Chapter 10.20 — LIMITATIONS ON WOODBURNING FIREPLACES

The purpose of this Chapter is to improve and maintain air quality conditions in the City in order to protect and enhance the health and quality of life of its citizens, as well as contribute to improvements in regional air quality, by reducing air pollutant emissions from woodburning fireplaces.

(Ord. 145 § 1 (part), 2005)

10.20.020 - Definitions.

"Fireplace" means a hearth and fire chamber or similar prepared place in which a fire may be made and which is built in conjunction with a chimney. Excluded from this definition are devices intended to be solely used for preparation of food (e.g., woodburning ovens, outdoor barbeques) and outdoor fire pits.

(Ord. 145 § 1 (part), 2005)

A.

Only one (1) woodburning fireplace per structure (e.g., main residence, guest house) or per dwelling unit (in multiple family projects) may be installed in any new construction as defined in Section 10.01.020(AK) of this Title. All fireplaces in excess of one (1) installed in new construction shall be Environmental Protection Agency (EPA) — Phase II certified appliances and approved equals.

B.

It is unlawful to burn garbage, plastics, rubber, paints, solvents, oil, treated wood products, particle board, glossy or treated paper, coal, or any other material that produces noxious or toxic emissions when burned in a woodburning fireplace.

C.

Any woodburning fireplaces installed prior to the effective date of this Chapter shall be exempted from this Chapter. In addition, the number of existing woodburning fireplaces may be retained within a structure without being required to comply with the provisions of this Chapter even if, upon remodel of the structure, woodburning fireplaces are constructed in new locations within the structure, so long as the work on the structure does not meet the new definition of "new construction" and the number of woodburning fireplaces does not exceed the number of legally existing woodburning fireplaces as of the effective date of this Chapter.

(Ord. 145 § 1 (part), 2005)

This Chapter shall become effective on March 3, 2005, and shall apply to all permits issued on or after March 3, 2005.

(Ord. 145 § 1 (part), 2005)

Chapter 10.21 - FLOODPLAIN MAINTENANCE

Sections:

The Legislature of the State of California has in Government Code Sections 65302, 65560 and 65800 conferred upon local governments the authority to adopt regulations designed to promote the public health, safety and general welfare of its citizenry. Therefore, the City Council of the City of Monte Sereno does hereby adopt the following floodplain management regulations.

(Ord. NS-163, §1, 3-17-2009)

A.

The flood hazard areas of the City of Monte Sereno are subject to periodic inundation which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety and general welfare.

B.

These flood losses are caused by uses that are inadequately elevated, floodproofed or protected from flood damage. The cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities also contributes to flood losses.

(Ord. NS-163, §1, 3-17-2009)

It is the purpose of this ordinance to promote the public health, safety and general welfare, and to minimize public and private losses due to flood conditions in specific areas by legally enforceable regulations applied uniformly throughout the community to all publicly and privately owned land within flood-prone, mudslide [i.e. mudflow] or flood-related erosion areas. These regulations are designed to:

A.

Protect human life and health;

B.

Minimize expenditure of public money for costly flood control projects;

C.

Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

D.

Minimize damage to public facilities and utilities such as water and gas mains; electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard;

E.

Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage;

F.

Ensure that potential buyers are notified that property is in an area of special flood hazard; and

G.

Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.

(Ord. NS-163, §1, 3-17-2009)

In order to accomplish its purposes, this ordinance includes regulations to:

A.

Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities;

B.

Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

C.

Control the alteration of natural floodplains, stream channels and natural protective barriers, which help accommodate or channel floodwaters;

D.

Control filling, grading, dredging and other development which may increase flood damage; and

E.

Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas.

(Ord. NS-163, §1, 3-17-2009)

Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this ordinance its most reasonable application.

"A zone" - see "Special flood hazard area".

"Accessory structure" means a structure that is either:

1.

Solely for the parking of no more than two (2) cars; or

2.

A small, low cost shed for limited storage, less than one hundred fifty (150) square feet and one thousand five hundred dollars ($1,500.00) in value.

"Accessory use" means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located.

"Alluvial fan" means a geomorphologic feature characterized by a cone or fan-shaped deposit of boulders, gravel and fine sediments that have been eroded from mountain slopes, transported by flood flows and then deposited on the valley floors, and which is subject to flash flooding, high velocity flows, debris flows, erosion, sediment movement and deposition and channel migration.

"Apex" means a point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur.

"Appeal" means a request for a review of the Floodplain Administrator's interpretation of any provision of this ordinance.

"Area of shallow flooding" means a designated AO or AH zone on the flood insurance rate map (FIRM). The base flood depths range from one (1) to three (3) feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

"Area of special flood hazard" - see "Special flood hazard area".

"Base flood" means a flood which has a one percent (1%) chance of being equaled or exceeded in any given year (also called the "100-year flood"). Base flood is the term used throughout this ordinance.

"Base flood elevation" (BFE) means the elevation shown on the flood insurance rate map for zones AE, AH, A1-30, VE and V1-V30 that indicates the water surface elevation resulting from a flood that has a one percent (1%) or greater chance of being equaled or exceeded in any given year.

"Basement" means any area of the building having its floor subgrade - i.e., below ground level on all sides.

"Building" - see "Structure".

"Development" means any manmade change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

"Encroachment" means the advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain.

"Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

"Flood, flooding or floodwater" means:

1.

A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and

2.

The condition resulting from flood-related erosion.

"Flood boundary and floodway map (FBFM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the floodway.

"Flood insurance rate map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the

risk premium zones applicable to the community.

"Flood insurance study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood insurance rate map, the flood boundary and floodway map, and the water surface elevation of the base flood.

"Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source - see "Flooding".

"Floodplain Administrator" is the community official designated by title to administer and enforce the floodplain management regulations.

"Floodplain management" means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including, but not limited to, emergency preparedness plans, flood control works, floodplain management regulations and open space plans.

"Floodplain management regulations" means this ordinance and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage.

"Floodproofing" means any combination of structural and nonstructural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins TB 1-93, TB 3-93 and TB 7-93.

"Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot. Also referred to as "regulatory floodway".

"Floodway fringe" is that area of the floodplain on either side of the "regulatory floodway" where encroachment may be permitted.

