Newark Municipal Code Ch. 17.31 Common Procedures

This chapter establishes procedures that are common to the application and processing of all permits and approvals provided for in this title, unless superseded by specific requirement of this title or state law.

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

A. Applicant. The owner of property or the owner's authorized agent. If the application is made by someone other than the owner or the owner's agent, proof, satisfactory to the director, of the right to use and possess the property as applied for, shall accompany the application.

B. Application Forms and Materials.

1. Application Forms. The director shall prepare and issue application forms and lists that specify the information that will be required from applicants for projects subject to the provisions of this title.

2. Supporting Materials. The director may require the submission of supporting materials as part of the application, including but not limited to statements, photographs, plans, drawings, renderings, models, material samples and other items necessary to describe existing conditions and the proposed project and to determine the level of environmental review pursuant to the California Environmental Quality Act (CEQA).

3. Availability of Materials. All material submitted becomes the property of the city, may be distributed to the public, and shall be made available for public inspection. At any time upon reasonable request, and during normal business hours, any person may examine an application and materials submitted in support of or in opposition to an application in the planning division offices. Unless prohibited by law, copies of such materials shall be made available at a reasonable cost.

C. Application Fees.

1. Schedule of Fees. The city council shall approve by resolution a master fee schedule that establishes fees for permits, informational materials, penalties, copying, and other such items.

2. Payment of Fees. No application shall be accepted as complete and processed without payment of a fee unless a fee waiver has been approved.

3. Multiple Applications. The city's processing fees are cumulative. For example, if an application for design review also includes a conditional use permit, both fees shall be charged.

4. Fee Waiver. No fee shall be required when the applicant is the city, or if it is waived under any other provision of the Municipal Code.

5. Refund of Fees. Application fees are refundable at the discretion of the director with good cause unless otherwise provided for in the Newark Municipal Code or by policy of the city council.

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

Pre-application review is an optional review process that is intended to provide information on relevant policies, zoning regulations, and procedures. This review is intended for large or complex projects and projects that are potentially controversial.

A. Exemption from Permit Streamlining Act. Pre-application review is not subject to the requirements of the California Permit Streamlining Act (the Act). An application that is accepted for pre-application review shall not be considered complete pursuant to the requirements of the act unless and until the director has received an application for approval of a development project, reviewed it, and determined it to be complete under Section 17.31.030, Review of Applications.

B. Review Procedure. The planning division shall conduct pre-application review. The director may consult with or request review by any city agency or official with interest in the application.

C. Recommendations are Advisory. Neither the pre-application review nor the provision of information and/or pertinent policies shall be construed as a recommendation for approval or denial of the application by city representatives. Any recommendations that result from pre-application review are considered advisory only and shall not be binding on either the applicant or the city.

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

A. Review Process. The director shall determine whether an application is complete within 30 days of the date the application is filed with the required fee.

B. Incomplete Application. If an application is incomplete, the director shall provide written notification to the applicant listing the applications for permit(s), forms, information, and any additional fees that are necessary to complete the application.

1. Zoning Ordinance Violations. An application shall not be found complete if conditions exist on the site in violation of this title or any permit or other approval granted in compliance with this title, unless the proposed project includes the correction of the violations.

2. Appeal of Determination. Determinations of incompleteness are subject to the provisions of Section 17.31.110, Appeals, except there shall be a final written determination on the appeal no later than sixty days after receipt of the appeal. The fact that an appeal is permitted to both the planning commission and the city council does not extend the sixty-day period.

3. Submittal of Additional Information. The applicant shall provide the additional information within the time limit specified by the director, which shall be no sooner than thirty days. The director may grant one extension of up to ninety days.

4. Expiration of Application. If an applicant fails to correct the specified deficiencies within the specified time limit, the application shall expire and be deemed withdrawn. After the expiration of an application, project review shall require the submittal of a new, complete application, along with all required fees.

C. Complete Application. When an application is determined to be complete, the director shall make a record of that date. If an application requires a public hearing, the director shall schedule it and notify the applicant of the date and time.

D. Extensions. The director may, upon written request and for good cause, grant extensions of any time limit for review of applications imposed by this title.

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

All projects shall be reviewed for compliance or exemption with the California Environmental Quality Act (CEQA). Environmental review will be conducted pursuant to Title 14 of the California Code of Regulations (CEQA Guidelines). If Title 14 of the California Code is amended, such amendments will govern city procedures.

