Chapter 17.18 — AFFORDABLE HOUSING PROGRAM

The provision of safe and stable housing for households at all income levels is essential for the public welfare of the city. Housing in the city has become steadily more expensive and housing costs have gone up faster than incomes. Federal and state government programs do not provide enough affordable housing to satisfy the needs of very low, low, or moderate income households.

As provided in the housing element of the general plan, the city wishes to retain an economically balanced community with housing available to households of all income levels, which is only possible if some of the housing built within the city is affordable to households with limited incomes.

Because new housing contributes to the demand for goods and services, it increases local employment and attracts employees, of whom a quantifiable number will have very low, low, or moderate incomes, increasing the demand for and exacerbating the shortage of housing available for people at these income levels. Further, new housing construction that does not include affordable units aggravates the existing shortage of affordable housing by absorbing the supply of available residential land. In addition, because non-residential development also attracts employees, of whom a quantifiable number will have very low, low, or moderate incomes, new non-residential development projects similarly increase the demand for and exacerbate the shortage of housing available for people at these income levels.

This chapter therefore imposes a residential and non-residential development housing impact fee to provide a means whereby developers of residential and non-residential development projects contribute to the supply of housing for households with very low, low, and moderate incomes. It also implements Program 8 in the city's 2007-2014 Housing Element, which called for amendments to the city's inclusionary housing program if problems were found due to market conditions. Because no affordable housing was produced by the city's former program, the city has adopted a housing impact fee to create a more effective affordable housing program.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.18.020 - Housing impact fee.

A.

Application. A housing impact fee is hereby imposed on all developers of residential and non-residential development projects.

B.

Calculation of Housing Impact Fee. The housing impact fee for residential and non-residential development projects shall be charged on a per square foot basis for new floor area, excluding additions to existing residential dwellings. The amount and calculation of each such fee shall be established by resolution of the city council. The city council may review the fees from time to time at its sole discretion and may, based on that review, adjust the fee amount. Housing impact fees shall not exceed the cost of mitigating the impact of the non-residential and residential projects on the need for affordable housing in the city.

C.

Time of Payment. Payment of the residential and non-residential development housing impact fee shall be due at the issuance of the building permit for the development. The fees shall be calculated based on the fee schedule in effect at the time the building permit is issued.

D.

Processing Requirements. No application for a building permit for any project subject to this section shall be deemed complete unless the application contains the items listed below. The director may require similar information for completeness of other city permits or licenses as necessary or convenient to implement this section:

1.

A statement of the new square feet in a residential or non-residential development project to be constructed, added, or placed that are subject to the requirements of this section, together with documentation sufficient to support the application;

2.

The intended use or uses for the residential or non-residential development project by new square feet; and

3.

A statement of any exemptions applicable to the project.

New square footage shall be calculated on either a gross square foot or net square foot basis, as specified in the fee schedule adopted by resolution of the city council.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

This fee shall not apply to developers of residential or non-residential development projects which fall within one or more of the following categories:

A.

Emergency Food and Shelter Services. Development projects to be operated by non-profit organizations and which will provide food storage, meal service, and/or temporary shelter to the homeless.

B.

Specific Uses. Projects for any of the following uses:

1.

Colleges and trade schools.

Community assembly.

3.

Community garden.

4.

Cultural institutions.

5.

Day care centers providing care for eight or fewer persons.

6.

Emergency shelter.

7.

Park and recreation facilities.

8.

Public works and utilities.

9.

Schools.

Social service facilities.

11.

Temporary uses.

C.

Government Property. Residential or non-residential development projects located on property owned by the State of California, the United States of America, or any of its agencies and used exclusively for governmental or educational purposes.

D.

Damaged Property. Any structure proposed to repair or replace a building that was damaged or destroyed by fire or other calamity, and construction of the replacement building begins within one year.

E.

Vested Rights. Residential or non-residential development projects to the extent they have received a vested right to proceed without payment of housing impact fees pursuant to state law including those that are the subject of development agreements currently in effect with the city, if such development agreements were approved prior to the effective date of this chapter and where such agreements expressly preclude the city from requiring payment of the housing impact fee.

F.

Prior Application. Residential or non-residential uses as set forth in an application for a building permit, use permit, rezoning or similar discretionary approval accepted as complete by the city prior to the effective date of this title; however, any extension or modification of such approval or permit after such date shall not be exempt.

G.

Affordable Housing. Housing for very low, low, or moderate income households that fully mitigates the development's impacts on the need for affordable housing.

H.

Chapter 17.27. Residential development projects that fulfill the requirements of Chapter 17.27.

(Ord. No. 503, § 1(Exh. A), 1-25-2018; Ord. No. 560, § 4(Exh. B), 1-22-2026)

The city council may elect to waive the payment of the impact fee if a developer of a residential or nonresidential development project includes the provision of community benefits in excess of those required by the impacts of the project, and if the city council finds that the proposed benefits to the community exceed those that would be provided by the payment of the housing impact fee. Such community benefits may include the provision of senior housing, the generation of significant sales taxes, or the elimination of nuisances. If the city council elects to waive housing impact fees pursuant to this provision, the community benefits shall be guaranteed by a binding document in a form that is acceptable to the city attorney.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

Mitigation of Housing Impacts. The city council may adopt by resolution the percentage of affordable units needed to fully mitigate the impact of residential or non-residential projects on the need for affordable housing.

