.

The location, size and dimensions of all yards and setbacks and all spaces between structures;

C.

The location, dimensions, and method of improvement of all driveways, parking areas, walkways, and means of access, ingress and egress;

D.

The location, dimensions, and methods of improvement of all property to be dedicated to the public or to public utilities;

E.

The general nature of the proposed use;

F.

A detailed plan of landscaping showing the location, dimensions, and method of irrigation for all areas to be landscaped;

G.

The location, dimensions and layout of all areas to be used for parking;

H.

The elevations of all buildings proposed for construction, showing the general design, architectural features, and building materials; and

I.

The location and design of all lighting within the proposed development area except that which is within any building.

(Prior code § 9-5.102)

11.80.030 - Adoption, rejection and modification.

Any such Precise Plan of Design may be adopted, rejected, modified and adopted, or adopted subject to conditions. Any such Precise Plan of Design after adoption may be amended in the same manner as a Precise Plan of Design is first adopted.

(Prior code § 9-5.103)

A.

In the approval or rejection of a Precise Plan of Design, consideration shall be given and restrictions shall be imposed by the Planning Commission in view of the size and shape of the parcel and the present and proposed zoning and use of the subject property and the surrounding property to permit the same degree of enjoyment of the subject property, but subject to the same degree of protection of adjoining properties, as would be accorded in normal circumstances by the standard restrictions imposed by this title. The standard restrictions imposed in the various zones relating to the subjects set forth in Section 11.80.020 of this chapter are intended as the minimum restrictions necessary in normal circumstances to prevent a substantial depreciation of property values in the vicinity, unreasonable interference with the use and enjoyment of property in the vicinity the occupants thereof for lawful purposes, and the protection of the public peace, health, safety and general welfare. "Normal circumstances" are intended to refer to the case of a permitted use upon a lot of normal size and shape surrounded by property in the same zone as the lot in question.

B.

If the proposed Precise Plan of Design would substantially depreciate property values in the vicinity, or would unreasonably interfere with the use for enjoyment of property in the vicinity by the occupants thereof

for lawful purposes, or would endanger the public peace, health, safety or general welfare, such plan shall be rejected or shall be so modified or conditioned before adoption as to remove such objections.

C.

In addition to the foregoing grounds of rejection, the Planning Commission or City Council, as the case may be, may also consider and take into account the exterior architectural design, general exterior appearance, landscape, color, texture of surface materials and exterior construction, shape and bulk, and other physical characteristics, including the location and type of public utility facilities, and, if it is found that the proposed Precise Plan of Design, including the considerations enumerated, would interfere with the orderly development of the City, such Precise Plan of Design shall be rejected or shall be so modified or conditioned before adoption as to remove such objections.

(Ord. 99-791 Exh. A (part); prior code § 9-5.104)

The application for the approval of a Precise Plan of Design, or an amendment thereof, shall be made in such form as the Planning Commission shall prescribe. The applicant shall submit to the Planning Department nine copies of all the information set forth in Section 11.80.020 of this chapter at least 11 working days before the application is to be considered at a regular meeting of the Planning Commission. A fee shall accompany the application pursuant to the procedures set forth in Section 11.08.010 of this title.

(Prior code § 9-5.105)

A.

A Precise Plan of Design may be approved and adopted subject to the granting of a change of zone variance, a conditional use permit, or the approval of a final subdivision map, and the Planning Commission or Council may require a Precise Plan of Design to be submitted prior to the granting or recommendation of a zone change, variance, or use permit.

B.

Prior to the issuance of any building or occupancy permit, the owner, and anyone applying on his/her behalf, shall agree, in writing, to meet and abide by all the conditions and requirements imposed.

(Ord. 99-791 Exh. A (part); prior code § 9-5.106)

An applicant may appeal the decision of the Planning Commission to the Council by filing an application for an appeal, showing wherein the Planning Commission erred, within 10 days after the decision of the Planning Commission.

(Ord. 99-791 Exh. A (part); prior code § 9-5.107)

No person shall violate or fail to comply with the adopted Precise Plan of Design or any conditions or provisions thereof; nor shall a building permit be issued for any structure which would violate or fail to comply with any adopted Precise Plan of Design for the parcels on which such structure is to be located.

(Prior code § 9-5.108)

The Precise Plans of Design referred to in this title are not to be confused with, or considered to be, precise plans as referred to in the Government Code of the State.

(Prior code § 9-5.109)

The duration of the Precise Plan of Design shall be one year from the date the Precise Plan of Design becomes effective. If construction is commenced within this one-year period and construction is being pursued diligently toward completion, the Precise Plan of Design shall stay in full force for another one-year period. The Planning Commission may, upon application, extend the time limit in the case of unavoidable delay.

(Prior code § 9-5.110)

Chapter 11.81 - INCLUSIONARY HOUSING

Sections:

In enacting this chapter, the City Council finds and determines as follows:

A.

It is an objective of the City to ensure that all residential development in the City's redevelopment project areas provide a range of housing opportunities for all identifiable economic segments of the population, including households of very low, lower and moderate income.

B.

It is also the policy of the City to:

1.

Require that a minimum of 15 percent of all approved residential development in the City's redevelopment project areas be restricted to and affordable to very low-, lower- and moderate-income households;

2.

Require that a minimum of 40 percent of the foregoing units be restricted to and affordable to very lowincome households;

3.

Under certain conditions, allow alternatives to on-site construction as a means of providing affordable units for very low-income households; and

4.

In specific cases, allow inclusionary requirements to be satisfied through the payment of an in-lieu fee as an alternative to requiring affordable units to be constructed.

(Ord. 05-866 § 1 (part))

Whenever the following terms are used in this chapter, they shall have the meaning established by this section:

Affordable housing cost means housing for which the monthly housing costs paid by a qualifying household shall not exceed a specified fraction of the San Bernardino County median income, adjusted for household size, for the following classes of housing:

1.

Extremely low-income, rental or for-sale units: 30 percent times 30 percent of the San Bernardino County median income for a household size appropriate to the unit.

2.

Very low-income, rental and for-sale units: 30 percent times 50 percent of the San Bernardino County median income for a household size appropriate to the unit.

3.

Low-income for-sale units: 30 percent times 70 percent of the San Bernardino County median income for a household size appropriate to the unit. At the discretion of the City Council and Agency Board, affordable housing cost for a low-income for-sale unit, which is sold to a lower-income household earning not less than 70 percent of San Bernardino County income, adjusted for household size, may alternatively be 30 percent times the income of the purchaser.

4.

Low-income rental units: 30 percent times 60 percent of the San Bernardino County median income for a household size appropriate to the unit.

5.

Moderate-income, for-sale units: 35 percent times 110 percent of the San Bernardino County median income for a household size appropriate to the unit. At the discretion of the City Council and Agency Board, affordable housing cost for a moderate income, for sale unit which is sold to a moderate-income household

earning not less than 110 percent of San Bernardino County income, adjusted for household size, may alternatively be 35 percent times the income of the purchaser.

6.

Moderate-income, rental units: 30 percent times 110 percent of the San Bernardino County median income for a household size appropriate to the unit.

Affordable housing agreement means a legally binding agreement between a developer and the City and/or agency, which ensures that the inclusionary requirements of this chapter are satisfied. The affordable housing agreement may also provide for compliance with the requirements of the California Community Redevelopment Law. The affordable housing agreement shall establish, among other things, the number of required affordable units, the unit sizes, location, affordability tenure, terms and conditions of affordability and unit production schedule, as provided in Section 11.81.150 of this chapter.

Affordable housing task force shall consist of the Community Development Director, Redevelopment Director, Police Chief, Fire Chief and City Engineer.

Agency means the City of Montclair Redevelopment Agency.

Agency Housing Funds means the agency's Low and Moderate Income Housing Fund or Funds, established pursuant to Health and Safety Code Section 33334.3.

California Community Redevelopment Law means the provisions of Health and Safety Code Section 33000, et seq., as it may be revised from time to time.

Combined inclusionary housing project means separate residential development sites which are linked by a contractual relationship such that some or all of the affordable units which are associated with one development site are produced and operated at a separate development site or sites.

Conversion means the change of status of a dwelling unit from a purchased unit to a rental unit or vice versa.

Density bonus means a minimum density increase of at least 25 percent over the maximum allowable residential density in the General Plan designation, zoning or specific plan, at the time of application, pursuant to Chapter 11.85 of this title.

Financial assistance means assistance to include, but not be limited to, the subsidization of fees, infrastructure, land costs, or construction costs, the use of Agency Housing Funds, Community Development Block Grant (CDBG) Funds, or the provision of other direct financial aid in the form of cash transfer payments or other monetary compensation by the City or Agency.

Household size appropriate to the unit means one person for a zero bedroom (studio) unit, two persons for a one-bedroom unit, three persons for a two-bedroom unit, four persons for a three-bedroom unit, and five persons for a four-bedroom unit. Household size appropriate to a unit with more than four bedrooms shall be equal to the number of bedrooms plus one.

Housing Trust Fund means the fund established by the City for the collection of in-lieu fees and other charges required under this chapter.

Incentives mean concessions or assistance to include, but not limited to, direct financial assistance, density increases, standard modifications or any other financial, land use, or regulatory concession which would result in an identifiable cost reduction enabling the provision of affordable housing.

Inclusionary housing project means a new residential development, substantial rehabilitation of a residential development, or conversion of existing residential buildings which has at least 15 percent of the total units reserved and made affordable to very low-, lower- or moderate-income households as required by this chapter.

Inclusionary unit or affordable unit means a dwelling unit that will be offered for rent or sale exclusively to and which shall be affordable to very low-, lower- or moderate-income households, as required by this chapter.

Income means any monetary benefits that qualify as income in accordance with State law, 25 California Code of Regulations Section 6914, or successor regulation or ordinance.

Lower-income household means a household whose gross income is not more than the qualifying limit for lower-income households in San Bernardino County established by regulation of the State of California.

Market-rate unit means a dwelling unit where the rental rate or sales price is not restricted either by this chapter or by requirements imposed through other local, State, or federal affordable housing programs.

Median income means the median income, adjusted for household size, which is periodically established by regulation of the State of California.

Moderate-income household means a household whose gross income is not more than the qualifying limit for moderate-income households in San Bernardino County established by regulation of the State of California.

Monthly housing expense means the total monthly recurring expenses required of a household to obtain shelter for the 12 months after the date of determination. For a for-sale unit, monthly housing expenses include loan principal and interest at the time of initial purchase by the homebuyer, cost of property and mortgage insurance, property taxes and assessments, homeowners' association dues, a reasonable allowance for utilities as determined by the San Bernardino County Housing Authority, space rent if the housing unit is on rented land, and costs of property maintenance and repairs. For a rental unit, monthly housing expenses include rent, a reasonable allowance for utilities as determined by the San Bernardino County Housing Authority, as well as all monthly payments made by the tenant to the lessor in connection with use and occupancy of a housing unit and land and facilities associated therewith, including any separately charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant.

Redevelopment project areas means the redevelopment projects adopted by the City pursuant to the California Community Redevelopment Law.

Residential development means any new residential construction or substantial rehabilitation of five or more rental or for-sale units; or conversions of apartments to for-sale housing or for-sale housing to apartments.

Substantial rehabilitation means rehabilitation of residential units, which satisfies both of the following: (a) the value of the rehabilitation constitutes 25 percent of the after-rehabilitation value of the dwelling, inclusive of the land value, and (b) a portion of the rehabilitation is funded by the Agency.

Total residential units means the total units in a residential development, which have been approved by the City. Total residential units are composed of both market-rate units and affordable units.

Very low-income household means a household whose gross income is not more than the qualifying limit for very low-income households in San Bernardino County established by regulation of the State of California.

(Ord. 05-866 § 1 (part))

A.

This chapter shall apply to all residential dwelling units resulting from new construction of rental and "forsale" residential development projects in redevelopment project areas, the substantial rehabilitation of existing rental and "for-sale" residential development projects in redevelopment project areas, as well as the conversion of apartments to condominiums or condominiums to apartments in redevelopment project areas.

B.

This chapter shall not apply to the following:

1.

Housing projects which contain 10 dwelling units or less;

2.

Existing residences that are altered, improved, restored, repaired, expanded or extended that do not constitute substantial rehabilitation or a conversion; or

3.

The construction of a new residential structure which replaces a residential structure that was destroyed or demolished within two years prior to the application for a building permit for the new residential structure, provided the number of residential units is not increased from the number of residential units of the previously destroyed or demolished residential structure.

(Ord. 05-866 § 1 (part))

The affordable housing standards are as follows:

A.

All residential developments are subject to and must satisfy the inclusionary housing requirements of this chapter, notwithstanding a developer's request to process a residential development under other program requirements, laws or regulations, including but not limited to Chapter 11.85 of this title.

B.

Whenever reasonably possible, affordable units should be built on the residential development project site.

C.

The required affordable units shall be constructed concurrently with market-rate units within the residential development unless both the final decision-making authority of the City and developer agree within the affordable housing agreement to an alternative schedule for development.

D.

Inclusionary rental units shall remain restricted and affordable to the designated income group for 55 years.

E.

After the initial sale of the inclusionary for-sale units at a price affordable to the target income level group, inclusionary for-sale units shall remain affordable to subsequent income-eligible buyers pursuant to a resale restriction with a term of 45 years, or for-sale units may be sold at a market price to other than targeted households provided that the sale shall result in the recapture by the City or Agency of a financial interest in the units equal to the amount of subsidy necessary to make the unit affordable to the designated income group and a proportionate share of any appreciation. Funds recaptured by the City or Agency shall be used in assisting other eligible households with home purchases at affordable prices. To the extent possible, projects using for-sale units to satisfy inclusionary requirements shall be designed to be compatible with conventional mortgage financing programs, including secondary market requirements.

F.

Inclusionary units should be located on sites that are in proximity to or will provide access to employment opportunities, urban services, or major roads or other transportation and commuter rail facilities and that are compatible with adjacent land uses.

G.

The design of the affordable units shall be reasonably consistent or compatible with the design of the total project development in terms of appearance, materials and finished quality. Inclusionary units shall be reasonably dispersed throughout the project development.

H.

Inclusionary housing projects shall provide a mix of sizes of affordable units, in terms of number of bedrooms and unit square footage, which is proportionate to the mix of all units within the residential development.

I.

No building permit shall be issued, nor any development approval granted for a residential development, which does not meet the requirements of this chapter. No affordable unit shall be rented or sold except in accordance with this chapter.

(Ord. 05-866 § 1 (part))

Subject to adjustments for incentives under Section 11.81.060 of this chapter, the required number of affordable units shall be not less than 15 percent of the total residential units, approved by the final decision-making authority of the City. Not fewer than 40 percent of the affordable units shall be restricted to very low-income households.

(Ord. 05-866 § 1 (part))

The City may determine that certain types of affordable housing are relatively more desirable in satisfying the City's State-mandated affordable housing requirement as well as the City's housing element goals, objectives and policies, which may include without limitation, special needs housing, housing accessible to disabled persons, and housing affordable to lower-income or extremely low-income households. As an incentive to assist the City in providing this housing, the City in its discretion, may provide developers additional (more than one unit) credit for each of such units provided, thereby reducing the total inclusionary housing requirement to less than 15 percent of all residential units approved. Such inclusionary housing incentive credits shall be specified in the affordable housing agreement.

(Ord. 05-866 § 1 (part))

11.81.070 - Combined inclusionary housing projects.

An affordable housing requirement may be satisfied with off-site construction as follows:

A.

When it can be demonstrated by a developer that the goals of this chapter and the City's housing element would be better served by allowing some or all of the affordable units associated with one residential project site to be produced and operated at an alternative site or sites, the resulting linked inclusionary project site(s) is a combined inclusionary housing project.

B.

It is at the sole discretion of the City Council to authorize a combined inclusionary housing project. Such decision shall be based on findings that the combined project represents a more effective and feasible means of implementing this chapter and the goals of the City's housing element. Factors to be weighed in this determination include: the feasibility of the on-site option considering project size, site constraints, competition from other projects, difficulty in integrating due to significant price and product type disparity, and lack of capacity of the on-site development entity to deliver affordable housing. Also to be considered are whether the off-site option offers greater feasibility and cost effectiveness, particularly regarding potential local public assistance and the City's affordable housing financial assistance policy, location

advantages such as proximity to jobs, schools, transportation and services, diminished impact on other existing developments, capacity of the development entity to deliver the project, and satisfaction of multiple developer obligations that would be difficult to satisfy with multiple projects.