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

Unless otherwise specified, whenever the provisions of this title require public notice, the city shall provide notice in compliance with state law as follows:

A. Mailed Notice. At least ten days before the date of the public hearing or fifteen days before the date of action when no public hearing is required, the director, or the city clerk for hearings before the city council, shall provide notice by first class mail delivery to:

1. The applicant, the owner, and any occupant of the subject property;

2. All property owners of record within a minimum five hundred-foot radius of the subject property as shown on the latest available assessment role or a larger radius if deemed necessary by the director in order to provide adequate public notification;

3. All neighborhood and community organizations that have previously filed a written request for notice of projects in the area where the site is located; and

4. Any person or group who has filed a written request for notice regarding the specific application.

B. Posted Notice. The applicant shall post a notice, in a format approved by the planning division, in a prominent place on the site for the ten days prior to a public hearing.

C. Newspaper Notice. At least ten days before the date of the public hearing or the date of action when no public hearing is required, the director or the city clerk for hearings before the city council, shall publish a notice in at least one newspaper of general circulation in the city.

D. Alternative Method for Large Mailings. If the number of owners to whom notice would be mailed or delivered is greater than one thousand, instead of mailed notice, the director or city clerk may provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation in the city at least ten days prior to the hearing.

E. Contents of Notice. The notice shall include the following information:

1. The location of the real property, if any, that is the subject of the application;

2. A general description of the proposed project or action;

3. The date, time, location, and purpose of the public hearing or the date of action when no public hearing is required;

4. The identity of the hearing body or officer;

5. The names of the applicant and the owner of the property that is the subject of the application;

6. The location and times at which the complete application and project file, including any environmental impact assessment prepared in connection with the application, may be viewed by the public;

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

8. A statement describing how to submit written comments; and

9. For council hearings, the planning commission recommendation.

F. Failure to Notify Individual Properties. The validity of the proceedings shall not be affected by the failure of any property owner, resident or neighborhood or community organization to receive a mailed notice.

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

Whenever the provisions of this title require a public hearing, the hearing shall be conducted in compliance with the requirements of state law as follows:

A. Generally. Hearings shall be conducted pursuant to procedures adopted by the hearing body. They do not have to be conducted according to technical rules relating to evidence and witnesses.

B. Scheduling. Hearings before the city council shall be scheduled by the city clerk. All other hearings shall be scheduled by the director.

C. Presentation. An applicant or an applicant's representative may make a presentation of a proposed project.

D. Public Hearing Testimony. Any person may appear at a public hearing and submit oral or written evidence, either individually or as a representative of a person or an organization. Each person who appears at a public hearing representing an organization shall identify the organization being represented.

E. Time Limits. The presiding officer may establish time limits for individual testimony and require that individuals with shared concerns select one or more spokespersons to present testimony on behalf of those individuals.

F. Continuance of Public Hearing. The body conducting the public hearing may by motion continue the public hearing to a fixed date, time and place or may continue the item to an undetermined date and provide notice of the continued hearing.

G. Investigations. The body conducting the hearing may cause such investigations to be made as it deems necessary and in the public interest in any matter to be heard by it. Such investigation may be made by a committee of one or more members of the hearing body or by city staff. The facts established by such investigation shall be submitted to the hearing body either in writing, to be filed with the records of the matter, or in testimony before the hearing body, and may be considered by the body in making its decision.

H. Decision. The public hearing shall be closed before a vote is taken.

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

When making a decision to approve, approve with conditions, modify, revoke or deny any discretionary permit under this title, the responsible authority shall issue a notice of action and make findings of fact as required by this title.

A. Date of Action. The responsible authority shall decide to approve, modify, revoke, or deny any discretionary permit following the close of the public hearing, or if no public hearing is required, within the time period set forth below. These deadlines do not apply to any action that has been appealed to the city council in accordance with Section 17.31.110, Appeals. Time extensions may be granted pursuant to Section 17.31.130, Expiration and Extension.

1. Project Exempt from Environmental Review. Within thirty days of the date the city has determined an application to be complete, a determination must be made whether the project is exempt from environmental review per state CEQA requirements.