B.

Residential Projects.

As an alternative to paying the housing impact fee, a developer of residential property may provide on-site affordable rental or for-sale residential units or an alternative housing program. Any affordable rental or forsale units proposed as an alternative to the payment of the housing impact fee shall be subject to the requirements described in this section. The program shall be guaranteed by a binding and recorded document, such as a development agreement, in a form that is acceptable to the city attorney.

2.

A developer who proposes the provision of affordable units that are rental must submit an affidavit to the city stating that any rental affordable units proposed by the developer are not subject to Civil Code Section 1954.52(a) nor any other provision of the Costa Hawkins Rental Housing Act (Civil Code Sections 1954.51 et seq.) inconsistent with controls on rents, because, pursuant to Civil Code Sections 1954.52(b) and 1954.53(a)(2), prior to approval of the residential project, the developer will enter into a contract with the city or another public agency agreeing to the limitations on rents contained in Section 17.18.050, Standards for Alternatives to Payment of Housing Impact Fee, in consideration for a direct financial contribution or any form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division I of Title 7 of the Government Code. The developer may request that the city waive the affordable housing impact fee as a direct financial contribution to the rental residential project.

C.

Non-residential Development Projects. A developer of non-residential development projects may propose an alternative affordable housing program to mitigate the impact of the development on the need for affordable housing. Any affordable rental or for-sale units proposed as an alternative to the payment of the housing impact fee shall be subject to the requirements described in Section 17.18.050, Standards for Alternatives to Payment of Housing Impact Fee. The program shall be guaranteed by a binding and recorded document, such as a development agreement, in a form that is acceptable to the city attorney.

D.

Planning Commission. The alternative means of compliance shall be brought to the planning commission for its consideration. The planning commission shall consider the alternative and recommend approval, conditional approval or denial to the city council. The commission shall only recommend approval or conditional approval of the alternative means of compliance if it is able to make all of the findings set forth below:

1.

The proposed alternative means of compliance fulfills the purposes of this chapter as set forth in Section 17.18.010, Purpose;

2.

The proposed alternative means of compliance will further affordable housing opportunities in the city to an equal or greater extent than compliance with the requirements of Section 17.18.020, Housing Impact Fee, and will fully mitigate the impact of the project on the need for affordable housing;

The proposed alternative means of compliance would better address the city's needs than compliance with the requirements of Section 17.18.020, Housing Impact Fee; and

4.

The proposed alternative means of compliance will not unduly concentrate affordable housing in one geographic area so as to result in housing segregation.

E.

City Council. After consideration of the planning commission's recommendation, the city council may approve, conditionally approve, or deny the alternative means of compliance. The council shall only approve or conditionally approve the alternative means of compliance if it is able to make all of the findings described in Subsection D above.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.18.060 - Standards for alternatives to payment of housing impact fee.

A.

The for-sale and rental affordable units developed as an alternative to the payment of the housing impact fee shall be subject to a resale restriction, deed of trust, and/or regulatory agreement recorded against the property as applicable. These agreements shall have a term of fifty-five years for rental affordable units and a term of thirty years for for-sale units and shall require the affordable units to be rented to very low or lowincome households at an affordable rent, or to be sold to very low, low or moderate income households at an affordable ownership cost.

B.

Affordable units shall be comparable to the market rate units in a residential development as follows:

1.

The affordable units shall have the same proportion of units of different bedroom sizes as provided in the residential development project as a whole;

2.

The exterior appearance of the affordable units shall be indistinguishable from that of market rate units;

3.

The affordable units shall be dispersed throughout the residential development project;

4.

The affordable units shall be provided or have access to the same amenities as the market rate units, including air conditioning, covered garages, recreation facilities and laundry facilities; and

All affordable units in a residential development project or phase of a project shall be constructed concurrently with the market rate units.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

There is hereby established in the City of Newark the affordable housing fund. Separate accounts within such housing fund may be created from time to time to avoid co-mingling as required by law or as deemed appropriate to further the purposes of the fund.

A.

Administration. The housing fund shall be administered by the Director, who shall have the authority to govern the housing fund consistent with this chapter and to prescribe procedures for said purpose, subject to approval by the city council.

B.

Advisory Committee. The community development advisory committee shall review the status of the fund annually. As appropriate, the committee may define and prioritize recommended uses of the monies in the housing fund, subject to approval by the city council.

C.

Purpose and use of funds.

1.