"Fraud and victimization" as related to Sections 10.21.230 and 10.21.240 of this ordinance, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the City Council will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for fifty (50) to one hundred (100) years. Buildings that are permitted to be constructed below the base flood elevation are subject during all those years to increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all the costs, inconvenience, danger and suffering that those increased flood damages bring. In addition, future owners may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates.

"Functionally dependent use" means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are

necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, and does not include long-term storage or related manufacturing facilities.

"Governing body" is the local governing unit, i.e. county or municipality, that is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its citizenry.

"Hardship" as related to Sections 10.21.230 and 10.21.240 of this ordinance means the exceptional hardship that would result from a failure to grant the requested variance. The City Council requires that the variance be exceptional, unusual and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended.

"Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

"Historic structure" means any structure that is:

1.

Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

2.

Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;

3.

Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or

4.

Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs.

"Levee" means a manmade structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding.

"Levee system" means a flood protection system which consists of a levee, or levees and associated structures, such as closure and drainage devices, which are constructed and operated in accord with

sound engineering practices.

"Lowest floor" means the lowest floor of the lowest enclosed area, including basement (see "Basement" definition).

1.

An unfinished or flood-resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor provided it conforms to applicable nonelevation design requirements, including, but not limited to:

a.

The flood openings standard in Section 10.21.170 C.3;

b.

The anchoring standards in Section 10.21.170 A;

c.

The construction materials and methods standards in Section 10.21.170 B; and

d.

The standards for utilities in Section 10.21.180.

2.

For residential structures, all subgrade enclosed areas are prohibited as they are considered to be basements (see "Basement" definition). This prohibition includes below-grade garages and storage areas.

"Manufactured home" means a structure, transportable in one (1) or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a "recreational vehicle".

"Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale.

"Market value" is defined in the City of Monte Sereno as substantial damage/improvement procedures. See Section 10.21.140 B.

"Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community's flood insurance rate map are referenced.

"New construction", for floodplain management purposes, means structures for which the "start of construction" commenced on or after the effective date of this ordinance, and includes any subsequent improvements to such structures.

"New manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of this ordinance.

"Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream.

"One-hundred-year flood" or "100-year flood" - see "Base flood".

"Program deficiency" means a defect in a community's floodplain management regulations or administrative procedures that impairs effective implementation of those floodplain management regulations.

"Public safety and nuisance" as related to Section 6 of this ordinance, means that the granting of a

variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal or basin.

"Recreational vehicle" means a vehicle which is:

Built on a single chassis;

Four hundred (400) square feet or less when measured at the largest horizontal projection;

Designed to be self-propelled or permanently towable by a light-duty truck; and

4.

Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel or seasonal use.

"Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot.

"Remedy a violation" means to bring the structure or other development into compliance with State or local floodplain management regulations, or if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from

flood damages, implementing the enforcement provisions of the ordinance or otherwise deterring future similar violations, or reducing State or Federal financial exposure with regard to the structure or other development.

"Riverine" means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc.

"Sheet flow area" - see "Area of shallow flooding".

"Special flood hazard area (SFHA)" means an area in the floodplain subject to a one percent (1%) or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as zone A, AO, A1-A30, AE, A99 or AH.

"Start of construction" includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement was within one hundred eighty (180) days from the date of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufacture home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling;

nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

"Structure" means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home.

"Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred.

"Substantial improvement" means any reconstruction, rehabilitation, addition or other improvement of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either:

1.

Any project for improvement of a structure to correct existing violations or State or local health, sanitary or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or

Any alteration of a "historic structure", provided that the alteration will not preclude the structure's continued designation as a "historic structure".

"Variance" means a grant of relief from the requirements of this ordinance which permits construction in a manner that would otherwise be prohibited by this ordinance.

"Violation" means the failure of a structure or other development to be fully compliant with this ordinance. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this ordinance is presumed to be in violation until such time as that documentation is provided.

"Water surface elevation" means the height, in relation to the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

"Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes specifically designated areas in which substantial flood damage may occur.

(Ord. NS-163, §1, 3-17-2009)

10.21.060 - Lands to which this applies.

This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the City of Monte Sereno.

(Ord. NS-163, §1, 3-17-2009)

10.21.070 - Basis for establishing the areas of special flood hazard.

The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the "Flood Insurance Study (FIS) for Santa Clara County and incorporated areas dated May 18, 2009, with accompanying flood insurance rate maps (FIRM's) and flood boundary and floodway maps (FBFM's), dated January 3, 1979, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this ordinance. This FIS and attendant mapping is the minimum area of applicability of this ordinance and may be supplemented by studies for other areas which allow implementation of this ordinance and which are recommended to the City Council by the Floodplain Administrator. The study, FIRM's and FBFM's are on file with the City Clerk at 18041 Saratoga-Los Gatos Road, Monte Sereno, CA.

(Ord. NS-163, §1, 3-17-2009)

10.21.080 - Compliance.

No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this ordinance and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards) shall constitute a misdemeanor. Nothing herein shall prevent the City Council from taking such lawful action as is necessary to prevent or remedy any violation.

(Ord. NS-163, §1, 3-17-2009)

This ordinance is not intended to repeal, abrogate or impair any existing easements, covenants or deed restrictions. However, where this ordinance and another ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

(Ord. NS-163, §1, 3-17-2009)

In the interpretation and application of this ordinance, all provisions shall be:

A.

Considered as minimum requirements;

B.

Liberally construed in favor of the governing body; and

C.

Deemed neither to limit, nor repeal any other powers granted under State Statutes.

(Ord. NS-163, §1, 3-17-2009)

The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City Council, any officer or employee thereof, the State of California, or the Federal Emergency Management Agency, for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder.

(Ord. NS-163, §1, 3-17-2009)

This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid.

(Ord. NS-163, §1, 3-17-2009)

The City Planner is hereby appointed to administer, implement and enforce this ordinance by granting or denying development permits in accord with its provisions.

(Ord. NS-163, §1, 3-17-2009)

The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to the following:

A.

Permit review. Review all development permits to determine:

1.

Permit requirements of this ordinance have been satisfied, including determination of substantial improvement and substantial damage of existing structures;

2.

All other required State and Federal permits have been obtained;

3.

The site is reasonably safe from flooding;

4.

The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. This means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than one (1) foot at any point within the City of Monte Sereno; and

5.

All letters of map revision (LOMR's) for flood control projects are approved prior to the issuance of building permits. Building permits must not be issued based on conditional letters of map revision (CLOMR's). Approved CLOMR's allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition.

