Article I — General Provisions

The provisions of this Chapter shall be known as the Bicycle Parking Requirements. The purpose of these regulations is to require secure and adequate long term and short term parking for bicycles, thereby promoting alternative transportation, providing additional, more sustainable transportation choices for residents and commuters, and reducing traffic congestion and air pollution. Except as may otherwise be specified in Chapter 17.101E for the D-CE Zones, these requirements shall apply to the indicated activities as specified hereinafter. See Chapter 17.101E Central Estuary District Zones Regulations for bicycle parking regulations specific to Boat and Marine-Related Sales, Rental, Repair and Servicing for the D-CE Central Estuary District Zones.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. 12884 § 2 (part), 2008)

17.117.020 - Bicycle parking required for new and existing uses.

A.

Bicycle Parking Shall be Provided for New Facilities and Additions to Existing Facilities. Bicycle parking as prescribed hereafter shall be provided for activities occupying facilities, or portions thereof, which are constructed, established, wholly reconstructed, or moved onto a new lot after the effective date of the bicycle parking requirements, or of a subsequent rezoning or other amendment thereto establishing or increasing bicycle parking for such activities, except to the extent that existing bicycle parking exceeds such requirements for any existing facilities. The required amount of new bicycle parking shall be based on the cumulative increase in floor area, or other applicable unit of measurement prescribed hereafter, after said effective date.

B.

Bicycle Parking Shall be Provided for Remodels. "Remodel" means any proposed physical improvement of an existing structure which requires a building permit but does not include New Facilities or Additions to Existing Facilities.

1.

Remodel projects that are over ten thousand (10,000) square feet and have an estimated construction cost, excluding seismic retrofit costs, greater than two hundred fifty thousand dollars ($250,000.00) shall provide the number of short-term bicycle parking spaces prescribed in Sections 17.117.090 to 17.117.120. This amount shall be adjusted to account for changes in the Building Cost Index for the San Francisco Bay Region, as reported in the Engineering News Record. The adjustment shall be made annually, starting in 2009, no sooner than one year from adoption.

2.

Remodel projects that are over fifty thousand (50,000) square feet and have an estimated construction cost, excluding seismic retrofit costs, over one million dollars ($1,000,000.00) shall provide, in addition to short-term bicycle parking, the number of long-term bicycle parking spaces and shower and locker facilities prescribed in Sections 17.117.090 to 17.117.130. This amount shall be adjusted to account for changes in the Building Cost Index for the San Francisco Bay Region, as reported in the Engineering News Record. The adjustment shall be made annually, starting in 2009, no sooner than one year from adoption.

C.

Bicycle Parking Shall be Provided for New Living Units in Existing Facilities. If any facility, or portion thereof, which is in existence on the effective date of the bicycle parking requirements, or of a subsequent rezoning or other amendment thereto establishing or increasing bicycle parking requirements for an activity therein, is altered or changed in occupancy so as to result in an increase on the number of residential living units therein, bicycle parking as prescribed hereafter shall be provided for the new units. However, such bicycle parking need be provided only in the amount by which the requirement prescribed hereafter for the facility after said alteration or change exceeds the requirement prescribed hereafter for the facility as it existed prior to such alteration or change; and such new bicycle parking need not be provided to the extent that existing bicycle parking exceeds the latter requirement.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12884 § 2 (part), 2008)

Whenever a single lot contains different activities with the same bicycle requirement, the overall requirement shall be based on the sum of all such activities, and the minimum size prescribed hereafter for which any bicycle parking is required shall be deemed to be exceeded for all such activities if it is exceeded by their sum. Whenever a single lot contains activities with different bicycle parking requirements, the overall requirement shall be the sum of the requirements for each activity calculated separately; provided, however, that the minimum size prescribed hereafter for which any bicycle parking is required shall be deemed to be exceeded on said lot for all activities for which the same or a smaller minimum size, expressed in the same unit of measurement, is prescribed, if said minimum size is exceeded by the sum of all such activities on the lot

(Ord. 12884 § 2 (part), 2008)

In the case of activities for which the Director of City Planning is required to prescribe a number of bicycle parking spaces or for which this Chapter is not clear or does not prescribe a number of spaces, the Director of City Planning shall base his or her written determination on the number of employees, residents or customers and the nature of operations conducted on the site. Any such written determination shall he subject to appeal pursuant to the administrative appeal procedure in Chapter 17.132.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12884 § 2 (part), 2008)

Article II. - Standards for Required Bicycle Parking

A.

Long-term Bicycle Parking. Each long-term bicycle parking space shall consist of a locker or locked enclosure providing protection for each bicycle from theft, vandalism and weather. Long-term bicycle parking is meant to accommodate employees, students, residents, commuters, and others expected to park more than two hours.

B.

Short-term Bicycle Parking. Short-term bi-cycle parking shall consist of a bicycle rack or racks and is meant to accommodate visitors, customers, messengers, and others expected to park not more than two hours.

(Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. 12884 § 2 (part), 2008)

17.117.060 - Minimum specifications for required bicycle parking.

A.

All bicycle parking facilities shall be dedicated for the exclusive use of bicycle parking.

B.

All required short-term bicycle parking spaces shall permit the locking of the bicycle frame and one wheel with a U-type lock, support the bicycle in a stable position without damage to wheels, frame, or components, and provide two (2) points of contact with the bicycle's frame.

C.

All required long-term bicycle parking spaces, with the exception of bicycle lockers, shall permit the locking of the bicycle frame and one wheel with a U-type lock, and support the bicycle in a stable position without damage to wheels, frame, or components.

D.

Bicycle parking facilities shall be securely anchored so they cannot be easily removed and shall be of sufficient strength and design to resist vandalism and theft.

E.

The overall design and spacing of such facilities shall meet the standards of Section 17.117.070 or as may be modified.

(Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. 12884 § 2 (part), 2008)

17.117.070 - Location and design of required bicycle parking.

Required bicycle parking shall be placed on site(s) as set forth below:

A.

A bicycle parking space shall be at least two and a half (2.5) feet in width by six (6) feet in length to allow sufficient space between parked bicycles.

B.

An encroachment permit may be required from the City to install bicycle parking in the public right-of-way.

C.

Bicycle parking facilities shall not impede pedestrian or vehicular circulation.

1.

Bicycle parking racks located on sidewalks should maintain a minimum of five and one-half (5.5) feet of unobstructed pedestrian right-of-way outside the bicycle parking space. For sidewalks with heavy pedestrian traffic, at least seven (7) feet of unobstructed right-of-way is required.

D.

Bicycle parking facilities are subject to the following standards:

1.

Racks shall be located with at least thirty (30) inches in all directions from any vertical obstruction, including but not limited to, other racks, walls, and landscaping. General Food Sales, Full-service restaurant, Limited Service Restaurant and Cafe, and Large-Scale Combined Retail and Grocery Sales Activities are encouraged to locate racks with a thirty-six (36) inch clearance in all directions from any vertical obstruction, including but not limited to, other racks, walls, and landscaping.

2.

A minimum four (4) foot wide aisle of unobstructed space behind all required bicycle parking shall be provided to allow for adequate bicycle maneuvering.

E.

Bicycle parking facilities within auto parking facilities shall be protected from damage by cars by a physical barrier such as curbs, wheel stops, poles, bollards, or other similar features capable of preventing automobiles from entering the bicycle facility.

F.

Bicycle parking facilities shall be located in highly visible well-lighted areas. In order to maximize security, whenever possible short-term bicycle parking facilities shall be located in areas highly visible from the street and from the interior of the building they serve (i.e. placed adjacent to windows).

G.

The location and design of required bicycle parking shall be of a quality, character and color that harmonize with adjoining land uses. Required bicycle parking shall be incorporated whenever possible into building design or street furniture.

H.

Long-term bicycle parking shall be covered and shall be located on site or within five hundred (500) feet of the main building entrance unless approved by the Director of City Planning with a written Discretionary Waiver. The main building entrance excludes garage entrances, trash room entrances, and other building entrances that are not publicly accessible.

I.

Discretionary Waiver. The long-term bicycle parking location requirement of five hundred (500) feet may be waived in writing by the Director of City Planning when said activities are located within one thousand (1,000) feet of a proposed or existing bike station or similar high-capacity bicycle parking facility. Any determination on such waiver shall be subject to appeal pursuant to the administrative appeal procedure in Chapter 17.132.

J.

Whenever any required bicycle parking is proposed to be provided on a lot other than the lot containing the activity served, the owner or owners of both lots shall prepare and execute to the satisfaction of the City Attorney, and file with the Alameda County Recorder, an agreement guaranteeing that such facilities will be maintained and reserved for the activity served, for the duration of said activity.

K.

Short-term bicycle parking shall be placed within fifty (50) feet of the main entrance to the building or commercial use and should be in a well trafficked location visible from the entrance. When the main entrance fronts the sidewalk, the installer may obtain an encroachment permit from the City to install the bicycle parking in the public right-of-way. The main building entrance excludes garage entrances, trash room entrances, and other building entrances that are not publicly accessible.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12884 § 2 (part), 2008)

Article III. - Minimum Number of Required Bicycle Parking Spaces

17.117.080 - Calculation Rules.

A.

If after calculating the number of required bicycle parking spaces a quotient is obtained containing a fraction of one-half (½) or more, an additional space shall be required; if such fraction is less than one-half (½), it may be disregarded.

B.

When the bicycle parking requirement is based on number of employees, the number of spaces shall be based on the number of working persons on the lot during the largest shift of the peak season. If the Director of City Planning determines that this number is difficult to verify for a specific facility, then the number of required long-term bicycle parking spaces shall be a minimum of two (2) spaces or five percent (5%) of the amount of required automobile spaces for the proposed facility, whichever is greater.

C.

When the bicycle parking requirement is based on number of seats, in the case of pews or similar facilities, each twenty (20) inches shall be counted as one seat.

D.

The calculation of short-term bicycle parking may include existing racks that are in the public right-of-way and are within fifty (50) feet of the main entrance.

(Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12884 § 2 (part), 2008)

17.117.090 - Required bicycle parking—Residential Activities.

Subject to the calculation rules set forth in Section 17.117.080, the following minimum amounts of bicycle parking are required for all Residential Activities and shall be developed and maintained pursuant to the provisions of Article II of this Chapter (If the property is a BART owned parcel subject to Assembly Bill (AB) 2923 (2018), the minimum number of secure (long-term) bicycle parking spaces shall be one space per dwelling unit):

Residential Care, Supportive Housing, Transitional Housing, and Emergency Shelter Residential Activities occupying the specified facilities:

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13666, § 3(Exh. A), 1116-2021; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12884 § 2 (part), 2008)

Subject to the calculation rules set forth in Section 17.117.080, the following minimum amounts of bicycle parking are required for the specified Civic Activities and shall be developed and maintained pursuant to the provisions of Article II of this Chapter:

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12884 § 2 (part), 2008)

17.117.110 - Required bicycle parking—Commercial Activities.

Subject to the calculation rules set forth in Section 17.117.080, the following amounts of bicycle parking are required for the specified Commercial Activities and shall be developed and maintained pursuant to the provisions of Article II of this Chapter:

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13241, § 5(Exh. E), 7-1-2014; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12884 § 2 (part), 2008)

17.117.120 - Required bicycle parking—Industrial and all other Activities.

Subject to the calculation rules set forth in Section 17.117.080, the following minimum amounts of bicycle parking are required for the specified Industrial, Agricultural and Extractive Activities and All Other Activities and shall be developed and maintained pursuant to the provisions of Article II of this Chapter:

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12884 § 2 (part), 2008)

Editor's note— Ord. No. 13064, § 2(Exh. A), adopted March 15, 2011, changed the title of Section 17.117.120 from "Required bicycle parking—Industrial, manufacturing and all other activities" to "Required bicycle parking—Industrial and all other activities." The historical notation has been preserved for reference purposes.

17.117.130 - Required shower and locker facilities.

Subject to the calculation rules set forth in Section 17.117.080, the following amounts of shower facilities and lockers are required per gender for the specified activities and shall be developed and maintained pursuant to the provisions of Article II of this Chapter:

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12884 § 2 (part), 2008)

17.117.140 - Additional considerations for variance determination.

A variance may be granted if the applicant can make the variance findings contained in Section 17.148.050. In making a variance determination, the following additional considerations should be taken into account:

The variance, if granted, will not be contrary to the policies included in the Bicycle Master Plan.

2.

Consideration can be afforded to a proposal if incorporation of the bicycle parking would be detrimental to other bicycle or pedestrian facilities.

3.

Consideration can be afforded to a proposal with a site access that is in excess of the street grade criteria established by the Bicycle Master Plan.

4.

In consideration of what is physically feasible, the proposal meets as many of the bicycle parking requirements as possible to provide a form of storing bicycles in a safe, secure and accessible manner.

(Ord. No. 12939, § 4(Exh. A), 6-16-2009; Ord. 12884 § 2 (part), 2008)

The total number of required off-street automobile parking spaces may be reduced at the ratio of one automobile space for each six (6) bicycle spaces provided in excess of the requirements in this Chapter. The bicycle parking provided for this automobile parking credit shall include both long-term and short-term bicycle parking in proportion to the minimum long-term and short-term requirements for the given project. The total number of required off-street automobile parking spaces cannot be reduced by more than ten percent (10%).

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3- 15-2011; Ord. 12884 § 2 (part), 2008)

Chapter 17.118 - RECYCLING SPACE ALLOCATION REQUIREMENTS

Sections:

17.118.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Recycling and Organics Space Allocation Requirements. The purpose of these provisions is to prescribe standards by which to ensure consistency with the requirements of Chapter 18 of Division 30 of the Public Resources Code, commencing with Section 42900, known as the California Solid Waste Reuse and Recycling Access Act of 1991, and to

ensure the provision of adequate, accessible, and convenient locations for the collection and storage of recyclable materials within containers and enclosures which are compatible with surrounding land uses and structures. These standards shall apply to certain affected development projects as specified in Section 17.118.020. The purpose of this Chapter is also to ensure consistency with the requirements of CALGreen Sections 4.410.2 and 5.410.1 and 14 CCR Section 18989.1(a)(1) (regulations under Senate Bill (SB) 1383, the Short-lived Climate Pollutant Reduction Act of 2016).

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11807 § 1 (part), 1995: prior planning code § 7600; Ord. No. 13673, § 1, 12-21-2021)

The following development projects shall provide adequate, accessible, and convenient areas for collecting and loading recyclable materials:

A.

Any new residential development of five units or more where solid waste is collected and loaded in a location serving five (5) or more living units, or new commercial or industrial development including marinas, for which a building permit is required, and said permit application is submitted on or after the effective date of these regulations;

B.

Any new public facility where solid waste is collected and loaded and any improvements made to areas of an existing public facility used for collecting and loading solid waste;

C.

Any existing residential development project of five units or more where solid waste is collected and loaded in a location serving five (5) or more living units, or existing commercial or industrial development including marinas, for which an application for a building permit is submitted on or after September 1, 1994 for an alteration(s) which adds thirty percent (30%) or more to the existing gross floor area of the development project;

D.

Any existing residential development project of five (5) units or more where solid waste is collected and loaded in a location serving five or more living units, or existing commercial or industrial development or marina, for which multiple applications for building permits are submitted within a twelve (12) month period on or after September 1, 1994, which collectively add thirty percent (30%) or more to the existing gross floor area of the development project;

E.

Any existing residential development project of five (5) units or more where solid waste is collected and loaded in a location serving five (5) or more living units, or existing commercial or industrial development or marina, occupied by multiple tenants, one of which submits within a twelve (12) month period an application or a series of applications for building permits for alterations which singly or collectively add thirty percent (30%) or more to the existing floor area of that portion of the project which said tenant leases. In such cases, adequate areas for the collection and loading of recyclable materials adequate in number and capacity to serve that portion of the development project said tenant leases shall be provided.

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 11807 § 1 (part), 1995: prior planning code § 7601)

The design, location and maintenance of recycling and organics collection and storage areas must substantially comply with the provisions of the Oakland City Planning Commission "Guidelines for the Development and Evaluation of Recycling and Organics Collection and Storage Areas," as they may be amended. In addition, space devoted to the collection and storage of recyclable materials and organic materials shall be adequate in capacity, number and distribution to serve the affected development. Where "organics" is mentioned, "compost" shall mean the equivalent.

A.

Space allocated for recycling collection and storage areas within affected residential projects shall be provided in the amount of two (2) cubic feet of storage and collection space per residential unit, with a minimum requirement that not less than ten (10) cubic feet be provided.

B.

Space allocated for organic waste material collection and storage areas within affected residential projects shall be provided in the amount of one (1) cubic foot of storage and collection space per residential unit, with a minimum requirement that not less than ten (10) cubic feet be provided.

C.

Space allocated for recycling collection and storage areas within affected commercial, industrial and public facility projects shall be provided in the amount of two (2) cubic feet of storage and collection space per each one thousand (1,000) square feet, or portion thereof, of the total gross building square footage, with a minimum requirement that not less than ten (10) cubic feet be provided.

D.

Space allocated for organics collection and storage areas within affected commercial, industrial and public facility projects shall be provided in the amount of two (2) cubic feet of storage and collection space per each one thousand (1,000) square feet, or portion thereof, of the total gross building square footage, with a minimum requirement that not less than ten (10) cubic feet be provided.

E.

Comply with all relevant sections of 4.410.2 and 5.410.1 of the California Green Building Standards Code, 24 CCR, Part 11 as amended July 1, 2019 and effective January 1, 2020 (CALGreen SB 1383 Baseline Requirements).

(Ord. 11807 § 1 (part), 1995: prior planning code § 7602; Ord. No. 13673, § 1, 12-21-2021)

Editor's note— Ord. No. 13673, § 1, adopted Dec. 21, 2021, amended the title of § 17.118.030 to read as herein set out. The former § 17.118.030 title pertained to recycling space allocation requirements.

Plans indicating the proposed design, size and location of both new and existing recycling, organics and trash enclosures shall be submitted to the Director of City Planning to be reviewed concurrently during the appropriate review procedure required for the proposed development. For those development projects not requiring planning applications but for which building permits are required, plans indicating the design, size and location of recycling and trash enclosures shall be submitted to the Building Official, to be included with the building permit plan check submittal for the proposed development project.

(Ord. 11807 § 1 (part), 1995: prior planning code § 7603; Ord. No. 13673, § 1, 12-21-2021)

Chapter 17.120 - PERFORMANCE STANDARDS

Sections:

The provisions of this Chapter shall be known as the Performance Standards. The purpose of these standards is to control dangerous or objectionable environmental effects of all activities. These standards shall apply to the indicated activities in the zones and situations specified herein.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11895 § 6, 1996: prior planning code § 7700)

17.120.020 - Existing activities.

Activities existing on the effective date of the zoning regulations, or of a subsequent rezoning or other amendment thereto applying more restrictive performance standards to such activities, shall not be required to change their operations to comply with the performance standards. However, their operations shall not be so changed as to result in a greater degree of nonconformity with respect to such standards, except as otherwise authorized under the development agreement procedure in Chapter 17.138. For existing activities meeting the definition specified in Section 17.114.080C., an expansion greater than twenty percent (20%) of production (e.g. non-administrative) floor area is one example of a change in operations that shall be considered an increase in the degree of nonconformity.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord 12875 § 2 (part), 2008; Prior planning code § 7701)

The Director of City Planning may require the applicant for a building permit or business license to submit such information with respect to proposed machinery, processes, products, or environmental effects as may be necessary to demonstrate the ability of the proposed activities to comply with applicable performance standards. Such required information may include reports to expert consultants. Any such requirement, and any determination by the Director as to sufficiency of proof, may be appealed pursuant to the administrative appeal procedure in Chapter 17.132.

(Prior planning code § 7703)

When measurements are necessary, levels of dangerous or objectionable environmental effects shall be measured in accordance with accepted engineering practice.