Monies deposited in the housing fund, along with any interest earnings on such monies, shall be used solely to increase and preserve the supply of housing affordable to households of very low, low, and moderate incomes; including, but not limited to, acquisition of property and property rights, cost of construction, including costs associated with planning, administration, and design, as well as actual building or installation, as well as any other costs associated with the construction or financing of affordable housing; and reimbursement to the city for such costs if funds were advanced by the city from other sources. To the maximum extent possible, all monies should be used to provide for additional affordable housing. Monies may also be used to cover reasonable administrative expenses not reimbursed through processing fees, including reasonable consultant and legal expenses related to the establishment and/or administration of the housing fund and reasonable expenses for administering the process of calculating, collecting, and accounting for housing fees authorized by this section.

2.

Monies in the housing fund may be disbursed, hypothecated, collateralized or otherwise employed for these purposes from time to time as the director and city council determine is appropriate to accomplish the purposes of the housing fund. The housing fund monies may be extended for the benefit of rental or owner occupied housing or housing services.

Expenditures by the director from the housing fund shall be controlled, authorized, and paid in accordance with general city budgetary policies. Execution of contracts related to the use or administration of housing fund monies shall be in accordance with standard city policy.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

As part of an application for the first approval of a residential or non-residential development project, a developer or applicant may request that the requirements of this chapter be waived or modified, based upon a showing that applying the requirements of this chapter would result in an unconstitutional taking of property or would result in any other unconstitutional result, or because there is no reasonable relationship between the impact of the development and the need for affordable housing. Any request for a waiver or modification shall be submitted concurrently with the project application. Failure to do so shall constitute a failure to exhaust administrative remedies. The developer or applicant shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation. Any request for a waiver or modification based on this section shall be reviewed and considered at the same time as the project application.

B.

The waiver or modification may be approved only to the extent necessary to avoid an unconstitutional result, based upon legal advice provided by or at the behest of the city attorney, after adoption of written findings, based on legal analysis and the evidence. If a waiver or modification is granted, any change in the project shall invalidate the waiver or modification, and a new application shall be required for a waiver or modification pursuant to this section.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

Housing Impact Fee. Payment of the housing impact fee is the joint and several obligations of the applicant and the property owner for the subject residential or non-residential development project. In the event of administrative error, the city shall provide the applicant with a written notice, and the applicant shall be required to pay the fees within thirty days. The city may institute any appropriate legal actions or proceedings necessary to ensure compliance herewith, including, but not limited to, actions to revoke, deny, or suspend any permit or development approval.

B.

Violations. No person shall sell or rent an affordable unit built as an alternative to the payment of the housing impact fee at a price or rent exceeding the maximum allowed under this chapter, or to a household not qualified under this chapter. Said sale or rental shall constitute a public nuisance and shall be

punishable as a misdemeanor. Each month that such unit is occupied in violation of this chapter shall constitute a separate violation.

C.

Enforcement. The city attorney shall be authorized to enforce the provisions of this chapter and all regulatory agreements and resale controls placed on affordable units by administrative or civil action or any other proceeding or method permitted by law. Failure of any official or agency to fulfill the requirements of this chapter shall not excuse any applicant, developer, or owner from the requirements of this chapter.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Chapter 17.19 - DENSITY BONUS FOR AFFORDABLE HOUSING

This chapter is intended to provide a local ordinance for implementation of the state-mandated density bonus set forth in California Government Code Section 65915 et seq. For the purposes of this chapter, "density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable zoning and general plan land use designation as of the date of application by the applicant to the city.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Density bonuses pursuant to California Government Code Section 65915 et seq. are available for the following projects. The total density bonus for a project shall not exceed thirty-five percent.

A.

Housing Development.

1.

Criteria. A density bonus shall be granted to housing developments that meet all of the following criteria:

a.

The development will include five or more dwelling units;

b.

The development will provide at least the amount of housing designated for very low or low income households, or moderate income households in a common interest development, set forth in Government Code Section 65915(b), or the development is a senior citizen housing development; and

c.

The affordability of the housing designated for very low, low or moderate income households shall be protected in accordance with Government Code Section 65915(c).

2.

Amount. The amount of the density bonus to which the developer is entitled shall be determined in accordance with Government Code Section 65915(f).

B.

Land Donation. An applicant for a tentative subdivision map, parcel map or other residential development approval may receive a density bonus for a donation of land if the land meets all of the following criteria:

1.

The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application;

2.

The developable acreage and zoning district classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than ten percent of the number of residential units of the proposed development;

3.

The transferred land is at least one acre in size or of sufficient size to permit development of at least forty units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the required density, and is or will be served by adequate public facilities and infrastructure;

4.

The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application.

5.

The developer shall record a deed restriction approved by the city attorney for the transferred land and the density bonus units to restrict affordability with the requirements set forth in this chapter;

6.

The land shall be transferred to the city or to a housing developer approved by the city prior to approval;

7.

The transferred land must be within the boundary of the proposed development. Alternatively, the city council may approve a site within one-quarter mile of the project site; and

8.

A proposed source of funding for the very low income units shall be identified to the satisfaction of the city council not later than the date of approval of the final subdivision map, parcel map, or residential development or application.

C.