2. Project for which a negative declaration or mitigated negative declaration is prepared. Within sixty days of the date a negative declaration or mitigated negative declaration has been completed and adopted for project approval, the city shall take action on the accompanying discretionary project.

3. Project for which an EIR is Prepared. Within one hundred eighty days from the date the decision-making authority certifies a final EIR, the city shall take action on the accompanying discretionary project.

B. Notice of Action. After the zoning administrator, director or planning commission takes any action to approve, modify, or deny an application that is subject to appeal under the terms of this title, the director shall issue a notice of action. The notice shall describe the action taken, including any applicable conditions, shall list the findings that were the basis for the decision, and shall include the procedure for appealing the decision. The director shall file the notice with the city clerk and mail the notice to the applicant, to the members of the city council and the planning commission, and to any other person or entity that has filed a written request for such notification with the planning division.

C. Findings. Findings, when required by state law or this title, shall be based upon consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record and shall be stated in writing in the resolution or record of the action on the permit.

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

A. Scope. Any approval permits only those uses and activities actually proposed in the application, and excludes other uses and activities. Unless otherwise specified, the approval of a new use shall terminate all rights and approvals for previous uses no longer occupying the same site or location.

B. Conditions of Approval. The site plan, floor plans, building elevations and/or any additional information or representations, whether oral or written, indicating the proposed structure or manner of operation submitted with an application or submitted during the approval process shall be deemed conditions of approval. Any approval may be subject to requirements that the applicant guarantees, warranties or ensures compliance with permit's plans and conditions in all respects.

C. Actions Voiding Approval. If the construction of a building or structure or the use established is contrary to the description or illustration in the application, so as to either violate any provision of this title or require additional permits, then the approval shall be deemed null and void.

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

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

A. Applicability. Notice of decision by the director or zoning administrator shall be communicated to the planning commission and city council members immediately after approval. Notice shall be made to each member individually and any calls for review shall be made as follows:

1. A member of the planning commission may call for review of a decision of the director or zoning administrator.

2. A member of the city council may call for review of a decision of the director, zoning administrator, or planning commission.

3. If a decision is called for review by both the planning commission and the city council, the city council shall conduct the review.

4. Such call for review shall not require any statement of reasons and shall not represent opposition to or support of a decision, application, or appeal.

B. Time Limits. All calls for review shall be received within fourteen calendar days of the date which the decision was communicated to the planning commission and city council. In the event the fourteen-calendar day period ends on a Saturday, Sunday, or any other day the city is closed, the time period shall end at the close of business on the next consecutive business day.

C. Procedure.

1. Design Review and Other Ministerial Actions. Where the call for review regards a design review or other ministerial action, the call for review shall be scheduled as a staff report item at the next available meeting of the body which called for review.

2. Use Permits and Other Discretionary Actions. Where the call for review regards a use permit or other discretionary action, the call for review shall be processed in the same manner as an appeal by any other person.

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

A. Applicability. Any action by the zoning administrator, director, or planning commission in the administration or enforcement of the provisions of this title may be appealed in accordance with this section.

1. Appeals of Zoning Administrator Decisions. Decisions of the zoning administrator may be appealed to the planning commission by filing a written appeal with the planning division.

2. Appeals of Director Decisions. Decisions of the director may be appealed to the planning commission by filing a written appeal with the planning division.

3. Appeals of Planning Commission Decisions. Decisions of the planning commission may be appealed to the city council by filing a written appeal with the city clerk.

B. Rights of Appeal. Appeals may be filed by the applicant, by the owner of property, or by any other person aggrieved by a decision that is subject to appeal under the provisions of this title.

C. Time Limits. Unless otherwise specified in state or federal law, all appeals shall be filed in writing within fourteen calendar days of the date which the action was taken. In the event an appeal period ends on a Saturday, Sunday, or any other day the city is closed, the appeal period shall end at the close of business on the next consecutive business day.

D. Procedures.

1. Filing. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be accompanied by the required fee.

2. Proceedings Stayed by Appeal. The timely filing of an appeal shall stay all proceedings in the matter appealed including, but not limited to, the issuance of city building permits and business licenses.

3. Transmission of Record. The director, or in the case of appeals to the city council, city clerk, shall schedule the appeal for consideration by the authorized hearing body within forty-five days of the date the appeal is filed. The director shall forward the appeal, the notice of action, and all other documents that constitute the record to the hearing body. The director shall also prepare a staff report that responds to the issues raised by the appeal and may include a recommendation for action.