(Prior planning code § 7704)

All activities shall be so operated that the noise level inherently and regularly generated by these activities across real property lines shall not exceed the applicable values indicated in Subsection A., B., or C. as modified where applicable by the adjustments indicated in Subsection D. or E. Further noise restrictions are outlined in Section 8.18.010 of the Oakland Municipal Code.

A.

Residential Zone Noise Level Standards. The maximum allowable noise levels received by any Residential Zone are described in Table 17.120.01.

Table 17.120.01 establishes the maximum allowable receiving noise levels:

TABLE 17.120.01

MAXIMUM ALLOWABLE RECEIVING NOISE LEVEL STANDARDS, RESIDENTIAL AND CIVIC

B.

Commercial Noise Level Standards. The maximum allowable noise levels received by any land use activity within any Commercial Zone (including the Housing and Business Mix HBX Zones, and the Central Estuary District D-CE-3 and D-CE-4 Zones) are described in Table 17.120.02.

Table 17.120.02 establishes the maximum allowable receiving noise levels:

TABLE 17.120.02

MAXIMUM ALLOWABLE RECEIVING NOISE LEVEL STANDARDS

C.

Industrial, Agricultural and Extractive Noise Level Standards. The maximum allowable noise levels received by any land use activity within any Industrial Zone are described in Table 17.120.03.

Table 17.120.03 establishes the maximum allowable receiving noise levels:

TABLE 17.120.03

MAXIMUM ALLOWABLE RECEIVING NOISE LEVEL STANDARDS, dBA

D.

In the event the measured ambient noise level exceeds the applicable noise level standard in any category above, the stated applicable noise level shall be adjusted so as to equal the ambient noise level.

E.

Each of the noise level standards specified above in Subsections A., B., and C. shall be reduced by five (5) dBA for a simple tone noise such as a whine, screech, or hum, noise consisting primarily of speech or music, or for recurring impulse noise such as hammering or riveting.

F.

Noise Measurement Procedures. Utilizing the "A" weighing scale of the sound level meter and the "slow" meter response (use "fast" response for impulsive type sounds), the noise level shall be measured at a position or positions at any point on the receiver's property. In general, the microphone shall be located four (4) to five (5) feet above the ground; ten (10) feet or more from the nearest reflective surface, where possible. However, in those cases where another elevation is deemed appropriate, the latter shall be

"fast" response for impulsive type sounds), the noise level shall be measured at a position or positions at any point on the receiver's property. In general, the microphone shall be located four (4) to five (5) feet above the ground; ten (10) feet or more from the nearest reflective surface, where possible. However, in those cases where another elevation is deemed appropriate, the latter shall be

utilized. If the noise complaint is related to interior noise levels, interior noise measurements shall be made within the affected residential unit. The measurements shall be made at a point at least four (4) feet from the wall, ceiling or floor nearest the noise source, with windows in the normal seasonal configuration.

G.

Temporary Construction or Demolition Which Exceed the Following Noise Level Standards.

1.

The daytime noise level received by any Residential, Commercial, or Industrial land use which is produced by any nonscheduled, intermittent, short-term construction or demolition operation (less than ten (10) days) or by any repetitively scheduled and relatively long-term construction or demolition operation (ten (10) days or more) shall not exceed the maximum allowable receiving noise levels described in Table 17.120.04.

Table 17.120.04 establishes the maximum allowable receiving noise levels:

TABLE 17.120.04

MAXIMUM ALLOWABLE RECEIVING NOISE LEVEL STANDARDS, dBA

2.

The nighttime noise level received by any land use and produced by any construction or demolition activity between weekday hours of seven (7) p.m. and seven (7) a.m. or between eight (8) p.m. and nine (9) a.m. on weekends and federal holidays shall not exceed the applicable nighttime noise level standards outlined in this Section.

H.

Residential Air Conditioning Units and Refrigeration Systems. The exterior noise level associated with a residential air conditioning unit or refrigeration systems shall not exceed fifty (50) dBA, with the exception that systems installed prior to the effective date of this Section shall not exceed fifty-five (55) dBA.

I.

Commercial Refrigeration Units. Stationary and mobile commercial refrigeration units shall not produce a noise level greater than the noise level standards set forth in this Section. Between the hours of ten (10) p.m. and seven (7) a.m., a mobile refrigeration unit shall not be located within two hundred (200) feet of any Residential Zone boundary unless such unit is within an enclosure which reduces the noise level outside the enclosure to no more than sixty (60) dBA and reduces vibration to a level below the vibration perception threshold set forth in Section 17.120.060.

J.

Commercial Exhaust Systems. Unnecessary noise caused by exhaust from ventilation units, or other air control device shall not produce a noise level greater than the noise level standards set forth in this Section between the hours of ten p.m. and seven a.m. and shall not be located within two hundred (200) feet of any Residential Zone boundary unless such unit is within an enclosure which reduces the noise level outside the enclosure to no more than sixty (60) dBA and reduces vibration to a level below the vibration perception threshold set forth in Section 17.120.060.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. 12875 § 2(part), 2008; Ord. 12872 § 4 (part), 2008; Ord. 11895 § 7, 1996: prior planning code § 7710)

All activities, except those located within the M-40, the D-DT-JLI, D-CE-1, D-CE-2, D-CE-5, D-CE-6, D-CO, IG, or CIX Zones more than four hundred (400) feet from any Residential Zone boundary, shall be so operated as not to create a vibration which is perceptible without instruments by the average person at or beyond any lot line of the lot containing such activities. Ground vibration caused by motor vehicles, trains, and temporary construction or demolition work is exempted from this standard.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. 12875 § 2(part), 2008; Ord. 11895 § 8, 1996: prior planning code § 7711)

All Commercial and Industrial Activities located in a Residential Zone or in any HBX, D-CO, D-DT-JLI, D-CE, CIX, or M-40 Zone shall be so operated as not to emit visible smoke as dark as Ringelmann number 2 or its equivalent opacity for more than three minutes in any one-hour period, and visible smoke as dark as Ringelmann number 1 or its equivalent opacity for more than an additional seven minutes in any one-hour period. Darker or more opaque smoke is prohibited at any time.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12899 § 4, Exh. A, 2008; Ord. 12875 § 2(part), 2008; prior planning code § 7712)

All Commercial and Industrial Activities which are located in a Residential Zone or the S-3, CIX, HBX, D-DTJLI, D-CO, D-CE-3, or D-CE-4 Zones, or which are located in the D-CE-1, D-CE-2, D-CE-5, D-CE-6, M-40,

IG, or IO Zones within four hundred (400) feet of any boundary of a Residential Zone, shall be so operated as not to emit particulate matter of air contaminants which are readily detectable without instruments by the average person at or beyond any lot line of the lot containing such activities.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12875 § 2(part), 2008; prior planning code § 7713)

When located in the zones specified below, all Commercial and Industrial Activities shall be so operated as not to emit matter causing unpleasant odors which are perceptible by the average person at the following point of determination described in Table 17.120.05. Table 17.120.05 establishes the maximum allowable receiving noise level standards.

Table 17.120.05: Points of Determination for Odor

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12875 § 2(part), 2008; prior planning code § 7714)

When located in the zones specified below, all Commercial and Industrial Activities shall be so operated as not to produce humidity, heat, cold, or glare which is perceptible without instruments by the average person at the points of determination described in Table 17.120.06. Table 17.120.06 establishes the maximum allowable receiving noise level standards.

Table 17.120.06: Points of Determination for Humidity, Heat, Cold and Glare

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12875 § 2(part), 2008; prior planning code § 7715)

All Commercial and Industrial Activities located in a Residential Zone or the M-20, S-3, HBX, D-CE-3, D- CE-4, CIX-1, CIX-1A, CIX-1B, CIX-1C, or CIX-1D Zone, or located in the D-DT-JLI, D-CO, D-CE-1, D-CE-2, D-CE-5, D-CE-6, CIX-2, IG, M-30, or M-40 Zones and within four hundred (400) feet of any boundary of a Residential Zone, shall be so operated as not to cause electrical disturbance adversely affecting the operation of any equipment on any other lot.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12875 § 2(part), 2008; prior planning code § 7716)

Chapter 17.122 - REPLACEMENT HOUSING UNIT REGULATIONS

Sections:

17.122.010 - Title and purpose.

A.

Title. This Chapter shall be referred to as the City of Oakland Replacement Housing Unit Regulations.

B.

Purpose. This Chapter establishes City of Oakland implementation of Article 2 of the Housing Crisis Act, California Government Code Section 66300.5 et sequitur.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

For purposes of this Chapter only, the following definitions shall apply:

"Developer." Developer means the owner or owner's authorized agent, or other person, including a lessee, having the right under the Oakland Zoning Regulations, to make an application for development. It shall also include any successor in interest thereto.

"Demolition of Protected Units." Demolition of Protected Units means any action that results in the elimination of, or reduction in the number of bedrooms in, one or more existing Protected Units, including but not limited to the razing, tearing down or wrecking of any facility, structure or building, the conversion of existing Protected Units into non-residential uses, the conversion of existing Protected Units into unprotected Dwelling Units, and subdivisions through existing structures that would place each existing Protected Unit on separate parcels. Notwithstanding the above, applications for condominium conversion

in the City of Oakland shall be regulated pursuant to Oakland Municipal Code Chapter 16.36 in lieu of compliance with this Chapter.

"Equivalent Size." Equivalent Size means that each Replacement Deed-Restricted Units contains at least the same number of bedrooms as the Dwelling Unit being Replaced. Replacement Deed-Restricted Units in newly constructed buildings must also contain at least ninety (90) percent of the square footage of the Dwelling Unit being Replaced.

"Protected Unit." Protected Unit means a Dwelling Unit, regardless of condition or zoning status, that meets any of the following:

1.

A rental Dwelling Unit that is currently subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to Lower Income Households; is currently subject to any other form of rent or price control, including Oakland Municipal Code Section 8.22.010 et seq. and the California Tenant Protection Act of 2019, as subsequently amended; or was subject to the above in the five-year period preceding the submittal of an application for development approvals, regardless of whether the unit has been vacated or demolished;

2.

A rental Dwelling Unit that is occupied by a Lower Income Household or was occupied by a Lower Income Household in the five year-period preceding the submittal of an application for development approvals, regardless of whether the unit has been vacated or demolished;

3.

A rental Dwelling Unit that has been withdrawn from rent or lease pursuant to the Ellis Act, Government Code Section 7060 et seq. in the ten-year period preceding the submittal of an application for development approvals.

"Replacement Deed-Restricted Unit" Replacement Deed-Restricted Unit means a dwelling unit that fulfills the obligation to Replace, as defined in Section 17.122.040, a Protected Unit.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

17.122.030 - Applicability.

A.

The requirements of this Chapter shall apply to any development project that is proposed on any property that includes a parcel or parcels on which a dwelling unit is located or was located in the ten years preceding application submittal.

B.

Notwithstanding the above, this Chapter shall not apply to a development project proposed on a property that includes a parcel or parcels on which a dwelling unit is located, or was located, in the ten years

preceding application submittal only if all of the following conditions exist:

1.

The development project proposes an Industrial Activity.

2.

The property is entirely within a zone that does not allow Residential Activities.

3.

The zoning applicable to the property that does not allow Residential Activities was adopted prior to January 1, 2022.

4.

The dwelling units that are or were located on the property are not Work/Live units.

5.

The dwelling units that are or were located on the property are or were unpermitted.

C.

A development project that is proposed to legalize unpermitted units that are subject to a code

enforcement action may exceed the maximum allowable density of the applicable zoning designation but must still comply with this Chapter and Chapter 8.22, as applicable and are subject to the following:

1.

All units that are in excess of the maximum allowable density, with exception of units received pursuant to the Density Bonus Ordinance (Chapter 17.107), shall be deed restricted and made available to low-income households for fifty-five (55) years or the life of the project, whichever is longer.

2.

The previously unpermitted units shall remain rent controlled if the units were previously subject to rent control and the units shall be treated as Replacement Deed-Restricted Units if the project includes Demolition of Protected Units. The Developer shall comply with the Just Cause for Eviction Ordinance.

3.

The project must comply with all code requirements, including but not limited to the requirement for a building permit and compliance with the Building Code, but may request a waiver of Planning Code development standards of the underlying zone if the standard would physically preclude the proposal to legalize the unpermitted unit. The City may deny the waiver request if the City makes a finding that denying the waiver is necessary to protect the health and safety of the public or occupants of the structure.

4.

This right shall never be used more than one time per parcel.

5.

Notwithstanding the above, this subsection C shall not preclude an applicant from applying for a Rezoning or Variance.

D.

Where a conflict exists between the requirements in this Chapter and the applicable requirements contained in California Government Code Title 7, Division 1, Chapter 12, Article 2 (Section 66300.5 et seq.), the applicable requirements of the Government Code shall prevail unless the requirements of this Chapter are more protective of Lower Income households or provide greater relocation assistance to displaced households.

E.

This Chapter does not confer additional legal protections upon an unlawful occupant of a Protected Unit.

F.

The right of first refusal described in Section 17.122.070 does not apply to an occupant of a short-term residential rental that is rented for a period of fewer than thirty (30) days.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

A.

Demolition of dwelling units, whether or not Protected Units, shall be prohibited in the following circumstances:

1.

The demolition is proposed in furtherance of a housing development project that creates fewer dwelling units than the greatest number of dwelling units that existed on the project site within the last five years.

2.

There have been any adjudicated cases evidencing tenant harassment or illegal eviction during the application process prior to the issuance of the demolition or building permit or during the five-year period prior to application submittal.

3.

A prior entitlement at the project site was denied or voided within the past five years based on documentation in the Unit Inventory, prepared pursuant to Section 17.122.060, that a unit became vacant by unlawful means.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

17.122.040 - Replacement of Protected Units.

A.

The City shall not approve any demolition permit, building permit, or land use entitlement issued under these Zoning Regulations, including any change of use that requires a zoning clearance, for a development project that proposes the Demolition of Protected Units unless the development project Replaces all Protected Units, the Developer provides notice in compliance with Section 17.122.050, the Developer includes with their application a Unit Inventory in compliance with Section 17.122.060, the Developer commits to providing rights of first refusal to occupants of Protected Units in compliance with Section 17.122.070, and the proposal otherwise fully complies with this Chapter.

B.

For purposes of this Chapter only, "Replace" shall mean either of the following:

1.

If any Protected Units have been occupied at any time during the five-year period preceding the date of application, the proposed development shall include residential uses that provide at least the same number of units as those demolished as part of the Demolition of Protected Units, of Equivalent Size, to be made available as Affordable Housing occupied by persons and families in the same or lower income category as those households currently or last in occupancy of the Protected Units. If the income category of the current or last household in occupancy is not known, it shall be rebuttably presumed Lower Income Households occupied these units in the same proportion of Lower Income renter households to all renter households within the City of Oakland, as determined using the most recently available data for renter income distribution in the City of Oakland from the United States Department of Housing and Urban Development's Comprehensive Housing Affordability Strategy database.

2.

If all Protected Units have been vacated or demolished within the five-year period preceding the date of application, the proposed development shall include residential uses that provide at least the same number of Dwelling Units of Equivalent Size as existed at the highpoint of those Dwelling Units in the five-year period preceding the application to be made available as Affordable Housing occupied by persons and families in the same or lower income category as those persons and families in occupancy at that time. If the income category of the current or last household in occupancy is not known, it shall be rebuttably presumed Low Income and Very Low Income Households occupied these units in the same proportion of Low Income and Very Low Income renter households to all renter households within the City of Oakland, as determined using the most recently available data for renter income distribution in the City of Oakland from the United States Department of Housing and Urban Development's Comprehensive Housing Affordability Strategy database.

3.

For any Protected Unit that is or was subject to any other form of rent or price control within the five-year period preceding the application and was last occupied by persons or families above lower income (or was presumed to be occupied by persons or families above lower income using the formulas provided in

paragraphs 1 and 2), the Replacement Deed-Restricted Unit must be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families.

C.

All Replacement Deed-Restricted Unit calculations resulting in fractional units shall be rounded up to the next whole number.

D.

Documentation of a legally binding commitment, recorded against the property, to construct Replacement Deed-Restricted Units in accordance with this Chapter shall be a required condition prior to issuance of any demolition, grading, or building permit.

E.

For any unit that the Developer proposes to Replace, the Developer shall comply with all applicable requirements of Chapter 8.22, Residential Rent Adjustment and Evictions, including but not limited to, relocation assistance and registration and reporting obligations under Section 8.22.510. Where the provisions of State law provide the right to evict existing occupants, the Developer must comply with the following provisions:

1.

If in any circumstances the Developer causes the existing occupants of any Protected Units that are Lower Income Households to relocate in a manner that does not obligate the Developer to provide relocation payments under Oakland Municipal Code Chapter 8.22 or Chapter 15.60, the Developer shall comply with any obligation as provided in California Government Code Section 66300.6, subsection (b)(4)(A) to provide relocation benefits equivalent to the relocation benefits required to be paid by public entities pursuant to California Government Code Title 1, Division 7, Chapter 16 (commencing with Section 7260).

2.

A Developer shall comply with provisions of Government Code Section 66300.6, subsection (b)(3) to allow any existing occupant to occupy their units until six months or less before the start of construction activities; to provide notice at least six months in advance of the date that existing occupants must vacate; and to allow existing occupants who were required to leave to return to their unit at their prior rental rate if the demolition does not proceed and the property is returned to the rental market. This subsection does not serve to create a new just cause for eviction, does not waive the developer's obligation to comply with all applicable requirements of Chapter 8.22, and does not compel an occupant to remain in the unit until six months before the start of construction activities. In any circumstances where the Developer provides such notice, the notice shall also state that the notice does not serve as an eviction notice. A Developer who enters into a Move Out Agreement consistent with Article VI of Chapter 8.22 with an occupant is not subject to this requirement since the occupant is not being compelled to move out.

F.

If the Developer is proposing a non-residential project, the Developer shall demonstrate that they have acquired sufficient Replacement Unit Rights as part of their development application.

1.

"Replacement Unit Rights" are generated by a project which adds housing units to the City's housing supply, and one (1) Replacement Unit Right is equivalent to one (1) housing unit within such a project.

2.

Replacement Unit Rights may be generated by a separate project either undertaken by the Developer or undertaken by others from whom the Developer has obtained or acquired such "rights" in a legally binding manner by a recorded document to be approved by the City.

3.

A project generating Replacement Unit Rights must be located within the City of Oakland.

4.

Once the Replacement Deed-Restricted Units have been developed or secured, a regulatory agreement that restricts the appropriate number, size and affordability levels of Replacement Deed-Restricted Units must be approved by the City and recorded on the housing development prior to issuance of the first construction-related permit for the non-residential project. Where the project is changing the use from residential without associated construction, the regulatory agreement must be recorded before the City will issue the Planning approval for the change of use. At the time of issuance of the construction-related permit or change of use permit for the non-residential project, the replacement housing must be under construction or completed within the last twelve (12) months and the Developer must have: (a) recorded the required regulatory agreement approved by the City, and (b) provided a signed agreement that any existing occupants will be provided the right of first refusal in the new development in accordance with the requirements of this Chapter.

5.

The Replacement Deed-Restricted Units provided through Replacement Unit Rights must otherwise meet the affordability and Equivalent Size requirements specified in this section and shall be subject to the right of first refusal provisions provided in Section 17.122.070.

6.

No Replacement Unit Rights shall be generated by a project or specific parts of a project which: (a) are intended to become the property of the Oakland Housing Authority, (b) receive financial assistance from the City or the Oakland Redevelopment Successor Agency, or (c) are located on property that was purchased or leased from a public or quasi-public agency.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

17.122.050 - Notice to Existing Occupants and Prospective Tenants.

If any Protected Unit in a building subject to a proposal for the Demolition of Protected Units is occupied thirty (30) days prior to the submittal of an application for development, the following requirements shall apply. If a rental agreement was negotiated in a language other than English, all required written notices referred to in this section must be issued in that language and in English. For each application, all documents referred to in this section shall be reviewed by the Planning and Building Department as to form, correctness, and completeness. The Planning and Building Department may create forms to assist Developers in providing these notices, in which case the Developer shall use the forms created. If the documents provided do not meet the requirements of this section, including if the documents were dated fewer than thirty (30) days ago, the Planning and Building Department shall ministerially reject the application without prejudice for the Developer to resubmit after adequate and compliant thirty-day notice is provided.