Childcare Facility. A development which meets the requirements of Subsection A or Subsection B above and also includes a child care facility shall receive an additional density bonus or an additional incentive or concession.

1.

To qualify, the child care facility must:

a.

Be located on the premises of, be a part of, or be adjacent to the housing development;

b.

Agree to remain in operation for at least as long as the density bonus units are required to remain affordable; and

c.

Maintain percentages of children from very low income, low income, and moderate income households equal to the percentages of dwelling units required for each income level.

2.

The amount of the additional density bonus shall be determined per Government Code Section 65917.5(a) (2)(A) and (B).

3.

Application for an additional incentive or concession shall be made as described in Section 17.19.030, Incentives and Concessions.

4.

A request for a child care bonus or incentive may be denied if the City Council finds, based on substantial evidence, that the community has adequate child care facilities.

5.

If the space allocated for a child care facility under this section is used for purposes other than a child care facility, or if developer fails to allocate space for the child care facility within three years of the issuance of the first temporary certificate of occupancy, the city council may levy and collect an assessment based on the square footage of the project.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

Applicants for a density bonus may also request incentives or concessions. The number of incentives or concessions will be determined based on Government Code Section 65915(d).

B.

Incentives or concessions may include the following:

1.

Allowing tandem or uncovered parking;

2.

Reduced parking standards;

3.

Reduced setbacks;

4.

Allowing mixed-use when compatible with neighboring properties and when mixed-use would reduce the cost of the housing development; or

5.

Other incentives or concessions that would result in identifiable, financially sufficient, and actual cost reductions.

C.

The city council may deny an application for an incentive or concession if it makes at least one of the following findings:

1.

The incentive or concession is not required to provide for affordable housing costs or rents;

2.

The incentive or concession would have a specific adverse impact that cannot be mitigated upon health, safety or the physical environment, including historical resources; or

3.

The incentive or concession would be contrary to state or federal law.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

Applicants for a density bonus may also request waivers or modifications of development standards.

B.

If a development standard would have the effect of physically precluding the construction of a development with a density bonus under this section, the city council will waive or modify the standard unless it makes one of the following findings:

1.

The waiver or modification would have a specific adverse impact that cannot be mitigated upon health, safety, or the physical environment;

2.

The waiver or modification would have an adverse impact on real property listed in the California Register of Historical Resources; or

3.

The waiver or modification would be contrary to state or federal law.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.19.050 - Application requirements and process.

A.

Timing. Applicants shall submit applications for a density bonus, incentive or concession, and waivers or modifications as part of a project application.

B.

Materials required.

1.

Application for a density bonus.

a.

Total number of units in the development;

b.

Number of units that will be limited by income or to seniors;

c.

Income limits that will be applied to each unit; and

d.

Amount of density bonus requested.

2.

Application for an incentive or concession.

a.

Description of incentives or concessions requested; and

b.

Financial information describing how each incentive or concession requested is necessary to provide for affordable housing costs or rents.

3.

Application for a Waiver or Reduction of Development Standards.

a.

Description of development standards requested for waiver or reduction;

b.

If a reduction is requested, the level to which the standards are proposed to be reduced; and

c.

An explanation of how the development standard would physically preclude the construction of a development that meets the criteria of Government Code Section 65915(b).

C.

Processing.

1.

If the project is subject to any discretionary approvals, the request for a density bonus, incentive or concession, and/or waiver or reduction of development standards shall be considered concurrently with the discretionary approval.

2.

For all other projects, the applications for a density bonus, incentive or concession, and/or waiver or reduction shall go through the following process:

a.

The planning commission shall consider the application and, based on due consideration of state requirements and all information presented, shall make a recommendation to the city council concerning the application.

b.

The city council shall approve or deny the application based on the requirements of state law, the provisions of this chapter, and the information presented in the application and at the meeting.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.19.060 - Density bonus housing agreement.

A.

All requirements and provisions related to the density bonus, any incentives or concessions, or any waivers or reductions in development standards, shall be set forth in a density bonus housing agreement in a form acceptable to the city attorney.

B.

The density bonus housing agreement shall be executed by the developer and the city manager and recorded at the county recorder's office.

C.

For any development that includes moderate income units which are used to qualify for a density bonus, incentive or concession, and/or waiver or modification of development standards, the developer shall provide draft legal documents for the equity sharing provisions that are set forth in Government Code Section 65915(c)(2).

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.19.070 - Conflicts with state law.

In any instance where this density bonus ordinance conflicts with California state law, the state law shall govern.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Chapter 17.20 - HISTORICAL RESOURCES

A.

Historical resources within a community enrich it by providing it with a distinct identity and a link with the past, and by serving as a source of ideas for contemporary buildings, designers and other artisans. The

number of irreplaceable historical resources within the community is limited and declining and the preservation of such resources is essential to the general welfare of the public. The purpose of this chapter is to encourage the preservation of historical resources, and to require that the actions to remove or demolish landmarks be subject to city council review, to enhance the preservation and relocation of such landmarks by interested persons and organizations.

B.