C.

All agreements between parties to form a combined inclusionary housing project shall be made a part of the affordable housing agreement required for the site(s), which affordable housing agreement(s) shall be approved by the City Council.

D.

To the extent feasible, the off-site construction should be located within the City's redevelopment project areas. If the off-site construction is located outside of the City's redevelopment project areas, each off-site inclusionary housing unit shall be deemed to equal one-half of an affordable unit located within the City's redevelopment project areas.

(Ord. 05-866 § 1 (part))

Inclusionary units created which exceed the final requirement for a project may, subject to City Council approval in the affordable housing agreement, be utilized by the developer to satisfy other inclusionary requirements for which it is obligated or market the units to other developers as a combined project subject to the requirements of Section 11.81.070 of this chapter.

(Ord. 05-866 § 1 (part))

The City and Agency shall consider making incentives available to developers when necessary to enable residential development projects to provide a preferable product type or affordability in excess of the requirements of this chapter. Offsets and assistance may be offered by the City and Agency, in their sole discretion, to the extent that resources and programs for this purpose are available to the City and Agency and approved for such use by the City Council and Agency Board, and to the extent that the residential development, with the use of incentives, assists in achieving the housing goals of the City and Agency. To the degree that the City and Agency make available programs to provide incentives, developers may make application for such programs. Evaluation of requests for incentives shall be based on the effectiveness of the incentives in achieving a preferable product type and/or affordability objectives as set forth within the housing element; the capability of the development team; the reasonableness of development costs and justification of subsidy needs; and the extent to which other resources are used to leverage the requested incentives. Nothing in this chapter establishes, directly or through implication, a right to receive any incentives from the City, Agency or any other party or agency to enable the developer to meet the obligations established by this chapter. Residential development projects may be entitled to density bonuses and/or other incentives in accordance with provisions of State law, pursuant to the provisions of Chapter 11.85 of this title. Any incentives approved by the City Council or Agency and the housing affordability to be achieved by use of those incentives shall be set out within the affordable housing agreement pursuant to Section 11.81.140 of this chapter or, at the discretion of the City and Agency, in a

subsequent document. Furthermore, developers are encouraged to utilize local, State or federal assistance, when available, to meet the affordability standards set forth in Sections 11.81.030 and 11.81.040 of this chapter.

(Ord. 05-866 § 1 (part))

A developer of a residential development may pay a fee in lieu of construction of affordable units in the following circumstances:

A.

The inclusionary requirement for very low-income inclusionary units may be satisfied through the payment to the City of an in-lieu fee. The City may also permit the applicant to pay an in-lieu fee for the moderateincome inclusionary units upon its determination that new construction of moderate-income inclusionary units would be infeasible or present unreasonable hardship in light of such factors as project size, site constraints, market competition, price and product type disparity, developer capability and unavailability of financial subsidies.

B.

The in-lieu fee to be paid for each very low-income inclusionary unit required under this chapter shall be based on the amount of financial assistance needed to make affordable to a very low-income household, one typical newly-constructed rental apartment unit, which will remain affordable for a period of 55 years. The in-lieu fee to be paid for each moderate-income inclusionary unit required under this chapter shall be the amount of financial assistance needed to make affordable to a moderate-income household a for-sale housing unit pursuant to a local homebuyer assistance or local down payment program, which will remain affordable for a period of 45 years. The in-lieu fee shall be based upon the City Council's determination of the average amount of financial assistance per unit provided by cities and redevelopment agencies in the San Bernardino and Riverside County area under the foregoing types of programs.

C.

The dollar amount and method of payment of the in-lieu fees shall be fixed by a schedule adopted, from time to time, by resolution of the City Council.

D.

At the discretion of the City Council, where a developer is authorized to pay a fee in lieu of development, an irrevocable dedication of land or other nonmonetary contribution of a value not less than the sum of the otherwise required in-lieu fee may be accepted as an alternative to paying the in-lieu fee if it is determined that the nonmonetary contribution will be effectual in furthering the goals and policies of the housing element and this chapter. The valuation of any land offered in lieu shall be determined by an appraisal made by an appraiser mutually agreed upon by the City and the developer. Costs associated with the appraisal shall be borne by the developer.

E.

Where a developer is authorized to pay a fee in lieu of development of affordable housing units, any approvals shall be conditioned upon a requirement to pay the in-lieu fee in an amount established by resolution of the City Council in effect at the time of payment.

(Ord. 05-866 § 1 (part))

All in-lieu fees collected hereunder shall be deposited in a Housing Trust Fund. The Housing Trust Fund shall be administered by the City and shall be used only for the purpose of providing funding assistance for the provision of affordable housing and reasonable costs of administration consistent with the policies and programs contained in the housing element of the General Plan and affordable housing requirements applicable to the Agency. The selection of projects and programs, which are assisted by the Housing Trust Fund, shall be in the sole discretion of the City.

(Ord. 05-866 § 1 (part))

11.81.120 - Preliminary project application and review process.

The preliminary project application/review process shall be as follows:

A.

A developer of a residential development not subject to a specific plan proposing an inclusionary housing project shall have an approved site development plan prior to execution of an affordable housing agreement for the project. The developer may submit a preliminary application to the Redevelopment Director prior to the submittal of any formal applications for such housing development. The preliminary application shall include the following information if applicable:

1.

A brief description of the proposal, including the number of affordable units proposed;

2.

The zoning, General Plan designations and assessor's parcel number(s) of the project site;

3.

A site plan, drawn to scale, which includes: building footprints, driveway and parking layout, building elevations, existing contours and proposed grading; and

4.

A letter identifying what specific incentives and/or adjustments are being requested of the City. Justification for each request should also be included.

B.

Within 30 days of receipt of the preliminary application by the planning director for projects not requesting incentives or adjustments, or 90 days for projects requesting incentives or adjustments, the department shall provide to an applicant, a letter that identifies project issues of concern, the incentives and adjustments that the Community Development Director can support when making a recommendation to the final decision-making authority, and the procedures for compliance with this chapter. The applicant shall also be provided with a copy of this chapter and related policies and all required application forms.

(Ord. 05-866 § 1 (part))

All specific plans approved on or after the effective date of the ordinance codified in this chapter shall include an inclusionary housing plan within the specific plan document. This inclusionary housing plan will include appropriate text, maps, tables or figures to establish the basic framework for implementing the requirements of this chapter. The specific plan may (but is not required to) provide for designated sites for the location of the affordable units, including but not limited to any sites for locating off-site inclusionary housing projects or combined inclusionary housing projects. It shall establish, at a minimum, but not be limited to, the following:

A.

The number of market-rate units in the specific plan;

B.

The number of required affordable units for very low-income households, lower-income households, and moderate-income households over the entire specific plan;

C.

A general provision stipulating that an affordable housing agreement shall be made a condition of all future discretionary permits for development within the master or specific plan area, such as tentative maps, parcel maps, planned unit developments, and site development plans. The provision shall establish that all relevant terms and conditions of any affordable housing agreement shall be filed and recorded as a restriction on the project as a whole and those individual lots, units, or projects that are designated as affordable units. The affordable housing agreement shall be consistent with Section 11.81.140 of this chapter.

(Ord. 05-866 § 1 (part))

A.

Developers subject to this chapter shall demonstrate compliance with this chapter by executing an affordable housing agreement prepared by the City or Agency and submitted to the developer for execution. Agreements which conform to the requirements of this section and which do not involve requests for incentives, other than those permitted by right, if any, shall be reviewed by the affordable housing task force and approved by the Community Development Director or his or her designee.

Agreements, which involve requests for incentives, other than those permitted by right, shall require the recommendation of the Planning Commission and action by the City Council as the final decision-maker. Following the approval and execution by all parties, the affordable housing agreement with approved site development plan shall be recorded against the entire development, including market-rate lots/units and the relevant terms and conditions therefrom filed and subsequently recorded as a separate deed restriction or regulatory agreement on the affordable project individual lots or units of property which are designated for the location of affordable units. The approval and execution of the affordable housing agreement shall take place prior to final map approval and shall be recorded upon final map recordation or, where a map is not being processed, prior to the issuance of building permits for such lots/units. The affordable housing agreement may require that more specific project and/or unit restrictions be recorded at a future time. The affordable housing agreement shall bind all future owners and successors in interest for the term of years specified therein.

B.

An affordable housing agreement for which the inclusionary housing requirement will be satisfied through new construction of affordable units, either on-site or off-site, shall establish, but not be limited to, the following:

1.

The number of inclusionary dwelling units proposed;

2.

The unit square footage and number of bedrooms;

3.

The proposed location of the affordable units;

4.

Amenities and services provided, such as day-care, after-school programs, transportation, job training/employment services, and recreation;

5.

Level and tenure of affordability for affordable units;

6.

Schedule for production of dwelling units;

7.

Approved incentives provided by the City and/or Agency;

8.

Where applicable, requirements for other documents to be approved by the City and/or Agency, such as marketing, leasing, and management plans; financial assistance/loan documents; resale agreements; and monitoring and compliance plans; and

9.

Identification of the affordable housing developer and agreements specifying the developer's role and relationship to the project.

C.

An affordable housing agreement for which the inclusionary housing requirement will be satisfied through payment to the City of any in-lieu contributions other than fee moneys, such as land dedication, shall include the method of determination, schedule, and value of total in-lieu contributions.

D.

An affordable housing agreement will not be required for projects that will be satisfying their inclusionary housing requirement through payment to the City of an in-lieu fee.

(Ord. 05-866 § 1 (part))

The City Council may establish, by resolution, fees to be paid by the developer at the time of preliminary project application to defray the City's cost of preparing and/or reviewing all inclusionary housing agreements.

(Ord. 05-866 § 1 (part))

Any amendment to an affordable housing agreement shall be processed in the same manner as an original application for approval, except as authorized in Section 11.81.130 of this chapter. Amendments to affordable housing agreements initially approved prior to the effective date of the ordinance codified in this chapter shall be entitled to consideration under this chapter provisions superseded by the ordinance codified in this chapter.

(Ord. 05-866 § 1 (part))

The City or its designee shall have a one-time first right of refusal to purchase any project containing affordable units offered for sale at the end of the minimum tenure of affordability for rental projects. The first right of refusal to purchase the rental project shall be submitted in writing to the Redevelopment Director. Within 90 days of its receipt, the City shall indicate its intent to exercise the first right of refusal for the purpose of providing affordable housing.

(Ord. 05-866 § 1 (part))

Enforcement provisions are as follows:

A.

The provisions of this chapter shall apply to all developers and their agents, successors and assigns proposing a residential development governed by this chapter. No building permit or occupancy permit shall be issued, nor any entitlement granted, for a project that is not exempt and does not meet the requirements of this chapter. All affordable units shall be rented or owned in accordance with this chapter.

B.

The City may institute any appropriate legal actions or proceedings necessary to ensure compliance with this chapter including but not limited to, actions to revoke, deny or suspend any permit or development approval.

C.

Any individual who sells or rents a restricted unit in violation of the provisions of this chapter shall be required to forfeit all monetary amounts so obtained. Such amounts shall be added to the City's Housing Trust Fund.

(Ord. 05-866 § 1 (part))

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the remainder of the chapter and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.

(Ord. 05-866 § 1 (part))

Chapter 11.82 - VARIANCES

Sections:

A.

When practical difficulties, unnecessary physical hardships, or results inconsistent with the general intent and purpose of this title would occur from the literal interpretation and enforcement of any of its provisions, the Planning Commission shall have the authority to grant a variance upon approved terms and conditions as may be deemed necessary to ensure that the intent and purpose of this title and the public health, safety and welfare will be promoted.

B.

The granting of a variance shall be subject to such conditions as will ensure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which the subject property is situated. Under no circumstance shall this provision be utilized to permit a use inconsistent with the existing zone or the adopted General Plan Land Use designation.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1920)

A.

Any property owner, or his/her authorized representative, desiring a variance may file an application for such with the Planning Division on forms to be furnished by the City, along with the following items in order to complete the application:

1.

A legal description of the property involved and the proposed use, with plot plans and other appropriate drawings showing existing or proposed buildings or facilities, and the reasons for the requested variance;

2.

Names and mailing addresses, typed on mailing labels, of all owners of real property within 300 feet from the external boundaries of the property involved as shown on the latest adopted, publicly available tax roll of the County;

3.

A filing fee, the amount of which shall be determined by resolution of the City Council;

4.

Variance justification form;

5.

Environmental assessment form; and

6.

Other information as may be required by the Planning Commission.

B.

No application for the same general variance concerning the same property, which application has been recommended for denial by the Commission or denied by the Commission and/or the Council on appeal, shall be received or processed by the Secretary of the Commission within 12 months after such denial, except by the consent of at least four members of the Planning Commission present at a regular meeting of the Commission.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1921)

A.

Upon the acceptance of a completed application for a variance, the Secretary of the Planning Commission shall forward the application to the Development Review Committee for review and comments and shall provide the applicant with appropriate recommendations and comments from the Development Review Committee. A date shall then be set by the Secretary of the Planning Commission for a public hearing before the Planning Commission. The date of the hearing shall not be less than 10 days nor more than 40 days from the date the application is deemed completed.

B.

The Secretary of the Planning Commission shall give notice of such requested variance and of the time and place of such hearing as follows:

1.

By one publication in a newspaper having a general circulation in the City at least 10 days, but no more than 15 days, prior to the date set for the hearing; and

2.

By mailed notice not less than 10 days prior to the date set for the hearing to all owners of property within a radius of 300 feet of the external boundaries of the property described in the application, using for this purpose the last known name and mailing address of such owners as are shown on the tax roll of the County, and may, at the discretion of the Planning Commission, give additional notice.

C.

The Planning Commission shall cause to be made, by its own members or members of its staff, such investigation of facts bearing upon such application set for hearing, including an analysis of precedent cases as in the opinion of the Planning Commission will serve to provide the necessary information to enable the Planning Commission to act.

D.

A copy of the staff report shall be made available to the applicant and to the general public, upon request, prior to the hearing.

E.

At the time and place so fixed and noticed, the public hearing shall be conducted before the Planning Commission. The Planning Commission shall consider all pertinent oral and written evidence and information prior to adoption of a formal and numbered resolution authorizing or denying such variance. A summary of all pertinent testimony offered at the hearing, the names and addresses of persons testifying,

copies of all notices, affidavits of publication, and records of action taken shall be a part of the permanent files of the case.

• (Ord. 99-791 Exh. A (part); prior code § 9-4.1922)

11.82.040 - Findings, conditions, and time limits.

A.

Findings. The Planning Commission, before granting a variance, must adopt a resolution stating that the evidence presented shows that each of the following findings have been made:

1.

That because of special circumstances applicable to the subject property, including its size, shape, topography, location or surroundings, the strict application of the provisions of this title is found to deprive the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classifications;

2.

That such variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, which right is possessed by other property owners in the vicinity and under identical zone classifications;

3.

That the granting of such variance will not be materially detrimental to the public welfare or injurious to other property or improvements in the vicinity and zone in which the subject property is located; and

4.

That the granting of such variance will not be contrary to the objectives of any part of the adopted General Plan.

B.

Conditions.

1.

The Planning Commission may grant the requested variance in whole or in part upon said items and conditions as it may deem necessary to safeguard and protect the public health, safety, general welfare, the existing and possible uses on adjoining lands in the neighborhood, the proper handling and regulation of traffic, and to ensure the eventual development of the property with respect to which the variance is granted.

2.

Prior to the issuance of any building or occupancy permit, the owner and anyone applying on his/her behalf shall agree, in writing, to meet and abide by all the conditions and requirements imposed on the project requiring such variance.

C.

Time Limit.

1.

A variance granted by the Planning Commission pursuant to this chapter shall be utilized within six months after the effective date thereof, unless a shorter or longer time period is established by the Planning Commission. If it is not so utilized or if preliminary construction work has not begun within such time and carried on diligently to the completion of at least 25 percent of the approved project, this authorization shall become void, and any privilege or permit granted thereby shall be deemed to have lapsed. The Planning Commission, however, shall have the authority to extend the time limit for another six months for good cause and in the case of unavoidable delay, upon submittal of a written request and the required time extension filing fees by the applicant at least 10 days prior to the expiration date.

2.

As a condition for granting an extension of time, the Planning Commission may revise existing conditions or impose additional conditions to ensure that the variance will be in compliance with City standards in effect at the time such extension is granted.

3.