B.

Development of substantial improvement and substantial damage procedures.

1.

Using FEMA publication FEMA 213, "Answers to Questions About Substantially Damaged Buildings," develop detailed procedures for identifying and administering requirements for substantial improvement and substantial damage, to include defining "market value".

2.

Assure procedures are coordinated with other departments/divisions and implemented by community staff.

C.

Review, use and development of other base flood data. When base flood elevation data has not been provided in accordance with Section 10.21.070, the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a Federal or State agency, or other source, in order to administer Sections 10.21.170—10.21.220.

NOTE: A base flood elevation may be obtained using one (1) of two (2) methods from the FEMA publication, FEMA 265, "Managing Floodplain Development in Approximate Zone A Areas - A Guide for Obtaining and Developing Base (100-year) Flood Elevations" dated July 1995.

D.

Notification of other agencies.

1.

Alteration or relocation of a watercourse:

a.

Notify adjacent communities and the California Department of Water Resources prior to alteration or relocation;

b.

Submit evidence of such notification to the Federal Emergency Management Agency; and

c.

Assure that the flood-carrying capacity within the altered or relocated portion of said watercourse is maintained.

2.

Base flood elevation changes due to physical alterations:

a.

Within six (6) months of information becoming available or project completion, whichever comes first, the Floodplain Administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a letter of map revision (LOMR).

b.

All LOMR's for flood control projects are approved prior to the issuance of building permits. Building permits must not be issued based on conditional letters of map revision (CLOMR's). Approved CLOMR's

allow construction of the proposed flood control project and land preparation as specified in the "start of construction" definition.

Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data.

3.

Changes in corporate boundaries: Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits.

E.

Documentation of floodplain development. Obtain and maintain for public inspection and make available as needed the following:

1.

Certification required by Section 10.21.170 C.1 and Section 10.21.200 (lowest floor elevations);

2.

Certification required by Section 10.21.170 C.2 (elevation or floodproofing of nonresidential structures);

3.

Certification required by Section 10.21.170 C.3 (wet floodproofing standard);

4.

Certification of elevation required by Section 10.21.190 A.3 (subdivisions and other proposed development standards);

5.

Certification required by Section 10.21.220 B. (floodway encroachments); and

6.

Maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency.

F.

Map determination. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 10.21.160.

G.

Remedial action. Take action to remedy violations of this ordinance as specified in Section 10.21.180.

H.

Biennial report. Complete and submit biennial report to FEMA.

I.

Planning. Assure community's general plan is consistent with floodplain management objectives herein.

(Ord. NS-163, §1, 3-17-2009)

A development permit shall be obtained before any construction or other development, including manufactured homes, within any area of special flood hazard established in Section 10.21.170. Application for a development permit shall be made on forms furnished by the City of Monte Sereno. The applicant shall provide the following minimum information:

A.

Plans in duplicate, drawn to scale, showing:

1.

Location, dimensions and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location;

2.

Proposed locations of water supply, sanitary sewer and other utilities;

3.

Grading information showing existing and proposed contours, any proposed fill and drainage facilities;

4.

Location of the regulatory floodway when applicable;

5.

Base flood elevation information as specified in Section 10.21.170 or Section 10.21.140 C.;

6.

Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures; and

Proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed, as required in Section 10.21.170 C.2 of this ordinance and detailed in FEMA Technical Bulletin TB 3-93.

B.

Certification from a registered civil engineer or architect that the nonresidential floodproofed building meets the floodproofing criteria in Section 10.21.170 C.2.

C.

For a crawlspace foundation, location and total net area of foundation openings as required in Section 10.21.170 C.3 of this ordinance and detailed in FEMA Technical Bulletins 1-93 and 7-93.

D.

Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.

E.

All appropriate certifications listed in Section 10.21.140 E. of this ordinance.

(Ord. NS-163, §1, 3-17-2009)

10.21.160 - Appeals.

The City Council of the City of Monte Sereno shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this ordinance.

(Ord. NS-163, §1, 3-17-2009)

10.21.170 - Standards of construction.

In all areas of special flood hazards the following standards are required:

A.

Anchoring. All new construction and substantial improvements of structures, including manufactured homes, shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy.

B.

Construction materials and methods. All new construction and substantial improvements of structures, including manufactured homes, shall be constructed:

1.

With flood-resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation;

2.

Using methods and practices that minimize flood damage;

3.

With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and

4.

Within zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures.

C.

Elevation and floodproofing.

1.

Residential construction. All new construction or substantial improvements of residential structures shall have the lowest floor, including basement:

a.

In AE, AH, A1-30 zones, elevated to or above the base flood elevation.

b.

In an AO zone, elevated above the highest adjacent grade to a height equal to or exceeding the depth number specified in feet on the FIRM, or elevated at least two (2) feet above the highest adjacent grade if no depth number is specified.

c.

In an A zone, without BFE's specified on the FIRM [unnumbered A zone], elevated to or above the base flood elevation; as determined under Section 10.21.140.C.

Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed land surveyor, and verified by the City Building Inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator.

2.

Nonresidential construction. All new construction or substantial improvements of nonresidential structures shall either be elevated to conform with Section 10.21.170 C.1 or:

a.

Be floodproofed, together with attendant utility and sanitary facilities, below the elevation recommended under Section 10.21.170 C.1, so that the structure is watertight with walls substantially impermeable to the passage of water;

b.

Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

c.

Be certified by a registered civil engineer or architect that the standards of Sections 10.21.170 C.2a. and b. are satisfied. Such certification shall be provided to the Floodplain Administrator.

3.

Flood openings. All new construction and substantial improvements of structures with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet the following minimum criteria:

a.

For nonengineered openings:

1.

Have a minimum of two (2) openings on different sides having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding;

2.

The bottom of all openings shall be no higher than one (1) foot above grade;

3.

Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater; and

4.

Buildings with more than one (1) enclosed area must have openings on exterior walls for each area to allow floodwater to directly enter; or

b.

Be certified by a registered civil engineer or architect.

Manufactured homes. See Section 10.21.200.

5.

Garages and low cost accessory structures.

a.

Attached garages.

1.

A garage attached to a residential structure, constructed with the garage floor slab below the BFE, must be designed to allow for the automatic entry of floodwaters. See Section 10.21.170 C.3. Areas of the garage below the BFE must be constructed with flood-resistant materials. See Sections 10.21.170 B.1 and B.2.