This chapter is adopted pursuant to Section 37361 of the California Government Code, which authorizes the adoption of special regulations for the protection, enhancement, perpetuation or use of places, buildings, structures and other objects having a special character or special historical or aesthetic interest or value.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

The city council shall undertake and complete one or more historical resources surveys. Upon completion of the survey(s) the city council shall form and cause to be maintained a city historical resources list.

B.

The designation of historical resources, and the removal of such designation, shall be accomplished by the adoption of a resolution to add, or to delete, the historical resource from the historical resources list.

C.

Applications to designate historical resources or remove such designation may be initiated by the city council, the planning commission, the director, the owner of the subject real property or the authorized agent of the owner.

D.

Consideration of the designation of an historical resource by the city council shall be in accordance with the resolutions and procedural rules and regulations of the city council.

E.

The list of historical resources and any additions or deletions shall be maintained, distributed and recorded in the office of the city clerk.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Historical resources shall meet one or more of the following criteria:

A.

Historical and cultural considerations:

1.

One associated with the life or activities of a person significant in the development of institutions, activities or industries of Newark or Washington Township;

2.

One associated with a major group or organization in the history of Newark or Washington Township;

3.

One associated with a significant historic event of Newark or Washington Township;

4.

One associated with a major recurring event in the history of Newark or Washington Township such as an annual celebration;

5.

One associated with a past or continuing institution which has contributed substantially to the life of the city;

B.

Architectural and aesthetic considerations:

1.

One of the few of its decade remaining in the city (one of six) and is unique or one of a few remaining examples in the city of a particular architectural style or period;

2.

The work of a regionally or nationally famous architect;

3.

An architectural curiosity or picturesque work of particular artistic merit;

4.

Contains original materials and/or workmanship of merit. Has architectural, structural, or artistic merit. An important or scarce example (one of six), associated with the architectural and aesthetic character of Newark or of an architecturally and aesthetically distinct or unique neighborhood;

C.

Modifying conditions:

1.

The owner of a property shall have the right to veto its placement on the list of historical resources;

2.

If the historical resource is found to be in, or to have, several of the following conditions, consideration as a historical resource shall be suspended until a detailed report of its significance can be made;

a.

Has conditions which will or are suspected to further destroy its quality or use,

b.

Is not in, or is unadaptable to, productive use,

c.

Cannot be restored to its original use or preserved in its present use,

d.

The integrity of the original design is essentially altered,

e.

Cannot be adapted to a new use without harm to those historic and cultural or architectural and aesthetic elements which contribute to its significance,

f.

Is not free from known threats of demolition or obliteration by public or private action,

g.

Is not accessible, not served by utilities, not capable of providing adequate parking space, not covered by fire and police protection, or is economically unfeasible to preserve or adapt it for contemporary use,

h.

Preservation or restoration and continued maintenance is economically unfeasible,

i.

Is less than ninety years old,

j.

Is not compatible with the program developed for Ardenwood and the criteria of the regional park district.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.20.040 - Maintenance and alteration of historical resources.

A.

Routine maintenance or replacement of deteriorated parts of a landmark are exempt from city council review.

B.

The director may, when requested in writing by an owner of a landmark, advise appropriate remodeling necessary to protect the historic merit of the historic resource. Compliance of the property owner with the recommendations shall be voluntary, not mandatory.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A.

Inspection. The director shall have an inspection made of the physical condition of the landmark by the building official in the case of a building or structure, or the landscape parks supervisor if it is a tree or plant life. The inspection shall be made upon the filing of a permit application for any of the following:

1.

An application for a permit for the demolition of a landmark;

2.

A notice of intention to move, or remove a landmark; or

3.

An application for a development project on any landmark site, or land on which a landmark is located.

B.

Report. The inspection official shall report to the director as to the physical condition of the landmark.

C.

Review.

1.

If the report does not cite conditions hazardous to public health and safety, the director shall refer the permit application to the planning commission. The planning commission shall forward its recommendation to the city council for review.

a.

The planning commission shall review applications for the development of a landmark site in accordance with the requirements of this title and forward its recommendation to the city council for review.

2.

If the director finds that the removal, demolition, or destruction of the landmark must be undertaken promptly to adequately protect the public health and safety due to a hazardous condition of the landmark, the director shall do one of the following:

a.

Advise the city council immediately of hazardous conditions. The city council shall determine whether to call for a special meeting, or hold the hearing at their next regular meeting.

b.

If the director finds that the danger to the public health and safety is so immediate that no delay in undertaking the removal, demolition or destruction should take place, the permit may be issued, if such is required, for the removal, demolition or destruction in conformance with other applicable requirements of this chapter, to the extent necessary to eliminate the hazardous condition, without referral of the matter to the city council.

3.

The city council, upon review of the application for a permit for removal or demolition of a landmark, may:

a.

Authorize the building official to issue the permit by finding that taking into account the current market value, the value of transferable development rights, and the costs of rehabilitation to meet the requirements of the building code or other city, state or federal laws, the property retains no reasonable economic use; or

b.