The privileges of a variance shall lapse and become null and void if the use, structure, sign, or other improvement is abandoned for a period of six months or longer.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1923)

A.

The action of the Planning Commission shall become final on the date the Planning Commission makes its final determination. However, within 10 days after the date of the Planning Commission's decision, a written appeal therefrom may be taken to the City Council by any person aggrieved by the determination of the Planning Commission in connection with the application. Such appeal shall be accompanied by the required appeal fee, which shall be one-half of the initial variance filing fee. The City Council, on its own motion, may appeal any determination of the Planning Commission. An appeal fee shall not be required in the event of such City Council appeal. Such appeal, except on the City Council's own motion, shall be filed in triplicate with the City Clerk and shall state the grounds therefor and wherein the Planning Commission erred or failed to conform to the requirements of the provisions of this title. The City Clerk shall forthwith transmit one copy of the appeal to the Secretary of the Planning Commission, one copy to the applicant, and the other copies to the members of the Planning Commission. An appeal shall stay all proceedings in furtherance of the action appealed from until the determination or dismissal of the appeal, withdrawal of the

application, or any other disposition of the appeal by the City Council or the applicant. In the event the City Council makes no decision or other specific disposition on the appeal within 90 days after the same is filed, the appeal shall be deemed to have failed, and the determination of the Planning Commission shall remain as the final determination on the application.

B.

At the next regularly scheduled Planning Commission meeting subsequent to the receipt of an appeal, the Planning Commission shall, within 10 days, transmit to the City Council the original application and copies of all other papers constituting the record upon which the action was taken, together with a written report disclosing in what respects the application, and facts offered in support thereof, met or failed to meet the requirements set forth in this title and why the proposed variance should or should not be granted.

C.

The City Council may, by resolution, affirm, reverse or modify in whole or in part any decision, determination or requirement of the Planning Commission, but before granting any appealed petition which was denied by the Planning Commission, or before changing any of the conditions imposed by the Planning Commission, the City Council shall set the matter for hearing and give the same notice as that provided for in Section 11.78.090 of this title.

(Ord. 99-791 Exh. A (part); prior code § 9-4.1924)

Chapter 11.84 - ZONING AMENDMENTS

Sections:

Whenever the public necessity, convenience, general welfare, or good zoning practices require, the City Council may, by ordinance, after a report thereon by the Planning Commission and subject to the provisions of this chapter, amend, supplement, or change the regulations, zone boundaries, or classifications of property established by this title.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2101)

A.

An amendment to the provisions of this title, or a change in the accompanying official zoning map, may be initiated by a resolution of intention by the Planning Commission or the City Council or by an application of one or more of the owners of property affected by the proposed amendment or change.

B.

Applications shall be filed with the Secretary of the Planning Commission on forms which will be furnished by the Secretary, and applications shall be accompanied by such data and information as may be

prescribed for that purpose by the Planning Commission to ensure the fullest practicable presentation of facts for the permanent record. In the event the application proposes a change in the official zoning map, the application shall include the following:

1.

A legal description of the property involved;

2.

A map showing the particular property for which the change of zone is requested and the adjoining properties and public streets and ways within a radius of 300 feet of the exterior boundaries thereof; and

3.

Names and addresses, typed on mailing labels, of all property owners within 300 feet from the external boundaries of the property involved as shown on the latest adopted publicly available tax roll of the County.

C.

No application from an owner of the property for the same general purpose concerning the same property, which application has been denied by the Planning Commission, shall be received or processed by the Secretary of the Planning Commission within 12 months of such denial except by unanimous action of the members of the Planning Commission present at a regular meeting of the Planning Commission.

D.

A filing fee per the fee schedule as established in accordance with Section 11.08.010 of this title by the City Council shall be paid at the time of the filing of an application by an owner or owner's representative, but no fee will be required in the case of a proceeding instituted by either the City Council or the Planning Commission. (Amended during 1999 codification; Ord. 99-791 Exh. A (part); prior code § 9-4.2102)

Upon the filing of any such application, the Secretary of the Planning Commission shall set a date for one public hearing before the Planning Commission. The date of the hearing shall be not less than 10 days nor more than 35 days, from the date of filing of such application.

(Ord. 99-791 Exh. A (part): prior code § 9-4.2103)

The Secretary of the Planning Commission shall give notice of the date, time and purpose of the hearing as follows:

A.

For change of official zoning map;

By one publication in a newspaper having general circulation in the City at least 10 days prior to the date of the hearing,

2.

By mailed notice to owners, as their names and addresses are disclosed by the latest adopted publicly available tax roll of the County, of real property within 300 feet of the external boundaries of the property under consideration, or

3.

By conspicuously posting in front of the property under consideration, not less than 10 days prior to the date of such hearing, a notice consisting of the words, "Notice of Proposed Change of Zone Boundaries," printed in plain type with letters not less than 1 inch in height and containing a statement in legible characters setting forth a description of the property involved in the proposed change and the time and place at which the public hearing will be held before the Planning Commission. Such notices may also be conspicuously posted not more than 150 feet apart on each side of each street or public way within 300 feet of the external boundaries of the property involved;

B.

For an amendment to the provisions of this title: In cases concerning a proposed change in the text of this title, notice of the time, place and purpose of such hearing shall be published once in a newspaper of general circulation in the City not less than 10 days prior to the date of the hearing, and the title of such notice shall consist of the words, "Notice of Proposed Amendment to Zoning Law," in larger type than that used for the balance of the notice.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2104)

The Planning Commission shall cause to be made by any of its own members or by any member of its staff such investigations of facts bearing upon such application or matter set for hearing (including any analysis of precedent cases) as in the opinion of the Planning Commission will serve to provide the necessary information to enable the Planning Commission to act.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2105)

A.

At the time and place so fixed and noticed, the public hearing shall be conducted before the Planning Commission. The Planning Commission may establish its own rules for the conduct of public hearings, and the member of the Planning Commission presiding at such hearing is empowered to administer oaths to any persons testifying.

B.

The Planning Commission may, for any reason when it deems such action necessary or desirable, continue such hearing to a time and place certain.

C.

A summary of all pertinent testimony offered at the public hearing, the names and addresses of persons testifying, copies of all notices, affidavits of posting and publication, and records of action taken shall become a part of the permanent files of the case.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2106)

If, from the facts presented to the Planning Commission in the application, at the public hearing, or by investigation, the Planning Commission, by a two-thirds vote of its total voting members, finds that the public necessity, convenience, general welfare, or good zoning practices require the proposed change or amendment involved, or any portion thereof, the Planning Commission shall recommend such proposed change or amendment to the City Council; otherwise it shall be disapproved. The Planning Commission shall make its findings and recommendation in writing within 40 days from the date of completion of the hearing and shall forthwith transmit a copy thereof to the applicant. If the Planning Commission recommends the approval of the proposed change or amendment, or any portion thereof, it shall transmit the application, together with its report and recommendation relative thereto, to the City Council for its action. If the Planning Commission fails to make a determination within the time limit specified, it shall lose jurisdiction, and the applicant may appeal to the City Council as provided in this chapter.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2107)

Upon receipt of the application, together with the Planning Commission's report and recommendations relative thereto, the City Council, after it has conducted a public hearing thereon following published notice thereof as provided in Section 11.84.040 of this chapter, may approve, modify, or disapprove the recommendations of the Planning Commission; provided, however, any modification of the proposed ordinance or amendment by the City Council shall first be referred to the Planning Commission for report and recommendation, but the Planning Commission shall not be required to hold a public hearing thereon. The failure of the Planning Commission to report within 40 days after the referral, or such longer period as may be designated by the City Council, shall be deemed to be approval of the proposed modification.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2108)

11.84.090 - Appeals.

If the Planning Commission denies or does not make a determination upon the proposed change or amendment within the time limit specified, the applicant may, within 10 days from the date the notification of denial is mailed to the applicant, or from the termination of the time limit, appeal to the City Council by written Notice of Appeal filed with the City Clerk. The appeal shall be accompanied by any required appeal fee. Such an appeal by an applicant shall be filed in duplicate and shall set forth specifically wherein the Planning Commission's findings were in error and wherein the public necessity, convenience, welfare, or

good zoning practices require such change or amendment. If no appeal is taken within the time specified, the action of the Planning Commission shall be final.

Upon notice or such appeal, the Planning Commission shall make a report to the City Council disclosing in what respect it failed to find that the public necessity, convenience, general welfare, or good zoning practices required the change or amendment involved. The City Council may grant any appealed application, but before making any change in the recommendation of the Planning Commission, the City Council shall conduct a public hearing thereon, with published notice as provided in Section 11.84.040 of this chapter, and shall make a written finding of facts, setting forth the facts justifying or requiring the change or amendment.

(Ord. 99-791 Exh. A (part); prior code § 9-4.2109)

Chapter 11.85 - RESIDENTIAL DENSITY BONUS

Sections:

In enacting this chapter, the City Council finds and determines as follows:

The public good is served when there exists in a City housing which is appropriate for the needs of and affordable to all members of the public who reside within that City. Among other needs, there is in the City of Montclair a need for housing affordable to low- and moderate-income households and senior citizens. Therefore, it is in the public interest for the City to promote the construction of such additional housing through the exercise of its powers and the utilization of its resources.

A.

It is the purpose of this chapter to provide incentives to developers for the production of housing affordable to lower-income households, moderate-income households and senior citizens.

B.

It is the purpose of this chapter to implement the goals, objectives, and policies of the housing element of the City's General Plan.

C.

It is the purpose of this chapter to implement Sections 65915 through 65917 of the California Government Code.

D.

Nothing in this chapter is intended to create a mandatory duty on behalf of the City or its employees under the Government Tort Claims Act and no cause of action against the City or its employees is created by this chapter that would not arise independently of the provisions of this chapter.

(Ord. 04-855 § 1 (part))

Whenever the following terms are used in this chapter, they shall have the meaning established by this section:

Additional incentives means any incentive(s) that is offered in addition to the 25 percent density bonus.

Affordable housing cost means housing for which the monthly housing costs paid by a qualifying household shall not exceed a specified fraction of the San Bernardino County median income, adjusted for household size, for the following classes of housing:

1.

Extremely low-income, rental and for sale units: 30 percent times 30 percent of the San Bernardino County median income for a household size appropriate to the unit.

2.

Very low-income, rental and for sale units: 30 percent times 50 percent of the San Bernardino County median income for a household size appropriate to the unit.

3.

Lower-income, for sale units: 30 percent times 70 percent of the San Bernardino County median income for a household size appropriate to the unit. At the discretion of the City, affordable housing cost for a lowerincome, for sale unit which is sold to a lower-income household earning not less than 70 percent of San Bernardino County income, adjusted for household size, may alternatively be 30 percent times the income of the purchaser.

4.

Lower-income, rental units: 30 percent times 60 percent of the San Bernardino County median income for a household size appropriate to the unit.

5.

Moderate-income, for sale units: 35 percent times 110 percent of the San Bernardino County median income for a household size appropriate to the unit. At the discretion of the City, affordable housing cost for a moderate-income, for sale unit which is sold to a moderate-income household earning not less than 110 percent of San Bernardino County income, adjusted for household size, may alternatively be 35 percent times the income of the purchaser.

6.

Moderate-income, rental units: 30 percent times 110 percent of the San Bernardino County median income for a household size appropriate to the unit.

Agency means the City of Montclair Redevelopment Agency.

City means the City of Montclair.

Combined density bonus housing project means separate residential development sites which are linked by a contractual relationship such that some or all of the restricted dwelling units and/or density bonus dwelling units which are associated with one development site are produced and operated at a separate development site or sites.

Conversion means the change of status of a dwelling unit from a purchased unit to a rental unit or vice versa.

Density bonus (condominium conversions) means a minimum density increase of at least 25 percent over the number of dwelling units within the existing structure or structures proposed for conversion.

Density bonus (new residential construction) means a minimum density increase of at least 25 percent over the otherwise maximum residential density.

Density bonus dwelling units means those residential units granted pursuant to the provisions of this chapter which are above the otherwise maximum residential density of the project site.

Density bonus housing agreement means a legally binding agreement between a developer and the City and/or Agency which ensures that the density bonus requirements of this chapter are satisfied. The density bonus housing agreement establishes the number of restricted dwelling units and density bonus dwelling units, the unit sizes, location, affordability tenure, terms and conditions of affordability and unit production schedule.

Equivalent financial incentive means incentives offered by the City, which are of equivalent financial value based upon the land cost per dwelling unit(s) that are offered in-lieu of the following:

1.

A density bonus and additional incentive(s); or

2.

A density bonus, where an additional incentive(s) is not requested or is determined to be unnecessary.

Household size appropriate to the unit means one person for a zero bedroom (studio) unit, two persons for a one-bedroom unit, three persons for a two-bedroom unit, four persons for a three-bedroom unit, and five persons for a four-bedroom unit. Household size appropriate to a unit with more than four bedrooms shall be equal to the number of bedrooms plus one.

Housing development means a new residential development or conversion of existing residential building(s) of five or more residential dwelling units.

Incentives means such regulatory concessions as stipulated in State Government Code Section 65915(k), to include, but not be limited to, the reduction of site development standards or zoning code requirements, approval of mixed use zoning in conjunction with the housing project, or any other regulatory incentive which would result in identifiable cost reductions to enable the provision of housing for lower-income households, moderate-income households and qualifying residents.

Lower-income household means a household whose gross income is not more than the qualifying limit for lower-income households in San Bernardino County established by regulation of the State of California.

Market-rate dwelling unit means a dwelling unit where the rental rate or sales price is not restricted either by this chapter or by requirements imposed through other local, state, or federal affordable housing programs.

Maximum residential density means the maximum allowable residential density in the general plan designation, zoning, or specific plan, at the time of application.

Moderate-income household means a household whose gross income is not more than the qualifying limit for moderate-income households in San Bernardino County established by regulation of the State of California.

Monthly housing expense means the total monthly recurring expenses required of a household to obtain shelter for the 12 months after the date of determination. For a for sale unit, monthly housing expenses include loan principal and interest at the time of initial purchase by the homebuyer, cost of property and mortgage insurance, property taxes and assessments, homeowners' association dues, a reasonable allowance for utilities as determined by the San Bernardino County Housing Authority, space rent if the

the 12 months after the date of determination. For a for sale unit, monthly housing expenses include loan principal and interest at the time of initial purchase by the homebuyer, cost of property and mortgage insurance, property taxes and assessments, homeowners' association dues, a reasonable allowance for utilities as determined by the San Bernardino County Housing Authority, space rent if the

housing unit is on rented land, and costs of property maintenance and repairs. For a rental unit, monthly housing expenses include rent, a reasonable allowance for utilities as determined by the San Bernardino County Housing Authority, as well as all monthly payments made by the tenant to the lessor in connection with use and occupancy of a housing unit and land and facilities associated therewith, including any separately charged fees, utility charges, or service charges assessed by the lessor and payable by the tenant.

Partial density bonus means a density bonus less than the minimum number specified in this chapter.

Qualifying resident means a resident as defined in Section 51.3 of the California Civil Code.

Restricted dwelling unit means a dwelling unit that will be offered for rent or sale exclusively to and which shall be affordable to the designated income group or qualifying resident, as required by this chapter.

Very low-income household means a household whose gross income is not more than the qualifying limit for very low-income households in San Bernardino County established by regulation of the State of California.

(Ord. 04-855 § 1 (part))

The City shall grant either: a density bonus, or a density bonus with an additional incentive(s), or equivalent financial incentives as set forth in Section 11.85.100 of this chapter, to an applicant or developer of a housing development, who agrees to construct the following:

A.

At least 20 percent of the total units of the housing development as restricted dwelling units as restricted and affordable to low-income households;

B.

At least 10 percent of the total units of the housing development as restricted dwelling units as restricted and affordable to very low-income households; or

C.

At least 50 percent of the total units of the housing development as restricted dwelling units as restricted to qualifying (senior) residents.

In determining the minimum number of density bonus dwelling units to be granted pursuant to this section, the maximum residential density for the site shall be multiplied by 0.25. Any resulting decimal fraction shall be rounded to the next larger integer.

In determining the number of restricted dwelling units to be reserved pursuant to this section, the maximum residential density shall be multiplied by 0.10 for housing developments qualifying under subsection B of this section, 0.20 for housing developments qualifying under subsection A of this section, or 0.50 for housing developments qualifying under subsection C of this section. The density bonus shall not be

included when determining the number of housing units which is equal to the applicable percentage. Any resulting decimal fraction shall be rounded to the next larger integer.