2.

A garage attached to a nonresidential structure must meet the above requirements or be dry floodproofed. For guidance on below grade parking areas, see FEMA Technical Bulletin TB-6.

b.

Detached garages and accessory structures.

1.

"Accessory structures" used solely for parking (two-car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Section 10.21.050, may be constructed such that its floor is below the base flood elevation (BFE), provided the structure is designed and constructed in accordance with the following requirements:

a)

Use of the accessory structure must be limited to parking or limited storage;

b)

The portions of the accessory structure located below the BFE must be built using flood-resistant materials;

c)

The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement;

d)

Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed to or above the BFE;

e)

The accessory structure must comply with floodplain encroachment provisions in Section 10.21.220; and

f)

The accessory structure must be designed to allow for the automatic entry of floodwaters in accordance with Section 10.21.170 C.3.

2.

Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in this Section 10.21.170.

(Ord. NS-163, §1, 3-17-2009)

10.21.180 - Standards for utilities.

A.

All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate:

1.

Infiltration of floodwaters into the systems; and

2.

Discharge from the systems into floodwaters.

B.

On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding.

(Ord. NS-163, §1, 3-17-2009)

A.

All new subdivision proposals and other proposed development, including proposals for manufactured home parks and subdivisions, greater than fifty (50) lots or five (5) acres, whichever is the lesser, shall:

1.

Identify the special flood hazard areas (SFHA) and base flood elevations (BFE).

2.

Identify the elevations of lowest floors of all proposed structures and pads on the final plans.

If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a letter of map revision based on fill (LOMR-F) to the Floodplain Administrator:

a.

Lowest floor elevation.

b.

Pad elevation.

c.

Lowest adjacent grade.

B.

All subdivision proposals and other proposed development shall be consistent with the need to minimize flood damage.

C.

All subdivision proposals and other proposed development shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage.

D.

All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards.

(Ord. NS-163, §1, 3-17-2009)

10.21.200 - Standards for manufactured homes.

A.

All manufactured homes that are placed or substantially improved, on sites located: (1) outside of a manufactured home park or subdivision; (2) in a new manufactured home park or subdivision; (3) in an expansion to an existing manufactured home park or subdivision; or (4) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall:

1.

Within zones A1-30, AH and AE on the community's flood insurance rate map, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse and lateral movement.

B.

All manufactured homes to be placed or substantially improved on-sites in an existing manufactured home park or subdivision within zones A1-30, AH and AE on the community's flood insurance rate map that are not subject to the provisions of Section 10.21.200 A., will be securely fastened to an adequately anchored foundation system to resist flotation, collapse and lateral movement, and be elevated so that either the:

1.

Lowest floor of the manufactured home is at or above the base flood elevation; or

2.

Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty-six (36) inches in height above grade.

Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the Community Building Inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator.

(Ord. NS-163, §1, 3-17-2009)

A.

All recreational vehicles placed in zones A1-30, AH and AE will either:

1.

Be on the site for fewer than one hundred eighty (180) consecutive days; or

2.

Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick-disconnect type utilities and security devices, and has no permanently attached additions; or

3.

Meet the permit requirements of Section 10.21.150 of this ordinance and the elevation and anchoring requirements for manufactured homes in Section 10.21.200 A.

(Ord. NS-163, §1, 3-17-2009)

Since floodways are an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the following provisions apply:

A.

Until a regulatory floodway is adopted, no new construction, substantial development or other development (including fill) shall be permitted within zones A1-30 and AE, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than one (1) foot at any point within the City of Monte Sereno.

B.

Within an adopted regulatory floodway, the City of Monte Sereno shall prohibit encroachments, including fill, new construction, substantial improvements and other development, unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in flood levels during the occurrence of the base flood discharge.

C.

If Sections 10.21.220 A. and B. are satisfied, all new construction, substantial improvement and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Sections 10.21.170—10.21.220.

(Ord. NS-163, §1, 3-17-2009)

The issuance of a variance is for floodplain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance.

The variance criteria set forth in this section of the ordinance are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this ordinance would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adjacent parcels. The unique characteristic must pertain to the land itself, not to the structure, its inhabitants, or the property owners.

It is the duty of the City Council to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long-term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this ordinance are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate.

(Ord. NS-163, §1, 3-17-2009)

10.21.240 - Condition for variances.

A.

Generally, variances may be issued for new construction, substantial improvement and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of Sections

10.21.130—10.21.220 of this ordinance have been fully considered. As the lot size increases beyond onehalf acre, the technical justification required for issuing the variance increases.

B.

Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in Section 10.21.050 of this ordinance) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

C.

Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result.

D.

Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this ordinance. For example, in the case of variances to an elevation requirement, this means the City Council need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the City Council believes will both provide relief and preserve the integrity of the local ordinance.

E.

The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its biennial report submitted to the Federal Emergency Management Agency.

(Ord. NS-163, §1, 3-17-2009)

10.21.250 - Appeal.

A.

In passing upon requests for variances, the City Council shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and the:

1.

Danger that materials may be swept onto other lands to the injury of others;

2.

Danger of life and property due to flooding or erosion damage;

3.

Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property;

4.

Importance of the services provided by the proposed facility to the community;

5.

Necessity to the facility of a waterfront location, where applicable;

6.

Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

7.

Compatibility of the proposed use with existing and anticipated development;

8.

Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

9.

Safety of access to the property in time of flood for ordinary and emergency vehicles;

10.

Expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site; and

11.

Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water system, and streets and bridges.

B.

Variances shall only be issued upon a:

1.

Showing of good and sufficient cause;

2.

Determination that failure to grant the variance would result in exceptional "hardship" to the applicant; and

3.

Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (see "Public safety and nuisance"), cause "fraud and victimization" of the public, or conflict with existing local laws or ordinances.

C.

Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of Sections 10.21.250 A. through 10.21.250 D. are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance.

D.

Upon consideration of the factors of Section 10.21.240 A. and the purposes of this ordinance, the City Council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance.

(Ord. NS-163, §1, 3-17-2009)

Chapter 10.23 - REQUESTS FOR REASONABLE ACCOMMODATIONS

Sections:

It is the policy of the City of Monte Sereno to provide reasonable accommodation for persons with disabilities seeking fair access to housing in the application of its zoning laws. The purpose of this Chapter is to provide a process for making a request for reasonable accommodation.