Authorize the building official to issue the permit by finding that moving, removal, or demolition of the building will not have a significant effect on the achievement of the purposes of this chapter; or

c.

Impose a ninety-day moratorium, starting with the application date, on the issuance of the permit. During this period the city may indicate an interest in purchasing or relocating the historical resource; or

d.

Impose a thirty-day moratorium, beginning with either the permit application date or the date of receipt of a letter of intent to apply for a permit. The letter of intent must be submitted by the property owner, via registered mail, to the director. The thirty-day period shall apply only to primary landmarks (those historic resources meeting at least three criteria) that are not on the City of Newark historical resources list. During this period the city may indicate an interest in purchasing or relocating the historical resource.

D.

Acquisition. The city shall have the right to acquire the landmark only at the time the landmark is proposed to be moved or demolished.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The director shall maintain a list of non-profit corporations chartered by the state who have filed a written request for notice of meeting on dispositions of historical resources. The director shall transmit by mail to each person, group or organization on the list a notice of each meeting of the planning commission and the city council, other than special meetings, or immediate danger findings, at which a hearing will be conducted regarding the designation of any historical resource; or the removal of any historical resource from its designation as such; or regarding any proposal for the removal, relocation, destruction or demolition of a landmark.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Chapter 17.21 - LANDSCAPING

The purpose of the landscaping regulations is to:

A.

Improve the appearance of the community by requiring permanently maintained landscaping;

B.

Aid in energy conservation by providing shade from the sun and shelter from the wind;

C.

Soften the appearance of parking lots and other development and minimize or eliminate conflicts between potentially incompatible uses through landscaping;

D.

Promote conservation and efficient use of water; and

E.

Implement the Water Conservation in Landscaping Act.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The provisions of this chapter shall apply to the following:

A.

All new development.

B.

Additions to multi-unit and non-residential development that expand existing floor area by ten percent or more.

C.

All new and rehabilitated landscaping projects that include new irrigated landscaping over five hundred square feet.

D.

Exceptions. The provisions of this chapter do not apply to the following:

1.

Farming, agriculture, and crop production including vegetable gardens, vineyards, and small orchards.

2.

Public recreational areas (designated for active play, recreation, interpretation or public assembly).

3.

Registered local, state or federal historical sites.

4.

Habitat restoration projects that do not require a permanent irrigation system.

5.

Mined-land reclamation projects that do not require a permanent irrigation system.

6.

Existing plant collections, as part of botanical gardens and arboretums open to the public.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The following areas shall be landscaped, and may count toward the total area of the site required to be landscaped by the zoning district regulations:

A.

Required Setbacks. All required front and street-facing side setbacks, except for areas used for exit and entry, shall be landscaped.

==> picture [324 x 198] intentionally omitted <==

FIGURE 17.21.030.A: AREAS TO BE LANDSCAPED, REQUIRED SETBACKS

B.

Interior Property Lines Abutting Residential Districts. Whenever a non-residential use is located adjacent to a residential district or use, a landscape buffer planted with a mix of trees and shrubs shall be provided along interior property lines. At least one tree of at least fifteen-gallon size shall be planted per twenty linear feet or as appropriate to create a tree canopy over the buffer yard. In addition, at least three shrubs shall be planted per twenty linear feet.

1.

Commercial or Industrial Use. Ten foot wide landscaped buffer yard.

2.

Other Non-residential Uses. Six foot wide landscaped buffer yard.

==> picture [408 x 117] intentionally omitted <==

FIGURE 17.21.030.B: AREAS TO BE LANDSCAPED, INTERIOR PROPERTY LINES ABUTTING RESIDENTIAL DISTRICTS

C.

Building Perimeters. The portions of a non-residential building that front a public street shall have one or more landscape planters installed along a minimum twenty percent of that building face. The minimum width of the planter shall be three feet. This standard does not apply where a building is located on the front or corner side property line.

==> picture [384 x 194] intentionally omitted <==

FIGURE 17.21.030.C: AREAS TO BE LANDSCAPED, BUILDING PERIMETERS

D.

Parking Areas. Parking areas as required by Chapter 17.23, Parking and Loading.

E.

Stormwater Treatment Areas. Areas designated for landscape-based stormwater treatment to satisfy regional stormwater permit requirements.

F.

Unused Areas. All areas of a project site not intended for a specific use, including areas planned for future phases of a phased development, shall be landscaped or hydroseeded. The director may waive this required for areas planned for future development.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A landscape plan showing compliance with the standards of this chapter shall be submitted with the permit application for all projects for which landscaping is required.

A.

Proposed plant locations, species, sizes, and plant factor. Plants with similar water needs shall be grouped together on the landscape plan. The plant factor, established in the California Department of Water Resources study, Water Use Classification of Landscape Species (WUCOLS), shall be identified for all

landscaped areas on a site. All water features shall be identified as high water use, and temporarily irrigated areas shall be identified as low water use.

B.