In cases where a density increase of less than 25 percent is requested, including cases where a density increase is sought to satisfy inclusionary housing requirements, no reduction will be allowed in the number of restricted dwelling units required.

In cases where a density increase of more than 25 percent is requested, the requested density increase is an additional density bonus and shall be considered an additional incentive, in accordance to Section 11.85.100 of this chapter. The City Council may at its discretion grant an additional density bonus if a written finding is made by the City Council that the additional density bonus is required in order for allowable housing expenses to be set as affordable. The City in granting an additional density bonus may require some portion of the additional density bonus to be designated as restricted dwelling units.

In cases where the developer agrees to construct both 20 percent of the total units for low-income households and 10 percent of the total units for very low-income households, the developer is entitled to only one density bonus and at least one additional incentive.

A density bonus housing agreement shall be made a condition of the discretionary permits (i.e., tentative maps, parcel maps, planned unit developments, condominium permits, site development plans and redevelopment permits) for all housing developments that request a density bonus and additional incentives or equivalent financial incentives. The relevant terms and conditions of the density bonus housing agreement shall be filed and recorded as a deed restriction on those individual lots or units of a project development which are designated for the location of restricted dwelling units. The density bonus housing agreement shall be consistent with Section 11.85.120 of this chapter, and may be made a condition of City or Agency financial assistance.

(Ord. 04-855 § 1 (part))

In cases where the developer does not meet the requirements of subsection A, B or C of Section 11.85.030, but agrees to construct a condominium project as defined in a subdivision (f) of Section 1351 of the Civil Code, in which at least 20 percent of the total dwelling units are restricted to moderate-income households, the City shall grant a density bonus of at least 10 percent.

In determining the minimum number of density bonus dwelling units to be granted pursuant to this section, the maximum residential density for the site shall be multiplied by 0.10. Any resulting decimal fraction shall be rounded to the next larger integer.

In determining the number of restricted dwelling units to be reserved pursuant to this section, the maximum residential density shall be multiplied by 0.20. The density bonus shall not be included when determining the number of housing units which is equal to 20 percent of the total units of the condominium project. Any resulting decimal fraction shall be rounded to the next larger integer.

In cases where a density increase of more than 10 percent is requested, the requested density increase is an additional density bonus and shall be considered an additional incentive, in accordance with Section 11.85.100 of this chapter. The City Council may at its discretion grant an additional density bonus if a written finding is made by the City Council that the additional density bonus is required in order for allowable housing expenses to be set as affordable. The City in granting an additional density bonus may require some portion of the additional density bonus to be designated as restricted dwelling units.

A density bonus housing agreement shall be made a condition of the discretionary permits (i.e., tentative maps, parcel maps, planned unit developments, condominium permits, site development plans and redevelopment permits) for all condominium projects that request a density bonus and additional incentives or equivalent financial incentives. The relevant terms and conditions of the density bonus housing agreement shall be filed and recorded as a deed restriction on those individual lots or units of a condominium project which are designated for the location of restricted dwelling units. The density bonus housing agreement shall be consistent with Section 11.85.120 of this chapter, and may be made a condition of City or Agency financial assistance.

(Ord. 04-855 § 1 (part))

A.

The City shall grant either a density bonus or equivalent financial incentives, as set forth in Section 11.85.100, to an applicant or developer proposing to convert apartments to condominiums, and who agrees to provide the following:

1.

At least 33 percent of the total units of the housing development as restricted dwelling units as restricted and affordable to lower-income or moderate-income households; or

At least 15 percent of the total units of the housing development as restricted dwelling units as restricted and affordable to lower-income households.

B.

An applicant/developer proposing to convert apartments to condominiums shall be ineligible for a density bonus or additional incentives under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or additional incentives were previously provided under this chapter.

C.

In determining the number of density bonus dwelling units to be granted pursuant to the standards of this section, the number of existing apartment units within the structure or structures proposed for conversion shall be multiplied by 0.25. Any resulting decimal fraction shall be rounded to the next larger integer.

D.

In determining the number of restricted dwelling units to be reserved pursuant to the standards of this section, the number of existing apartment units within the structure or structures proposed for conversion shall be multiplied by 0.33 for low- or moderate-income households or 0.15 for lower-income households. The density bonus shall not be included when determining the number of housing units which is equal to 33 percent or 15 percent of the total units of the housing development. Any resulting decimal fraction shall be rounded to the next larger integer.

E.

In cases where a density increase of less than 25 percent is requested, no reduction will be allowed in the number of restricted dwelling units required.

F.

A density bonus housing agreement shall be made a condition of the discretionary permits (tentative maps, parcel maps, planned unit developments and condominium permits) for all condominium conversion proposals that request a density bonus or equivalent financial incentives. The relevant terms and conditions of the density bonus housing agreement shall be filed and recorded as a deed restriction on those individual lots or units of a project development which are designated for the location of restricted dwelling units. The density bonus housing agreement shall be consistent with Section 11.85.120 of this chapter, and may be made a condition of City or Agency financial assistance.

(Ord. 04-855 § 1 (part))

A.

When a developer proposes to construct a housing development that conforms to the requirements of Section 11.85.030 or Section 11.85.040 of this chapter and includes a child care facility, as defined in

Section 65915 of the California Government Code, that will be located on the premises of, as part of, or adjacent to, the project, the City shall grant either of the following:

1.

An additional density bonus that is in the amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility;

2.

Additional incentive(s) or equivalent financial incentive(s) that contributes significantly to the economic feasibility of the construction of the child care facility.

B.

The child care facility shall remain in operation for a period of at time that is equal or longer than the period of time during which the restricted dwelling units are required to remain restricted and affordable to the designated group pursuant to Section 11.85.080 of this chapter.

C.

Notwithstanding the foregoing, the City shall not be required to provide a density bonus or additional incentive(s) or equivalent financial incentive(s) if it finds that the community has adequate child care facilities.

D.

Of the children who attend the child care facility, the children of very low-income households, lower-income households, or families of moderate-income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low-income households, lower-income households or families of moderate-income pursuant to this chapter.

(Ord. 04-855 § 1 (part))

11.85.070 - Combined density bonus housing projects.

A.

Circumstances may arise from time to time in which the public interest would be served by allowing some or all of the density bonus dwelling units and/or restricted dwelling units associated with one residential project site to be produced and operated at an alternative site or sites. Where the parties in interest to the sites and the City form an agreement to such an effect, the resulting linked project sites shall be considered to be a single combined density bonus housing project.

B.

It is the exclusive prerogative of the City Council to determine whether or not it is in the public interest to authorize the residential sites to form a combined density bonus housing project.

C.

All agreements between parties to form a combined density bonus housing project shall be made a part of the density bonus housing agreement required for the sites.

(Ord. 04-855 § 1 (part))

A.

Notwithstanding a developer's request to process a residential project pursuant to this chapter, all residential projects within redevelopment project areas may be subject to and must satisfy the requirements of the Agency.

B.

Required restricted dwelling units should be constructed concurrent with market rate dwelling units unless both the City Council and the developer/applicant agree within the density bonus housing agreement to an alternative schedule for development.

C.

Except as otherwise provided in this chapter, restricted dwelling units shall remain restricted and affordable to the designated group for a period of at least 30 years, or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program, under the following circumstances:

1.

Density bonus and/or additional incentive(s) are granted by the City; or

2.

Equivalent financial incentives in the form of direct financial contributions are granted by the City.

D.

Restricted dwelling units shall remain restricted and affordable to moderate-income households for a period of at least 10 years if the units are directly related to the developer's receipt of a density bonus for the construction of a condominium project as defined in subdivision (f) of Section 1351 of the Civil Code.

E.

Restricted dwelling units reserved pursuant to Section 11.85.050 of this chapter shall remain restricted and affordable to the designated group for a period of at least 45 years if the units are directly related to the developer's receipt of a density bonus or equivalent financial incentive(s) for the conversion of apartments to condominiums.

F.

Restricted dwelling units reserved for qualifying (senior) residents shall remain restricted to the designated group for a period of at least 30 years, if the units are directly related to the developer's receipt of a density bonus and/or additional incentive(s) or equivalent financial incentives for reservation as to this designated group.

G.

Notwithstanding the minimum affordability periods required by this chapter, all residential projects are subject to longer affordability periods if required as a condition of City and/or Agency financial assistance.

H.

Restricted dwelling units and density bonus dwelling units should be built on-site and, whenever reasonably possible, be distributed throughout the project site.

I.

In certain cases where a combined density bonus housing project is proposed, the restricted dwelling units and density bonus dwelling units may be provided on a site separate from the site of the market-rate dwelling units.

J.

Restricted dwelling units should be located, whenever feasible, on sites that are in proximity to or will provide access to employment opportunities, urban services, or major roads or other transportation and commuter rail facilities (i.e., freeways, bus lines) and that are compatible with adjacent land uses.

K.

Density bonus projects shall include a mix of restricted dwelling units (by size and number of bedrooms) which is proportionate to the mix of all units within the residential development.

L.

Density bonus projects shall comply with all applicable development standards, except those which may be modified as an additional incentive as provided in this chapter with regard to additional incentives. In addition, all units must conform to the requirements of the applicable Building and Housing Codes. The design of the restricted dwelling units shall be reasonably consistent or compatible with the design of the total project development in terms of appearance, materials and finished quality.

M.

No building permit shall be issued, nor any development approval granted, for a development, which does not meet the requirements of this chapter. No restricted dwelling unit shall be rented or sold except in accordance with this chapter.

(Ord. 04-855 § 1 (part))

A.

At the end of the minimum tenure for rental units in projects containing restricted dwelling units or for sale restricted dwelling units the City or its designee shall have a one-time first right of refusal to purchase the project. Within 90 days of the notification of availability of the rental project or for sale restricted dwelling unit(s), the City, or its designee has the first right of refusal to buy the rental project or for sale restricted dwelling unit(s) for the purposes of providing affordable housing. In the event that the City exercises its right of first refusal, the City or its designee will make a good faith effort to close escrow within 90 days.

B.

If the City or its designee fails to exercise its first right of refusal to purchase the rental project or for sale restricted dwelling unit(s) within 90 days of notification of availability of the rental project or for sale units, then the restricted dwelling units may be converted to market-rate dwelling units under the following circumstances:

1.

The management of the complex intending to convert rental restricted dwelling units to market-rate dwelling units shall give notice of such intent, via registered mail, to each affected tenant household and to the City Clerk. The notice shall be given at least 180 days prior to the date proposed for conversion to market-rate rents; and

2.

Each affected tenant household shall be eligible to receive rental relocation assistance in an amount equal to four months rent, or such greater amount as may be required by applicable law. Such assistance shall be provided by the owner/management company and paid to the tenant at least 60 days prior to conversion to market-rate rents.

(Ord. 04-855 § 1 (part))

A.

Upon application by a developer, pursuant to Section 11.85.030 of this chapter, the City Council shall grant either a density bonus and at least one additional incentive or equivalent financial incentives to qualified lower-income or senior housing developments.

B.

Upon application by a developer, pursuant to Section 11.85.040 of this chapter, the City Council shall grant either a density bonus or equivalent financial incentives to qualified condominium projects.

C.

Upon application by a developer, pursuant to Section 11.85.050 of this chapter, the City Council shall grant either a density bonus or equivalent financial incentives to qualified lower-income and/or moderate-income

housing developments.

D.

Additional incentives or equivalent financial incentives, as defined in Section 11.85.020 of this chapter, may include, but are not limited to, the following:

1.

A reduction in site development standards or a modification of zoning code requirements or architectural design requirements which exceed the minimum building standards approved by the State Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicle parking spaces that would otherwise be required;

2.

Approval of mixed use zoning in conjunction with the housing development if mixed use zoning will reduce the cost of developing the housing;

3.

Other regulatory incentives or concessions proposed by the developer or the City which result in identifiable cost reductions;

4.

Partial or additional density bonus;

5.

A change of zoning designation which increases the permitted density or allows residential uses; and

6.

Direct financial aid, including, but not limited to, the City's provision of money from its Housing Trust Fund, the Agency's provision of Low and Moderate Income Housing Funds, Community Development Block Grant funding, or subsidizing infrastructure, land cost or construction costs or other incentives of equivalent financial value based upon the land costs per dwelling unit.

E.

The value of each incentive will vary from project to project; therefore, additional incentives or equivalent financial incentives shall be determined on a case-by-case basis.

F.

The City shall provide at least one additional incentive, for qualified housing developments as set forth in Section 11.85.030 of this chapter, upon a written request by the developer unless the City makes a written finding that the additional incentive is not required in order for allowable housing expenses to be set as

affordable. The applicant/owner shall be required to show that the additional incentive is economically necessary to make the units affordable as required by this chapter. The process for requesting an additional incentive and the criteria for evaluating such request is contained in Section 11.85.110 of this chapter.

G.

It is the exclusive prerogative of the City to offer equivalent financial incentives, based upon the land cost per dwelling unit, instead of a density bonus and at least one additional incentive.

H.

Where a density bonus would cause a housing development restricted for lower-income households, moderate-income households or qualified seniors to exceed the upper end of the general plan density range for the project site, then this request shall be evaluated relative to the proposal's compatibility with adjacent land uses and its proximity to employment opportunities, urban services or major roads.

(Ord. 04-855 § 1 (part))

A.

All residential projects requesting a density bonus, additional incentive(s) or equivalent financial incentives pursuant to this chapter, shall be required to comply with the following application requirements:

1.

Application for on-site restricted dwelling units. Restricted dwelling units proposed to be developed within the same project site requiring such units shall be designated on the project plans and shall be processed under a site development plan application in addition to the otherwise required project development application(s) (i.e., tentative maps, parcel maps, planned unit developments, conditional use permits and redevelopment permits). If the application involves a request to the City for direct financial incentives, then any action by the Planning Commission on the application shall be advisory only, and the City Council shall have the authority to make the final decision on the site development plan application and any related discretionary permits;

2.

Application for combined density bonus housing projects. Separate development application(s) (including the submittal of a site development plan) shall be processed concurrently for both sites unless the alternative site has previously received its discretionary permits. If the application involves a request to the City for direct financial incentives, then any action by the Planning Commission on the application shall be advisory only, and the City Council shall have the authority to make the final decision on all of the required development permits.

B.

Preliminary Application. An applicant/developer proposing a density bonus housing project shall submit a preliminary application prior to the submittal of any formal requests for approvals of such housing

development. The preliminary application shall include the following information:

1.

A brief description of the proposal including the number of restricted dwelling units and density bonus dwelling units proposed;

2.

The zoning, general plan designations and assessor's parcel number(s) of the project site;

3.

A site plan, drawn to scale, which includes: building footprints, driveway and parking layout, building elevations, existing contours and proposed grading; and

4.

A letter identifying what specific incentives (i.e., standards modifications, density bonus, or fee subsidies) are being requested of the City. Within 30 days of receipt of the preliminary application for projects requesting direct financial assistance from the City, the City shall provide to an applicant/developer, a letter which identifies project issues of concern, the financial assistance that the Planning Director can support when making a recommendation to the City Council for its final approval and the procedures for compliance with this chapter. The applicant shall also be provided with a copy of this chapter and related policies, the pertinent sections of the California Codes to which reference is made in this chapter and all required application forms.

C.

Submittal. The completed application(s) shall include the following information:

1.

A legal description of the total site proposed for development of the restricted dwelling units including a statement of present ownership and present and proposed zoning;

2.

A letter signed by the present owner stating what incentives, if any, is being requested from the City;

3.

A detailed vicinity map showing the project location and such details as the location of the nearest commercial retail, transit stop, potential employment locations, park or recreation facilities or other social or community service facilities;

4.

Site plans, designating the total number of units proposed on the site, including the number of restricted dwelling units and density bonus dwelling units, and supporting plans per the application submittal

requirements;

5.

In the case of a request for any incentive(s), a pro forma for the proposed project to justify the request;

6.

In the case of a condominium conversion request, a report documenting the following information for each unit proposed to be converted: the monthly income of tenants of each unit throughout the prior year, the monthly rent for each unit throughout the prior year, and vacancy information for each unit throughout the prior year.

D.

Review. The Community Development Director and/or his/her designated staff shall evaluate the request based upon the following criteria:

1.

The density bonus housing project helps achieve the City's housing goals for lower-income, moderateincome or qualified senior households, as set forth in the housing element of the General Plan;

2.