(Ord. NS-175, § 1, 4-5-2011)

10.23.020 - Application.

A.

Any person who requires reasonable accommodation, because of a disability, in the application of a zoning law which may be acting as a barrier to fair housing opportunities may do so on a form to be provided by the Planning Director.

B.

If the project for which the request is being made also requires some other planning permit or approval, then the applicant shall file the request together with the application for such permit or approval.

(Ord. NS-175, § 1, 4-5-2011)

The applicant shall provide the following information:

A.

Applicant's name, address and telephone number;

B.

Address of the property for which the request is being made;

C.

The current actual use of the property;

D.

The zoning code provision, regulation or policy from which accommodation is being requested;

E.

The basis for the claim that the individual is considered disabled under the Fair Housing Act or the Americans with Disabilities Act and why the accommodation is necessary to make the specific housing available to the individual.

(Ord. NS-175, § 1, 4-5-2011)

10.23.040 - Notice of request for accommodation.

Written notice that a request for reasonable accommodation is being sought shall be given as follows:

A.

In the event that there is no approval sought other than the request for reasonable accommodation, the notice shall be mailed to the owners of record of all properties which are immediately adjacent to the property which is the subject of the request.

B.

In the event that the request is being made in conjunction with some other process, the notice shall be transmitted along with the notice of the other proceeding.

(Ord. NS-175, § 1, 4-5-2011)

In making a determination regarding the reasonableness of a requested accommodation, the following factors shall be considered:

A.

Whether the project, will be used by an individual with disabilities protected under fair housing and/or any other applicable laws;

B.

Whether the requested accommodation is necessary to make a project usable and available to an individual with disabilities protected under the fair housing and/or any other applicable laws;

C.

Physical attributes of the property and structures;

D.

Alternative accommodations which may provide an equivalent level of benefit;

E.

Whether the requested accommodation would impose an undue financial or administrative burden on the City; and

F.

Whether the requested accommodation would require a fundamental alteration in the nature of a program.

(Ord. NS-175, § 1, 4-5-2011; Ord. NS-242, § 8, 12-3-2024)

The Director shall review all requests for reasonable accommodation and a decision shall be made within thirty (30) days of the date of the application. Decisions may either grant, grant with modifications, or deny a request for reasonable accommodation in accordance with the required findings set forth in Section 10.23.050. If necessary to reach a decision on the request for reasonable accommodation, the Director may request further information from the applicant consistent with fair housing or any other applicable laws, specifying in detail the information that is required. In the event that a request for additional information is made, the time period to issue a decision is stayed until the applicant responds to the request.

(Ord. NS-175, § 1, 4-5-2011; Ord. NS-242, § 9, 12-3-2024)

A.

Within thirty (30) days after the hearing, the Director shall issue a decision granting the request, including any reasonable conditions, or denying the request.

B.

The notice of decision shall contain the Director's factual findings, conclusions and reasons for the decision.

C.

The notice of decision shall be made in the same manner as set forth in the previous section.

(Ord. NS-175, § 1, 4-5-2011)

10.23.080 - Appeal to City Council.

A.

Within fifteen (15) days after the notice of director's decision, any person may appeal in writing to the City Council.

B.

All appeals shall contain a statement of the grounds for the appeal.

C.

The City Clerk shall, subject to the rules of the City Council, set a date for the public hearing which shall be held by the City Council. The date of hearing shall be not less than ten (10), nor more than sixty (60) calendar days after the notice of appeal was received by the City Clerk.

D.

The City Council shall consider the appeal at the time and place set by the City Clerk. The City Council shall hear the matter de novo.

E.

After hearing and considering all the evidence, the City Council shall uphold the decision of the Director, reverse the decision of the Director or modify the decision of the Director.

F.

The decision of the City Council shall be final.

(Ord. NS-175, § 1, 4-5-2011)

Chapter 10.24 - DENSITY BONUS AND OTHER INCENTIVES

Sections:

This Section describes those density bonuses provided pursuant to Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. These density bonuses shall be provided, at the request of an applicant, when that applicant provides target units and otherwise complies with the requirements of this Chapter.

A.

A residential project resulting in a net increase of at least five (5) dwelling units is eligible for a density bonus of twenty percent (20%) if the applicant seeks and agrees to construct any of the following:

1.

At least ten percent (10%) of the total dwelling units of the residential project as target units affordable to low income households at an affordable rent or affordable sales price; or

2.

At least five percent (5%) of the total dwelling units of the residential project as target units affordable to very low income households at an affordable rent or affordable sales price; or

3.

A senior citizen residential project.

B.

A residential project resulting in a net increase of at least five (5) dwelling units is eligible for a density bonus of five percent (5%) if the applicant seeks and agrees to provide all of the following:

1.

At least ten percent (10%) of the total dwelling units of the residential project as target units for sale to moderate income households at an affordable sales price; and

2.

The residential project is a common interest development as defined by Civil Code Section 1351; and

3.

All of the dwelling units in the residential project are offered to the public for purchase.

C.

The density bonus for which the residential project is eligible shall increase if the percentage of very low income, low income, or moderate income target units exceeds the base percentages established in Subsections A and B above, as follows:

1.

For each one percent (1%) increase above five percent (5%) in the percentage of target units affordable to very low income households, the density bonus shall be increased by two and one-half percent (2.5%), up to a maximum of thirty-five percent (35%).

For each one percent (1%) increase above ten percent (10%) in the percentage of target units affordable to low income households, the density bonus shall be increased by one and one half percent (1.5%), up to a maximum of thirty-five percent (35%).

3.

For a residential project that is a qualified common interest development pursuant to Subsection B above, for each one percent (1%) increase above five percent (5%) in the percentage of target units for sale to moderate income households at an affordable sales price, the density bonus shall be increased by one percent (1%), up to a maximum of thirty-five percent (35%).

The following table summarizes available State density bonuses:

State Density Bonuses (California Government Code Section 65915)

D.

Calculation of State density bonuses is subject to the following provisions:

1.

Each residential project is entitled to only one (1) density bonus. Where a residential project qualifies for a State density bonus under more than one (1) category as described in Aubsections A through C above, the category pursuant to which the density bonus shall be granted shall be elected by the applicant, and density bonuses from more than one (1) category may not be combined.