A.

Preliminary Notice to Existing Occupants Prior to Filing an Application for Development. At least thirty (30) days prior to submitting an application for development, and not more than sixty (60) days prior, the Developer shall provide all existing occupants of the building notice of the proposed application for development. Notice shall be given by posting in a conspicuous place outside the premises of the subject unit involved in the proposed application. Notice shall also be given by mail to the existing occupants and shall be deemed satisfied if it complies with the legal requirements for service by mail pursuant to California Code of Civil Procedure Section 1013. The application for development shall include documentation that the existing occupant notice requirements were met. The notice shall include the following:

1.

Notice of the owner's plans to file an application to redevelop the property.

2.

Information on how the occupants' existing unit will be affected by the development.

3.

The following language in at least fourteen (14) point bold face type: "This notice is not an eviction notice. It is not a notice that you must leave the building or that your tenancy is being ended."

4.

Notice of the fact that as part of the process to redevelop the property, the property owner may offer an incentive to the occupant to move, such as a monetary payment or alternative housing options, that the occupant is not required to agree to move, and that the City of Oakland has a Tenant Move Out Agreement Ordinance, with a link to that Ordinance (currently Article VI of Chapter 8.22 of the Oakland Municipal Code).

5.

Information on the right of first refusal provisions under Section 17.122.070 including notice that the occupants may be entitled to a right of first refusal; information on the income threshold for lower income

households to qualify for the right of first refusal; a signature line for acknowledgement of the right of first refusal, a checkbox option for opting in to the right of first refusal, and contact information to be used for purposes of the right of first refusal. Contact information shall include an email address. If an occupant does not have an email address, contact information shall include a phone number for the occupant of the unit proposed to be demolished.

6.

Information regarding the existing occupants' rights pursuant to Section 17.122.040(E), if applicable.

7.

Information on how the occupant can contact the City in the event that their contact information changes.

8.

Notice that the owner will inform the occupant of the filing for an application for development at the time that the application for development is filed, and a clear statement that if the occupant moves out before the application for development is filed, that they will be ineligible for the right of first refusal.

B.

Notice to Prospective Tenants. Commencing at a date not less than thirty (30) days prior to the submittal of an application for development, the Developer shall give notice to each person applying after such date for rental of a Dwelling Unit in the building. This notice must be provided to the prospective tenant prior to the acceptance of any rent or deposit from the prospective tenant and prior to the execution of any rental agreement. The notice shall include the following:

1.

Notice of the owner's filing or plans to file an application to redevelop the property.

2.

Information on how the existing unit proposed to be let to the prospective tenant will be affected by the development.

3.

Notice of the fact that as part of the process to redevelop the property the property owner may offer an incentive to the tenant to move, such as a monetary payment or alternative housing options, that the prospective tenant is not required to agree to move, and that the City of Oakland has a Tenant Move Out Agreement Ordinance, with a link to that Ordinance (currently Article VI of Chapter 8.22 of the Oakland Municipal Code).

4.

Information on the right of first refusal provisions under Section 17.122.070 including notice that the prospective tenant may be entitled to a right of first refusal; information on the income threshold for lower income households to qualify for the right of first refusal; a signature line for acknowledgement of the right

of first refusal, a checkbox option for opting in to the right of first refusal, and contact information to be used for purposes of the right of first refusal.

5.

Contact information shall include an email address. If an occupant does not have an email address, contact information shall include a phone number for the occupant of the unit proposed to be demolished.

6.

Information regarding the existing occupants' rights pursuant to Section 17.122.040(5), if applicable.

7.

Information on how the occupant can contact the City in the event that their contact information changes

8.

Notice that the owner will inform the occupant of the filing for an application for development at the time that the application for development is filed, and a clear statement that if the occupant moves out before the application for development is filed, that they will be ineligible for the right of first refusal.

C.

The Developer shall subsequently notify all persons who received notice under Subsections A and B above of the filing for an application for development within seven (7) days of the filing of the application for development.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

17.122.060 - Unit Inventory.

A.

As part of the application submittal, the Developer shall submit a Unit Inventory that accounts for all Dwelling Units, including any unpermitted units, that are proposed to be affected by the proposal. For each affected Dwelling Unit in the building(s), the Unit Inventory must show compliance with the annual registration and reporting obligations under Section 8.22.510, if applicable, and must state the occupancy status as of the date of application, the name of the current or most recent occupants, the household size, the household income of the current or most recent occupants, or statement that such household income is not known and could not be determined after making good faith efforts to determine the household income, number of bedrooms and square footage of the unit, evidence of compliance with the noticing requirements described in Section 17.122.050, and information for each unit on whether the occupant is eligible for and has opted in to being contacted about the right of first refusal upon completion of the development. If the occupant is eligible and has opted in to being contacted, the Unit Inventory shall include the contact information provided by the occupant.

If a vacant Dwelling Unit has been occupied at any time during the five-year period preceding the submittal of the application, the Unit Inventory shall fully describe the lawful process and timeline by which the Dwelling Unit became vacant. If the Unit Inventory documents an unlawful process by which the unit became vacant during the five-year period, or the applicant fails to provide documentation listed under Section 17.122.060.E to show that all previously occupied units became vacant by lawful means, the permit application shall be denied. Notwithstanding the above, a Developer shall be excused of the requirement to document the process by which a unit became vacant if they establish, through evidence submitted with the Unit Inventory, that the Dwelling Unit at issue was vacant at the time that the Developer purchased the property and that they have undertaken good faith but unsuccessful efforts to gather information about the prior tenant from the previous owner.

2.

If a Dwelling Unit is occupied, the Unit Inventory must include a statement acknowledging that the desire to redevelop the property is not a just cause for eviction of that Dwelling Unit under the City of Oakland Just Cause Ordinance and acknowledging that causing a unit to become vacant by unlawful means shall be a basis for voiding the entitlement and denial of the demolition permit, grading permit, and/or building permit.

B.

Prior to issuance of a demolition permit, grading permit, or building permit, the Developer shall prepare a first addendum to the Unit Inventory that reports on the status of each affected Dwelling Unit in the building(s). The first addendum shall list the last time each Dwelling Unit was occupied, and the monthly rental price last charged for the Dwelling Unit. For each Dwelling Unit previously reported in the Unit Inventory as occupied, the Developer shall provide substantial evidence and affirm that the Dwelling Unit is vacant in compliance with applicable laws, such as Oakland Municipal Code Section 8.22.300 et seq., Oakland Municipal Code Section 8.22.400 et seq., and/or and state law. If the Unit Inventory documents that a unit has become vacant by unlawful means, or the applicant fails to provide documentation listed under Section 17.122.060.E to show that all previously occupied units became vacant by lawful means, the demolition permit, grading permit, and/or building permit shall be denied and the entitlement shall be voided. The entitlement shall include a condition of approval consistent with this paragraph.

C.

Prior to issuance of a temporary certificate of occupancy or certificate of occupancy, the Developer shall prepare a second addendum to the Unit Inventory that describes, for each qualifying prior occupant, compliance with the right of first refusal requirements, as applicable, as further described in Section 17.122.070.

D.

It shall be a violation of this Chapter to include false information on a submitted Unit Inventory or addenda thereto, subject to remedies provided under Section 17.122.080. Submittal of false information for each unit shall constitute a separate violation.

E.

In submitting Unit Inventories and addenda thereto, the Developer shall provide the following:

1.

For each Dwelling Unit where Developer asserts the occupant vacated the Dwelling Unit pursuant to a valid termination notice that complies with the Oakland Just Cause for Eviction Ordinance, Oakland Municipal Code Section 8.22.300 et seq., documentation of all notices terminating tenancy and accompanying materials issued to the occupant.

2.

For each Dwelling Unit where Developer asserts the occupant vacated the Dwelling Unit pursuant to a valid termination notice that complies with Oakland Municipal Code Section 8.22.400 et seq. (Ellis Act Ordinance), documentation of the notice to Rent Adjustment Program of intent to withdraw and all notices terminating tenancy and accompanying materials issued to the occupant.

3.

For each Dwelling Unit where Developer asserts the occupant vacated the Dwelling Unit pursuant to an agreement that fully complies with the Oakland Tenant Move Out Agreement Ordinance, Oakland Municipal Code Section 8.22.700 et seq., evidence that the Developer has filed with the Rent Adjustment Program a Property Owner Certification prior to entering Move Out negotiations, and an executed Move-Out Agreement.

4.

For each Dwelling Unit where Developer asserts the occupant voluntarily vacated the Dwelling Unit with no undue pressure, coercion, harassment, or misrepresentations of law or fact from the landlord or their agent, a certification under penalty of perjury with a description of the means by which the occupant vacated the unit along with any supporting documentation including correspondence from the occupant.

5.

If any relocation payments were required under any article of Oakland Municipal Code Chapter 8.22, or if any relocation payments were voluntarily provided, a description and documentation of such relocation payments.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

17.122.070 - Right of First Refusal.

A.

Upon completion of the Replacement Deed-Restricted Units, occupants of Protected Units who were Lower Income Households in possession of the Protected Unit on the date the application to develop was submitted to the Planning and Building Department shall have the right of first refusal to rent a new Dwelling Unit of Equivalent Size in the housing development affordable to the household at an Affordable Rent for the Lower Income category which corresponds to their income or, if the new units are sold, at an Affordable Housing Cost.

This subparagraph shall not apply if the development project involving the Demolition of Protected Units consists of a single residential unit located on a site with a single Protected Unit.

2.

A household that is otherwise eligible for the right of first refusal under this subsection A may be required to certify their household income and fulfill other eligibility requirements. If the household is no longer eligible because of an increase in household income, the developer shall not be excused of the obligation under this Chapter and under the executed regulatory agreement to make the unit available to a lower income household. If the completed project includes a deed-restricted moderate-income unit for which the household is eligible, the developer shall extend the right of first refusal to the household for that moderateincome unit. Otherwise, the developer shall offer a unit at market rent or market price to that household who holds a right of first refusal but who is no longer eligible for an affordable unit.

3.

An occupant who agreed to enter into a move out agreement and who otherwise is entitled to a right of first refusal pursuant to this Chapter shall remain entitled to the right of first refusal.

B.

In cases where a Developer has constructed a housing development in which 100 percent of the Dwelling Units, exclusive of manager's units, are reserved for Lower Income households, occupants of Protected Units who were in possession at the date the application to develop was submitted to the Planning and Building Department shall be granted a right of first refusal for a unit at the newly constructed building subject to their ability to meet income qualifications and other applicable eligibility requirements when the new Dwelling Units are ready for occupancy. However, in no case shall a returning occupant with a right of first refusal be denied a Replacement Deed-Restricted Unit because their household income is too low to qualify or because the occupant fails to meet eligibility criteria based on immigration status.

C.

Where an occupant has a right of first refusal pursuant to this section, the Developer shall notify the occupant at least sixty (60) days in advance of the issuance of a temporary certificate of occupancy or certificate of occupancy for the building in which the unit is located. The City shall provide the list of contact information based on information provided by prior occupants as included in the Unit Inventory, the addenda thereto, and any additional contact information received by the City, if any. The notice must include the following information:

1.

The fact that the new units have been completed.

2.

Information on the square footage and number of bedrooms in the unit being made available.

3.

Information on whether units are available for rent or for purchase.

4.

Information on the former occupant's entitlement to reoccupy the building based on the household income status.

5.

A table listing income thresholds and the rent or purchase price not to exceed based on household size.

6.

Notice that if the occupant wishes to claim a unit in the new building, that they must reply within thirty (30) days of receipt of the notice.

7.

If available for rent, notice that if the prior occupant chooses to claim a new unit for rent, it will be held for the prior occupant for sixty (60) days from the date of reply.

8.

If available for purchase, notice that if the prior occupant chooses to claim a new unit for purchase, they must enter into a contract for purchase no later than ninety (90) days after the sales program begins.

D.

In the case of rental of a new Dwelling Unit, within thirty (30) days of receipt of the notice of availability, a prior occupant must notify the prospective landlord if they wish to rent the new Dwelling Unit. The landlord must hold the Dwelling Unit vacant at no cost to the prior occupant for sixty (60) days from the date the prior occupant's written notice of its intent to reoccupy the rental unit is received. The lease agreement for the new rental unit shall contain substantially the same terms as the lease for the Protected Unit, except where otherwise required by law.

E.

In the case of a prior occupant's purchase of a new Dwelling Unit, the prior occupant shall have the option to purchase a new Dwelling Unit at an Affordable Housing Cost for the lower income category which corresponds to their income and upon the same or more favorable terms and conditions that such Dwelling Units are initially offered to the general public. Such right shall run for at least ninety (90) days from the date the sales program begins so long as the prior occupant is notified of their right to purchase in accordance with this section.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

A.

Administrative Remedies.

1.

Administrative Citation. Any person violating any provision or failing to comply with any requirements of this Chapter may be assessed an administrative citation pursuant to O.M.C. Chapter 1.12 for the first offense.

2.

Administrative Civil Penalties. Any person violating any provision or failing to comply with any requirements of this Chapter multiple times may be assessed a civil penalty for each violation pursuant to O.M.C. Chapter 1.08.

B.

Civil Remedies.

1.

Any occupant at the time of application, or prospective tenant under Section 17.122.050.B, who believes that an owner has violated provisions of this Chapter may file an action against the owner for equitable relief (e.g., injunctions and restitution), actual damages or minimum damages, and recovery of costs and reasonable attorney's fees. The greater of actual damages or minimum damages of five hundred dollars ($500.00) per violation shall be awarded for an owner's failure to comply with the obligations established under this Chapter. The greater of treble actual damages or minimum damages of one thousand dollars ($1,000.00) per violation shall be awarded for an owner's willful failure to comply with the obligations established under this Chapter.

2.

The City Attorney may file an action against an owner that the City Attorney believes has violated provisions of this Chapter. Such an action may include requests for equitable relief (e.g., injunctions and restitution), assessment and recovery of administrative citations and civil penalties, and recovery of costs and reasonable attorney's fees. The City Attorney has sole discretion to determine whether to bring such an action.

C.

Nonexclusive Remedies and Penalties. The remedies provided in this Article are not exclusive, and nothing in this Article shall preclude a party from seeking any other remedies, penalties, or procedures provided by law.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

A.

Tenant Rights and Privileges. All tenants of Replacement Deed-Restricted Units shall have the same rights and privileges of other tenants in the same building or complex, as applicable and if provided generally in

the development, with respect to common space amenities, entry into the building, and building services, including access to laundry facilities, gardens or yards, health facilities and recreational space, property management and security services, repairs and maintenance, access to any parking spaces, access to doors and keys, and building rules and regulations.

(Ord. No. 13822, § 2(Exh. A), 12-3-2024)

Chapter 17.124 - LANDSCAPING AND SCREENING STANDARDS

Sections:

The provisions of this Chapter shall be known as the Standards for Required Landscaping and Screening. The purpose of these provisions is to prescribe standards for development and maintenance of planting, fences, and walls, for the conservation and protection of property through provision of barriers against traffic, trespass, noise, heat, glare, and dust, and through improvement of the appearance of individual properties, neighborhoods, and the City. These standards shall apply to all landscaping and screening required by this Chapter and other provisions of the zoning regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12376 § 3 (part), 2001: prior planning code § 8100)

17.124.020 - Required landscape plan for new residential units and certain additions to Residential Facilities.

Excluding permitted Accessory Dwelling Units, submittal and approval of a landscape plan for the entire site is required for the establishment of a new residential unit outside any existing building envelope, and for additions to Residential Facilities of over one thousand (1,000) square feet. The landscape plan and the plant materials installed pursuant to the plan shall conform with all provisions of this Chapter, Title 12 Street, Sidewalks and Public Spaces, and the following:

A.

Landscape plans for projects involving grading, rear walls on downslope lots requiring conformity with the screening requirements in Section 17.124.040, or vegetation management prescriptions in the S-11 Zone shall show proposed landscape treatments for all graded areas, rear wall treatments, and vegetation management prescriptions.

B.

Within the portions of Oakland northeast of the line formed by State Highway 13 and continued southerly by Interstate 580, south of its intersection with State Highway 13, all plant materials on submitted landscape plans shall be fire resistant and, to the satisfaction of the Director of City Planning, a substantial portion of the planted area shown on submitted landscape plans shall be drought tolerant plant materials. The City Planning Department shall maintain lists of plant materials considered fire resistant and drought tolerant.

C.

All landscape plans shall show proposed methods of irrigation. The methods shall ensure adequate irrigation of all plant materials for at least one growing season.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001)

17.124.025 - Required landscape plan for new Nonresidential Facilities and certain additions to Nonresidential Facilities.

Submittal and approval of a landscape plan for the entire site and street frontage is required for the establishment of a new Nonresidential Facility and for additions to Nonresidential Facilities of over one thousand (1,000) square feet. The landscape plan and the plant materials installed pursuant to the plan shall conform with all provisions of this Chapter, Title 12 Street, Sidewalks and Public Spaces and the standards for required landscaping and screening, including the following:

A.

On streets with sidewalks where the distance from the face of the curb to the outer edge of the sidewalk is at least six and one-half (6½) feet, street trees shall be provided to the satisfaction of the Director of City Planning. Proposed street trees shall be approved by the Tree Services Division and selected from the City's Master Street Tree List, as may be amended. Selection of street tree species shall be based upon compatibility with the existing tree plantings on the street, the mature size of the tree, space available for the tree to grow, the presence of underground and overhead utility lines, utility poles, streetlights, driveway approaches and fire hydrants.

B.

All landscape plans shall show proposed methods of irrigation. The methods shall ensure adequate irrigation of all plant materials for at least one growing season.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 12999, § 4(Exh. A), 3-16-2010)

17.124.030 - Residential landscape requirements for street frontages.

All areas between a primary Residential Facility and abutting street lines shall be fully landscaped, plus any unpaved areas of abutting rights-of-way of improved streets or alleys, provided, however, on streets without sidewalks, an unplanted strip of land five (5) feet in width shall be provided within the right-of-way along the edge of the pavement or face of curb, whichever is applicable. Existing plant materials may be incorporated into the proposed landscaping if approved by the Director of City Planning.

A.

In addition to the general landscaping requirements set forth above, a minimum of one (1) fifteen-gallon tree, or substantially equivalent landscaping consistent with City policy and as approved by the Director of City Planning, shall be provided for every twenty-five (25) feet of street frontage. On streets with sidewalks where the distance from the face of the curb to the outer edge of the sidewalk is at least six and one-half

(6½) feet, the trees to be provided shall include street trees to the satisfaction of the Director of City Planning. Proposed street trees shall be approved by the Tree Services Division and selected from the City's Master Street Tree List, as may be amended. Selection of street tree species shall be based upon compatibility with the existing tree plantings on the street, the mature size of the tree, space available for the tree to grow, the presence of underground and overhead utility lines, utility poles, streetlights, driveway approaches and fire hydrants.

ee Services Division and selected from the City's Master Street Tree List, as may be amended. Selection of street tree species shall be based upon compatibility with the existing tree plantings on the street, the mature size of the tree, space available for the tree to grow, the presence of underground and overhead utility lines, utility poles, streetlights, driveway approaches and fire hydrants.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3- 15-2011; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12872 § 4 (part), 2008; Ord. 12376 § 3 (part), 2001)

17.124.040 - Residential landscape requirements for downslope lots.

On downslope lots where the height of the rear elevation of the primary Residential Facility exceeds twentyeight (28) feet, landscaping shall be planted to screen the rear face of the building and shall be:

A.

Planted to number a minimum of one (1) 15-gallon tree or five (5) five-gallon shrubs, or substantially equivalent landscaping as approved by the Director of City Planning for each fifteen (15) feet of lot width, measured at the rear face of the residence; and

B.