The requested incentive(s) (including, but not limited to, additional density bonuses, requests for a mixed use project, reduction in development standards, or direct or indirect financial contributions) must be necessary to make the project economically feasible;

3.

The housing project shall not result in an overall development pattern that is incompatible with other land uses in the immediate vicinity;

4.

The density bonus housing project complies with the General Plan, zoning and development policies of the City;

5.

That the conversion of apartment units to condominiums shall not result in a reduction in the affordable housing stock for lower income groups, as of most recent inventory; and

6.

In cases where pursuant to this chapter an applicant/developer otherwise qualifies for and requests an additional incentive, the City shall grant the requested incentive(s) unless the City makes a written finding that the requested incentive(s) is not required in order for allowable housing expenses to be set at affordable or the incentive(s) would be materially detrimental to public health and safety.

(Ord. 04-855 § 1 (part))

A.

Applicants/developers, requesting a density bonus, additional incentives or equivalent financial incentives pursuant to this chapter, shall demonstrate compliance with this chapter by the execution of a density bonus housing agreement. A density bonus housing agreement shall be submitted by the City to the applicant. Following the approval and the signing by all parties, the completed density bonus housing agreement shall be recorded and the relevant terms and conditions therefrom filed and recorded as a deed restriction on those individual lots or units of a property which are designated for the location of restricted dwelling units. The approval and recordation shall take place prior to final map approval, or, where a map is not being processed, prior to issuance of building permits for such lots or units. The density bonus housing agreement shall be binding on all future owners and successors in interest.

B.

A density bonus housing agreement for new residential construction processed pursuant to this chapter shall include the following:

1.

The number of density bonus dwelling units granted;

2.

The number of lower-income, moderate-income and senior dwelling units proposed;

3.

The unit size(s) (square footage) of restricted dwelling units and the number of bedrooms per restricted dwelling unit;

4.

The proposed location of the lower-income, moderate-income and senior restricted dwelling units;

5.

Tenure of restrictions for restricted dwelling units (of at least 10 or 30 years);

6.

Schedule for production of restricted dwelling units;

7.

Incentives and/or financial assistance provided by the City;

Where applicable, tenure and conditions governing the initial sale of for sale restricted dwelling units; and

9.

Where applicable, tenure and conditions establishing rules and procedures for qualifying tenants, setting rental rates, filling vacancies, and operating and maintaining units for rental restricted dwelling units.

C.

A density bonus housing agreement for condominium conversions processed pursuant to this chapter shall be required to include the following:

1.

The number of density bonus dwelling units granted;

2.

The number of lower-income and moderate-income dwelling units proposed;

3.

The unit size(s) (square footage) of restricted dwelling units and number of bedrooms per restricted dwelling unit;

4.

The proposed location of the lower-income and moderate-income restricted dwelling units;

5.

Tenure of affordability for restricted dwelling units;

6.

Schedule for production of restricted dwelling units;

7.

Equivalent financial incentives provided by the City; and

8.

Terms and conditions of for sale restricted dwelling units.

D.

Where an inclusionary housing agreement is required pursuant to the Agency, both the density bonus housing agreement and inclusionary housing agreement shall be combined into a single housing agreement. Where there is a conflict between the requirements of this chapter and the requirements of the Agency, the stricter requirements shall apply to the housing development.

(Ord. 04-855 § 1 (part))

A.

All buyers of for sale restricted dwelling units shall enter into a density bonus resale agreement with the City prior to purchasing the unit or property. The resale agreement shall specify that the title to the subject property or unit may not be transferred without prior approval of the City.

(Ord. 04-855 § 1 (part))

Rental restricted dwelling units shall be managed/operated by the developer or his/her agent. Each developer of rental restricted dwelling units shall submit an annual report to the City identifying which units are restricted dwelling units, the monthly rent, vacancy information for each rental restricted dwelling unit for the prior year, monthly income for tenants of each rental restricted dwelling unit throughout the prior year, and other information as required by the City, while ensuring the privacy of the tenant.

(Ord. 04-855 § 1 (part))

Over the minimum tenure of projects containing restricted dwelling units, the City will either directly or, via one or more third parties, provide a number of recurring services associated with the administration and monitoring of such units. Although the provision of some of these services will be within the normal purview of existing City activities, others will involve new costs to the City for which there are no existing funding sources. Unless and until alternative funding sources are identified, it is necessary to require the builders/owners of residential projects to share in these administrative costs. Therefore, the City Council establishes an administrative fee for restricted dwelling units, the amount to be established by the City Council resolution and paid prior to the issuance of building permit(s).

(Ord. 04-855 § 1 (part))

Division V. - Planned Subdivisions Chapter 11.86 - SUBDIVISIONS

Sections:

This chapter is adopted to supplement and implement the Subdivision Map Act of the State and may be cited as the "Subdivision Regulations of the City of Montclair."

(Prior code § 9-3.01)

11.86.020 - Definitions.

Whenever any words or phrases used in this chapter are not defined, but are defined in the Subdivision Map Act of the State as last amended, such definitions are incorporated in this chapter and shall be deemed to apply as though set forth in this chapter.

(Ord. 99-791 Exh. A (part); prior code § 9-3.02)

11.86.030 - Control by City Council on division of land.

A.

The City Council assumes the control of the design and improvement of land subdivision, including any division of land created by a parcel map, as such is vested in the City by the provisions of the Subdivision Map Act of the State, and amendments thereto, or as otherwise established and set forth in this chapter.

B.

In conjunction therewith and in addition to the aforesaid control of land within the City, it is declared that any land that is divided in any method or manner whatsoever shall be accomplished by either a subdivision map or parcel map which shall first be approved by the Planning Commission and the City Council.

C.

No person shall sell, offer to sell, or transfer title from one owner to another, or otherwise dispose of such in any manner whatsoever, any parcel of land, or fraction thereof, without first conforming to the applicable requirements of the Subdivision Map Act of the State and the requirements of this or any other provision or requirement set forth and established by the City Council.

(Ord. 99-791 Exh. A (part); prior code § 9-3.03)

For the purposes of this chapter, a unit of land is any plot of land separately described as shown on either:

A.

The Tax Assessor's Map Record on tax rolls as a separate unit of land on June 18, 1956; or

B.

The official records of the County Recorder accomplished by either a subdivision map or other City Council-approved division of land.

(Ord. 99-791 Exh. A (part); prior code § 9-3.04)

The Planning Commission is made the advisory agency of the City Council, as such advisory agency is defined and established by the Subdivision Map Act of the State, and the powers are delegated to the advisory agency to approve, conditionally approve, or disapprove and to report such actions on tentative subdivision maps or tentative parcel maps directly to the subdivider. The advisory agency is given full

power and authority to investigate any and all matters pertaining to a proposed division of land to be created by either a subdivision map or a parcel map and to make its findings of fact in relation thereto, which shall be communicated in writing to the City Council.

(Ord. 99-791 Exh. A (part); prior code § 9-3.05)

11.86.060 - General plan conformance—Time for or waivers of reports.

A.

A report as to conformity to the General Plan, which report is required pursuant to Section 65402 of the Government Code of the State as the result of a proposed division of land, may be included as part of and at the same time as the action taken by the advisory agency on such division of land.

B.

Such report shall not be required for a proposed subdivision which involves: (1) The disposition of the remainder or a larger parcel which was acquired and used in part for street purposes; (2) acquisitions, dispositions or abandonments for street widening; or (3) alignment projects provided the advisory agency expressly finds that any such disposition for street purposes, acquisitions, dispositions or abandonments for street widening or alignment projects is of a minor nature.

(Prior code § 9-3.06)

11.86.070 - Parcel map procedures.

A.

A parcel map shall be filed and recorded for any subdivision for which a tentative and final map is not required by the Subdivision Map Act of the State, except for subdivisions created by short-term leases (terminable by either party on not more than 30 days' notice in writing) of a portion of an operating right-ofway of a railroad corporation defined as such by Section 230 of the Public Utilities Code of the State; provided, however, upon a showing made to the City Council based upon substantial evidence that public policy necessitates such a map, this exception shall not apply.

B.

Such maps shall meet all of the requirements of Section 11.86.090 of this chapter and shall show all dedications or offers of dedication thereon. The City Council may require that such dedications or offers of dedication be made by deed in lieu of or in addition to appearing on the map.

C.

When a parcel map is required by this title, a tentative parcel map shall first be filed with the City Council. Such tentative map shall meet all the requirements for tentative maps provided by the Subdivision Map Act of the State and this chapter.

(Ord. 99-791 Exh. A (part); prior code § 9-3.07)

A.

The subdivider shall pay to the City fees for filing, processing and checking all tentative subdivision maps, final subdivision maps, tentative parcel maps, final parcel maps, street improvement plans, sanitary sewer plans, and utility plans.

B.

The fees for such services shall be set by resolution of the City Council.

(Ord. 99-791 Exh. A (part); prior code § 9-3.08)

A.

Filing. Tentative maps shall be filed with the Planning Division and shall be processed in accordance with the Subdivision Map Act of the State and the provisions of this title. The subdivider shall file as many copies of the tentative map as may be required by the Planning Division.

B.

Tentative Map Requirements. The following will be required for tentative maps:

1.

The title of the subdivision and a description of the property;

2.

The name and address of the owner and subdivider;

3.

The name and address of the person preparing the map;

4.

The approximate acreage;

5.

The north point;

6.

The scale;

7.

The date;

The boundary lines;

9.

The locations and names of streets;

10.

The widths of streets and alleys;

11.

The names, locations, and widths of adjacent streets;

12.

The proposed street grades;

13.

The proposed lot grades;

14.

The locations and widths of easements;

15.

The dimensions of reservations;

16.

The existing structures;

17.

The locations of existing and proposed public utilities;

18.

The existing sewers;

19.

The existing water mains;

20.

The existing culverts and drainpipes;

The watercourses;

22.

The land subject to overflow or inundation;

23.

The railroads;

24.

The lot lines and approximate dimensions;

25.

The approximate radii of curves;

26.

The building lines;

27.

The lands and parks to be dedicated for public use;

28.

The contours at 5-foot intervals if the slope is greater than 10 percent;

29.

The contours at 2-foot intervals if the slope is less than 10 percent;

The proposed land uses;

31.

The names and tract numbers of adjoining subdivisions; and

32.

The names of any geologists or soils engineers whose services were required in the preparation of the design of the tentative map.

Such information may be furnished separately from the map itself.

C.

Dedications. The City Council may require that all dedications or offers of dedication be made by deed in lieu of or in addition to appearing on the map.

(Ord. 99-791 Exh. A (part); prior code § 9-3.09)

The City Council may waive or direct an exemption from any of the requirements of Section 11.86.090 of this chapter whenever the City Council finds that the type of subdivision is such that compliance is unnecessary or that other circumstances justify the waiver. The City Council may require such drawings, data, or other information as is deemed necessary.

(Ord. 99-791 Exh. A (part); prior code § 9-3.10)

The subdivider shall improve, or agree to improve, all streets, highways, alleys, ways or easements required in connection with, or as a part of, a subdivision or a division of land created by a parcel map as a condition precedent to the acceptance thereof and the approval of the final map. Such improvements shall be installed at lines and grades, and in accordance with plans, standards and specifications, approved by the City Engineer and shall include:

A.

The grading, drainage, and drainage structures necessary for proper use and for public safety;

B.

Portland cement concrete curbs, gutters, sidewalks, and drive approaches;

C.

Storm drains, conduits and channels;

D.

Asphalt concrete street paving;

E.

Aggregate base;

F.

An adequate domestic water supply, including the relocation or replacement of all water mains, irrigation lines, and appurtenances as required by the City Engineer;

G.

Sanitary sewer facilities and connections for each lot;

H.

Underground utilities providing services to each lot;

I.

Services from public utilities, where provided, and from sanitary sewers shall be made available for each lot in such manner as will obviate the necessity for disturbing the street pavement, gutters, curbs and sidewalks when service connections are made;

J.

Street trees;

K.

Fire hydrants;

L.

Street name signs and traffic regulatory devices;

M.

Street lights, including ornamental light standards;

N.

The relocation or replacement of all utility lines and poles as required by the City Engineer;

O.

Permanent subdivision survey monuments; and

P.

In addition to the aforesaid minimum requirements, the City Council may require such additional improvements and facilities or such modifications in the standards of minimum improvements as special conditions may cause the City Council to make a special finding of need.

(Ord. 99-791 Exh. A (part); prior code § 9-3.11)

11.86.120 - Public hearings and notices where required.

Whenever a public hearing is held pursuant to the provisions of this chapter, a notice of the time and place thereof, including a general description of the location of the subdivision or proposed subdivision, shall be given at least 10 days before the hearing. Such notice shall be given by publication once in a newspaper of general circulation printed and published in the County and circulated in the City. In addition to notice by publication, the City Council may require notice of the hearing to be given in such other manner as the City Council may deem necessary or desirable. Any interested person may appear at such a hearing and shall be heard.

(Ord. 99-791 Exh. A (part); prior code § 9-3.12)

A.

Expiration. The approval or conditional approval of a tentative map shall expire 12 months after the date the map was approved or conditionally approved.

B.

Extensions. The person filing the tentative map may request an extension of the tentative map approval or conditional approval by a written application to be filed at least 30 days before the approval or conditional approval is due to expire. The application shall state the reasons for requesting the extension. In granting an extension, new conditions may be imposed, and existing conditions may be revised.

C.

Time Limits on Extensions. An extension or extensions of tentative map approval or conditional approval shall not exceed an aggregate of two years.

D.

Effect of Map Modifications on Extensions. The modification of a tentative map after its approval or conditional approval shall not extend the time limits imposed by this section.

(Ord. 99-791 Exh. A (part); prior code § 9-3.13)

Failure to file a parcel map with the County Recorder within 60 days after the approval or conditional approval of such map shall terminate all proceedings. Any subdivision of the same land shall require the filing of a new map.

(Ord. 99-791 Exh. A (part); prior code § 9-3.14)

The Planning Commission may impose a requirement that any dedication or offer of dedication of a street shall include a waiver of direct vehicular access rights to such street from any property shown on a final map as abutting thereon, and that, if the dedication is accepted, such waiver shall become effective in accordance with the provisions of the waiver of direct access. In addition, the Planning Commission may require a waiver of access to an existing street which abuts a subdivision if the Planning Commission determines that a safety hazard would be created as a result of direct access.

(Ord. 99-791 Exh. A (part); prior code § 9-3.15)

A.

Requirements. As a condition of approval of a map, the subdivider shall reserve sites, appropriate in area and location, for parks, recreational facilities, fire stations, libraries, or other public uses according to the standards and formula set forth in this section.

B.

Standards and Formula for the Reservation of Land. If a park, recreational facilities, fire station, library, or other public use is shown on an adopted specific plan or adopted General Plan containing a community facilities element, recreation and parks element, and/or a public building element, the subdivider may be required by the City Council to reserve sites as so determined by the City or County in accordance with the definite principals and standards contained in such specific plan or General Plan. The reserved area shall be of such size and shape as to permit the balance of the property within which the reservation is located to develop in an orderly and efficient manner. The amount of land to be reserved shall not make the development of the remaining land held by the subdivider economically unfeasible. The reserved area shall conform to the adopted specific plan or General Plan and shall be in such multiples of streets and parcels as to permit an efficient division of the reserved area in the event it is not acquired within the prescribed period.

C.

Procedure. The public agency for whose benefit an area has been reserved shall, at the time of the approval of the final map or parcel map, enter into a binding agreement to acquire such reserved area within two years after the completion and acceptance of all improvements, unless such period of time is extended by mutual agreement.

D.

Payment. The purchase price shall be the market value thereof at the time of the filing of the tentative map, plus the taxes against such reserved area from the date of the reservation, and any other costs incurred by the subdivider in the maintenance of such reserved area, including interest costs incurred on any loan covering such reserved area.

E.

Termination. If the public agency for whose benefit an area has been reserved does not enter into such a binding agreement, the reservation of such area shall automatically terminate.

(Ord. 99-791 Exh. A (part); prior code § 9-3.16)

11.86.170 - Dedication and design regulations for streets, alleys, drainage, public utility easements, and other public easements.

A.

Requirements. As a condition of the approval of a map, the subdivider shall dedicate or make an irrevocable offer of dedication of all parcels of land within the subdivision that are needed for streets and alleys, including access rights and abutters' rights, drainage, public utility easements, and other public easements. In addition, the subdivider shall improve, or agree to improve, all streets, alleys, including

access rights and abutters' rights, drainage, public utility easements, and other public easements in accordance with the City of Montclair Standard Construction Drawings and the provisions of this section.