Location of any existing trees over six inches in diameter, as measured at forty-eight inches above natural grade, and whether each such tree is proposed for retention or removal.

C.

Alternative Landscape Plan. An applicant may demonstrate that the intent of the landscape requirements of this section can be achieved through an alternative landscape plan. The alternative landscape plan shall be prepared in accordance with the principles and design criteria set forth in this section and shall clearly detail the modifications being requested from the provision of this section and how they reflect the evaluation criteria listed below:

1.

Innovative use of plant materials and design techniques in response to unique characteristics of the site or the proposed use.

2.

Preservation or incorporation of existing native vegetation.

3.

Incorporation of naturalistic design principles, such as variations in topography, meandering or curvilinear plantings, and grouping of dominant plant materials (trees, large shrubs) in a manner consistent with existing native vegetation.

4.

Integration of landscaping and pedestrian facilities in a manner that improves access or incorporates pedestrian-friendly design, this may include reduced ground-level planting along the front setback if canopy shade trees along sidewalks are provided.

5.

Use of additional shade trees to create a greater canopy effect.

6.

A greater degree of compatibility with surrounding uses than a standard landscape plan would offer.

D.

Preparation by Qualified Person. Landscaping for commercial projects, industrial projects, institutional projects, and residential projects consisting of more than two units shall be prepared by a California Registered Landscape Architect. The architect shall indicate compliance with this chapter with a written

statement on all prepared landscape construction plan sets and intended compliance on all preliminary or conceptual plans.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.21.050 - General requirements.

A.

Materials.

General.

a.

Required landscaped areas shall be planted with a combination of ground covers, shrubs, vines, and trees. Fifty percent of all trees shall be evergreen species.

b.

Landscaping may also include incidental features such as stepping stones, benches, fountains, sculptures, decorative stones, or other ornamental features, placed within a landscaped setting.

c.

Landscaped areas may include paved or graveled surfaces, provided they do not cover more than thirty percent of the area required to be landscaped.

d.

Garden areas and other areas dedicated to edible plants are considered landscaped areas and count toward required landscaping.

2.

Required Water Efficient Plants. Plants shall be one of the following options shall be chosen to ensure that the landscape project meets water efficiency requirements:

a.

Option A: All Low Water Plants. Exclusive of garden areas, all plants and trees shall be low or very low water use (average California Department of Water Resources study, Water Use Classification of Landscape Species (WUCOLS) plant factor of 0.3). Option A is available for all residential and nonresidential areas.

b.

Option B: Primarily Low Water Plants. Exclusive of garden areas, at least eighty-five percent of the landscape area shall contain low or very low water use plants (average WUCOLS plant factor of 0.3).

Option B is only available for residential areas.

c.

Option C: Water Use Calculation. The estimated total water use (ETWU) of the landscaping shall not exceed the maximum applied water allowance (MAWA), calculated pursuant to the State Model Water Efficient Landscape Ordinance (MWELO). Option C is available for all residential and non-residential areas.

i.

Department of Water Resources Model Water Efficient Landscape Ordinance Compliance Required. Where Option C is selected, all requirements of the Department of Water Resources Model Water Efficient Landscape Ordinance shall apply.

3.

Size and Spacing. Plant materials shall be grouped in hydrozones in accordance with their respective water, cultural (soil, climate, sun and light) and maintenance needs. Plants shall be of the following size and spacing at the time of installation:

a.

Ground Covers. Ground cover plants other than grasses must be at least the four-inch pot size. Areas planted in ground cover plants other than grass seed or sod must be planted at a rate of one per twelve inches on center.

b.

Shrubs. Shrubs shall be a minimum size of one gallon. When planted to serve as a hedge or screen, shrubs shall be planted with two to four feet of spacing, depending on the plant species.

c.

Trees. All required trees shall be twenty-four-inch box or greater in size. All other trees shall be a minimum fifteen-gallon size.

i.

Tree trunks shall be placed at least five feet from utilities.

ii.

Tree trunks shall be placed at least fifteen feet from light poles.

4.

Turf. Turf, defined as a ground cover surface of mowed grass, is subject to the following limitations.

a.

No more than twenty-five percent of the landscaped area may be turf.

b.

The installation of turf on slopes greater than twenty-five percent is prohibited.

c.

Turf is prohibited in locations that are less than ten feet wide.

5.

Invasive Plants Prohibited. Plant species that are listed by CAL-IPC as invasive are prohibited. Existing invasive plants and noxious weeds shall be removed.

6.

Mulch. A minimum three-inch layer of mulch shall be applied on all exposed soil surfaces of planting areas except in turf areas, creeping or rooting groundcovers, or direct seeding applications where mulch is contraindicated.

7.

Compost. Compost at a rate of at least four cubic yards per one thousand square feet to a depth of six inches into landscape area (unless contra-indicated by a soil test) shall be incorporated.

B.

Water Features. Recirculating water shall be used for all decorative water features.

C.

Dimension of Landscaped Areas. No landscaped area smaller than three feet in any horizontal dimension shall count toward required landscaping.

D.