Selected and maintained such that it is sufficient in size within five (5) years of planting to screen the lower ten (10) feet of the structure.

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 12376 § 3 (part), 2001)

17.124.045 - Trash and Utility Screening.

A.

Screening of Utility Meters. All utility meters shall be located either: 1) within a box set within a building or in the ground; 2) on a non-street facing elevation; or, if locations 1 and 2 are not feasible, 3) on a street-facing elevation, but only if completely screened from view from the public right-of-way.

B.

Screening of Trash Containers. All trash containers shall be located in a storage area that is screened from the street and adjacent properties by a wall, fence, or dense landscaping with a minimum height of four (4) feet.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013)

The trees, shrubs and landscape materials required by this Chapter must either be planted or a bond, cash deposit, or letter of credit provided for the planting of the landscaping before the certificate of occupancy will be issued. The amount of such bond, cash deposit, or letter of credit shall equal the greater of two

thousand five hundred dollars ($2,500.00) or the estimated cost of the required landscaping, based on a licensed contractor's bid.

(Ord. 12376 § 3 (part), 2001)

All required planting shall be permanently maintained in good growing condition and, whenever necessary, replaced with new plant materials to ensure continued compliance with applicable landscaping requirements. All required fences and walls shall be permanently maintained in good condition and, whenever necessary, repaired or replaced.

(Ord. 12376 § 3 (part), 2001: prior planning code § 8101)

Required landscaping, fences, and walls shall be composed of the materials prescribed in other provisions of the zoning regulations.

A.

Where trees are required, they shall be of a species, degree of maturity, and spacing prescribed by the Director of City Planning, subject to the right of appeal from such determination pursuant to the administrative appeal procedure in Chapter 17.132.

B.

Where dense landscaping to a specified height is prescribed, the landscaping shall be of a type which will provide a year-round barrier to the prescribed height, and shall be so spaced that vision of objects on the opposite side is effectively eliminated.

C.

Where a grille fence or wall is prescribed, it shall have a uniform screen or other open-work design, with an opacity of not less than twenty-five (25) and not more than seventy-five percent (75%).

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 12376 § 3 (part), 2001: prior planning code § 8102)

Whenever two (2) or more alternative types of landscaping, fences, or walls are prescribed, they may be provided singly or in any combination.

(Ord. 12376 § 3 (part), 2001: prior planning code § 8103)

The prescribed heights of required landscaping, fences, or walls shall be measured above the actual adjoining level of finished grade, except that where parking, loading, storage, or similar areas, or usable

open space, are located above finished grade the height of landscaping, fences, or walls required to screen such areas or space shall be measured above the adjoining level thereof.

(Ord. 12376 § 3 (part), 2001: prior planning code § 8104)

The landscaping and screening requirements set forth in other provisions of the zoning regulations shall be subject to the following exceptions:

A.

Equivalent Screening on Abutting Lot. Prescribed fences, walls, or dense landscaping need not be provided along a lot line if a building, fence, wall, or dense landscaping of at least equivalent height, opacity, and maintenance exists immediately abutting and on the opposite side of said lot line.

B.

Window on Abutting Lot. Prescribed fences, walls, or dense landscaping need not be higher than three and one-half (3½) feet when located opposite and within three (3) feet of any window in a Residential Facility on an abutting lot, other than a window in a basement or cellar, or within three (3) feet of any portion of the same story of the wall containing such window and lying within ten (10) feet in either direction from said window. Landscaping or a fence or wall shall be considered opposite such a window or portion of wall whenever it would be intersected by a horizontal plane drawn from the wall perpendicularly to the window.

C.

Adjacent to Excavated Parking or Other Area. Where a parking, loading, storage, or similar area, or usable open space, is excavated below adjoining finished grade, the depth of excavation may be deducted there from the prescribed height of fences, walls, or landscaping required to screen the area or space.

D.

Height Within Required Minimum Yard or Court. Required fences, walls, or dense landscaping need not be higher than three and one-half (3½) feet in that portion of any required minimum yard which lies within ten (10) feet of any street line. The height of fences, walls, and dense landscaping shall be limited within all required minimum yards and courts by the applicable provisions of Section 17.108.140.

E.

General Exceptions to Prescribed Heights. The prescribed heights of dense landscaping shall indicate the height to be attained within three (3) years after planting. The height at time of planting may be not more than two (2) feet lower for dense landscaping required to be taller than five (5) feet, and not more than one (1) foot lower for dense landscaping for which a height of less than five (5) feet is prescribed. An earthen berm not taller than two (2) feet may count toward the prescribed height of any fence, wall, or dense landscaping.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12553 § 3 (part), 2003; Ord. 12376 § 3 (part), 2001: prior planning code § 8110)

1.

Size: (S) Small, (M) Medium, (L) Large.

H × S: Height by Spread.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 12999, § 4(Exh. A), 3-16-2010)

Chapter 17.126 - USABLE OPEN SPACE STANDARDS

Sections:

17.126.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Usable Open Space Standards. The purpose of these provisions is to prescribe standards for the development and maintenance of open areas which serve the need for leisure, recreation, and space. These standards shall apply to all usable open space required by other provisions of the zoning regulations, except as otherwise specified within the D-DT, D-BV and D-LM Zones, and the S-17 Downtown Residential Open Space Combining Zone.

No additional open space is required for newly established living units located entirely within an existing facility. However, if the amount of open space on the lot equals or is less than required, then that existing amount must be preserved with the establishment of new living units. If there is more open space on the lot than required, then the amount of open space can be reduced to the minimum required.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. 12343 § 3, 2001: prior planning code § 8300)

17.126.020 - Substitution of private space for group space.

Each one (1) square foot of private usable open space conforming to the provisions of Section 17.126.040 shall be considered equivalent to two (2) square feet of required group usable open space and may be so substituted, subject to any minimum requirements for actual group space prescribed in the applicable individual zone regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 8301)

All required group usable open space shall be permanently maintained, shall be located on the same lot as the living units it serves, and shall conform to the following standards:

A.

Usability. A surface shall be provided which prevents dust and allows convenient use for outdoor activities. Such surface shall be any practicable combination of lawn, garden, flagstone, wood planking, concrete, asphalt, or other serviceable, dust-free surfacing. Slope shall not exceed ten percent (10%). Off-street parking and loading areas, driveways, and service areas shall not be counted as usable open space. Adequate safety railings or other protective devices shall be erected wherever necessary for space on a roof, but shall not be more than the minimum height required by the Oakland Building Code.

B.

Location. The space may be located anywhere on the lot accessible to all the living units served, except that not more than twenty-five percent (25%) of the required area shall be located on the roof of any building other than an attached garage or carport, with the exception of property located within the S-15, CC, CN, and D-CO Zones where the space may be located entirely on the roof of any building on the site.

C.

Size and Shape. An area of contiguous space shall be of such size and shape that a rectangle inscribed within it shall have no dimension less than fifteen (15) feet. When space is located on a roof, the area occupied by vents or other structures which do not enhance usability of the space shall not be counted toward the above dimension.

D.

Accessibility. The space shall be accessible to all the living units on the lot. It shall be served by any stairway or other accessway qualifying under the Oakland Building Code as an egress facility from a habitable room.

E.

Openness. There shall be no obstructions above the space except for devices to enhance its usability.

F.

Enclosure. Ground-level space shall be screened from abutting lots, streets, alleys, and paths, and abutting private ways described in Section 17.106.020, by a building wall, by dense landscaping not less than three and one-half (3½) feet high and not less than three (3) feet wide, or by a solid or grille, lumber or masonry fence or wall not less than three and one-half (3½) feet high, subject to the standards for required landscaping and screening in Chapter 17.124 and the exceptions stated in said Chapter. Fences and walls shall not be so constructed as to interfere with the access required by applicable fire prevention regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3- 15-2011; Ord. 11892 § 20, 1996; prior planning code § 8310)

All required private usable open space shall be permanently maintained; shall be located, except as otherwise provided in Subsection B. of this Section, on the same lot as the living unit it serves; and shall conform to the following standards:

A.

Usability. A surface shall be provided which prevents dust and allows convenient use for outdoor activities. Such surface shall be any practicable combination of lawn, garden, flagstone, wood planking, concrete, asphalt, or other serviceable, dust-free surfacing. Slope shall not exceed ten percent (10%). Off-street parking and loading areas, driveways, and service areas shall not be counted as usable open space. Adequate safety railings or other protective devices shall be erected wherever necessary for space on a roof or balcony, but shall not be more than the minimum height required by the Oakland Building Code.

B.

Location. The space may be located anywhere on the lot, except that ground-level space shall not be located in a required minimum front yard and above-ground-level space shall not be located within four (4) feet of an interior side lot line. Above-ground-level space may be counted even though it projects beyond a street line. All private usable open spaces shall be adjacent to, and not more than four (4) feet above or below the floor level of, the living unit served.

C.

Size and Shape. An area of contiguous ground-level space shall be of such size and shape that a rectangle inscribed within it shall have no dimension less than ten (10) feet. Above-ground-level space shall have no dimensional requirements. When space is located on a roof, the area occupied by vents or other structures which do not enhance usability of the space shall not be counted toward the above dimension.

D.

Accessibility. The space shall be accessible to only one living unit by a doorway to a habitable room or hallway.

E.

Openness. There shall be no obstructions over ground-level space except for devices to enhance its usability and except that not more than fifty percent (50%) of the space may be covered by a private balcony projecting from a higher story. Above-ground-level space shall have at least one exterior side open and unobstructed, except for incidental railings or balustrades, for eight (8) feet above its floor level.

F.

Enclosure. Ground-level space shall be screened from abutting lots, streets, alleys, and paths, and from abutting private ways described in Section 17.106.020 by dense landscaping not less than five and one-

half (5½) feet high and not less than three (3) feet wide, or by a solid or grille, lumber or masonry fence or wall not less than five and one-half (5½) feet high, subject to the standards for required landscaping and screening in Chapter 17.124 and the exceptions stated in said Chapter. However, when such screening would impair a beneficial outward and open orientation or view, the above prescribed height may be reduced to three and one-half (3½) feet. Fences and walls shall not be so constructed as to interfere with the access required by applicable fire prevention regulations.

s for required landscaping and screening in Chapter 17.124 and the exceptions stated in said Chapter. However, when such screening would impair a beneficial outward and open orientation or view, the above prescribed height may be reduced to three and one-half (3½) feet. Fences and walls shall not be so constructed as to interfere with the access required by applicable fire prevention regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 12999, § 4(Exh. A), 3-16-2010; prior planning code § 8320)

Every plaza required for Nonresidential Facilities shall be permanently maintained, shall be located on the same lot as the facilities for which it is provided, and shall conform to the following standards:

A.

Usability. The plaza shall have an appropriate dust-free surface, and shall be suitable for walking, sitting, and similar activities. Off-street parking and loading areas, driveways, and service areas shall not be counted as plazas. At least ten percent (10%) of the plaza area shall be occupied by planting, sculpture, pools, or similar features.

B.

Location and Visibility. The plaza shall be located not more than five (5) feet above the sidewalk of the abutting street. It shall be clearly visible from the sidewalk.

C.

Size and Shape. The plaza shall be of such size and shape that a rectangle inscribed within it shall have no dimension less than fifteen (15) feet.

D.

Accessibility. The plaza shall be directly and conveniently accessible to the general public during all business hours common in the area.

E.

Openness. There shall be no obstructions above the plaza except for awnings, trellises, or similar devices to enhance its usability.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3- 15-2011; prior planning code § 8335)

Chapter 17.128 - TELECOMMUNICATIONS REGULATIONS

Sections:

The provisions of this Chapter shall be known as the Telecommunications Regulations. The purpose and intent of these regulations are to provide a uniform and comprehensive set of standards for the development, location, siting and installation of wireless facilities. These regulations are intended to balance the needs of wireless communications providers, the regulatory functions of the City of Oakland, the mandates of State and Federal law and the potential impacts on the community and neighboring property owners in the design and siting of wireless facilities. The regulations are designed to promote and protect the public health, safety and welfare and the visual quality of the City of Oakland while encouraging the appropriate development of telecommunications activities throughout the city. These regulations shall apply to telecommunications projects.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8500)

17.128.020 - Exclusions.

The following activities shall be exempt from these regulations:

A.

Ham radio operators;

B.

Microwave dishes;

C.

Minor modifications of existing wireless communications facilities and attached wireless communications facilities, whether emergency or routine, provided there is little or no change in the visual appearance. Minor modifications are those modifications to conforming wireless and attached wireless communications facilities that meet the performance standards set forth in this document;

D.

Antennas and equipment cabinets or rooms completely located inside of structures and whose purpose is to enhance communications within the structures.

(Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8501)

17.128.025 - Restrictions on Telecommunications Facilities.

A.

Any Telecommunications Facility shall not be permitted in, or within one hundred (100) feet of the boundary of, any Residential Zone, HBX Zone, or D-CE-3 or D-CE-4 Zone, except upon the granting of a major conditional use permit pursuant to the conditional use permit procedure in Chapter 17.134.

B.

Any Monopole Telecommunications Facilities shall not be permitted in, or within three hundred (300) feet of the boundary of, any Residential Zone, HBX Zone, or D-CE-3 or D-CE-4 Zone, except upon the granting of a major conditional use permit pursuant to the conditional use permit procedure in Chapter 17.134.

C.

Any Telecommunications Facility whose antennas and equipment are not fully concealed from view shall not be permitted within three hundred (300) feet of the boundary of Residential Zones RH-1 through RU-1 inclusive, any HBX Zone, or D-CE-3 or D-CE-4 Zone, except upon the granting of a major conditional use permit pursuant to the conditional use permit procedure in Chapter 17.134.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13060, § 2(Exh. A), 3-1-2011)

17.128.030 - Removal of telecommunications facilities.

The project sponsor of a proposed telecommunications facility shall be required to provide proof of the establishment of a sinking fund to cover the cost of removing the facility if it is abandoned within a prescribed period. As used in these provisions, the word "abandoned" shall mean a facility that has not been operational for a consecutive six-month period, except where nonoperation is the result of maintenance or renovation activity pursuant to valid city permits. The sinking fund shall be established to cover a two-year period, at a financial institution approved by the city's Office of Budget and Finance. The sinking fund payment shall be determined by the Office of Budget and Finance and shall be adequate to defray expenses associated with the removal of the telecommunications facility.

(Ord. 11904 § 5.01 (part), 1996: prior planning code § 8502)

17.128.040 - Supplemental definitions.

In addition to the terms defined in Chapter 17.09, the following specific definitions shall apply in reviewing applications under the telecommunications regulations:

"Antenna" means any system of poles, panels, rods, or similar devices used for the transmission or reception of radio frequency signals.

1.

"Omni-directional antenna" transmits and/or receives radio frequency signals in a three hundred sixty (360) degree radial pattern. For the purpose of this document, an omni-directional antenna is up to fifteen (15) feet in height and up to four inches in diameter.

2.

"Directional antenna" (also known as a "panel" antenna) transmits and/or receives radio frequency signals in a directional pattern of less than three hundred sixty (360) degrees.

"Parabolic antenna" (also known as a dish antenna) means a bowl-shaped device for the reception and/or transmission of radio frequency communications signals in a specific directional pattern.

"Attached wireless communication facility" means a wireless communication facility that is affixed to an existing structure which is not considered a component of the attached wireless communications facility.

"Collocation" exists when more than one wireless communications provider mounts equipment on a single support structure.

"Concealed from view" or "concealed from view" means that no part of the antenna, the means by which the antenna is attached to a building or structure or the cabinets or structure containing the radio or other related equipment used to operate the site may be visible from the adjacent public right-of-way within three hundred (300) feet of the antenna.

"Equipment cabinet" means a cabinet or other enclosure not housed in a separate building and used to house equipment used by telecommunications providers at a facility.

"Equipment shelter" means a building used to house equipment used by telecommunications providers at a facility.

"Ground Post Facility" means an antenna facility consisting of multiple posts mounted on the ground upon which sit antennas. If the height is up to seventeen (17) feet, it is treated as a Macro Facility and if over seventeen (17) feet, it is treated as a Monopole.

"Related equipment" means all equipment ancillary to the transmissions and reception of voice and data via radio frequencies. Such equipment may include, but is not limited to, cable, conduit and connectors.

"Wireless communication facility" means an unstaffed facility for the transmission and reception of lowpower radio signals.

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8503)

17.128.050 - Micro Telecommunications Facilities.

A.

General Development Standards for Micro Telecommunications Facilities.

1.

The Micro Facilities shall be located on existing buildings, poles or other existing support structures.

2.

Antennas may not project more than one (1) foot above the top of the structure and there may be no more than six (6) antennas per site. Antennas are exempt from the height limitation of the zone in which they are located. Structures which are nonconforming with respect to height, may be used for omni directional antennas providing they do not exceed four (4) feet above the existing structure. Placement of an antenna on a nonconforming structure shall not be considered to be an expansion of the nonconforming structure.

3.

The equipment cabinet must be concealed from public view or placed underground. The cabinet must be regularly maintained.

4.

The applicant shall submit written documentation demonstrating that the emissions from the proposed project are within the limits set by the Federal Communications Commission.

B.

Design Review Criteria for Micro Telecommunications Facilities. In addition to the design review criteria listed in Chapter 17.136, the following specific additional criteria must be met when design review is required before an application can be granted:

1.

Antennas should be painted and/or textured to match the existing structure.

2.

Antennas mounted on architecturally significant structures or significant architectural details of the building should be covered by appropriate casings which are manufactured to match existing architectural features found on the building.

3.

Where feasible, antennas can be placed directly above, below or incorporated with vertical design elements of a building to help in camouflaging.

4.

That all reasonable means of reducing public access to the antennas and equipment has been made, including, but not limited to, placement in or on buildings or structures, fencing, anti-climbing measures and anti-tampering devices.

C.

Conditional Use Permit Criteria for Micro Telecommunications Facilities. In addition to the conditional use criteria listed in Chapter 17.134, the following specific additional criteria must be met before a conditional use permit can be granted:

1.

The project must be demonstrated to have no visual impact.

2.

The project must meet the special design review criteria listed in Subsection B. of this Section.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12872 § 4 (part), 2008; Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8505)

A.

General Development Standards for Mini Telecommunications Facilities.

1.

The Mini Facilities shall be located on existing buildings, poles or other existing support structures.

2.

The equipment cabinet(s) must be concealed from public view or placed underground. The cabinet must be regularly maintained.

3.

Mini Facilities may exceed the height limitation specified for all zones but may not exceed fifteen (15) feet above the roof line or parapet. Placement of an antenna on a nonconforming structure shall not be considered to be an expansion of the nonconforming structure.

4.

The applicant shall submit written documentation demonstrating that the emissions from the proposed project are within the limits set by the Federal Communications Commission.

B.

Design Review Criteria for Mini Telecommunications Facilities. In addition to the design review criteria listed in Chapter 17.136, the following specific additional criteria must be met when design review is required before an application can be granted:

1.

Antennas should be painted and/or textured to match the existing structure.

2.

Antennas mounted on architecturally significant structures or significant architectural details of the building should be covered by appropriate casings which are manufactured to match existing architectural features found on the building.

3.

Where feasible, antennas can be placed directly above, below or incorporated with vertical design elements of a building to help in camouflaging.

Equipment cabinets shall be concealed from view or placed underground.

5.

That all reasonable means of reducing public access to the antennas and equipment has been made, including, but not limited to, placement in or on buildings or structures, fencing, anti-climbing measures and anti-tampering devices.

6.

For antennas attached to the roof, maintain a 1:1 ratio (example: ten (10) feet high antenna requires ten (10) feet setback from facade) for equipment setback unless an alternative placement would reduce visual impact; treat or screen the antennas to match existing air conditioning units, stairs, elevator towers, or other background; avoid placing roof mounted antennas in direct line with significant view corridors.

C.

Conditional Use Permit Criteria for Mini Telecommunications Facilities. In addition to the conditional use criteria listed in Chapter 17.134, the following specific additional criteria must be met before a conditional use permit can be granted:

1.