B.

Streets, Alleys, Easements and Parks. Streets, alleys, easements and parks shall conform as follows:

1.

Major Streets and Thoroughfares. Major streets and thoroughfares shall conform to good engineering and planning procedures and shall be subject to the review and approval of the City Council.

2.

Local streets. Local streets shall be not less than 60 feet in width, or dedicated to that width of previously dedicated portions of streets, and shall be located to provide natural drainage and shall be adjusted to the topography. There shall be a minimum number of interceptions with major streets or thoroughfares, and blocks shall be not less than 600 feet in length. Each street intersection shall have a corner radius of not less than 10 feet.

When one or more streets or alleys are dedicated or proposed to be dedicated as part of a subdivision or an approved parcel map, such streets and alleys shall conform to and be, as nearly as possible, in alignment with other established or dedicated streets or alleys.

3.

Dead-End Streets. Dead-end streets shall be terminated by a turnaround area not less than 96 feet in diameter separated to the depth of one lot from the exterior boundary line or other topographical features of the subdivision or parcel map.

4.

Boundary Line Streets and Half Streets. Boundary line streets and half streets shall be required to be developed to a minimum width of 28 feet or to such greater width as may be required by the City Council in the public interest and to facilitate safe and convenient traffic movement. Such partial streets shall be permitted only when assurances are presented in writing by the owner of the adjoining property of his/her intention to dedicate the remaining parts of the street when such adjoining property is subdivided or when the City Council determines that such partial dedications are necessary for safety and convenience.

5.

Alleys.

a.

Improved alleyways, which shall be at least 20 feet wide, shall be provided at the rear of all lots when required by the City Council.

b.

All alley intersections shall have corner cutbacks of not less than a 10-foot radius.

c.

Alleys in the rear of business, industrial, or income property shall be designed and located according to the plan for the development of the particular use involved. All public utilities shall be placed and maintained in such alleys whenever practical to do so.

6.

Easements. Easements shall be dedicated as follows:

a.

For flood channels or drainage purposes at such widths as the County Flood Officer or the City Engineer may indicate; and

b.

For utilities at the rear of all lots, insofar as practical, to serve the property when alleys are not provided.

7.

Small Parks. Small parks or other public areas shall be dedicated as may be appropriate.

8.

Curved Street. Curved streets in comparatively level locations shall have a center line radius of 500 feet or greater.

9.

Street Corners. Street corners shall have a minimum 20-foot curb radius with the property line designed so as not to reduce the parkway widths.

10.

Alley Corners. All alley corners intersecting with streets shall have a minimum curb radius of not less than 8 feet.

11.

Street Connections or Intersections. All street connections or intersections shall be made at approximately right angles.

12.

Minimum Widths. Minimum widths for pavements and sidewalks shall be as follows:

a.

For streets, 40 feet;

b.

For business districts, 6-foot sidewalks; and

c.

For residential districts, 5-foot sidewalks.

C.

Lots and Blocks. Lots and blocks shall have dimensions suitable to the land uses proposed and shall be, in no case, less than the minimum sizes specified in the zoning laws.

1.

Lots. Lots in residential zones shall be not less than 60 feet wide, measured at the building line and 100 feet deep with a 65-foot minimum width for comer lots; provided, however, those lots located at the end of a cul-de-sac street may have a minimum width at the building setback line of not less than 50 feet provided the average width of such lot is not less than 60 feet. Exception to this requirement shall apply only to areas designated by an "SL" overlay zone and subject to the provisions of Chapter 11.36 of this title. Side lines of lots shall be approximately perpendicular to the street line. When large lots are proposed, the shapes and building locations may be required to be so established as to permit later practical resubdivision. No reserved lots or strips shall be permitted. Every lot shall front or abut on a dedicated street. Double frontage lots shall be avoided.

2.

Blocks. Blocks shall ordinarily be two lot depths in width and not over 1400 feet in length. If shown at greater width, the City Council may require easements or other assurances to permit later practical resubdivision.

(Ord. 99-791 Exh. A (part); prior code § 9-3.17)

A.

Supplemental Improvements Required. The subdivider may be required to install improvements for the benefit of the subdivision which may contain supplemental size, capacity or number for the benefit of property not within the subdivision as a condition precedent to the approval of a subdivision or parcel map and thereafter to dedicate such improvements to the public. However, the subdivider shall be reimbursed for that portion of the cost of such improvements equal to the difference between the amount it would have cost the subdivider to install such improvements to serve the subdivision only and the actual cost of such improvements pursuant to the provisions of the Subdivision Map Act of the State.

B.

Supplemental Improvements—Reimbursement Agreements—Funding Procedures. No charge, area of benefit, or local benefit district shall be established unless and until a public hearing, in accordance with the provisions of Section 11.86.120 of this chapter, is held thereon by the City Council, and the City Council finds that the fee or charge and the area of benefit or local benefit district is reasonably related to the costs of such supplemental improvements and the actual ultimate beneficiaries thereof.

C.

Notices. In addition to the notice required by Section 11.86.120 of this title, a written notice of the hearing shall be given to the subdivider, and to those who own property within the proposed area of benefit as shown on the latest equalized assessment roll, and to the potential users of the supplemental improvements insofar as they can be ascertained at the time. Such notices shall be mailed by the City Clerk at least 10 days prior to the date established by the City for the hearing.

D.

Supplemental Improvements—Drainage, Sewerage, Bridges, and Major Thoroughfares. If the City has adopted a local drainage or sanitary sewer plan or map as required for the imposition of fees there- for, the City may impose a reasonable charge on property within the area benefitted and may provide for the

collection of such charge as set forth in this title. The City may enter into reimbursement agreements with a subdivider who constructs such facilities, and the charges collected by the City therefor may be utilized to reimburse the subdivider as set forth herein.

(Ord. 99-791 Exh. A (part); prior code § 9-3.18)

11.86.190 - Improvement security.

A.

Improvement Security Required. Any improvement agreement, contract, or act required or authorized by the Subdivision Map Act of the State for which security is required shall be secured in the manner provided for in Section 66499 of the Subdivision Map Act of the State.

B.

Improvement Security—Amount. The improvement security shall be in the amount set forth or authorized in Section 66499.3 of the Subdivision Map Act of the State. If the improvement security is other than a bond or bonds furnished by duly authorized corporate sureties, an additional amount shall be included as determined by the City Council as necessary to cover the costs and reasonable expenses and fees, including reasonable attorneys' fees, which may be incurred by the City in successfully enforcing the obligation secured.

C.

Changes or Alterations. The improvement security shall also secure the faithful performance of any changes or alterations in the work to the extent that such changes or alterations do not exceed 10 percent of the original estimated cost of the improvement.

D.

Improvement Security—Special Assessment Proceedings—Reductions. In the event the required subdivision improvements are financed and installed pursuant to special assessment proceedings, the subdivider may apply to the City Council for a reduction in the amount of the improvement security required hereunder up to an amount corresponding to the amount of faithful performance and labor and material bonds required by the special assessment act being used. The City Council may grant such reduction if it finds that such bonds have been in fact provided and that the obligations secured thereby are substantially equivalent to those required by this chapter.

E.

Improvement Security—Release. The improvement security required hereunder shall be released in the following manner:

1.

Security given for the faithful performance of any act or agreement shall be released upon the final completion and acceptance of the act or work, subject to the provisions of subsection (E)(2) of this section.

2.

The City Council may release a portion of the security in conjunction with the acceptance of the performance of the act or work as it progresses upon an application therefor by the subdivider; provided, however, no such release shall be for an amount less than 25 percent of the total improvement security given for the faithful performance of the act or work, and the security shall not be reduced to an amount less than 50 percent of the total improvement security given for the faithful performance until the final completion and the acceptance of the act or work. In no event shall the City Council authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the act or work and any other obligation imposed by this chapter, the Subdivision Map Act of the State, or the improvement agreement.

3.

Security given to secure payment to the contractor, his or her subcontractors, and to persons furnishing labor, materials or equipment may, 6 months after the completion and acceptance of the act or work, be reduced to an amount equal to the amount of all claims therefor filed and of which notice has been given to the legislative body, plus an amount reasonably determined by the City Council to be required to ensure the performance of any other obligations secured thereby. The balance of the security shall be released upon the settlement of all such claims and obligations for which the security was given.

4.

No security given for the guarantee or warranty of work shall be released until the expiration of the period thereof.

(Ord. 99-791 Exh. A (part); prior code § 9-3.19)

A.

Reversions to Acreage by Final Map. Subdivided property may be reverted to acreage pursuant to the provisions of this section.

B.

Initiation of Proceedings by Owners. Proceedings to revert subdivided property to acreage may be initiated by the petition of all of the owners of record of the property. The petition shall be in a form prescribed by the Planning Division. The petition shall contain the information required by subsection D of this section and such other information as required by the Planning Division.

C.

Initiation of Proceedings by the City Council. The Planning Commission or the City Council on its own motion may, by resolution, initiate proceedings to revert subdivided property to acreage. The Planning Division shall obtain the necessary information to initiate and conduct the proceedings.

D.

Data for Reversions to Acreage. Petitioners shall file the following:

1.

Evidence of title to the real property;

2.

Evidence of the consent of all of the owners of interests in the property;

3.

Evidence that none of the improvements required to be made have been made within two years from the date the final map or parcel map was filed for record, or within the time allowed by agreement for completion of the improvements, whichever is later;

4.

Evidence that no lots shown on the final or parcel map have been sold within five years from the date such final or parcel map was filed for record;

5.

A tentative map in the form prescribed by this chapter;

6.

A final map in the form prescribed by this chapter and the Subdivision Map Act of the State, which final map delineates dedications which will not be vacated and dedications required as a condition to reversion.

E.

Fees. Petitions to revert subdivided property to acreage pursuant to subsection B of this section shall be accompanied by a fee established by resolution of the City Council. Such fee shall not be refundable.

F.

Proceedings before the City Council. A public hearing shall be held before the City Council on all petitions for initiations for reversions to acreage. Notice of the public hearing shall be given as provided in Section 11.86.120 of this chapter. The City Council may require such other notice that it deems necessary or advisable. The City Council may approve a reversion to acreage only if it finds and records in writing that:

1.

Dedications or offers of dedication to be vacated or abandoned by the reversion to acreage are unnecessary for present or prospective public purpose; and

2.

Either:

a.

All owners of an interest in the real property within the subdivision have consented to reversion, or

b.

None of the improvements required to be made have been made within two years after the date the final or parcel map was filed for record or within the time allowed by agreement for completion of the improvements, whichever is later, or

c.

No lots shown on the final or parcel map were filed for record;

3.

The City Council may require as conditions of the reversion:

a.

That the owners dedicate or offer to dedicate streets or easements, and

b.

The retention of all or a portion of previously paid subdivision fees, deposits, or improvement securities if the same are necessary to accomplish any of the provisions of this chapter.

G.

Return Fees and Deposits—Release of Securities. Except as provided in subsection E of this section, upon the filing of the final map for reversion to acreage with the County Recorder, all deposits shall be returned to the subdivider, and all improvement securities shall be released by the City Council.

H.

Delivery of Final Maps. After the hearing before the City Council and the approval of the reversion, the final map shall be delivered to the County Recorder.

I.

Effect of Filing Reversion Maps with the County Recorder. Reversions shall be effective upon the final map being filed for record by the County Recorder. Upon filing, all dedications and offers of dedication not shown on the final map for reversion shall have no further force and effect.

(Ord. 99-791 Exh. A (part); prior code § 9-3.20)

A.

Sufficiency of Monuments. At the time of making the survey for the final map, the engineer or surveyor shall set sufficient durable monuments so that another engineer or surveyor may readily retrace the survey.

B.

Required Monuments. The engineer or surveyor shall also set any additional monuments as may be set forth on those standard drawings which the City Engineer may prepare for the purpose of identifying subdivision monumentation requirements of the City.

C.

Time of Setting. All monuments necessary to establish the exterior boundaries of the subdivision shall be set or referenced prior to the recordation of the final map.

(Ord. 99-791 Exh. A (part); prior code § 9-3.21)

Every map approved pursuant no the provisions of this title shall be conditioned for compliance with the requirements for grading and erosion control, including the prevention of sedimentation or damages to offsite property, set forth in the Uniform Building Code.

(Prior code § 9-3.22)

A.

A parcel or unit may be merged with a contiguous parcel or unit held by the same owner if any one of the contiguous parcels or units held by the same owner does not conform to standards for minimum parcel size under the zoning ordinance applicable to the parcels or units of land, and if all of the following requirements are satisfied:

At least one of the affected parcels is undeveloped by any structure for which a building permit was issued or for which a building permit was not required at the time of construction, or is developed only with an accessory structure or accessory structures, or is developed with a single structure, other than an accessory structure, that is also partially sited on a contiguous parcel or unit.

2.

With respect to the affected parcel, one or more of the following conditions exists:

a.

Comprises less than 5000 square feet in area at the time of the determination of merger;

b.

Was not created in compliance with applicable laws and ordinances in effect at the time of its creation;

c.

Does not meet current standards for sewage disposal and domestic water supply;

d.

Does not meet slope stability standards;

e.

Has no legal access which is adequate for vehicular safety equipment access and maneuverability;

f.

Its development would create health or safety hazards;

g.

Is inconsistent with the applicable General Plan and any applicable specific plans, other than minimum lot size or density standards.

B.

For purposes of determining whether contiguous parcels are held by the same owner, ownership shall be determined as of the date that notice of intention to determine status is recorded.

C.

A merger of parcels becomes effective when the City causes to be filed for record with the Recorder of the County of San Bernardino a notice of merger specifying the names of the record owners and particularly describing the real property.

D.

Prior to recording a notice of merger, the City shall cause to be mailed by certified mail to the then-current record owner of the property a notice of intention to determine status, notifying the owner that the affected parcels may be merged pursuant to standards specified in the merger ordinance, and advising the owner of the opportunity to request a hearing on determination of status and to present evidence at the hearing that the property does not meet the criteria for merger. The notice of intention to determine status shall be filed for record with the Recorder of the County of San Bernardino on the date that notice is mailed to the property owner.

E.

At any time within 30 days after recording of the notice of intention to determine status, the owner of the affected property may file with the City a request for a hearing on determination of status.

F.

Upon receiving a request for a hearing on determination of status, the City shall fix a time, date and place for a hearing to be conducted by the Planning Commission and shall so notify the property owner by certified mail. The hearing shall be conducted not less than 30 days following the City's receipt of the property owner's request therefor, but may be postponed or continued with the mutual consent of the City and the property owner.

G.

At the hearing, the property owner shall be given the opportunity to present any evidence that the affected property does not meet the standards for merger specified in this merger ordinance. At the close of the hearing, the Planning Commission shall make a determination that the affected parcels are to be merged or are not to be merged and shall so notify the owner of its determination. A determination of merger shall be recorded within 30 days after conclusion of the hearing.

H.

If, within the 30-day period specified in subsection G of this section, the owner does not file a request for hearing in accordance with subsection E of this section, the Planning Commission may, at any time thereafter, make a determination that the affected parcels are to be merged or are not to be merged. A determination of merger shall be recorded as provided in subsection C of this section no later than 90 days following the mailing of notice required by subsection F of this section.

I.

If, in accordance with subsection G or H of this section, the Planning Commission determines that the subject property shall not be merged, it shall cause to be recorded in the manner specified in subsection C of this section a release of the notice of intention to determine status, recorded pursuant to subsection D of this section, and shall mail a clearance letter to the then-current owner of record.

(Ord. 99-791 Exh. A (part); prior code § 9-3.23)

Chapter 11.87 - URBAN LOT SPLITS

Sections:

The purpose of this Chapter is to allow and appropriately regulate an Urban Lot Split in accordance with Government Code Section 66411.7.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

Owners.

1.

Only individual property owners may apply for an Urban Lot Split. "Individual property owner" means a natural person holding fee title individually or jointly in the person's own name or a beneficiary of a trust that holds fee title. "Individual property owner" does not include any corporation or a corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code §402.1 (a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by §214.15).

2.

Any person with mortgage interest in the lot to be split under this section must sign the application and the parcel map indicating the person's consent to the project.

B.

An application for an Urban Lot Split must be submitted on the City's approved form. Only a complete application will be considered. The City will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.

C.

