Newark Municipal Code Ch. 17.37 Waivers

The purpose of this chapter is to establish an alternate means of granting relief from the requirements of this title when so doing would be consistent with the purposes of the title and it is not possible or practical to approve a variance. It also allows the director to grant waivers when necessary to comply with the Federal Fair Housing Act, the Americans with Disabilities Act, and the California Fair Employment and Housing Act to provide reasonable accommodation to persons with disabilities seeking fair access to housing through a waiver of the application of the city's zoning regulations.

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

Waivers may be granted as follows:

A. Dimensional Requirements. Relief from dimensional requirements of property development standards specified in this title, not to exceed ten percent of the requirement, may be granted in accordance with the requirements of this chapter.

B. Accommodation of Disabilities. A waiver of any zoning regulation where the waiver is necessary to allow improvements to an existing building in order to provide reasonable accommodations to individuals with disabilities. This waiver is not available in the case of new buildings, demolitions and rebuilds, or additions where the proposed construction precludes a reasonable accommodation that would not require a waiver.

C. Exclusions. Waivers cannot be granted for any of the following standards:

1. Lot area, width, or depth.

2. Residential density.

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

A. Review Authority. The director shall approve, conditionally approve, or deny applications for waivers based on consideration of the requirements of this chapter.

B. Concurrent Processing. If a request for a waiver is being submitted in conjunction with an application for another approval, permit, or entitlement under this title, it shall be heard and acted upon at the same time and in the same manner as that application.

C. Application Requirements. An application for a waiver shall be filed to the director in accordance with Section 17.31.020, Application Forms and Fees. The application shall state in writing the nature of the waiver requested and explain why the findings necessary to grant the waiver are satisfied. The applicant shall also submit plans delineating the requested waiver.

D. Review of Requests for Reasonable Accommodation to Ensure Access to Housing. The director shall issue a written decision within forty-five days of the date of the application and may grant the reasonable accommodation request, grant with waivers, or deny the request. All written decisions shall give notice of the right to appeal and to request reasonable accommodation in the appeals process.

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

A decision to grant a waiver shall be based on the following findings:

A. The waiver is necessary due to the physical characteristics of the property and the proposed use or structure or other circumstances, including, but not limited to, topography, noise exposure, irregular property boundaries, or other unusual circumstance.

B. There are no alternatives to the requested waiver that could provide an equivalent level of benefit to the applicant with less potential detriment to surrounding owners and occupants or to the general public.

C. The granting of the requested waiver would not be detrimental to the health or safety of the public or the occupants of the property or result in a change in land use or density that would be inconsistent with the requirements of this title.

D. If the waiver requested is to provide reasonable accommodation pursuant to state or federal law, in addition to any other findings that this chapter requires, the decision-maker must also make the following findings:

1. That the housing or other property which is the subject of the request for reasonable accommodation will be used by an individual or organization entitled to protection;

2. If the request for accommodation is to provide fair access to housing, that the request for accommodation is necessary to make specific housing available to an individual protected under state or federal law;

3. That the conditions imposed, if any, are necessary to further a compelling public interest and represent the least restrictive means of furthering that interest; and

4. That denial of the requested minor exception or waiver would impose a substantial burden on religious exercise or would conflict with any state or federal statute requiring reasonable accommodation to provide access to housing.

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

A. In approving a waiver, the decision-maker may impose any conditions deemed necessary to:

1. Ensure that the proposal conforms in all significant respects with the general plan and with any other applicable plans or policies adopted by the city council;

2. Achieve the general purposes of this title or the specific purposes of the zoning district in which the project is located;

3. Achieve the findings for a waiver granted; or

4. Mitigate any potentially significant impacts identified as a result of review conducted in compliance with the California Environmental Quality Act.

B. Waivers approved based on state or federal requirements for reasonable accommodation may be conditioned to provide for rescission or automatic expiration based on a change of occupancy or other relevant change in circumstance.

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

A. Notice of Action. Notice of action shall be provided pursuant to Subsection 17.31.080.B, Notice of Action.

B. Appeals. The applicant or any other aggrieved party may appeal a decision on waiver pursuant to the provisions of Section 17.31.110, Appeals.

C. Expiration, Extensions, and Revisions. Waivers granted under this chapter are effective and may only be extended or revised as provided for in Chapter 17.31, Common Procedures.

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