The project must meet the special design review criteria listed in Subsection B. of this Section.

2.

The proposed project must not disrupt the overall community character.

3.

In the Residential RH, RD, RM, RU-1, or RU-2 Zones, HBX Zones, and in the D-CE-3 and D-CE-4 Zones, the project must not have any visual impact.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13060, § 2(Exh. A), 3-1-2011; Ord. 12768 § 3 (part), 2006; Ord. 12272 § 4 (part), 2000; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8506)

17.128.070 - Macro Telecommunications Facilities.

A.

General Development Standards for Macro Telecommunications Facilities.

1.

The Macro Facilities shall be located on existing buildings, poles or other existing support structures, or shall be post mounted.

The equipment shelter or cabinet must be concealed from public view or made compatible with the architecture of the surrounding structures or placed underground. The shelter or cabinet must be regularly maintained.

3.

Macro Facilities may exceed the height limitation specified for all zones but may not exceed fifteen (15) feet above the roof line or parapet. Placement of an antenna on a nonconforming structure shall not be considered to be an expansion of the nonconforming structure.

4.

Ground post mounted Macro Facilities must not exceed seventeen (17) feet to the top of the antenna.

5.

The applicant shall submit written documentation demonstrating that the emissions from the proposed project are within the limits set by the Federal Communications Commission.

B.

Design Review Criteria for Macro Telecommunications Facilities. In addition to the design review criteria listed in Chapter 17.136, the following specific additional criteria must be met when design review is required before an application can be granted:

1.

Antennas should be painted and/or textured to match the existing structure.

2.

Antennas mounted on architecturally significant structures or significant architectural detail of the building should be covered by appropriate casings which are manufactured to match existing architectural features found on the building.

3.

Where feasible, antennas can be placed directly above, below or incorporated with vertical design elements of a building to help in camouflaging.

4.

Equipment shelters or cabinets shall be screened from the public view by using landscaping, or materials and colors consistent with surrounding backdrop or placed underground or inside existing facilities or behind screening fences.

5.

Equipment shelters or cabinets shall be consistent with the general character of the area.

For antennas attached to the roof, maintain a 1:1 ratio (example: ten (10) feet high antenna requires ten (10) feet setback from facade) for equipment setback; screen the antennas to match existing air conditioning units, stairs, or elevator towers; avoid placing roof mounted antennas in direct line with significant view corridors.

7.

That all reasonable means of reducing public access to the antennas and equipment has been made, including, but not limited to, placement in or on buildings or structures, fencing, anti-climbing measures and anti-tampering devices.

C.

Conditional Use Permit Criteria for Macro Telecommunications Facilities. In addition to the conditional use criteria listed in Chapter 17.134, the following specific additional criteria must be met before a conditional use permit can be granted:

1.

The project must meet the special design review criteria listed in Subsection B. of this Section.

2.

The proposed project must not disrupt the overall community character.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8507)

17.128.080 - Monopole Telecommunications Facilities.

A.

General Development Standards for Monopole Telecommunications Facilities.

1.

Applicant and owner shall allow other future wireless communications companies including public and quasi-public agencies using similar technology to collocate antenna equipment and facilities on the monopole unless specific technical or other constraints, subject to independent verification, at the applicant's expense, at the discretion of the City of Oakland Zoning Manager, prohibit said collocation. Applicant and other wireless carriers shall provide a mechanism for the construction and maintenance of shared facilities and infrastructure and shall provide for equitable sharing of cost in accordance with industry standards. Construction of future facilities shall not interrupt or interfere with the continuous operation of applicant's facilities.

2.

The equipment shelter or cabinet must be concealed from public view or made compatible with the architecture of the surrounding structures or placed underground. The shelter or cabinet must be regularly maintained.

3.

When a monopole is in a Residential Zone or adjacent to a residential use, it must be set back from the nearest residential lot line a distance at least equal to its total height.

4.

In all zones other than the D-CE-5, D-CE-6, IG, CIX-2, and IO Zones, the maximum height of Monopole Telecommunications Facilities and connecting appurtenances may be increased from the otherwise required maximum height to forty-five (45) feet upon the granting of a Conditional Use Permit (see Chapter 17.134 for the Conditional Use Permit Procedure).

5.

In the D-CE-5, D-CE-6, CIX-2, and IO Zones, the maximum height of Monopole Telecommunications Facilities and connecting appurtenances may be increased from the otherwise required maximum height to eighty (80) feet upon the granting of a Conditional Use Permit (see Chapter 17.134 for the Conditional Use Permit Procedure).

6.

In the IG Zone, the maximum height of Monopole Telecommunications Facilities and connecting appurtenances may reach a height of forty-five (45) feet. These facilities may reach a height of eighty (80) feet upon the granting of Regular Design Review approval (see Chapter 17.136 for the Design Review Procedure).

7.

The applicant shall submit written documentation demonstrating that the emissions from the proposed project are within the limits set by the Federal Communications Commission.

8.

Antennas may not extend more than fifteen (15) feet above their supporting structure.

B.

Design Review Criteria for Monopole Telecommunications Facilities. In addition to the design review criteria listed in Chapter 17.136, the following specific additional criteria must be met when design review is required before an application can be granted:

1.

Collocation is to be encouraged when it will decrease visual impact and collocation is to be discouraged when it will increase negative visual impact.

2.

Monopoles should not be sited to create visual clutter or negatively affect specific views.

3.

Monopoles shall be screened from the public view wherever possible.

4.

The equipment shelter or cabinet must be concealed from public view or made compatible with the architecture of the surrounding structures or placed underground. The shelter or cabinet must be regularly maintained.

5.

Site location and development shall preserve the preexisting character of the surrounding buildings and land uses and the zone district as much as possible. Wireless communication towers shall be integrated through location and design to blend in with the existing characteristics of the site to the extent practical. Existing on-site vegetation shall be preserved or improved, and disturbance of the existing topography shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area.

6.

That all reasonable means of reducing public access to the antennas and equipment has been made, including, but not limited to, placement in or on buildings or structures, fencing, anti-climbing measures and anti-tampering devices.

C.

Conditional Use Permit Criteria for Monopole Telecommunications Facilities. In addition to the conditional use criteria listed in Chapter 17.134, the following specific additional criteria must be met before a conditional use permit can be granted:

1.

The project must meet the special design review criteria listed in Subsection B. of this Section.

2.

Monopoles should not be located any closer than one thousand five hundred (1,500) feet from existing monopoles unless technologically required or visually preferable.

3.

The proposed project must not disrupt the overall community character.

4.

If a major conditional use permit is required, the Planning Director or the Planning Commission may request independent expert review regarding site location, collocation and facility configuration. Any party may request that the Planning Commission consider making such request for independent expert review.

a.

If there is any objection to the appointment of an independent expert engineer, the applicant must notify the Planning Director within ten (10) days of the Commission request. The Commission will hear arguments regarding the need for the independent expert and the applicant's objection to having one appointed. The Commission will rule as to whether an independent expert should be appointed.

b.

Should the Commission appoint an independent expert, the Commission will direct the Planning Director to pick an expert from a panel of licensed engineers, a list of which will be compiled, updated and maintained by the Planning Department.

c.

No expert on the panel will be allowed to review any materials or investigate any application without first signing an agreement under penalty of perjury that the expert will keep confidential any and all information learned during the investigation of the application. No personnel currently employed by a telecommunication company are eligible for inclusion on the list.

d.

An applicant may elect to keep confidential any proprietary information during the expert's investigation. However, if an applicant does so elect to keep confidential various items of proprietary information, that applicant may not introduce the confidential proprietary information for the first time before the Commission in support of the application.

e.

The Commission shall require that the independent expert prepare the report in a timely fashion so that it will be available to the public prior to any public hearing on the application.

f.

Should the Commission appoint an independent expert, the expert's fees will be paid by the applicant through the application fee, imposed by the City.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 12768 § 3 (part), 2006; Ord. 12272 § 4 (part), 2000; Ord. 12237 § 4 (part), 2000; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8508)

A.

General Development Standards for Tower Telecommunications Facilities.

Applicant and owner shall allow other future wireless communications companies including public and quasi-public agencies using similar technology to collocate antenna equipment and facilities on the monopole unless specific technical or other constraints, subject to independent verification, at the applicant's expense, at the discretion of the City of Oakland Zoning Manager, prohibit said collocation. Applicant and other wireless carriers shall provide a mechanism for the construction and maintenance of shared facilities and infrastructure and shall provide for equitable sharing of cost in accordance with industry standards. Construction of future facilities shall not interrupt or interfere with the continuous operation of applicant's facilities.

2.

The equipment shelter or cabinet must be concealed from public view or made compatible with the architecture of the surrounding structures or placed underground. The shelter or cabinet must be regularly maintained.

3.

When a tower is adjacent to a residential use, it must be set back from the nearest residential lot line a distance at least equal to its total height.

4.

Antennas may not extend more than fifteen (15) feet above their supporting structure.

5.

The applicant shall submit written documentation demonstrating that the emissions from the proposed project are within the limits set by the FCC.

B.

Design Review Criteria for Tower Telecommunications Facilities. In addition to the design review criteria listed in, the following specific additional criteria must be met when design review is required before an application can be granted:

1.

Collocation is to be encouraged when it will decrease visual impact and collocation is to be discouraged when it will increase negative visual impact.

2.

Towers should not be sited to create visual clutter or negatively affect specific views.

3.

Towers shall be screened from the public view wherever possible.

The equipment shelter or cabinet must be concealed from public view or made compatible with the architecture of the surrounding structures or placed underground. The shelter or cabinet must be regularly maintained.

5.

Site location and development shall preserve the preexisting character of the surrounding buildings and land uses and the zone district as much as possible. Wireless communication towers shall be integrated through location and design to blend in with the existing characteristics of the site to the extent practical. Existing on-site vegetation shall be preserved or improved, and disturbance of the existing topography shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area.

6.

That all reasonable means of reducing public access to the antennas and equipment has been made, including, but not limited to, placement in or on buildings or structures, fencing, anti-climbing measures and anti-tampering devices.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12768 § 3 (part), 2006; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8509)

17.128.100 - Regulations apply to parks and other similar open spaces.

Telecommunications Facilities proposed in parks and other similar open spaces land shall be subject to the same regulations as set forth in the nearest Residential Zone.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 11904 § 5.01 (part), 1996: prior planning code § 8510)

New wireless facilities shall generally be located on the following properties or facilities in order of preference:

A.

Co-located on an existing structure or facility with existing wireless antennas.

B.

City-owned properties or other public or quasi-public facilities.

C.

Existing commercial or industrial structures in Nonresidential Zones (excluding all HBX Zones and the D- CE-3 and D-CE-4 Zones).

D.

Existing commercial or industrial structures in Residential Zones, HBX Zones, or the D-CE-3 or D-CE-4 Zones.

E.

Other Nonresidential uses in Residential Zones, HBX Zones, or the D-CE-3 or D-CE-4 Zones.

F.

Residential uses in Nonresidential Zones (excluding all HBX Zones and the D-CE-3 and D-CE-4 Zones).

G.

Residential uses in Residential Zones, HBX Zones, or the D-CE-3 or D-CE-4 Zones.

Facilities locating on an A, B or C ranked preference do not require a site alternatives analysis. Facilities proposing to locate on a D through G ranked preference, inclusive, must submit a site alternatives analysis as part of the required application materials. A site alternatives analysis shall, at a minimum, consist of:

a.

The identification of all A, B and C ranked preference sites within one thousand (1,000) feet of the proposed location. If more than three (3) sites in each preference order exist, the three such closest to the proposed location shall be required.

b.

Written evidence indicating why each such identified alternative cannot be used. Such evidence shall be in sufficient detail that independent verification, at the applicant's expense, could be obtained if required by the City of Oakland Zoning Manager. Evidence should indicate if the reason an alternative was rejected was technical (e.g. incorrect height, interference from existing RF sources, inability to cover required area) or for other concerns (e.g. refusal to lease, inability to provide utilities).

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13060, § 2(Exh. A), 3-1-2011; Ord. 12768, § 3 (part), 2006)

17.128.120 - Site design preferences.

New wireless facilities shall generally be designed in the following order of preference:

A.

Building or structure mounted antennas completely concealed from view.

B.

Building or structure mounted antennas set back from roof edge, not visible from public right-of way.

C.

Building or structure mounted antennas below roof line (facade mount, pole mount) visible from public right-of-way, painted to match existing structure.

D.

Building or structure mounted antennas above roof line visible from public right-of-way.

E.

Monopoles.

F.

Towers.

Facilities designed to meet an A or B ranked preference do not require a site design alternatives analysis. Facilities designed to meet a C through F ranked preference, inclusive, must submit a site design alternatives analysis as part of the required application materials. A site design alternatives analysis shall, at a minimum, consist of:

a.

Written evidence indicating why each such higher preference design alternative cannot be used. Such evidence shall be in sufficient detail that independent verification could be obtained if required by the City of Oakland Zoning Manager. Evidence should indicate if the reason an alternative was rejected was technical (e.g. incorrect height, interference from existing RF sources, inability to cover required area) or for other concerns (e.g. inability to provide utilities, construction or structural impediments).

(Ord. 12768 § 3 (part), 2006)

The applicant for all wireless facilities, including requests for modifications to existing facilities, shall submit the following verifications:

a.

With the initial application, a RF emissions report, prepared by a licensed professional engineer or other expert, indicating that the proposed site will operate within the current acceptable thresholds as established by the Federal government or any such agency who may be subsequently authorized to establish such standards.

b.

Prior to commencement of construction, a RF emissions report indicating the baseline RF emissions condition at the proposed site.

c.

Prior to final building permit sign off, an RF emissions report indicating that the site is actually operating within the acceptable thresholds as established by the Federal government or any such agency who may be subsequently authorized to establish such standards.

(Ord. 12768 § 3 (part), 2006)

Chapter 17.130 - ADMINISTRATIVE PROCEDURES GENERALLY

Sections:

The provisions of this Chapter shall be known as the General Regulations. The purpose of these provisions is to set forth certain regulations that may or shall, depending on the situation, apply to all provisions of procedures and administration (Chapters 17.130 through 17.148).

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9000)

17.130.020 - Alternative notification procedures.

A.

Number of Owners and Occupants Greater than One Thousand (1,000). If the number of owners and occupants of real property to whom notice would be mailed or delivered pursuant to any provision of procedures and administration (Chapters 17.130 through 17.148) were to exceed one thousand (1,000), the Director of City Planning may, at his or her discretion, use or specify other alternative notification procedures deemed appropriate. Such decision may be appealed pursuant to the administration appeal procedure in Chapter 17.132.

B.

Notification Requirements Not in the Public Interest. If the Director of City Planning finds that, due to the special circumstances of a specific application, there will be no negative impact on surrounding properties, and that the purposes of the zoning regulations and the public interest of the citizens of Oakland will not be served by rigidly following the notification requirements set forth in any provision of procedures and administration (Chapters 17.130 through 17.148), the Director may, at his or her discretion, vary the requirements set forth or may use other alternative notification procedures deemed appropriate. Such decision may be appealed pursuant to the administrative appeal procedure in Chapter 17.132.

C.

Notification of Adjoining Jurisdictions. Whenever a provision of procedures and administration (Chapters 17.130 through 17.148) results in an adjoining jurisdiction falling within an area in which notices are to be mailed or delivered to Oakland property owners and occupants, such notice shall also be mailed or delivered to the Director of City or County Planning, whichever the case may be, in said jurisdiction.

(Ord. No. 13763, § 5, 10-3-2023; Prior planning code § 9001)

Notice by mail is deemed given on the date the notice is placed into the U.S. Mail system.

(Prior planning code § 9002)

A.

Planning Commission is Final Decision-making Body. If, in a matter that is appealable to the Planning Commission or to the Commission's Residential Appeals Committee and in which the Commission or Committee is the final decision making body, and is unable to reach an affirmative decision to approve or deny an application, the initial decision by the Planning Director stands as a final decision if the

Commission or Committee is unable to reach a decision the second time the matter appears on the Commission's or Committee's agenda and votes are taken.

B.

City Council is Final Decision-making Body. If, in the matter that is appealable to the City Council, the Planning Commission or the Commission's Residential Appeals Committee is unable to reach an affirmative decision to approve or deny an application, the Chair of the Commission, in his or her discretion, shall either:

1.

Forward the matter to the City Council if the Chair determines that the Commission or Committee is deadlocked or if the application would otherwise be automatically Deemed Approved and the applicant has not agreed to waive the state or local Deemed Approved provisions; or

2.

Request further votes on the matter at this meeting or at subsequent meetings, provided however that the Commission or Committee may not continue the matter if it would result in the application being Deemed Approved.

A tie vote that is forwarded to the City Council, for the Council's decision, shall be considered a decision for purposes of any state or local Deemed Approved provisions, such that the application shall not be automatically Deemed Approved and any agreement between the Planning Director, Commission or Committee and the applicant extending the time of such automatic Deemed Approved shall include a statement to this effect.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12376 § 3 (part), 2001: Ord. 11741 § 2, 1994: prior planning code § 9003)

17.130.050 - Presentation and submittal of issues and/or evidence.

A.

Whenever, pursuant to the Oakland Planning Code, a matter of original jurisdiction, for which a hearing is required, is pending before the City Council or City Planning Commission, any interested party, while the hearing is open, may submit any issues and/or oral, written and/or documentary evidence to the City Council or the Commission, whichever is applicable, for its consideration.

B.

Whenever, pursuant to the Oakland Planning Code, an appeal for which a hearing is required is pending before the City Council, City Planning Commission, or the Commission's Residential Appeals Committee, the appellant may not submit any issues and/or oral, written and/or documentary evidence not previously submitted in the appeal form itself and presented: (a) prior to the close of the written public comment period for the underlying decision being appealed, in the case of appeals based on a decision by the Zoning Administrator or other administrative decisions, or (b) prior to the close of the City Planning Commission's public hearing for the underlying decision being appealed, in the case of appeals based on decisions made by the City Planning Commission, as applicable. Unless otherwise expressly stated in the Oakland Municipal Code and/or Oakland Planning Code, appeals are not de novo.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 11828 § 1, 1995: prior planning code § 9004)

Editor's note— Ord. No. 13270, § 3(Exh. A), adopted November 18, 2014, changed the title of Section 17.130.050 from "Presentation of written and documentary evidence" to "Presentation and submittal of issues and/or evidence." The historical notation has been preserved for reference purposes.

17.130.060 - Obligation of applicant to defend, indemnify, and hold harmless the City of Oakland.

A.

To the maximum extent permitted by law, the applicant shall defend (with counsel acceptable to the City), indemnify, and hold harmless the City of Oakland, the Oakland City Council, the City of Oakland Redevelopment Agency, the City of Oakland Redevelopment Successor Agency, the Oakland City Planning Commission and its respective agents, officers, volunteers, and employees (hereafter collectively called City) from any liability, damages, claim, judgment, loss (direct or indirect), action, causes of action or proceeding (including legal costs, attorneys' fees, expert witness or consultant fees, City Attorney or staff time, expenses or costs) (collectively called "Action") against the City to attack, set aside, void or annul, any land-use related approvals and actions including but not limited to: (1) amendments to the Planning Code, rezonings, and/or General Plan amendments; (2) an approval by the City relating to a developmentrelated application or subdivision and/or a (Lease) Disposition and Development Agreement; or (3) implementation of such. The City may elect, in its sole discretion, to participate in the defense of said Action and the applicant shall reimburse the City for its reasonable legal costs and attorneys' fees.

B.

Within ten (10) calendar days of the filing of any Action as specified in Subsection A. above, the applicant shall execute a Letter of Agreement with the City, acceptable to the Office of the City Attorney, which memorializes the above obligations. These obligations and the Letter of Agreement shall survive termination, extinguishment or invalidation of the approval. Failure to timely execute the Letter of

(10) calendar days of the filing of any Action as specified in Subsection A. above, the applicant shall execute a Letter of Agreement with the City, acceptable to the Office of the City Attorney, which memorializes the above obligations. These obligations and the Letter of Agreement shall survive termination, extinguishment or invalidation of the approval. Failure to timely execute the Letter of

Agreement does not relieve the applicant of any of the obligations contained in this Section or any other requirements or conditions of approval that may be imposed by the City.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006)

17.130.070 - Uniformly applied development standards automatically imposed as standard conditions of approval for development projects.