The City may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The City Council may establish and change the fee by resolution. The fee must be paid with the application.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

An application for a parcel map for an Urban Lot Split is approved or denied ministerially, by the Director of Public Works, without discretionary review.

B.

A tentative parcel map for an Urban Lot Split is approved ministerially if it complies with all the requirements of this section. The tentative parcel map may not be recorded. A final parcel map is approved ministerially as well but not until the owner demonstrates that the required documents have been recorded, such as the deed restriction and easements. The tentative parcel map expires three months after approval.

C.

The approval requires the property owner and/or applicant to hold the City harmless from all claims and damages related to the approval and its subject matter.

D.

The approval requires the property owner and/or applicant to reimburse the City for all costs of enforcement, including attorneys' and costs associated with enforcing this code.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

An Urban Lot Split must satisfy each of the following requirements.

A.

Subdivision Map Act Compliance.

1.

The Urban Lot Split must conform to all applicable objective requirements of the Subdivision Map Act (Gov. Code §66410 et. seq., "SMA") and implementing requirements in this Code, including, but not limited to, this Chapter and Chapter 11.86, except as otherwise expressly provided in this section.

2.

If an Urban Lot Split violates any part of the SMA, the City's subdivision regulations, including, but not limited to, this Chapter and Chapter 11.86, or any other legal requirement:

a.

The buyer or grantee of a lot that is created by the Urban Lot Split has all the remedies available under the SMA, including but not limited to an action for damages or to void the deed, sale, or contract.

b.

The City has all the remedies available to it under the SMA, including but not limited to the following:

i.

An action to enjoin any attempt to, sell, lease, or finance the property.

ii.

An action for other legal, equitable, or summary remedy such as declaratory and injunctive relief.

iii.

Criminal prosecution, punishable by imprisonment in county jail, or state prison for up to one year, by a fine of up to ten thousand dollars ($10,000.00), or both; or by misdemeanor.

iv.

Record a notice of violation.

v.

Withhold any or all future permits and approvals.

3.

Notwithstanding Section 66411.1 of the SMA, no dedication of right-of-way or construction of offsite improvements is required for an urban lot split.

B.

Zone Limit. The lot to be split is in a single-family residential zone known as R-1.

C.

Prohibited Locations. The lot split shall not be located on a site that has any of the following characteristics:

1.

Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.

2.

A wetland.

3.

Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.

4.

A hazardous waste site that has not been cleared for residential use.

5.

Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.

Within a 100-year flood hazard area, unless the site has either:

a.

Been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction, or

b.

Meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program.

7.

Within a regulatory floodway unless all development on the site has received a no-rise certification.

8.

Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.

9.

Habitat for protected species.

10.

Land under conservation easement.

11.

A historic property or within a historic district, that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a City or County landmark or as a historic property or district.

12.

The purpose of this subpart (C) is merely to summarize the requirements of Government Code Section 65913.4(a)(6)(B)—(K). (See Gov. Code §66411.7(a)(3)(C).)

13.

The applicant must provide evidence that the requirements of Government Code Section 65913.4(a)(6)(B)— (K) are satisfied.

D.

No Prior Urban Lot Split.

The lot to be split was not established through a prior Urban Lot Split.

2.

The lot to be split is not adjacent to any lot that was established through a prior Urban Lot Split by the owner of the lot to be split or by any person acting in concert with the owner. "Any person acting in concert with the owner" here includes any third-party that coordinates or assists the owners of two adjacent lots with their respective Urban Lot Splits.

E.

No Impact on Protected Housing.

1.

The Urban Lot Split must not require or include the demolition or alteration of any of the following types of housing:

a.

Housing that is income-restricted for households of moderate, low, or very low income.

b.

Housing that is subject to any form of rent or price control through a public entity's valid exercise of its policy power.

c.

Housing, or a lot formerly used for affordable housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code § 7060-7060.7) at any time in the 15 years prior to submission of the Urban Lot Split application.

d.

Housing that has been occupied by a tenant in the last three years.

2.

As part of the Urban Lot Split application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that subpart A above is satisfied. The sworn statement must state that:

a.

No housing that is income-restricted for households of moderate, low, or very low income will be demolished or altered.

b.

No housing that is subject to any form of rent or price control will be demolished or altered.

c.

No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last 15 years will be demolished or altered.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

The existing lot size of the property prior to subdivision under this Chapter must be at least 2,400 SF.

B.

The resulting lots must each be at least 1,200 SF.

C.

Each of the resulting lots must be between 60 percent and 40 percent of the original lots.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

The owner must enter into an easement agreement with each public service provider to establish easements that are sufficient for the provision of public services and facilities to each of the resulting lots.

B.

Each easement must be shown on the tentative parcel map.

C.

Copies of the unrecorded easement agreements must be submitted with the application. The easement agreements must be recorded against the property before the final map may be approved, in accordance with this section.

D.

If an easement is recorded and the project is not completed, making the easement moot, the property owner may request, and the City will provide, a notice of termination of the easement, which the owner may record.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

Each lot must adjoin the public right-of-way.

B.

Each resulting lot must have frontage on the public right of way of at least 12 feet.

C.

Access through or across a designated horse, pedestrian, or bike trail shall not be permitted.

D.

Access through existing subdivision boundary walls to abutting secondary roadways, major roadways, or arterials as designated in the Montclair General Plan, shall not be permitted.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

An Urban Lot Split is approved without requiring a legal nonconforming zoning condition to be corrected.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

Each primary dwelling unit on the lot must have its own direct utility connection to the utility service provider.

B.

All utilities must be underground.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

All structures built on the lot must comply with all current local building standards. An Urban Lot Split is a change of use.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

A.

Quantity. No more than two dwelling units of any kind may be built on a lot that results from an Urban Lot Split. For purposes of this paragraph "unit" means any dwelling unit, including but not limited to, a primary dwelling unit, a unit created under Chapter 11.21 of the Montclair Municipal Code, and ADU or JADU.

B.

Unit Size. The total floor area of the primary dwelling unit on a resulting lot be shall contain not less than 500 SF or greater than 800 SF.

C.

Height Restrictions. No new primary dwelling unit may exceed a single story or 16 feet in height, measured from finished grade to peak of the dwelling unit structure.

D.

Lot Coverage. A maximum lot coverage of 45 percent is permitted.

E.

Open Space. Open space in the amount of 300 SF per unit shall be provided with a minimum dimension of ten feet. The required open space shall be one consecutive area and shall not include setbacks.

F.

Setbacks.

1.

Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone.

2.

Exceptions Notwithstanding subpart (F)(1) above:

a.

No setback is required for existing legally established structure or for a new structure that is constructed in the same location and to dimensions as an existing legally established structure.

b.

Four-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 SF in floor area; but in no event may any structure be less than four feet from a side or rear property line.

c.

Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed after an Urban Lot Split must be at least 25 feet from the front property lines. The front setback areas must:

i.

Be kept free from all structures greater than three feet high;

ii.

Be fully landscaped except approved walkways and driveways, with, drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect.

G.

Parking. Each new primary dwelling unit that is built on a lot after an Urban Lot Split must have at least one off-street parking space, within a two-car garage, per unit unless one of the following applies:

1.

The lot is located within one-half mile walking distance of either:

a.

A corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours; or

b.

A site that contains the following:

i.

An existing rail or bus rapid transit station,

ii.

A ferry terminal served by either a bus or rail transit service, or

iii.

The intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.

2.

The site is located within one block of a car-share vehicle location.

H.

Architecture.

1.

If there is a legal primary dwelling on the lot that was established before the Urban Lot Split, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

If there is no legal primary dwelling on the lot before the Urban Lot Split, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

3.

All exterior lighting must be limited to down-lights.

4.

No window or door of a dwelling that is constructed on the lot after the Urban Lot Split may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and provide a direct line of sight.

5.

If a dwelling is constructed on a lot after an Urban Lot Split and any portion of the dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor or (for windows and for doors) utilize frosted or obscure glass.

I.

Landscaping.

1.

Tree Removal.

a.

No mature tree may be removed on a lot with any development under this section.

b.

"Mature tree" means a tree with a diameter of six inches or more or a height of eight feet or taller.

c.

A tree may only be removed if it is replaced with at least two mature trees of the same type and with a trunk diameter that is the same or larger than that of the removed tree. If a certified arborist determines that there is not space on the lot for a replacement trees, owner may pay the replacement cost of the tree.

2.

Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots as follows:

a.

At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one 24-inch box size plant shall be provided for every ten linear feet of exterior wall.

b.

Plant specimens must be at least six feet tall when installed. As an alternative, a solid fence of at least six feet high may be installed.

c.

All landscaping must be drought-tolerant pursuant Chapter 11.60 Water Efficient Landscaping and Conservation.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

11.87.120 - Fire Prevention Requirements.

A.

All Urban Lot Split projects must comply with each of the following requirements:

1.

Have direct, straight access from a public street or an improved public alley. Access through or across a designated horse, pedestrian, or bike trail shall not be permitted.

2.

Driveway access to a rear lot shall be at least 12 feet wide, and constructed of a prepared surface such as concrete, brick/pavers, or asphalt.

3.

All newly constructed structures on the site must comply with current fire code requirements, including, but not limited to, the installation of interior fire sprinklers.

4.

All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right-of-way or an onsite fire hydrant or standpipe. A new parcel with structures exceeding a 150-foot hose-pull distance shall comply with Fire Marshal requirements, including, but not limited to, the provision of a minimum 20-foot wide paved access route/driveway for emergency Fire Department access.

B.

Urban Lot Split applications shall require Fire Prevention Bureau review of proposed subdivision plans for compliance with the above standards. The applicant must pay the City's costs for plan review.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.110. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.120.

Any standard that would have the effect of physically precluding the construction of up to two units or that would physically preclude either of the two units from being at least 800 SF in floor area must be set aside. Objective standards will be set aside in the following order until the site can contain two 800 SF units:

1.

Lot Coverage;

2.

Floor Area Ratio;

3.

Open Space;

4.

Tree Preservation;

5.

Articulation; and

6.

Second Floor Setback.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.120. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.130.

11.87.140 - Separate Conveyance.

A.

Within a resulting lot.

1.

Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other.

2.

Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an Urban Lot Split.

3.

All fee interest in a lot and all dwellings on the lot must be held equally and undivided by all individual property owners.

4.

No timeshare, as defined by state law or the Montclair Municipal Code, is permitted. This includes any coownership arrangement that gives an owner the right to exclusive use of the property for a defined period or periods of time.

B.

Between resulting lots.

1.

Separate conveyance of the resulting lots is permitted. If dwellings or other structures (such as garages) on different lots are adjacent or attached to each other, the Urban Lot Split boundary may separate them for conveyance purposes if the structures meet building code safety standards and are sufficient to allow separate conveyance.

2.

If any attached structures span or will span the new lot line, the owner must record appropriate CC&R's, easements, or other documentation that is necessary to allocate rights and responsibility between the owners of the two lots.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.130. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.140.

11.87.150 - Regulation of Uses.

A.

Residential-only. No non-residential use is permitted on any lot created by the Urban Lot Split.

B.

No Short-Term Rentals. No dwelling unit on a lot that is created by an Urban Lot Split may be rented for a period of less than 30 days.

C.

Owner Occupancy. The applicant for an Urban Lot Split must sign an affidavit stating that the applicant intends to occupy one of the dwelling units on one of the resulting lots as the applicant's principal residence for a minimum of three years after the Urban Lot Split is approved.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.140. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.150.

A.

At least 30 business days before starting any construction of a structure on a lot created by an Urban Lot Split, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:

1.

Notice that construction has been authorized;

2.

The anticipated start and end dates for construction;

3.

The hours of construction;

4.

Contact information for the project manager (for construction related complaints); and

5.

Contact information for the Building & Safety Division.

B.

This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under state law, the City has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.150. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.160.

The owner must record a deed restriction on each lot that results from the Urban Lot Split, on a form approved by the City, that does each of the following:

A.

Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.

B.

Expressly prohibits any non-residential use of the lots created by the Urban Lot Split.

C.

Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.

D.

States that:

a.

The lot is formed by an Urban Lot Split and is therefore subject to the City's Urban Lot Split regulations, including all applicable limits on dwelling size and development.

b.

Development on the lot is limited to the development of residential units under this Chapter, except as required by state law.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.160. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.170.

A.

Notwithstanding anything else in this Chapter, the City may deny an application for an Urban Lot Split if the Building Official makes a written finding, based on a preponderance of the evidence, that the project would have a "specific, adverse impact" on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

B.

"Specific adverse impact" has the same meaning as in Gov. Code § 65589.5(d)(2): "a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety

standards, policies, or conditions as they existed on the date the application was deemed complete" and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).

C.

The Building Official may consult with and be assisted by Planning Division staff and others as necessary in making a finding of specific adverse impact.

(Ord. No. 24-1007, § V(Exh. B), 3-18-24)

Editor's note— Ord. No. 24-1007, § V(Exh. B), adopted March 18, 2024, set out provisions intended for use as § 11.87.170. For purposes of classification, and at the editor's discretion, these provisions have been included as § 11.87.180.

Chapter 11.88 - OFFICE AND INDUSTRIAL CONDOMINIUM DEVELOPMENTS—PLANNED

Sections:

A.

The City Council finds that office condominium and industrial condominium developments are different in so many respects from other types and forms of land ownership and development as to require different regulations.

B.

The intent of this chapter is to develop standards, procedures and guidelines, to provide a more flexible method whereby sufficiently large and properly located land areas can be developed, employing more innovative and imaginative land planning concepts than would be possible through the strict application of conventional zoning subdivision regulations.

C.

The purpose of the chapter is to provide for the general control of design and development of common ownership office and industrial condominium developments in relation to adjoining areas in accordance with the basic purpose of the State Subdivision Map Act.

(Ord. 99-791 Exh. A (part); prior code § 9-3.203)

The objectives and purposes of the planned office and industrial condominiums developments are as follows:

A.

To encourage a more desirable business and working environment than would be possible through a strict application of the provisions of this title;

B.

To encourage an orderly and well-planned growth of owner-occupied office and industrial developments;

C.

To encourage a more efficient, aesthetic, and desirable use of land;

D.

To encourage variety in the physical development pattern of the City; and

E.

To ensure that these objectives are realized and that in the process, the development objectives, principles and standards remain in conformity with the requirements of the zoning ordinance and General Plan.

(Ord. 99-791 Exh. A (part); prior code § 9-3.204)

The provisions of this chapter shall apply to all office condominium developments in C-2, C-3 and A-P zoned districts, as well as to all industrial condominium developments in M-1, M-2 and M-I-P Zones.

(Ord. 99-791 Exh. A (part); prior code § 9-3.202)

The Commission is authorized to grant office and industrial condominium development use permits for particular cases which are qualified pursuant to the provisions of this title. In granting such office and industrial condominium development use permits, the Planning Commission may stipulate conditions in addition no those required by this title which will tend to safeguard the health, safety, and property values in the area.

(Ord. 99-791 Exh. A (part); prior code § 9-3.201)

A.

Office condominium developments are permitted in the C-2, C-3 and A-P Zones subject to the issuance of a conditional use permit pursuant to the provisions of Chapter 11.78 of this title and the approval of tentative or final tract or parcel maps as may be required by law. This requirement is in addition to other permits or certificates required by law.

Furthermore, the types of office condominium uses which are allowed per the required conditional use permit are as follows:

Professional offices, such as:

Accountants

Attorneys

Dentists, doctors, etc.

Engineers, architects, planners, etc.

Business offices, such as:

Advertising agencies

Banks and other financial offices

Business and management consultant services (includes data processing, computer programming and the like)

Business, professional, and civic associations (excluding union meeting and hiring halls)

Communication and recording studios (excluding towers)

Corporate headquarters

Detective and protective services (offices only)

Educational, scientific and social science research facilities (excluding schools)

Employment agencies

Escrow and real estate companies

Governmental offices

Insurance companies

Interior decorating consultant services

Microfilming services

News agency and publication offices

Photographers, artists, etc.

Public and private utility offices

Secretarial and stenographic services

Telephone answering services

Transportation and entertainment ticket services (excluding passenger terminals)

Travel agencies

3.

Those uses in Sections 11.24.030 and 11.24.040 of this title may be permitted in office condominium developments subject to the requirements stated in those respective sections;

4.

Accessory uses and facilities which are clearly related and incidental to one of the above-permitted conditional uses.

B.