2.

In determining the number of density bonus units to be granted pursuant to this Section, any fractions of dwelling units shall be rounded to the next whole number.

3.

Density bonus units authorized by this Section shall not be included when determining the number of target units required to qualify for the density bonus. When calculating the required number of target units, any calculations resulting in fractional dwelling units shall be rounded to the next whole number.

4.

The applicant may request a lesser density bonus than the residential project is entitled to, but no reduction will be permitted in the percentages of required target units pursuant to Subsections A and B above. Regardless of the number of target units, no residential project shall be entitled to a density bonus of more than thirty-five percent (35%).

E.

Target units shall conform to the following standards:

1.

Moderate income target units shall remain restricted and affordable to moderate income households for a period of forty (40) years (or a longer period of time if required by a construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program). Very low and low income target units shall remain restricted and affordable to the designated group for a period of thirty (30) years (or a longer period of time if required by a construction or mortgage financing assistance program, mortgage

insurance program, or rental subsidy program). Except as set forth in this Subsection E, all target units shall conform with the provisions for continued affordability included in Section 10.24.020.

2.

Target units shall be comparable in number of bedrooms, exterior appearance and overall quality of construction to market rate units in the same residential project. Target units shall be dispersed throughout the residential project, or, subject to the approval of the Planning Director, may be clustered within the residential project when this furthers affordable housing opportunities.

F.

Certain other types of development activities are specifically eligible for a density bonus:

1.

A residential project may be eligible for a density bonus in return for land donation pursuant to the requirements set forth in Government Code Section 65915(g).

2.

Condominium conversions may be eligible for a density bonus or incentive pursuant to the requirements set forth in Government Code Section 65915.5.

(Ord. NS-182, § 1, 7-17-2012)

This Section includes provisions for providing incentives pursuant to Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.

A.

An applicant may request incentives pursuant to this Section only when the residential project is eligible for, and the applicant requests, a density bonus pursuant to Section 10.24.010.

B.

For the purposes of this Section 10.24.020, an incentive means the following:

1.

A reduction of development standards or architectural design requirements which exceed the minimum applicable building standards approved by the State Building Standards Commission pursuant to Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, setback, coverage, and/or parking requirements, which result in identifiable, financially sufficient, and actual cost reductions, based upon appropriate financial analysis and documentation.

2.

Other regulatory incentives proposed by the applicant or the County which result in identifiable, financially sufficient, and actual cost reductions, based upon appropriate financial analysis and documentation if required by County.

C.

A residential project is eligible for incentives as follows:

1.

One incentive for residential projects that include at least ten percent (10%) of the total dwelling units as target units affordable to low income households, at least five percent (5%) of the total dwelling units as target units affordable to very low income households, or at least ten percent (10%) of the total dwelling units in a qualified common interest development as target units affordable to moderate income households.

2.

Two (2) incentives for residential projects that include at least twenty percent (20%) of the total dwelling units as target units affordable to low income households, at least ten percent (10%) of the total dwelling units as target units affordable to very low income households, or at least twenty percent (20%) of the total dwelling units in a qualified common interest development as target units affordable to moderate income households.

3.

Three (3) incentives for residential projects that include at least thirty percent (30%) of the total dwelling units as target units affordable to low income households, at least fifteen percent (15%) of the total dwelling units as target units affordable to very low income households, or at least thirty percent (30%) of the total dwelling units in a qualified common interest development as target units affordable to moderate income households.

The following table summarizes requirements for incentives:

State Incentives (California Government Code Section 65915)

E.

If a residential project is eligible for a density bonus pursuant to Section 10.24.010, the applicant may request an on-site vehicular parking ratio, inclusive of handicapped and guest parking, pursuant to Government Code Section 65915(p), as follows:

1.

Zero to one (1) bedroom dwelling unit: One (1) on-site parking space.

2.

Two (2) to three (3) bedroom dwelling unit: Two (2) on-site parking spaces.

3.

Four (4) or more bedroom dwelling unit: Two and one-half (2.5) on-site parking spaces.

This request may be in addition to any incentives permitted by Subsection C. On-site parking may include tandem and uncovered parking, but not on-street parking.

F.

An applicant may seek a waiver of any development standards that will physically preclude the construction of a residential project with the requested density bonus and incentives permitted by this Chapter. The applicant shall bear the burden of demonstrating that the development standards that are requested to be waived will have the effect of physically precluding the construction of the residential project with the density bonus and incentives.

G.

Nothing in this Section requires the provision of direct financial incentives for the residential project, including, but not limited to, the provision of financial subsidies, publicly owned land, fee waivers, or waiver of dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives.

(Ord. NS-182, § 1, 7-17-2012)

10.24.030 - State incentives for affordable housing—Application procedures.

A.

An applicant intending to request a State density bonus or any incentives, parking reductions, or waivers pursuant to Section 10.24.010 or Section 10.24.020 shall submit a preliminary application prior to the submittal of any formal application for approval of the residential project and shall schedule a preapplication conference with the Planning Director or designated staff. The preliminary application shall include the following information:

1.

A brief description of the proposed residential project, including the total number of dwelling units, target units by proposed income level, density bonus units proposed, and any incentives, reduced parking, or waivers requested.

2.

The zoning and general plan designations and assessors parcel number(s) of the residential project site.

3.

A vicinity map and preliminary site plan, drawn to scale, including building footprints, driveway(s), and parking layout.

4.

An explanation of why any requested incentives are necessary to provide the target units.

B.

All requests for density bonuses, incentives, parking reductions, and/or waivers pursuant to Section 10.24.010 or Section 10.24.020 shall be submitted concurrently with the application for the first discretionary permit or other permit required for the residential project and shall be processed concurrently with such application. In accordance with State law, neither the granting of an incentive, nor the granting of a density bonus, shall be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

C.

An applicant's request for any density bonuses, incentives, parking reductions, and/or waivers permitted by this Chapter shall include the following information:

1.

A site plan depicting the number and location of all proposed market rate units, target units, and density bonus units, if any.

2.

A calculation of the maximum number of dwelling units permitted by the City's zoning ordinance and general plan for the residential project, excluding any density bonus units.

3.

The income level of the proposed target units.

4.

A description of any requested incentives, waivers of development standards, or parking reductions.

5.