A development application must comply with all current and applicable City of Oakland uniformly applied development standards, typically imposed as Standard Conditions of Approval, including those development applications "deemed approved" under the State Permit Streamlining Act (Government Code section 65920 et. seq., as it may be amended).

(Ord. 12899 § 4, Exh. A (part), 2008)

17.130.080 - City Council consideration of legislative and adjudicatory actions.

When a development application requires both legislative and adjudicatory actions, the entire application shall be considered by the City Council for final action. The City Council has the authority to consider and revise as appropriate (accept, reject, or modify) the adjudicatory land use decisions of the Planning Commission, regardless of whether an appeal to the City Council is filed challenging such adjudicatory land use decisions.

(Ord. 12899 § 4, Exh. A (part), 2008)

17.130.090 - Minor land use permits considered concurrently with Major permits.

A.

Any Minor land use-related permit and/or approval that is related to a development application that also includes any Major land use-related permit and/or approval shall be considered concurrently with the Major land use-related permit and/or approval, and shall follow all procedural requirements associated with City Planning Commission decisions. In this case, the entire application shall initially be considered by the City Planning Commission and may be appealed to the City Council, in accordance with the requirements for Major land use-related permit and/or approval or discretionary actions.

B.

Any Minor land use-related permit referred to the City Planning Commission for initial decision in order to be considered concurrently with any Major land use-related permit and/or approval shall still be considered a Minor land use-related permit and/or approval, and the required findings for said Minor land use-related permit and/or approval shall apply.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Chapter 17.131 - REASONABLE ACCOMMODATIONS POLICY AND PROCEDURES

A.

Title and Intent. The provisions of this Chapter shall be known as the Reasonable Accommodations Policy and Procedure Regulations. The intent of the Reasonable Accommodations Policy and Procedure regulations is to provide flexibility in the application of the Planning Code for individuals with a disability, when flexibility is necessary to eliminate barriers to housing opportunities. This Chapter will facilitate compliance with federal and state fair housing laws, and promote housing opportunities for residents of Oakland.

B.

Purpose. The purpose of this Chapter is to establish a procedure for persons with disabilities seeking fair access to housing to make requests for reasonable accommodation in the application of Oakland's zoning laws, rules, policies, practices and procedures pursuant to Section 3604(f)(3)(b) of Title 42 of the United States Code (the "Fair Housing Act") and Section 12955 et seq. of the California Government Code (the "California Fair Employment and Housing Act"), which prohibit local government from refusing to make reasonable accommodations in policies and practices when these accommodations are necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling.

C.

Applicability. A request for reasonable accommodation may include a modification or exception to the rules, standards and practices for the siting, development and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing of their choice.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13247, § 3(Exh. A), 7-15-2014)

17.131.020 - Definitions.

"Acts" means the "Fair Housing Act" (Section 3601 et seq. of Title 42 of the United States Code) and the "California Fair Employment and Housing Act" (Section 12955 et seq. of the California Government Code).

"Person with a Disability" is any person who has a physical or mental impairment that limits one or more major life activities; anyone who is regarded as having such impairment; or anyone who has a record of such impairment. Federal and State fair housing laws do not protect an individual's current unlawful use of controlled substances or other drugs, unless that individual has a separate disability.

"Request for Reasonable Accommodations" means a request to modify land use, zoning and building regulations, policies, practices, or procedures in order to give people with disabilities an equal opportunity to use and enjoy a dwelling.

(Ord. No. 13247, § 3(Exh. A), 7-15-2014)

17.131.030 - Notice of availability; application requirements.

A.

Notice of the City of Oakland's Reasonable Accommodations Policy and Procedure shall be displayed at public information counters in the planning and building offices of the City.

B.

Any person (or his or her representative) who requires reasonable accommodation because of a disability shall make such a request to the City on a form provided by the Planning Director, or his or her designee. The application shall be accompanied by such information as may be required to enable review of the requested accommodation. City staff are available to assist with the completion of a reasonable accommodations request (see related Reasonable Accommodations Form for more information).

C.

Any information submitted as part of a reasonable accommodations request shall be kept confidential and shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection.

D.

Review with other land use or design review applications. If the project for which the request is being made also requires one or more unrelated discretionary approvals (including, but not limited to, design review, conditional use permit, variance or subdivision), then to the extent feasible, the applicant shall file the request for reasonable accommodation together with any unrelated application for discretionary approval.

(Ord. No. 13247, § 3(Exh. A), 7-15-2014)

17.131.040 - Review procedures.

A.

Authority. The Planning Director, or his or her designee, shall have the authority to consider and act on requests for reasonable accommodation and shall make reasonable accommodations in rules, policies, practices, or services when those accommodations may be necessary to afford persons with disabilities equal opportunities to use and enjoy the dwelling.

1.

For requests for reasonable accommodation the Planning Director, or his or her designee, shall issue a written determination within a timely manner but no later than thirty (30) days of the date of receipt of a complete application form and may: (1) grant the accommodation request; (2) grant the accommodation request subject to specified nondiscriminatory conditions of approval; or (3) deny the request. All written determinations shall give notice of the right to appeal, if any, as specified in Section 17.131.070. The notice of determination shall be sent to the applicant by first class mail or in a format requested by the applicant.

2.

For requests for reasonable accommodations involving any applications for discretionary approval, the application for reasonable accommodation shall be processed and considered separately from any discretionary elements of the same proposal. The Planning Director, or his or her designee, shall act on the

request for reasonable accommodation within a timely manner but no later than thirty (30) days of the date of a complete application form; however, if the request for a reasonable accommodation cannot be effectuated until a final decision is rendered on the related discretionary approvals, a "provisional approval" can be granted within the 30 day time frame allowing the reasonable accommodation request to be implemented, or modified as needed to obtain the same goal, at the time of the final discretionary approval, and shall become final at the same time. The applications for discretionary approval shall be separately considered and shall be subject to the procedures for consideration specified in the applicable Planning Code Chapter, depending on the type of application. The appropriate decision-making body shall act on all discretionary permits, but not the reasonable accommodation request.

B.

Types of Requests.

1.

"Category A" Requests. Requests for accommodation from development regulations not specified as a "Category B" request (see item 2 below), including but not limited to, setbacks, building height limits and parking regulations in the Planning Code, or for any additions to Residential Facilities which meet the definition of a "Small Project," as defined in Section 17.136.030(B), shall be considered "Category A" requests.

2.

"Category B" Requests. Requests for accommodation from residential density regulations in the Planning Code; distance separation requirements in the Planning Code; land use activities not permitted by the Planning Code; any additions to Residential Facilities which meet the definition of "Regular design review" as defined in Section 17.136.040(A); and any other accommodations request, under the discretion of the Planning Director, shall be considered "Category B" requests.

C.

Procedure.

1.

The applicant shall submit a completed reasonable accommodation application form to the Planning Director, or his or her designee, or request assistance from City staff to complete the application.

2.

Whenever reasonable accommodation is requested for a proposal also requiring one or more discretionary land use permits, including but not limited to a design review, conditional use permit, planned unit development permit, or variance, to the extent feasible the application for reasonable accommodation shall be submitted with the application for said permit(s). The reasonable accommodation request shall be processed and considered separately from any land use permits requested for the same proposal as specified in Section 17.131.040(2).

In reviewing a request for a reasonable accommodation, the Planning Director, or his or her designee, shall consider information in the completed reasonable accommodation application form, factors described in Section 17.131.050 and/or 17.131.060, and any additional information consistent with this Chapter. The Planning Director, or his or her designee, may consult with staff of the City's Americans with Disabilities Act (ADA) Programs Division during the review period.

4.

While a request for reasonable accommodation is pending, all laws and regulations otherwise applicable to the property that is the subject of the request shall remain in full force and effect.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13247, § 3(Exh. A), 7-15-2014)

17.131.050 - Criteria for "Category A" requests.

A proposal will qualify for "Category A" Request if it meets each of the provisions set forth below.

A.

The proposal is limited to one or more of the types of work listed as "Category A" request in Section 17.131.040(B)(1); and

B.

The accommodation is necessary to afford people with disabilities an equal opportunity to use and enjoy the dwelling.

(Ord. No. 13247, § 3(Exh. A), 7-15-2014)

In making a determination to grant a requested accommodation, the Planning Director, or his or her designee, shall make all of the following findings for "Category B" requests:

1.

That the housing, which is the subject of the request for reasonable accommodation, will be used by people with disabilities protected under fair housing laws.

2.

That the accommodation is necessary to afford people with disabilities an equal opportunity to use and enjoy the dwelling;

3.

That the requested accommodation will not require a fundamental alteration to zoning laws, rules, policies, practices and procedures; and

That the requested accommodation will not impose an undue financial or administrative burden on the City.

None of the findings of this Section are intended to supersede any other findings which might also be required for a discretionary permit that is reviewed concurrently with the request for accommodation (see Section 17.131.030 (D)).

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13247, § 3(Exh. A), 7-15-2014)

17.131.070 - Finality of decision and appeal of determination.

A.

"Category A" and "Category B" Requests.

1.

For requests for reasonable accommodations not involving one or more unrelated land use permits, a decision by the Planning Director, or his or her designee, shall become final ten (10) calendar days after the date of initial decision, unless appealed to the City Administrator by the applicant. In the event that the last date of appeal falls on a weekend, holiday or when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Appeals considered by the City Administrator, in consultation with the City's ADA Programs Division, shall be final immediately and are not appealable.

2.

For requests for reasonable accommodations involving one or more land use permits, the Planning Director, or his or her designee, shall act on the request for reasonable accommodations, subject to the appeal process described in Section 17.131.070(A)(1). The appeal periods in Section 17.131.070(A)(1) shall run from the date of the denial of the permit or the modification or denial of the provisional permit, whichever is later. The appropriate decision making body shall act on all discretionary permits including appeal processes for the discretionary permits.

(Ord. No. 13247, § 3(Exh. A), 7-15-2014)

Chapter 17.132 - ADMINISTRATIVE APPEAL PROCEDURE

Sections:

The provisions of this Chapter shall be known as the Administrative Appeal Procedure. The purpose of these provisions is to prescribe the procedure by which an appeal may be taken to the City Planning Commission or, if applicable, to the Commission's Residential Appeals Committee from any determination or interpretation made by the Director of City Planning under the zoning regulations. This procedure shall apply to all appeals from such determinations and interpretations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12376 § 3 (part), 2001: prior planning code § 9100)

17.132.020 - Appeal.

Within ten (10) calendar days after the date of any administrative determination or interpretation made by the Director of City Planning under the zoning regulations, an appeal from such decision may be taken to the City Planning Commission by any interested party. In the case of appeals involving One-Family or Twoto Four-Family Residential Facilities, the appeal shall be considered by the Commission's Residential Appeals Committee. Such appeal shall be made on a form prescribed by the Planning and Building Department and shall be filed with such Department and shall be accompanied by such a fee as specified in the City fee schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Planning Director or Zoning Manager or wherein his or her decision is not supported by the evidence in the record. The appeal shall be accompanied by such information as may be required to facilitate review. Upon receipt of the appeal, the Secretary of the City Planning Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior to the date of the Commission's or Committee's consideration of the appeal, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal.

(Ord. No. 13762, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: prior planning code § 9101)

17.132.030 - Procedure for consideration.

In its review of an administrative appeal, the City Planning Commission or, if applicable, the Commission's Residential Appeals Committee shall consider the purpose and intent, as well as the letter, of the pertinent provisions, and shall affirm, modify, or reverse the Planning Director's or Zoning Manager's determination or interpretation. The decision of the Commission or Committee shall be final immediately, except as otherwise provided in Section 17.132.040.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: prior planning code § 9102)

17.132.040 - Appeal to Council on transit line sign controls.

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an administrative appeal involving the provisions of Section 17.104.040 or 17.114.150, an appeal from said decision may be taken to the City Council by any interested party. In event the last date of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. Upon receipt of the appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof.

Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. In considering the appeal, the Council shall review the purpose and intent, as well as the letter, of the pertinent provisions, and shall affirm, modify, or reverse the Commission's decision. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9103)

Chapter 17.134 - CONDITIONAL USE PERMIT PROCEDURE

Sections:

17.134.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Conditional Use Permit Procedure. The purpose of these provisions is to prescribe the procedure for the accommodation of uses with special site or design requirements, operating characteristics, or potential adverse effects on surroundings, through review and, where necessary, the imposition of special conditions of approval. This procedure shall apply to all proposals for which a conditional use permit is required by the zoning regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9200)

17.134.020 - Definition of Major and Minor Conditional Use Permits.

A.

Major Conditional Use Permit. A Conditional Use Permit (CUP) is considered a Major Conditional Use Permit if it involves any of the following:

1.

Thresholds. Any project requiring a Conditional Use Permit that meets any of the following size thresholds:

a.

The actual project site (including only portions of the lot actually affected by the project) exceeds one (1) acre;

b.

Nonresidential projects involving more than twenty-five thousand (25,000) square feet of floor area, except in the D-DT, (when not combined with the S-7 Zone), S-15, D-BV, D-CO, or D-LM Zones;

c.

Large-Scale Developments.

i.

Any development not involving one hundred percent (100%) affordable housing units, other than manager's units, which is located in the S-15, D-CO, or D-LM Zones, and results in more than one hundred thousand (100,000) square feet of new floor area;

ii.

Any development not involving one hundred percent (100%) affordable housing units, other than manager's units, which is located in the D-DT Zones (when not combined with the S-7 Zone), and results in more than two hundred thousand (200,000) square feet of new floor area, or a new building or portion thereof of more than two hundred fifty (250) feet in height.

d.

Projects that request to be considered for an exception to the D-LM Height/Bulk/Intensity Area standards, as described in Table 17.101G.04, Note 2.

2.

Uses. Any project requiring a Conditional Use Permit that involves any of the following activity or facility types except where the proposal involves only accessory parking, the resumption of a discontinued nonconforming activity, or an addition to an existing activity which does not increase the existing floor area by more than twenty percent (20%):

a.

Activities:

i.

Extensive Impact Civic;

ii.

Special Health Care Civic;

iii.

Fast-food Restaurant Commercial;

iv.

Convenience Market Commercial;

v.

Alcoholic Beverage Sales Commercial;

vi.

Transient Habitation Commercial;

vii.

Heavy/High Impact Industrial;

viii.

Small Scale Transfer and Storage Hazardous Waste Management Industrial;

ix.

Industrial Transfer/Storage Hazardous Waste Management Industrial;

x.

Mining and Quarrying Extractive.

b.

Facilities:

i.

Drive-Through;

ii.

Advertising Sign, except when the facility meets the requirements of Section 17.11.090.

3.

Special Situations. Any project requiring a Conditional Use Permit that involves any of the following situations:

a.

A project requiring development of an Environmental Impact Report (EIR);

b.

A single establishment containing a Commercial or Industrial Activity, or portion thereof, which is located in any Residential Zone and occupies more than seven thousand five hundred (7,500) square feet of floor area, except where the proposal involves only the resumption of a nonconforming activity;

c.

Off-Street Parking Facilities in the D-DT (except the D-DT-JLI) and D-LM Zones serving fifty (50) or more vehicles;

d.

Monopole Telecommunications Facilities in, or within three hundred (300) feet of the boundary of, any Residential or HBX Zone;

e.

A project in the OS Zones listed as requiring a Major Conditional Use Permit in Chapter 17.11, except that any improvement or change in use consistent with a Park Master Plan that has been adopted by the Oakland City Council shall not require a Conditional Use Permit (as specified in Section 17.135.050), even where it involves facilities or activities that would otherwise require a Major Conditional Use Permit in Section 17.11.060;

f.

An Electroplating Activity as defined in Section 17.09.040 subject to the provisions of Section 17.102.340;

g.

A Telecommunications Facility in or within one hundred (100) feet of the boundary of any Residential Zone, HBX Zone, or the D-CE-3 or D-CE-4 Zone;

h.

A Telecommunications Facility whose antennas and equipment are not fully concealed from view within three hundred (300) feet of the boundary of the RH, RD, RM, RU-1, or RU-2 Zones, HBX Zones, or the D- CE-3 or D-CE-4 Zone;

i.

A project requiring a Conditional Use Permit as set forth under Section 17.153.050 for any demolition or conversion of Residential Hotel Units or a Residential Hotel.

j.

A Park Master Plan for a City-Owned Park, subject to the provisions of Section 17.135.050(A).

B.

Minor Conditional Use Permit. A Minor Conditional Use Permit is a Conditional Use Permit which does not involve any of the purposes listed in Subsection A. of this Section.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 103-2023; Ord. No. 13527, § 2, 4-2-2019; Ord. No. 13509, § 2(Exh. A), 12-4-2018; Ord. No. 13501, § 4(Exh. A), 7-24-2018; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13276, § 5(Exh. A), 12-9-2014; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13060, § 2(Exh. A), 3-1-2011; Ord. No. 13042, § 4(Exh. A), 10-19-2010; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. No. 12971, § 2(Exh. A), 9-22-2009; Ord. No. 12955, § 2(Exh. A), 7-21-2009; Ord. 12872 § 4 (part), 2008; Ord. 12868 § 2 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12768 § 3 (part), 2006; Ord. 12501 §

80, 2003: Ord. 12450 § 19, 2002; Ord. 12350 § 3 (part), 2001; Ord. 12272 § 4 (part), 2000; Ord. 12237 § 4, 2000; Ord. 12234 § 4, 2000; Ord. 12224 § 7, 2000; Ord. 12205 § 4 (part), 2000; Ord. 12199 § 9 (part), 2000; Ord. 12138 § 4 (part), 1999; Ord. 12078 § 5 (part), 1998; Ord. 12072 § 12, 1998; Ord. 12016 § 2 (part), 1997; Ord. 11904 § 5.91, 1996; Ord. 11892 § 21, 1996; Ord. 11539 § 2, 1993; prior planning code § 9201)

An application for a conditional use permit shall be made by the owner of the affected property, or his or her authorized agent, on a form prescribed by the City Planning Department and shall be filed with such Department. The application shall be accompanied by such information including, but not limited to, site and building plans, drawings and elevations, and operational data, as may be required to enable the pertinent criteria to be applied to the proposal, and by the fee prescribed in the fee schedule in Chapter 17.150. In the OS Zone, the application shall also include the most recent open space balance calculated pursuant to the no net loss provisions at Section 17.135.060, and any additional information deemed necessary by the City Planning Department.

(Ord. 12078 § 5 (part), 1998: prior planning code § 9202)

17.134.040 - Procedures for consideration.

A.

Major Conditional Use Permits.

1.

In All Zones. An application for a Major Conditional Use Permit shall be considered by the City Planning Commission which shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property involved in the application. Notice of the hearing shall also be given by mail or delivery to all owners and occupants of real property in the City within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Commission for its consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Commission shall determine whether the proposal conforms to the general use permit criteria set forth in Section 17.134.050 and to other applicable use permit criteria, and may grant or deny the application for the proposed conditional use permit or require such changes or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The determination of the Commission shall become final ten (10) calendar days after the date of decision unless appealed to the City Council in accordance with Section 17.134.070. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Commission prior to the close of the Commission's public hearing on the matter, in accordance with the above procedures. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

2.

Alcoholic Beverage Sales Activities in Alcoholic Beverage Sales License Overconcentrated Areas. In addition to following the provisions of Subsection A.1. of this Section, the City Planning Commission shall also determine whether the proposal conforms to the criteria for findings of "Public Convenience and Necessity" set forth in Subsection 17.103.030.B.3.

3.

In the OS Zone. Applications for conditional use permits in the OS Zone shall be subject to the special use permit review procedure for the OS Zone established in Chapter 17.135.