Industrial condominium developments are permitted in the M-1, M-2, and M-I-P Zones subject to the issuance of a conditional use permit pursuant to the provisions of Chapter 11.78 of this title and the approval of tentative or final tract or parcel maps as may be required by law. This requirement is in addition to other permits or certificates required by law.

Furthermore, the types of industrial condominium uses which are allowed per the required conditional use permit are as follows:

1.

Light manufacturing and light industrial uses which are not obnoxious by reason of sound, fumes, repulsive odors, and the like, whether the same constitute an actual nuisance or not, and including such uses as:

Assembly plants

Bakeries, wholesale

Bottling plants

Building material and contractor storage yards and plants

Cabinet shops and furniture manufacture

Canning and packing

Canvas products manufacture

Cereal factories

Cleaning and dyeing plants

Cosmetics manufacture

Creameries

Electroplating

Food products manufacture, except fish and meat products, sauerkraut, vinegar, yeast, and the rendering or refining of fats and oils

Fruit and vegetable packing plants

Garment manufacture

Ice and cold storage plants

Laboratories, experimental and the like

Laundries (commercial operations only)

Machine, welding, and blacksmith shops, excluding the use of equipment producing undue noise or vibration

Neon and electric sign manufacture

Radio manufacture and assembly and electrical and electronic appliances

Rug and carpet cleaning plants

Storage of goods, materials, liquids, and equipment (except the bulk storage of matter or materials which are inflammable or explosive or which create dust, odor, or fumes)

Tire retreading and recapping and battery manufacture

Toy and novelty manufacture

Warehouses and storage buildings

Wholesale buildings

Similar light industrial and manufacturing uses but excluding automobile and truck repair related uses

2.

Retail or wholesale stores, businesses, offices, or commercial activities when specifically authorized by the Planning Commission and are found to be incidental and directly related to one of the above-permitted conditional uses and that such uses will be compatible with the other industrial condominium units;

3.

Accessory uses and facilities which are clearly related and incidental to one of the above-permitted conditional uses.

C.

The Planning Commission shall be empowered through its review of any office or industrial condominium conditional use permit to exclude any of the uses listed in subsection A and/or B of this section if it finds that such use will conflict with the purpose and intent of this chapter and/or the General Plan.

D.

The conversion of lease or rental office developments to office condominium developments and the conversion of lease or rental industrial developments to industrial condominium developments within appropriately zoned districts is permitted, subject to the issuance of a conditional use permit pursuant to the provisions of Chapter 11.72 of this title and the approval of tentative or final tract or parcel maps as may be required by law. This requirement is in addition to other permits on certificates required by law.

Furthermore, approval of said conditional use permit for conversion shall require that the development in question meet all requirements currently in effect for new office or industrial condominium developments.

E.

No person shall construct, sell, lease, rent, convey, maintain or use an office or industrial condominium development or unit within the City without complying with the provisions of this chapter.

(Ord. 99-791 Exh. A (part); prior code § 9-3.206)

Before filing any development approval application for an office or industrial condominium development, the prospective applicant shall submit to the Planning Division, Department of Community Development, a request for preliminary review application containing preliminary sketches and general site information, as may be reasonably required for consideration and advice to the applicant, as to the relation of the proposal to general development objectives to be attained in the area and as to the policies of the Planning Commission with reference thereto. The Planning Division shall then submit the preliminary application to the Development Review Committee at a regular meeting. The Development Review Committee shall review the preliminary review application and forward to the Planning Division all recommendations and comments, and also anticipated conditions, in accordance with the provisions of this chapter.

(Prior code § 9-3.207)

A Precise Plan of Design shall be required for the use or development of any lot or parcel of real property for an office or industrial condominium development irrespective of the area or size of such lot or parcel.

(Prior code § 9-3.208)

After the preliminary review, the applicant may file a request for development approval application for an office or industrial condominium development and shall include the information required by this section and any other information that may be required to adequately consider such proposal. A conditional use permit, Precise Plan of Design, tentative tract map, and preliminary site plans, as required by this chapter, shall be

submitted to the Planning Division concurrently. The Planning Division shall make recommendations on such project to the Planning Commission for approval, conditional approval, or denial. Tentative tract maps, Precise Plan of Design and conditional use permit applications, filed pursuant to this chapter, shall be processed simultaneously.

(Prior code § 9-3.209)

The information to be filed in support of an office or industrial condominium development and conditional use permit, in addition to those items specified in Sections 11.78.080, 11.80.020 and 11.86.090 of this title, shall consist of the following:

A.

A site plan depicting:

1.

The building site showing the arrangement and location of all buildings, structures and improvements proposed and to be retained or constructed and the gross floor area and ground floor area of each unit and/or building type. This includes existing and proposed off-site improvements,

2.

The location and design of on-site circulation, including pedestrian ways, on-site parking and location, loading areas, and outside storage areas,

3.

The location of all landscaped areas, fences and trash storage areas and how the utility services and drainage are to be provided:

B.

A landscape plan, including landscape plant schedule, showing the location of existing trees proposed to be removed and proposed to be retained, and the amount, size, type and location of landscaped areas, planting beds, and plant materials, including provisions for 100 percent automatic irrigation;

C.

An architectural drawing, renderings or sketches showing all elevations and floor plans of the proposed buildings and structures as they will appear on completion. All exterior surfacing materials and color shall be specified and mounted on a sample board;

D.

Scale drawings of all signs and exterior lighting showing the size, location, materials, colors, copy and illumination. This shall include all light standard specifications;

E.

Preliminary grading plans when necessary to ensure development properly related to the site and to surrounding properties and structures;

F.

Calculations indicating the land area devoted to each proposed use in the planned office or industrial condominium development and its percentage of the total area;

G.

A map indicating any proposed division of land within the office or industrial condominium development;

H.

A preliminary title report showing the vested ownership and all covenants, conditions, restrictions and reservations of record;

I.

A time schedule indicating when construction is to begin, the anticipated rate of development and the approximate completion date, including the phase construction;

J.

Any other drawings or additional information necessary to adequately consider the drawings required by this section and determine compliance with the purpose and intent of this title.

(Ord. 99-791 Exh. A (part); prior code § 9-3.210)

To achieve the purpose of this chapter, the Planning Commission shall require, prior to the approval of construction, that all office and industrial condominium developments conform to this Code in effect at the time of approval. Such standards shall include, but are not limited to the following:

A.

Office condominium developments may be constructed in C-2, C-3 and A-P Zones subject to the development standards of the underlying zone; all applicable parking and sign regulations; and any conditions of approval as required by Precise Plan of Design and conditional use permit review.

B.

Industrial condominium developments may be constructed in M-1, M-2 and MIP Zones subject to the development standards of the underlying zone; all applicable parking and sign regulations; and any conditions of approval as required by Precise Plan of Design and conditional use permit review.

C.

In addition to requirements applied because of the zone in which office or industrial condominium developments are located (as indicated in subsections A and B of this section), the following development standards shall apply. Wherever there is a conflict or the appearance of a conflict between the normal zoning requirements and the following condominium requirements, the more stringent standards shall apply unless the conflict is mutually exclusive, in which case this chapter shall apply.

1.

Site Area.

a.

The minimum gross site area for office condominium developments within a C-2, C-3 or A-P Zone, when developed pursuant to this chapter, shall be 7200 square feet, except that sites with lesser area may be permitted when contiguous to an existing office condominium development constructed to the standards of this chapter or constitute a logical extension in arrangement of buildings, facilities, and open space, per an adopted Specific Plan of Development.

b.

The minimum gross site area for industrial condominium developments within an M-1, M-2 or MIP Zone, when developed pursuant to this chapter, shall be 10,000 square feet, except that sites with lesser area may be permitted when contiguous to an existing industrial condominium development constructed to the standards of this chapter or constitute a logical extension in arrangement of buildings, facilities, and open space, per an adopted Specific Plan of Development.

2.

Minimum Unit Size.

a.

Each office condominium unit shall be a minimum 1200 gross square feet including all structures, parking, open space, and other appurtenant facilities that are reserved for the exclusive use of that unit as well as a proportionate share of all common space and facilities. Also, a minimum average of 600 net square feet of fully enclosed floor area shall be provided for each office condominium unit within an office condominium development. Furthermore, an absolute minimum of 300 net usable square feet of fully enclosed floor area shall be provided for each office condominium unit and/or each individual business, organization, or professional entity permitted to operate on the premises.

b.

Each industrial condominium unit shall be a minimum 5000 gross square feet including all structures, parking, open space, and other appurtenant facilities that are reserved for the exclusive use of that unit as well as a proportionate share of all common space and facilities. Also, a minimum average of 2000 net square feet of fully enclosed floor area shall be provided for each industrial condominium unit within an industrial condominium development. Furthermore, an absolute minimum of 1500 net, usable square feet of

fully enclosed floor area shall be provided for each industrial condominium unit and/or individual business, organization, or industrial entity permitted to occupy the premises.

3.

Utilities. Each office or industrial condominium unit shall have separate water, sewage, and utility connections. Each utility that is controlled by and consumed within the unit shall be separately billed for its use. Each unit shall have access to its own meter(s), heater(s), and air-conditioner(s), and shall not require entry through another unit. Each unit shall have its own electrical panel and access thereto.

4.

Fire Rating. Each office or industrial condominium unit shall be constructed with a minimum of one-hour rated construction throughout.

5.

Outdoor Storage Areas. Outdoor storage may be permitted in industrial condominium developments as a part of the required conditional use permit when the Planning Commission determines that such storage is adequately screened from public view and will not be aesthetically or materially detrimental to surrounding properties. If the Planning Commission determines that a proposed industrial condominium development can adequately accommodate outdoor storage area(s), then the following standards shall apply:

a.

Outdoor storage shall only be permitted within the rear or side yards (except corner side yards) of the development.

b.

All outdoor storage areas shall be fully enclosed within a minimum 6-foot-high masonry block wall similar in color and appearance to the primary structure(s). Accessways to storage areas shall be gated with an opaque material such as wood, metal, chain link (with wood slats), or other suitable material. Exception: Chain link fence or a similar material may be submitted for the required masonry block wall between adjoining industrial side and/or rear property lines when the City is presented with a written, mutual agreement between the property owners involved. This exception may apply only to adjoining industrial uses (appropriately zoned) and shall not be permitted when one of the properties is vacant or when the property line in question abuts a public or private street.

c.

Only those materials common to the operation of the permitted use of the respective industrial condominium unit shall be permitted in an outdoor storage area. Waste and scrap materials shall be removed at least once a week.

d.

Goods or materials within the outdoor storage area may not be stored or stacked so as to exceed the height of the required masonry block wall.

(Ord. 06-871 § 11; Ord. 99-791 Exh. A (part); prior code § 9-3.211)

The following standards shall be considered by the Planning Commission before approving a planned office or industrial condominium development:

A.

Architectural features and general appearance of the proposed development shall enhance the orderly and harmonious development of the area or the community as a whole.

B.

Architectural features and complimentary colors shall be incorporated into the design of all vertical exterior surfaces of the building in order to create an aesthetically pleasing project.

C.

Particular attention shall be given to incorporating the design, including colors of signs, into the overall design of the entire development in order to achieve uniformity.

D.

Vehicular accessways shall be designed with landscaping and building variation to eliminate an alley-like appearance.

(Ord. 99-791 Exh. A (part); prior code § 9-3.212)

The following development standards shall be applicable to office and industrial condominium developments in addition to those required in Section 11.88.100:

A.

Grading: Notification of Completion and Written Certification Required. The permittee or his/her agent shall notify the City Building Official when the grading operation is ready for final inspection. Final approval shall not be given until all work including installation of all drainage facilities and their protective devices and all erosion control measures have been completed in accordance with the final approved grading plan and the required reports have been submitted, including written certification that work completed is in accordance with the final approved grading plan.

B.

Landscaping: Notification of Completion and Written Certification Required. The permittee or his/her agent shall notify the Director of Community Development when the final landscaping installation is ready for inspection. Final approval shall not be given until all work, including installation of plant material and irrigation systems, has been completed in accordance with the approved landscape plan the permittee has

submitted, written certification that the work that has been completed is in accordance with the final approved landscape plan.

C.

Energy Conservation. The project shall be designed to fully comply with all energy conservation features and materials required by current State and local requirements.

D.

Fire Detection System. Fire protection appurtenances shall be provided as may be required by current State and local requirements.

E.

Security Measures. The general design of any proposed planned residential development shall facilitate the reduction of crime. Individual unit security shall be a significant consideration in the construction of the development, in accordance with the City's current security ordinance.

(Ord. 99-791 Exh. A (part); prior code § 9-3.213)

In order to ensure maintenance of all streets, parking areas, and landscaping within all common areas of any and all office and industrial condominium developments, the following provisions shall be contained in the covenants, conditions and restrictions and shall be recorded with the tract map. No such CC&R's shall be acceptable until approved by the Director of Community Development as to suitability for the proposed use and maintenance of the streets, parking areas, and other common areas and shall also be approved by the City Attorney as to legal form and effect. These provisions shall include, but not be limited to the following:

A.

Provisions for the maintenance of all parking, streets, landscaping, and other common areas by an association of the individual office or industrial condominium unit owners;

B.

Provisions for the common use of all parking facilities and streets by each office or industrial condominium unit;

C.

Provisions restricting the use of each office or industrial condominium unit to the uses permitted by this title in Section 11.88.050 of this chapter;

D.

Provisions requiring the continued maintenance of design and building standards which are approved through the required Precise Plan of Design including but not limited to construction details, exterior

finishes and colors, landscaping, outdoor storage areas, and signing. Any changes must be approved through a separate Precise Plan of Design;

E.

The final CC&R's, upon approval by the City, shall be recorded with the final tract or parcel map;

F.

The City shall be made a party to the CC&R's shall approve any changes or amendments to the CC&R's;

G.

The City shall be granted the power to enforce all provisions of the CC&R's including but not limited to the maintenance of all streets and parking areas and landscaping within all common areas;

H.

The City shall be granted the express power to enforce all laws and ordinances of the State of California and/or the City on the private streets, alleys and parking areas within the project; nothing within the CC&R's shall be construed as imposing an obligation or requiring the City to enforce any provision of the CC&R's;

I.

The City shall be entitled to prior written notice of any proposed amendment to the CC&R's. Such notice shall be given by mailing a copy of the precise language of the proposed amendment to the City, c/o City Clerk, together with a letter of transmittal explaining the proposed change in general terms. The City shall have an opportunity to review and comment upon the proposed amendment for a period of not less than 45 days prior to the effective date of any such proposed amendment;

J.

Right of Entry. The City, through its duly authorized agents or employees, shall have the right to enter upon the common areas for the following purposes:

1.

Inspection, maintenance and repair of the landscape and private street components of the common areas where such maintenance and repair is required,

2.

Enforcement of local traffic and/or parking regulations: All privately owned and maintained streets, drives, alleys and parking areas shall be open for the use of the public for purposes of vehicle traffic and are so connected with highways and streets and that provisions of the Vehicle Code of the State of California may be applied in their entirety to them. Whenever by this provision, or any other law of the City, parking is restricted or prohibited and signs are erected giving notice thereof, the officers of the City Police Department may cause the vehicles in violation thereof to be towed away and stored at the expense of the owner, operator, or person to whom the vehicle is entitled to be released, and the vehicle shall not be

released except upon payment of the towing and storage costs. In tow-away zones, the Director of Public Works shall cause to be erected appropriate signs giving notice thereof;

K.

Reimbursements of City expenditures by the association: All costs and expenses incurred by the City arising out of its maintenance and repair of the common areas, as provided in subsection (J)(1) and (2) of this section, shall be charged as an expense of the homeowners' association and shall be paid within 30 days of receipt of an invoice for same;

L.

Assessments and lien rights of the City: If City maintenance costs are not paid with 30 days from the date due, said unpaid costs and expenses shall become a special assessment against the property, and upon hearing and confirmation by the City Council shall be collected in the same manner as real property taxes and shall be subject to the same penalties, procedures and sale in case of delinquency as is provided for real property taxes;

M.

Provisions requiring notification of the City as to the name of a contact person(s) from the condominium owners' association. Said notification shall be made at the inception of the association and whenever the name of said contact person(s) changes due to election, resignation, or reorganization;

N.

Provisions requiring compliance with the CC&R's by each condominium unit owner and the association as well as all tenants, lessees, or other persons or parties making use of the office or industrial condominium development property and/or facilities.

(Ord. 99-791 Exh. A (part); prior code § 9-3.214)