The applicant shall demonstrate through the provision of pro forma that any requested incentive results in identifiable, financially sufficient, and actual cost reductions to the residential project. The cost of reviewing any required pro forma data, including, but not limited to the cost to the County of hiring a consultant to review the pro forma, shall be borne by the applicant. The pro forma shall include all of the following items:

a.

The actual cost reduction achieved through the incentive;

b.

Evidence that the cost reduction allows the applicant to provide affordable rents or affordable sales prices; and

c.

Other information as may be requested by the Planning Director. The Planning Director may require that any pro forma include information regarding capital costs, equity investment, debt service, projected revenues, operating expenses, and such other information as is required to evaluate the pro forma.

6.

For any requested waiver of a development standard, the applicant shall provide evidence that the development standard for which the waiver is requested will have the effect of physically precluding the construction of the residential project with the density bonus and incentives requested.

7.

If a density bonus is requested for a land donation, the applicant shall show the location of the land to be dedicated, provide proof of site control, and provide evidence that each of the requirements included in Government Code Section 65915(g) can be met.

8.

If a density bonus or incentive is requested for a child care facility, the applicant shall provide evidence that all of the requirements found in Government Code Section 65915(h) can be met.

9.

If a density bonus or incentive is requested for a condominium conversion, the applicant shall provide evidence that all of the requirements found in Government Code Section 65915.5 can be met.

(Ord. NS-182, § 1, 7-17-2012)

10.24.040 - State incentives for affordable housing—Review procedures.

All requests for density bonuses, incentives, parking reductions, and/or waivers permitted by Section 10.24.010 or Section 10.24.020 shall be considered and acted upon by the City Council.

A.

Before approving an application that includes a request for a density bonus, incentive, parking reduction and/or waiver pursuant to Section 10.24.010 or Section 10.24.020, the decision-making body shall make the following findings, as applicable:

1.

A finding that the residential project is eligible for the density bonus and any incentives, parking reductions or waivers requested.

2.

A finding that any requested incentive will result in identifiable, financially sufficient, and actual cost reductions based upon the financial analysis and documentation provided.

3.

If the density bonus is based all or in part on donation of land, a finding that all the requirements included in Government Code Section 65915(g) have been met.

4.

If the density bonus or incentive is based all or in part on the inclusion of a child care facility, a finding that all the requirements included in Government Code Section 65915(h) have been met.

5.

If a waiver is requested, a finding that the development standards for which the waiver is requested would have the effect of physically precluding the construction of the residential project with the density bonus and incentives permitted.

B.

If the findings required by Subsection A of this Section can be made, the City Council may deny an application for an incentive requested pursuant to Section 10.24.020 only if it makes one (1) of the following written findings, supported by substantial evidence:

1.

That the incentive is not required to provide for affordable rents or affordable sales prices; or

2.

That the incentive would have a specific, adverse impact upon public health or safety or the physical environment or on real property listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the residential project unaffordable to low and moderate income households. For the purpose of this Subsection, "specific adverse impact" means 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 that the application for the residential project was deemed complete; or

3.

That the incentive is contrary to State or Federal law.

C.

If the findings required by Subsection A of this Section can be made, the decision-making body may deny a request for a waiver only if it makes one (1) of the following written findings, supported by substantial evidence:

1.

That the waiver would have a specific, adverse impact upon public health or safety or the physical environment, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the residential project unaffordable to low and moderate income households. For the purpose of this Subsection, "specific adverse impact" means 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 that the application for the residential project was deemed complete; or

2.

That the waiver would have an adverse impact on real property listed in the California Register of Historic Resources; or

3.

That the waiver is contrary to State or Federal law.

D.

If the findings required by Subsection A of this Section can be made, the decision-making body may deny an application for a density bonus or incentive that is based on the provision of child care only if it makes a written finding, based on substantial evidence, that the County already has adequate child care facilities.

E.

If any density bonus, incentive, parking reduction, or waiver is approved pursuant to Section 10.24.010 or Section 10.24.020 for a residential project, the applicant shall enter into an affordable housing agreement with the County, in a form acceptable to the Planning Director and City Attorney. The affordable housing agreement shall be a legally binding agreement between the applicant and the City to ensure that the requirements of this Chapter are satisfied. The executed affordable housing agreement shall be recorded against the residential project prior to final or parcel map approval, or, where a map is not being processed, prior to issuance of building permits for the residential project. The affordable housing agreement shall be binding on all future owners and successors in interest.

F.

Unless otherwise permitted pursuant to the terms of a recorded affordable housing agreement, all required target units shall be constructed prior to or concurrently with the construction of market rate units. No temporary or permanent certificate of occupancy for any new market rate unit in a residential project shall be issued until permanent certificates of occupancy have been issued for the required target units. Release of utilities shall not be authorized for any residential project until notification is received from the Planning Director that all requirements of this Chapter have been met.

(Ord. NS-182, § 1, 7-17-2012)

10.24.050 - General—No conflict with State law.

If any Section of this Chapter conflicts with Government Code Section 65915 or other applicable State law, State law shall supersede this Chapter.

(Ord. NS-182, § 1, 7-17-2012)

Chapter 10.26 - MEDICAL MARIJUANA AND CULTIVATION

10.26.010 - Definitions.

"Cannabis" shall have the same meaning as set forth in Business and Professions Code § 19300.5(f), as the same may be amended from time to time.

"Caregiver" or "primary caregiver" shall have the same meaning as set forth in Health and Safety Code § 11362.7, as the same may be amended from time to time.

"Commercial cannabis activity" includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of cannabis or medical cannabis or a cannabis or medical cannabis product, except as set forth in Business and Professions Code § 19319, related to qualifying patients and primary caregivers.

"Cooperative" shall mean two (2) or more persons collectively or cooperatively cultivating, using, transporting, possessing, administering, delivering or making available medical marijuana, with or without compensation.

"Cultivation" shall have the same meaning as set forth in Business and Professions Code § 19300.5(l), as the same may be amended from time to time.

"Cultivation site" means a facility where cannabis or medical cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities, that holds a valid state license pursuant to this Chapter, and that holds a valid local license or permit.

"Delivery" shall have the same meaning as set forth in Business and Professions Code § 19300.5(m), as the same may be amended from time to time.