B.

Minor Conditional Use Permits.

1.

In All Zones. An application for a Minor Conditional Use Permit shall be considered by the Director of City Planning. However, the Director may, at his or her discretion, refer the application to the City Planning Commission for decision rather than acting on it himself or herself. In this case, the application shall still be considered a minor permit, but shall be processed according to the procedure in Subsection A. of this Section. In these instances, any other minor permits associated with the application shall be considered concurrently by the Planning Commission, pursuant to Section 17.130.090. Notice shall be given by posting an enlarged notice on the premises of the subject property involved in the application; notice shall also be given by mail or delivery to all owners and occupants of real property in the City within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing, if such is to be held, or, if not, for decision on the application by the Director. Any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence: (a) to the Director prior to the close of the written public comment period for his or her consideration, or (b) to the Commission while the hearing is open for its consideration, whichever is applicable; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Director shall determine whether the proposal conforms to the general use permit criteria set forth in Section 17.134.050 and to other applicable use permit criteria, and may grant or deny the application for the proposed conditional use permit or require such changes in the proposed use or impose such reasonable conditions of approval as are in his or her judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The determination of the Director of City Planning shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.134.060. In those cases which are referred to the Commission by the Planning Director, the decision of the Commission shall become final ten (10) days after the date of decision unless appealed to the City Council in accordance with Section 17.134.070. Any party seeking to appeal the determination will be limited to issues and/or evidence presented (a) to the Director prior to the close of the written public comment period, or (b) to the Commission prior to the close of the Commission's public hearing on the matter, whichever is applicable, in accordance with the above procedures. In the event the last date of appeal falls on a weekend or holiday

when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

2.

In the OS Zone. Applications for conditional use permits in the OS Zone shall be subject to the special use permit review procedure for the OS Zone established in Chapter 17.135.

C.

Alternative Notification Procedures. If the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement the procedures set forth in Subsections A. and B. of this Section.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12237 § 4 (part), 2000; Ord. 12073 § 5 (part), 1998; Ord. 11904 §§ 5.92, 5.93, 1996; Ord. 11831 § 5, 1995; prior planning code § 9203)

17.134.050 - General use permit criteria.

Except

as different criteria are prescribed elsewhere in the zoning regulations, a Conditional Use Permit shall be granted only if the proposal conforms to all the following general use permit criteria, as well as to all other applicable use permit criteria:

A.

That the location, size, design, and operating characteristics of the proposed development will be compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood, with consideration to be given to harmony in scale, bulk, coverage, and density; to the availability of civic facilities and utilities; to the generation of traffic and the capacity of surrounding streets; and to any other relevant impact of the development;

B.

That the location, design, and site planning of the proposed development will provide a convenient and functional living, working, shopping, or civic environment;

C.

That the proposed development will enhance the successful operation of the surrounding area in its basic community functions, or will provide an essential service to the community or region;

D.

That the proposal conforms to all applicable Regular Design Review criteria set forth in the Regular Design Review procedure at Section 17.136.050;

E.

That the proposal conforms in all significant respects with the Oakland General Plan and with any other applicable guidelines or criteria, district plan or development control map which has been adopted by the Planning Commission or City Council.

F.

For proposals involving a One-Family Residential Facility: If the Conditional Use Permit concerns a regulation governing maximum height, minimum yards, maximum lot coverage, or maximum floor area ratio, the proposal also conforms with at least one of the following additional criteria:

1.

The proposal when viewed in its entirety will not adversely impact abutting residences to the side, rear, or directly across the street with respect to solar access, view blockage and privacy to a degree greater than that which would be possible if the residence were built according to the applicable regulation, and, for Conditional Use Permits that allow height increases, the proposal provides detailing, articulation or other design treatments that mitigate any bulk created by the additional height; or

2.

At least sixty percent (60%) of the lots in the immediate context are already developed and the proposal would not exceed the corresponding as-built condition on these lots, and, for conditional use permits that allow height increases, the proposal provides detailing, articulation or other design treatments that mitigate any bulk created by the additional height. The immediate context shall consist of the five (5) closest lots on each side of the project site plus the ten (10) closest lots on the opposite side of the street (see illustration I-4b); however, the Director of City Planning may make an alternative determination of immediate context based on specific site conditions. Such determination shall be in writing and included as part of any decision on any conditional use permit.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-152011; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: prior planning code § 9204)

Within ten (10) calendar days after the date of a decision by the Director of City Planning on an application for a Minor Conditional Use Permit, an appeal from said decision may be taken to the City Planning Commission by the applicant or any other interested party. In the case of appeals involving One-Family or Two- to Four-Family Residential Facilities, the appeal shall be considered by the Commission's Residential Appeals Committee. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City Planning Department and shall be filed with such Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Director or wherein his or her decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the

Director of City Planning prior to the close of the written public comment period on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Secretary of the City Planning Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior to the date of the Commission's or Committee's consideration of the appeal, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence

presented to the Director of City Planning prior to the close of the written public comment period for the underlying decision being appealed, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Commission or, if applicable, the Committee shall determine whether the proposal conforms to the general use permit criteria set forth in Section 17.134.050 and to any other applicable use permit criteria, and may grant or deny a permit or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the Commission or, if applicable, the Committee shall be final.

in Section 17.134.050 and to any other applicable use permit criteria, and may grant or deny a permit or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the Commission or, if applicable, the Committee shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7- 2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: prior planning code § 9205)

17.134.070 - Appeal to Council—Major Conditional Use Permits.

A.

With the exceptions of appeal for adult entertainment activities, appeals to the City Council shall be governed by the following:

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an application for a Major Conditional Use Permit, an appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested party. In event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record. previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be

ising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be

considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the proposed use conforms to the applicable use permit criteria, and may grant or deny a permit or require such changes in the proposed use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final.

B.

Appeals to the City Council relating to adult entertainment activities shall be governed by the following:

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an application for a Major Conditional Use Permit, an appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested party. In event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the proposed use conforms to the applicable special use permit criteria, and shall grant the permit if it

determines that all the said criteria are present or require such chances in the proposed use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final. The City Council shall vote on the appeal within thirty (30) days after its first hearing of the appeal and must decide the appeal within sixty (60) days of the appeal being filed.

f approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final. The City Council shall vote on the appeal within thirty (30) days after its first hearing of the appeal and must decide the appeal within sixty (60) days of the appeal being filed.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12199 § 9 (part), 2000; prior planning code § 9206)

17.134.080 - Adherence to approved plans.

A.

A Conditional Use Permit shall be subject to the plans and other conditions upon the basis of which it was granted. Except as indicated in Subsection B. below or unless a different termination date is prescribed, the permit shall terminate three (3) years from the effective date of its granting unless, within such period, all necessary permits for construction or alteration have been filed with the Planning and Building Department and diligently pursued towards completion, or the authorized activities have commenced in the

case of a permit not involving construction or alteration. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a two-year extension of this date, with additional extensions subject to approval by the original reviewing officer or body. Expiration of any necessary building permit for the project may invalidate the Conditional Use Permit approval if said approval or extension period has also expired. If litigation is filed challenging this approval, or its implementation, then the time period stated above for obtaining necessary permits for construction or alteration and/or commencement of authorized activities is automatically extended for the duration of the litigation.

B.

In order to support implementation of the City's 2023-2031 Housing Element, the following shall supercede the applicable provisions in Subsection A. for the time period of January 31, 2023 to January 31, 2031:

1.

A Conditional Use Permit granted for the creation of residential units between January 31, 2023 and January 31, 2026 shall terminate five (5) years from the effective date of its granting unless all necessary permits for construction, alteration, demolition, or removal, as the case may be, have been filed with the Planning and Building Department and diligently pursued towards completion within such period. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date; and

2.

A Conditional Use Permit granted before January 31, 2023 for the creation of residential units that has not expired before that date shall be granted an automatic extension to January 31, 2028. Upon written request

and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13518, § 4(Exh. A), 2-5-2019; Ord. No. 13357, § 3(Exh. A), 2-162016; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9207)

17.134.110 - Conditional Use Permit related to Planned Unit Development or subdivision.

Whenever a Conditional Use Permit is required for a proposal also requiring a Planned Unit Development permit, application for the use permit shall be included in the application for the Planned Unit Development permit, and shall be processed and considered as part of same. Whenever a Conditional Use Permit is required within a proposed subdivision, the application for the use permit shall be submitted with the tentative map or tentative parcel map required by the Oakland Municipal Code, and may be processed and considered therewith. In either case, however, the reviewing officer or body shall, in considering such a use permit, determine whether the proposal conforms to all the applicable use permit criteria.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Prior planning code § 9209)

Whenever an application for a major conditional use permit has been denied by the City Council or denied by the Planning Commission and the applicant fails to file a timely appeal with the City Council, no such application for essentially the same proposal affecting the same property, or any portion thereof, shall be filed within one year after the date of denial. This section shall not apply in instances where the applicant can show, on the face of any subsequent application, changed circumstances sufficient to justify a reheating. Applications for hearing pursuant to this section shall be considered by the Director of City Planning. A determination by the Director shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission. In event the last date of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal. Any such decision by the City Planning Commission shall be final.

(Ord. 12872 § 4 (part), 2008; Prior planning code § 9210)

17.134.130 - Termination of a Conditional Use Permit.

A.

A Conditional Use Permit (CUP) granted pursuant to the provisions of this Chapter that permits an activity shall not be of any force or effect if the following is true:

1.

With the exception of closures required to repair damage or destruction to the facility containing the activity, the subject activity is nonresidential and has ceased, or has been suspended, for a consecutive period of three (3) or more years. In the M-40, CIX, IG, IO, D-DT-JLI, D-CE-5, D-CE-6, D-CO-5, and D-CO-6 Zones, the subject Truck-Intensive Industrial Activity (as defined in Section 17.103.065) has ceased, or has been suspended, for a consecutive period of six (6) or more months.

B.

A single, one-year extension of the period described in subsection (A) may be granted by, and at the discretion of, the Director of the Bureau of Planning, or his or her designee. The request for the extension shall be: 1) in writing, 2) made by the applicant or owner of the subject site, and 3) made prior to the three (3) year period described in subsection (A). Notwithstanding the above, no extension request shall be granted for Truck-Intensive Industrial Activities (as defined in Section 17.103.065) in the M-40, CIX, IG, IO, D-DT-JLI, D-CE-5, D-CE-6, D-CO-5, and D-CO-6 Zones.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13518, § 4(Exh. A), 2-52019)

Chapter 17.135 - SPECIAL USE PERMIT REVIEW PROCEDURE FOR THE OS ZONE

Sections:

17.135.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Special Use Permit Review Procedures for the OS Zone. The purpose of these provisions is to prescribe the procedure for reviewing projects which are proposed in the OS Zone, including provisions for public participation. This procedure shall apply to all improvements or changes in use, as defined in Section 17.09.050.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12078 § 4 (part), 1998)

17.135.020 - Exemptions.

A.

Projects approved by the City Council in conjunction with the public art program, Measure AA (1989), Measure K (1990), and Measure I (1996).

B.

Business and Advertising Signs. Business and Advertising Signs are exempt from these provisions only when a city agency enters into an agreement with a private enterprise to enhance public park facilities and/or programs, and the private enterprise is a principal provider of cash and/or in-kind contribution toward the enhancements. Such signs will meet the requirements of Section 17.11.090.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12350 § 3 (part), 2001: Ord. 12078 § 4 (part), 1998)

17.135.030 - Procedure for consideration.

No change in use or improvement, as defined in Section 17.09.050, shall occur on land designated OS unless the following process has been followed:

A.

Pre-development Neighborhood Meeting. At the discretion of the Director of Parks, Recreation, and Cultural Affairs, a neighborhood meeting may be convened in the vicinity of the park or open space land affected by the proposed change in use or improvement. If such a meeting is held, notice shall be given by

posting an enlarged notice on the premises of the park or open space land. At the discretion of the Director, the meeting notice may also be posted on utility poles within three hundred (300) feet of such park or open space land. Notices shall also be mailed to neighborhood organizations and individuals who have expressed an interest in the subject park or project area.

B.

Administrative Project Review. Once preliminary community feedback has been received and considered, the project sponsor shall submit a request to the Director of City Planning, including a project description and cost estimate. The Director shall coordinate preliminary review of the project with the project's operating department and any other City department or agency likely to be interested or involved in the execution, operation, or maintenance of the project. These requirements shall include, but are not limited to, formal CEQA review of the proposed change in use or improvement. A written summary of comments shall be prepared prior to the scheduling of the public hearing.

C.

Public Hearing. A public hearing shall be required for any change in use or improvement and shall be conducted and heard by the City Planning Commission and/or the Parks and Recreation Advisory Commission, as provided by Subdivisions 1 and 2 of this Subsection.

1.

Major Conditional Use Permits.

a.

An application for a Major Conditional Use Permit, as required by Sections 17.11.060 and 17.11.090, shall be considered first by the Parks and Recreation Advisory Commission (PRAC) and second by the City Planning Commission. Each commission shall conduct a public hearing on the application. Notice of the PRAC hearing shall follow the procedure outlined at Section 17.135.030(C)(2). Notice of the City Planning Commission hearing shall be given by posting an enlarged notice on the premises of the subject property. At the discretion of the Director, notice of the public hearing may also be provided on utility poles within three hundred (300) feet of such park or open space land. Notice of each hearing shall also be given by mail or delivery to all owners and occupants within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. Notice shall also be provided to those community or neighborhood groups included in the Planning and Building Department database that are within the service area radius of the impacted park. Additional outreach shall be provided through press releases and other notification as warranted by the size and location of the project.

b.

The PRAC shall schedule its public hearing within forty-five (45) days after receiving the application for consideration. The PRAC shall make a recommendation to the Planning Commission at the conclusion of the hearing. In the event the PRAC has not acted on the application within forty-five (45) days, the project shall automatically be forwarded to the City Planning Commission.

c.

The City Planning Commission shall determine whether the proposal conforms to the use permit criteria set forth in Chapter 17.134 and Section 17.11.110 and to other applicable criteria, and shall make a recommendation to grant or deny the application, or recommend such changes or impose such conditions of approval as are in its judgment necessary to ensure conformity to said criteria. The determination of the Commission shall become final within ten (10) calendar days after the date of the decision unless appealed to the City Council in accordance with Section 17.134.070.

2.

Minor Conditional Use Permits.

a.

An application for a Minor Conditional Use Permit, as required by Sections 17.11.060 and 17.11.090, shall be considered by the Parks and Recreation Advisory Commission prior to a final decision by the Director of City Planning. The Parks and Recreation Advisory Commission shall hold a noticed public hearing on the application and shall make a recommendation to grant or deny the application, or recommend such changes or conditions of approval as are in its judgment necessary. Notice of the public hearing shall be provided by posting an enlarged notice on the premises of the park or open space land. At the discretion of the Director, the meeting notice may also be provided on utility poles within three hundred (300) feet of such park or open space land. Notices shall also be mailed to neighborhood organizations and individuals who have expressed an interest in the subject park or project area.

b.

The Director of City Planning shall determine whether the proposal conforms to the use permit criteria set forth in Chapter 17.134 and Section 17.11.110 and to other applicable criteria and shall grant, deny, or conditionally grant the permit. The determination of the Director of City Planning shall become final within ten (10) calendar days after the date of the decision unless appealed to the City Planning Commission in accordance with Section 17.134.060.

D.

Appeals. Any interested party may appeal a decision of the Director of City Planning or a decision of the City Planning Commission in accordance with the provisions outlined in the conditional use permit procedure at Sections 17.134.060 and 17.134.070. In the event the last date of appeal falls on a weekend or holiday, the next date such offices are open for business shall be the last date of appeal.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12237 § 4 (part), 2000; Ord. 12078 § 4 (part), 1998)

17.135.040 - Referral to Landmarks Preservation Advisory Board.

Any project in the OS Zone requiring a major or minor conditional use permit shall be subject to review by the Landmarks Preservation Advisory Board (LPAB) if that project is located:

A.

Within the S-7 Zone;

B.

On a site that could potentially impact a structure, site, or feature that is listed on the State or National Registers, or that has been formally designated as an Oakland landmark.

For projects requiring a minor conditional use permit, this review shall be made after the public hearing of the Parks and Recreation Advisory Commission and before the final decision of the Director of City Planning. For projects requiring a major conditional use permit, this review shall be made after the public hearing of the Parks and Recreation Advisory Commission and before the public hearing of the City Planning Commission. The Landmarks Preservation Advisory Board may recommend modifications to the project that it deems necessary to ensure that the historic value of the structure, site, or feature is not adversely impacted. If no action is taken by the Landmarks Preservation Advisory Board within thirty (30) days of its receipt of the application, the project will be forwarded to the Planning Commission (for major conditional use permits) or the Director of City Planning (for minor conditional use permits).

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12078 § 4 (part), 1998)

17.135.050 - Special requirements for projects consistent with Park Master Plans.

A.

Park Master Plans for City-Owned Parks. Initial consideration of a Park Master Plan shall be made through a Major Conditional Use Permit application to the Planning and Building Department. A Major Conditional Use Permit for a Park Master Plan shall be considered first by the Parks and Recreation Advisory Commission (PRAC) and second by the City Planning Commission, except in cases also requiring referral to the Landmarks Preservation Advisory Board (LPAB) as specified in Section 17.135.040, in which case this review shall be made second before the hearing by the City Planning Commission. After receiving the advice of the Planning Commission, the City Council shall hold a hearing and decide on the Park Master Plan.

1.

Projects Consistent with Park Master Plans. Any improvement or change in use that is consistent with a Park Master Plan that has been adopted by the Oakland City Council shall not require a Conditional Use Permit, even where they involve facilities or activities that would otherwise require a Major or Minor Conditional Use Permit in Section 17.11.060. Projects shall be eligible for this provision only if the Master Plan in question has been adopted by the Oakland City Council within fifteen (15) years of the date of the improvement or change in use application, or has been amended or updated with Council approval within fifteen (15) years of the date of the improvement or change in use application. The determination that a project is consistent with a Park Master Plan shall be made by the Director of City Planning, or his or her designee.

B.

Projects in East Bay Regional Parks. Any improvement or change in use on land owned by the East Bay Regional Park District (EBRPD) shall be subject to the development standards contained in this Chapter. However, in accordance with Section 17.11.060, such projects shall not require a Conditional Use Permit if they are park, recreational, or civic uses that are consistent with a Park Land Use Plan or equivalent land use planning document adopted by the EBRPD Board. In the event a land use plan or equivalent document does not exist or must be amended to accommodate the facility, preparation/amendment of such a plan by the EBRPD will be required prior to issuance of a building permit for future improvements. Such plans and plan amendments shall require public notice to abutting property owners and occupants, and to the Oakland Parks and Recreation Advisory Commission, City Planning Commission, and City Council at least forty-five (45) days prior to adoption by the Park Board in order to ensure opportunity for public comment from Oakland residents.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. 12078 § 4 (part), 1998)

17.135.060 - No net loss tracking.

A.

Beginning on the effective date of the OS Zone regulations, the Oakland City Administrator's Office shall establish an open space tracking system. The tracking system shall be maintained in a publicly accessible format and shall be updated on a continuous basis as additions and subtractions are made to the city's park system. Beginning on the effective date of these regulations, all enclosed facilities in urban parks which exceed one hundred (100) square feet shall be tracked and recorded as "subtractions" from a baseline figure of zero. All acquisition of parkland or creation of new useable public open space shall be tracked and recorded as "additions." Only land which is improved or intended for improvement to urban park standards may be counted as "additions"; acquisition of Resource Conservation Area land is excluded. The city shall strongly encourage actions which result in a net gain of open space; in other words, a condition where the "additions" of open space in the tracking system exceed the "subtractions" resulting from new buildings and structure coverage.

B.