E. Standards of Review. When reviewing any decision on appeal, the appeal body shall use the same standards for decision-making required for the original decision. The appeal body may adopt the same decision and findings as were originally approved; it also may request or require changes to the application as a condition of approval.

F. Public Notice and Hearing. Public notice shall be provided and the hearing conducted by the applicable appeal body pursuant to chapter 17.31, Common Procedures. Notice of the hearing shall also be given to the applicant and party filing the appeal and any other interested person who has filed with the city clerk a written request for such notice. In the case of an appeal of a planning commission decision, notice of such appeal shall also be given to the planning commission. The planning commission may be represented at the hearing.

G. Action. An action to grant an appeal shall require a majority vote of the hearing body members. A tie vote shall have the effect of rejecting the appeal.

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

A final decision on an application for any approval subject to appeal shall become effective after the expiration of the fourteen-calendar day appeal period following the date of action, unless an appeal is filed pursuant to Section 17.31.110, Appeals, or a member of the planning commission or city council call for review of a decision pursuant to Section 17.31.100, Calls for Review. No building permit or business license shall be issued until the 15th calendar day following the date of the action. If a different termination date is fixed at the time of granting, or if actual construction or alteration has begun under valid building permits, the fourteen-calendar day period may be waived.

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

A. Expiration. The decision-maker, in the granting of any permit, may specify a time, consistent with the purposes of the use and necessary to safeguard the public safety, health and welfare, within which the proposed use must be undertaken and actively and continuously pursued. If no time period is specified, any permit granted under this title shall automatically expire if it is not exercised or extended within two years of its approval.

B. Exercise of Use Permit. A permit for the use of a building or a property is exercised when, if required, a valid city business license has been issued, and the permitted use has commenced on the site.

C. Exercise of Building Permit. A permit for the construction of a building or structure is exercised when a valid city building permit, if required, is issued, and construction has lawfully commenced.

D. Extensions. The Zoning Administrator may approve a two-year extension of any permit or approval granted under this title upon receipt of a written application with the required fee within two years of the date of the approval.

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

No change in the use or structure for which a permit or other approval has been issued is permitted unless the permit is modified as provided for in this title. For the purpose of this section, the modification of a permit may include modification of a design review approval.

A. Minor Modifications. The zoning administrator may approve minor changes to approved plans that are consistent with the original findings and conditions approved by the hearing body and would not intensify any potentially detrimental effects of the project.

B. Major Modifications. A request for changes in conditions of approval of a discretionary permit or a change in an approved site plan or building plan that would affect a condition of approval shall be treated as a new application, except that the zoning administrator may approve changes determined to be minor.

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

Any permit granted under this title may be revoked or modified for cause if any of the conditions or terms of the permit are violated or if any law or ordinance is violated. Notwithstanding this provision, no lawful residential use can lapse regardless of the length of time of the vacancy.

A. Initiation of Proceeding. Revocation proceedings may be initiated by the city council, planning commission, director, or zoning administrator.

B. Public Notice, Hearings and Action. After conducting a duly-noticed public hearing, the planning commission shall act on the proposed revocation.

C. Required Findings. The planning commission may revoke or modify the permit if it makes any of the following findings:

1. The approval was obtained by means of fraud or misrepresentation of a material fact;

2. The use, building, or structure has been substantially expanded beyond what is set forth in the permit or substantially changed in character;

3. The use in question has ceased to exist or has been suspended for six months or more;

4. There is or has been a violation of or failure to observe the terms or conditions of the permit or variance, or the use has been conducted in violation of the provisions of this title, or any applicable law or regulation; or

5. The use to which the permit or variance applies has been conducted in a manner detrimental to the public safety, health and welfare, or so as to be a nuisance.

D. Notice of Action. Following planning commission action to revoke or modify a permit, the director shall within seven days issue a notice of action describing the commission's action, with its findings. The director shall mail notice to the permit holder and to any person who requested the revocation proceeding.

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

Requests for interpretations of this title and verifications relating to prior approvals or permits may be made to the director. Requests shall be in writing. The decision of the director on such requests may be appealed under Section 17.31.110, Appeals.

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