"Dispensary" shall have the same meaning as set forth in Business and Professions Code § 19300.5(n), as the same may be amended from time to time. For purposes of this Chapter, "Dispensary" shall also include a cooperative. "Dispensary" shall not include the following uses: (1) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; (2) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; (3) a residential care facility for persons with

chronic life-threatening illnesses licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; (4) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code; (5) a residential hospice or home health agency licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code.

"Dispensing" shall have the same meaning as set forth in Business and Professions Code § 19300.5(o), as the same may be amended from time to time.

"Distribution" shall have the same meaning as set forth in Business and Professions Code § 19300.5(p), as the same may be amended from time to time.

"Distributor" shall have the same meaning as set forth in Business and Professions Code § 19300.5(q), as the same may be amended from time to time.

"Manufacturer" shall have the same meaning as set forth in Business and Professions Code § 19300.5(y), as the same may be amended from time to time.

"Manufacturing site" shall have the same meaning as set forth in Business and Professions Code § 19300.5(af), as the same may be amended from time to time.

"Marijuana processing" shall mean any method used to prepare cannabis or its byproducts for commercial, retail or wholesale use including, but not limited to, drying, cleaning, curing, packaging and extraction of active ingredients to create cannabis related products and concentrate.

"Medical cannabis," "medical cannabis product," or "cannabis product" shall have the same meanings as set forth in Business and Professions Code § 19300.5(ag), as the same may be amended from time to time.

"Medical Marijuana Regulation and Safety Act" or "MMRSA" shall mean the following bills signed into law on October 9, 2015, as the same may be amended from time to time: AB 243, AB 246, and SB 643.

"Nursery" shall have the same meaning as set forth in Business and Professions Code § 19300.5(ah), as the same may be amended from time to time.

"Qualifying patient" or "qualified patient" shall have the same meaning as set forth in Health and Safety Code § 11362.7, as the same may be amended from time to time.

"Testing laboratory" shall have the same meaning as set forth in Business and Professions Code § 19300.5(z), as the same may be amended from time to time.

"Transport" shall have the same meaning as set forth in Business and Professions Code § 19300.5(am), as the same may be amended from time to time.

"Transporter" shall have the same meaning as set forth in Business and Professions Code § 19300.5(aa), as the same may be amended from time to time.

(Ord. NS-199, § 3, 1-26-2016)

A.

Commercial cannabis activities of all types are expressly prohibited in all zoning districts in the City of Monte Sereno. No person shall establish, operate, conduct or allow a commercial cannabis activity anywhere within the City.

B.

Notwithstanding subsection A above, discreet delivery of medical marijuana to a residence of a qualified patient or a primary caregiver from a medical marijuana dispensary located outside the City of Monte Sereno shall be permitted.

C.

To the extent not already covered in subsection A above, all cannabis processing is expressly prohibited within the City of Monte Sereno.

D.

Dispensing cannabis is prohibited. No person shall dispense cannabis in the City. Cannabis dispensaries are prohibited. No person shall own, manage, operate or work in, whether as an employee or independent contractor, a cannabis dispensary in the City.

E.

This section is meant to prohibit all activities for which a State license is required. Accordingly, the City shall not issue any permit, license or other entitlement for any activity for which a State license is required under the California Medical Cannabis Regulation and Safety Act ("MCRSA"), the Adult Use of Marijuana Act ("AUMA"), Senate Bill 94 and/or the Medicinal and Adult Use Cannabis Regulation and Safety Act ("MAUCRSA").

F.

Cultivation of cannabis for commercial or non-commercial purposes, including cultivation by a qualified patient or a primary caregiver, is expressly prohibited in all zoning districts in the City of Monte Sereno except as provided below:

1.

An individual may cultivate cannabis indoors on the parcel where the individual resides for personal, medical, or nonmedical purposes. Outdoor cultivation is prohibited.

2.

A primary caregiver may cultivate medical cannabis indoors at the primary caregiver's residence for a qualified patient for whom he/she is the primary caregiver. Outdoor cultivation is prohibited.

3.

Cannabis cultivation is permitted only on parcels with residential units, and only within a legally permitted residential unit, garage (provided required parking is maintained), or a self-contained outside accessory building, all which are locked, and fully enclosed.

4.

The cannabis cultivation area shall not exceed a total of six (6) plants per property (for example, a property owner/resident may not grow six (6) plants indoors and grow additional plants in a separate self-contained building on the property, or an individual cannot grow six (6) plants for him/herself and six (6) plants as a primary caregiver).

5.

The use of gas products, volatile solvents or dangerous poisons, toxins or carcinogens (including, but not limited to, CO 2 , butane, gasoline, kerosene) or generators for cannabis cultivation is prohibited.

6.

Cannabis cultivation for sale is prohibited. Notwithstanding this prohibition, a primary caregiver may recover from his or her qualified patient the actual costs incurred by the primary caregiver in cultivating the medical cannabis he or she delivers to the qualified patient.

7.

From the public right-of-way, there shall be no exterior evidence of cannabis cultivation.

8.

Any accessory building used for cultivation shall be located in the rear half of the lot and must maintain minimum yard requirements as specified in the development standards of the subject zoning district. The accessory building shall not be entitled to any exceptions or modifications that allow for reduced side and rear yard setbacks.

The residence shall maintain the kitchen, bathrooms, and primary bedrooms for their intended use and these rooms shall not be used for cannabis cultivation.

10.

Written consent of the property owner to cultivate cannabis shall be obtained and kept on the premises at all times.

11.

Any cannabis cultivation area located within a residence shall not create a humidity, mold, or other nuisance condition.

12.

The cannabis cultivation area shall not adversely affect the health or safety of the nearby residents by creating dust, glare, excessive light, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts, and shall not be hazardous due to use or storage of materials, processes, products or wastes.

(Ord. NS-199, § 3, 1-26-2016; Ord. NS-213, § 2, 11-7-2017)

Any use or condition caused, or permitted to exist, in violation of any provision of this Chapter 10.26 shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the City pursuant to Code of Civil Procedure Section 731, or any other remedy available to the City.

(Ord. NS-199, § 3, 1-26-2016)

In addition to any other enforcement permitted by this Chapter 10.26, the City Attorney may bring a civil action for injunctive relief and civil penalties pursuant to Title 5 of this Code, against any person or entity that violates this Chapter. In any civil action brought pursuant to this Chapter, a court of competent jurisdiction may award reasonable attorneys fees and costs to the prevailing party.

(Ord. NS-199, § 3, 1-26-2016)