Visibility. Landscaping shall meet visibility requirements at street intersections and driveways pursuant to Chapter 10.36, Visibility Requirements, of the Newark Municipal Code.

E.

Prescribed Heights. The prescribed heights of landscaping shall indicate the height to be attained within three years after planting.

F.

Maintenance. All planting and other landscape elements shall be maintained in good growing condition. Such maintenance shall include, where appropriate, pruning, mowing, weeding, cleaning, fertilizing, and regular watering. Wherever necessary, plantings shall be replaced with other plant materials to ensure continued compliance with applicable landscaping requirements.

(Ord. No. 503, § 1(Exh. A), 1-25-2018; Ord. No. 505, § 3(Exh. A), 7-12-2018)

An automatic irrigation system shall be installed that meets the following standards:

A.

General Requirements.

1.

All irrigation equipment must meet American National Standards Institute (ANSI), American Society of Agricultural and Biological Engineers/ International Code Council (ASABE/ ICC) 802-2014. "Landscape Irrigation Sprinkler and Emitter Standard".

2.

The following areas shall be irrigated with subsurface irrigation or other means that produces no runoff or overspray.

a.

Slopes exceeding twenty-five percent.

b.

Areas less than ten feet wide in any direction.

3.

The irrigation system shall be designed to prevent runoff, low head drainage, overspray, or other similar conditions where irrigation water flows onto non-targeted areas such as adjacent property or hardscapes.

a.

Irrigation systems shall be designed for zero run-off onto paved surfaces unless that surface drains to another landscape area.

b.

Spray irrigation must be placed two-feet away from impervious surfaces unless that surface drains to another landscape area.

c.

Proper irrigation equipment and schedules, including features such as repeated cycles, shall be used to closely match application rates to infiltration rates therefore minimizing runoff.

d.

Slopes greater than twenty-five percent shall not be irrigated with an irrigation system with an application rate exceeding 0.75 inches per hour, and check valves shall be utilized.

B.

Sprinkler Heads. Where used, sprinkler heads shall be selected for proper area coverage, application rate, operating pressure, adjustment capability, and ease of maintenance.

1.

All sprinkler heads installed in the landscape must document a distribution uniformity low quarter of .65 or higher using the protocol defined in ASABE/ICC 802-2014.

2.

Sprinkler heads and other emission devices shall have matched precipitation rates, unless otherwise directed by the manufacturer's recommendations.

C.

Water Meters. A dedicated meter for irrigation is required for non-residential projects with landscape areas of one thousand square feet or more.

D.

Pressure Regulating Equipment. Pressure regulating valves or assemblies shall be installed to ensure that the dynamic pressure at each emission device is within the manufacturer's recommended pressure range for optimal performance.

E.

Flow Sensors. Flow sensors are required to detect high flow conditions created by system damage on all non-residential projects one thousand square feet and greater and residential projects five thousand square feet and greater.

F.

Controllers. Automatic control systems shall be required for all irrigation systems and must be able to accommodate all aspects of the design.

1.

Automatic irrigation controllers shall utilize either evapotranspiration or soil moisture sensor data, or rain sensing override devices.

2.

Irrigation controllers shall be of a type which does not lose programming data in the event the primary power source is interrupted.

G.

Control Valves. Plants which require different amounts of water should be irrigated by separate valves.

H.

Check Valves. Where required on steep slopes, check valves shall be installed to prevent low-head drainage.

I.

Master Shut-off, Gate or Ball Valves. Locate valves as close as possible to the point of connection of the water supply, and place where needed to minimize water loss in case of an emergency (such as a main line break) or routine repair.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

17.21.070 - Installation and completion.

A.

Consistency with Approved Plans. All landscaping shall be installed consistent with approved plans and specifications, in a manner designed to promote and maintain healthy plant growth.

B.

Timing of Installation. Required landscaping shall be installed prior to the issuance of a certificate of occupancy for the project.

C.

Exception—Assurance of Landscaping Completion. The director may permit the required landscaping to be installed within one hundred twenty days after the issuance of a certificate of occupancy in special circumstances related to weather conditions or plant availability. A surety in the amount equal to one hundred fifty percent of the estimated cost of landscaping, including materials and labor, as well as an agreement that the required landscaping will be installed within one hundred twenty days, must be filed with the city to assure completion of landscaping installation within such time. The surety may take the form of cash deposit, irrevocable letter of credit or bond; and together with the agreement, would provide for payment to the city of any costs incurred in contracting for completion of the required landscaping.

D.

Certification of Completion. Upon completion of the installation of the landscaping and irrigation system, a field observation shall be completed by the licensed project contractor. A certificate of completion shall be submitted to the city by the licensed project contractor. The certificate shall specifically indicate that the plants were installed as specified and that the irrigation system was installed as designed, along with a list of any deficiencies.

1.

Where required Water Efficient Plan Option C: Water Use Calculation, was installed, the applicant shall submit a certificate of completion pursuant to the Department of Water Resources Model Water Efficient Landscape Ordinance.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)