Unless overriding considerations exist, approval of any increase in structure coverage within the OS Zone shall be contingent on a finding that there has been no net loss of urban parkland from the time of the baseline date. If this finding cannot be made, approval shall be conditioned upon provision of replacement open space of comparable value and of an area equal to or greater than the space covered which shall be made available concurrently. Land within the jurisdiction of the Port of Oakland is exempt from this requirement and shall be excluded from this calculation.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12078 § 4 (part), 1998)

Chapter 17.136 - DESIGN REVIEW PROCEDURE

Sections:

17.136.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Design Review Procedure. The purpose of these provisions is to prescribe the procedure for the review of proposals located in areas or on sites, or involving uses, which require special design treatment and consideration of relationships to the physical surroundings. This procedure shall apply to all proposals for which design review is required by the zoning regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9300)

A.

Application for Design Review. Application for design review shall be made by the owner of the affected property, or his or her authorized agent, on a form prescribed by the City Planning Department and shall be filed with such Department. The application shall be accompanied by such information as may be required to allow applicable criteria to be applied to the proposal, and by the fee prescribed in the city master fee schedule. Such information may include, but is not limited to, site and building plans, elevations, and relationships to adjacent properties.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11892 § 22, 1996; Ord. 11816 § 2 (part), 1995: prior planning code § 9302)

Projects eligible for By Right Residential Approval under Chapter 17.95 or 17.96; and projects for Affordable Housing where one hundred percent (100%) of the housing units, other than manager's units, are restricted to very low-, low-, and moderate-income households, and not proposed on a site with a City, State, or National landmark or within an S-7 or S-20 Zone or an Area of Primary Importance (API) as determined by the Oakland Cultural Heritage Survey, shall not be subject to any of the design review procedures set forth in Sections 17.136.030, 17.136.038, and 17.136.040; and shall instead be subject to the By Right Residential Approval procedure as defined in Section 17.09.040.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023)

17.136.025 - Exemptions from design review.

A.

Applicability. A proposal will be exempt from design review if it meets each of the provisions set forth below. All such determinations are final and not appealable:

1.

The proposal is limited to one or more of the types of work listed as exempt from design review in Section 17.136.025B;

The proposal does not require Design Review, Conditional Use Permit or Variance, pursuant to the zoning regulations of Title 17 of the Oakland Planning Code;

3.

The proposal is determined exempt from the California Environmental Quality Act (CEQA);

4.

All exterior treatments visually match the existing or historical design of the building; and

5.

The proposal will not have a significant effect on the structure's character-defining elements. "Characterdefining elements" are those features of design, materials, workmanship, setting, location, and association that identify a structure as representative of its period and contribute to its visual distinction or historical significance.

B.

Definition. The following types of work are exempt from design review, pursuant to all provisions in Section 17.136.025(A):

1.

Additions or Alterations.

a.

Projects not requiring a building permit, except if otherwise specified below;

b.

Repair or replacement of existing building components in a manner that visually matches the existing or historical design of the structure;

c.

After notice to the Director of City Planning, demolition or removal of either:

i)

Structures declared to be unsafe by the Building Official or the City Council. "Unsafe structures" means structures found by the Building Official or the City Council, to require immediate issuance of a demolition permit to protect the public health and safety; or

ii)

Structures declared to be a public nuisance by the Building Official or City Council that are not Designated Historic Properties or Potentially Designated Historic Properties.

d.

Except as specified in Section 17.136.030, Accessory Dwelling Units that conform to all regulations in Section 17.103.080 and Chapter 17.88;

e.

Floor area additions within the existing building envelope not involving the creation of a dwelling unit;

f.

Except as otherwise specified in Subsection B.1.g for Non-residential Facilities in the D-DT-JLI, D-CO-5, D- CO-6, CIX-1A, CIX-1B, CIX-1C and CIX-1D Zones, additions not involving the creation of a dwelling unit that are outside the existing building envelope and equal no more than ten percent (10%) of the total floor area or footprint on site;

g.

For Nonresidential Facilities in the D-DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX-1C and CIX-1D Zones, additions that are outside the existing building envelope and equal no more than fifty percent (50%) of the total floor area or footprint on site or three thousand (3,000) square feet, whichever is less;

h.

For Commercial, Civic, or Industrial Facilities and the Nonresidential Portions of Mixed-Use Development Projects, any addition or alteration on a roof that does not project above the existing parapet walls; and any addition or alteration not otherwise exempt which is used as a loading dock, recycling area, utility area, or similar open structure addition that is no higher than six (6) feet above finished grade, less than five hundred (500) square feet in floor area or footprint, and is visually screened from neighboring properties; such exemptions shall only permitted where the proposal conforms with all Buffering regulations in Chapter 17.110 and all Performance Standards in Chapter 17.120;

i.

Areas of porch, deck or balcony with a surface that is less than thirty (30) inches above finished grade.

2.

Signs.

a.

A change of sign face copy or new sign face within an existing Advertisement Sign or a change of sign face copy within Business or Civic Sign structures so long as the structure and framework of the sign remain unchanged and the new sign face duplicates the colors of the original or, in the case of an internally illuminated sign, the letter copy is light in color and the background is dark;

b.

Installation, alteration or removal of Realty Signs, Development Signs, holiday decorations, displays behind a display window and, except as otherwise provided in Section 17.114.120(C), for mere changes of copy, including cutouts, on Signs which customarily involve periodic changes of copy;

c.

New or modified Signs conforming to an approved Master Sign Program, pursuant to Section 17.104.070.

3.

Other Projects.

a.

Sidewalk Cafes in the public right-of-way, pursuant to Section 17.103.090;

b.

Solar Power Production Equipment. The installation of Solar Power Production Equipment is exempt from design review within any zoning district;

c.

Projects involving no more than four (4) Vehicular Residential Facilities pursuant to Section 17.103.085, and projects involving any number of Vehicular Residential Facilities when occupied by an Emergency Shelter Residential Activity and located in an area where Emergency Shelter Residential Activities are permitted byright pursuant to Section 17.103.015;

d.

Electrical Vehicle Charging Stations or other similar facilities;

e.

Microwave and Satellite Dishes that are three (3) feet or less in diameter.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13800, § 3(Exh. C), 6-18-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13666, § 3(Exh. A), 11-16-2021; Ord. No. 13435, § 4(Exh. A), 5-2-2017; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-212015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13028, § 2(Exh. A), 7-20-2010; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12417 § 1, 2002)

17.136.030 - Small project design review.

A.

Applicability. "Small Project Design Review" shall apply to proposals that do not qualify for By-Right Residential Approval as set forth in Section 17.136.023, an exemption from design review as set forth in Section 17.136.025, or require Special Project Design Review as set forth in Section 17.136.038, or Regular

Design Review as either determined by the Director of City Planning or as set forth in Section 17.136.040.

"Small Project Design Review" proposals shall meet all of the following provisions:

1.

The proposal is limited to one or more of the types of work listed as a "Small Project" in Section 17.136.030(B);

2.

The proposal does not require a conditional use permit or variance, pursuant to the zoning regulations of Title 17 of the Oakland Planning Code;

3.

The proposal is determined exempt from the California Environmental Quality Act (CEQA); and

4.

The proposal will not have a significant effect on the property's character-defining elements. "Characterdefining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance.

B.

Definition of "Small Project". Small Projects are limited to one or more of the following types of work:

1.

Additions or Alterations.

a.

Repair or replacement of existing building components in a manner that is compatible with, but not necessarily identical to, the property's existing or historical design;

b.

Except as otherwise specified in Sections 17.136.025, 17.136.038, 17.136.040, and 17.136.075, demolition or removal of structures not involving a Designated Historic Property or Potential Designated Historic Property, on a site where the zoning regulations require design review to alter the exterior appearance of the applicable building facility, regardless of whether the owner intends to create a surface parking lot or a vacant lot pursuant to Section 15.36.080;

c.

Except as otherwise specified in Sections 17.136.025 and 17.136.038 for Nonresidential Facilities in the D- DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX-1C and CIX-1D Zones, additions not involving the creation of a dwelling unit that are outside the existing building envelope and equal more than ten percent (10%) of

the total floor area or footprint on site, but do not exceed one thousand (1,000) square feet or one hundred percent (100%) of the total floor area or footprint on site, whichever is less;

d.

For Commercial, Civic, or Industrial Facilities and the non-residential portions of mixed-use development projects, changes to storefronts or street-fronting facades, such as: (i) replacement or construction of doors, windows; bulkheads and nonstructural wall infill, or (ii) restoration of documented historic fabric;

e.

Accessory Dwelling Units that: 1) do not conform with objective design standards established by the Planning Director or his or her designee pursuant to Section 17.103.080.A.11 proposed in front or on a side of the primary structure; or 2) were established and occupied without Planning or Building approval prior to January 1, 2021, and request a waiver of any provision of the underlying zoning or applicable development standards that would preclude the preservation of said unit, pursuant to Section 17.103.080.A.15;

f.

Other than Accessory Dwelling Units, the creation of new living units entirely within an existing building envelope on a lot that is not located within the S-9 Fire Safety Protection Combining Zone.

2.

Fences, barriers, and similar freestanding walls.

a.

For Residential Zones and Residential Facilities, any fence, barrier, or similar freestanding wall exceeding forty-two (42) inches in height in the front yard and street-side yards, but not exceeding six (6) feet in height, pursuant to Section 17.108.140;

b.

For Commercial and Industrial Zones and S-1, S-3, S-15 Zones, any fence, barrier, or similar freestanding wall exceeding eight (8) feet in height within ten (10) feet of the public right-of-way or any abutting property in a Residential or Open Space Zone, but not exceeding ten (10) feet in height, pursuant to Section 17.108.140.

c.

For Industrial Zones, any fence, barrier, or similar freestanding wall exceeding eight (8) feet in height within ten (10) feet of the public right-of-way or any abutting property in a Residential or Open Space Zone, but not exceeding twelve (12) feet in height, pursuant to Section 17.108.140. Any fence, dense hedge, barrier, or similar freestanding wall located elsewhere on a lot in an Industrial Zone may be permitted to exceed twelve (12) feet in height if installed with additional landscape screening and upon the granting of Small Project Design Review pursuant to the Design Review procedure in Section 17.136.030(C).

Signs.

a.

New or modified Signs, excluding Signs requiring Regular Design Review, Conditional Use Permit or Variance, pursuant to the zoning regulations in the Oakland Planning Code (Title 17); and Signs conforming to an approved Master Sign Program, pursuant to Section 17.104.070;

b.

New or modified awnings or other similar facilities;

c.

Color changes to Signs, awnings or other similar facilities;

d.

Installation of flags or banners having any permanent structure within the public right of way, pursuant to the same regulations for sidewalk cafes in Section 17.103.090.B.

4.

Other Projects.

a.

Exceptions to the parking accommodation requirements for One-Family and Two- to Four-Family Residential Facilities in Section 17.116.300.

C.

Procedures for Consideration—Small Project Design Review. The Director of City Planning may, at his or her discretion, consider an application for Small Project Design Review according to the following TwoTrack process, or if additional consideration is required, determine that the proposal shall be reviewed according to the Regular design review procedure in Section 17.136.040.

1.

Track One Procedure—Small Project Design Review Proposals Not Involving a Local Register Property:

a.

The Director of City Planning, or his or her designee, shall determine whether the proposal meets the requirements for Small Project Design Review as set forth in this Section.

b.

Decision by the Director of City Planning. The Director, or his or her designee, may approve or disapprove a Track One proposal determined eligible for Small Project Design Review and may require such changes

therein or impose such reasonable conditions of approval as are in his or her judgment necessary to ensure conformity to the applicable Small Project Design Review criteria in Section 17.136.035.

c.

The decision by the Director, or his or her designee, shall be final immediately and not appealable.

2.

Track Two Procedure-Small Project Design Review Proposals Involving a Local Register Property:

a.

The Director of City Planning, in concert with the City of Oakland's Historic Preservation staff, shall determine whether a proposed addition or alteration involving a Local Register Property will have a significant effect on the property's character-defining elements. "Character-defining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance. Any proposed addition or alteration determined to have a significant effect on a Local Register Property's characterdefining elements shall be reviewed instead according to the Regular design review procedure in Section 17.136.040.

b.

Decision by the Director of City Planning. The Director, or his or her designee, may approve or disapprove a Track Two proposal determined eligible for Small project design review and may require such changes therein or impose such reasonable conditions of approval as are in his or her judgment necessary to ensure conformity to the applicable Small project design review criteria in Section 17.136.035.

c.

The decision by the Director, or his or her designee, shall be final immediately and not appealable.

f.

The decision by the Director, or his or her designee, shall be final immediately and not appealable.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13800, § 3(Exh. C), 6-18-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13435, § 4(Exh. A), 5-2-2017; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13028, § 2(Exh. A), 7-20-2010; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006)

A Small project design review approval shall be granted for proposals that conform to each of the applicable criteria set forth in Subdivisions (1), (2), and (3) below, and if also applicable, to the criteria in Subdivision (4), below:

1.

That for Nonresidential Facilities and the nonresidential portions of Mixed Use Development projects, the proposed design conforms with the adopted checklist criteria for nonresidential facilities, as may be amended;

2.

That for Residential Facilities with one (1) or two (2) primary dwelling units and the residential portions of Mixed Use Development projects with one (1) or two (2) primary dwelling units, the proposed design conforms with the adopted checklist criteria for facilities with 1-2 primary dwelling units, as may be amended;

3.

That for Residential Facilities with three (3) or more living units and the residential portions of Mixed Use Development projects with three (3) or more dwelling units, the proposed design conforms with the adopted checklist criteria for facilities with three (3) or more living units, as may be amended;

4.

That for Local Register Properties, the proposed project will not substantially impair the visual, architectural, or historic value of the affected site or facility.

(Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006)

17.136.038 - Special project design review.

A.

Applicability. "Special Project Design Review" shall apply to Nonresidential Facilities in the D-DT-JLI, D-CO5, D-CO-6, CIX-1A, CIX-1B, CIX-1C and CIX-1D Zones that require design review pursuant to the zoning regulations of Title 17 of the Oakland Planning Code, but do not qualify for design review exemption as set forth in Section 17.136.025 or Small project design review as set forth in Section 17.136.030; or require Regular Design Review as either determined by the Director of City Planning or as set forth in Section 17.136.075 and Chapter 17.73.

"Special Project Design Review" proposals shall meet all of the following provisions:

1.

The proposal is limited to one or more of the types of work listed as a "Special Project" in Section 17.136.038(B);

2.

The proposal does not require a conditional use permit or variance, pursuant to the zoning regulations of Title 17 of the Oakland Planning Code;

The proposal is determined exempt from the California Environmental Quality Act (CEQA); and

4.

The proposal does not involve the demolition or removal of structures on a site in the CIX-1A Zone as specified in Section 17.136.075, regardless of whether the owner intends to create a surface parking lot or a vacant lot pursuant to Section 15.36.080.

B.

Definition of "Special Project". Special Projects are limited to one or more of the following types of work:

1.

Cumulative additions to Non-residential Facilities in the D-DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX1C, and CIX-1D Zones over a three (3) year period that are outside the existing building envelope and exceed three thousand (3,000) square feet or fifty percent (50%) of the total floor area or footprint on site, whichever is less;

2.

New construction of principal Non-residential Facilities in the D-DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX-1C, and CIX-1D Zones.

C.

Procedures for Consideration—Special Project Design Review. The Director of City Planning shall consider an application for Special project design review according to the following Two-Track process, or if additional consideration is required, determine that the proposal shall be reviewed instead according to the Regular design review procedure in Section 17.136.040.

1.

Track One Procedure—Special Project Design Review Proposals Not Involving a Local Register Property:

a.

The Director of City Planning, or his or her designee, shall determine whether the proposal meets the requirements for Special project design review as set forth in this Section.

b.

At the time of Special project design review application, the owner of the affected property, or his or her authorized agent, shall obtain from the City Planning and Building Department, a list of names and mailing addresses of all owners and occupants of the City of Oakland lot or lots adjacent to the project site and directly across the street abutting the project site; a notice poster to install on the project site; and a Notice to Neighboring Property Owners and Occupants form which includes the project description and contact information. Failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings.

c.

Prior to the subject application being deemed complete, the applicant shall install the notice poster provided at the time of application at a location on the project site that is clearly visible from the street, alley, or private way providing access to the subject lot; and provide by certified mail or delivery to all owners and occupants of the City of Oakland lot or lots adjacent to the project site and directly across the street abutting the project site, a copy of the completed project notice form, as well as a set of reduced plans (consisting of at least a site plan and building elevations that show all proposed exterior work).

d.

All required posting of the site and notification of adjacent and across the street property owners and occupants shall be completed by the project applicant not less than ten (10) days prior to the earliest date for final decision on the application. During the required noticing period, the Planning and Building Department shall receive and consider comments from any interested party.

e.

Decision by the Director of City Planning. The Director, or his or her designee, may approve or disapprove a Track One proposal determined eligible for Special project design review and may require such changes therein or impose such reasonable conditions of approval as are in his or her judgment necessary to ensure conformity to the applicable Special project design review criteria in Section 17.136.038(D).

f.

The decision by the Director, or his or her designee, shall be final immediately and not appealable.

2.

Track Two Procedure—Special Project Design Review Proposals Involving a Local Register Property:

a.

The Director of City Planning, in concert with the City of Oakland's Historic Preservation staff, shall determine whether a proposal involving a Local Register Property will have a significant effect on the property's character-defining elements. "Character-defining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance. Any proposal determined to have a significant effect on a Local Register Property's character-defining elements shall be reviewed instead according to the Regular design review procedure in Section 17.136.040.

b.

At the time of Special project design review application, the owner of the affected property, or his or her authorized agent, shall obtain from the City Planning and Building Department, a list of names and mailing addresses of all owners and occupants of the City of Oakland lot or lots adjacent to the project site and directly across the street abutting the project site; a notice poster to install on the project site; and a Notice to Neighboring Property Owners and Occupants form which includes the project description and contact

information. Failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings.

c.

Prior to the subject application being deemed complete, the applicant shall install the notice poster provided at the time of application at a location on the project site that is clearly visible from the street, alley, or private way providing access to the subject lot; and provide by certified mail or delivery to all owners and occupants of the City of Oakland lot or lots adjacent to the project site and directly across the street abutting the project site, a copy of the completed project notice form, as well as a set of reduced plans (consisting of at least a site plan and building elevations that show all proposed exterior work).

d.

All required posting of the site and notification of adjacent and across the street property owners and occupants shall be completed by the project applicant not less than ten (10) days prior to the earliest date for final decision on the application. During the required noticing period, the Planning and Building Department shall receive and consider comments from any interested party.

e.

Decision by the Director of City Planning. The Director, or his or her designee, may approve or disapprove a Track Two proposal determined eligible for Special project design review and may require such changes therein or impose such reasonable conditions of approval as are in his or her judgment necessary to ensure conformity to the applicable Special project design review criteria in Section 17.136.038(D).

f.

The decision by the Director, or his or her designee, shall be final immediately and not appealable.

D.

Design Review Criteria—Special Project Design Review. A Special project design review approval shall be granted for proposals that conform with the adopted checklist criteria for Non-residential Facilities in the D- DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX-1C and CIX-1D Zones, as may be amended, based on applicable design review guidelines or criteria which have been adopted by the Planning Commission or City Council as part of the Coliseum Area Specific Plan or the West Oakland Specific Plan.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 103-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014)

17.136.040 - Regular Design Review.

A.

Applicability. "Regular Design Review" shall apply to proposals that require design review pursuant to the zoning regulations in the Oakland Planning Code (Title 17) but do not qualify for By-Right Residential Approval as set forth in Section 17.136.023, a design review exemption as set forth in Section 17.136.025,

Small Project Design Review as set forth in Section 17.136.038. Except as otherwise specified in Section 17.136.038 for Nonresidential Facilities in the D-DT-JLI, D-CO-5, D-CO-6, CIX-1A, CIX-1B, CIX-1C, and CIX-1D Zones, projects requiring Regular Design Review include, but are not limited to, the following types of work:

1.

Any proposal involving one or more of the facility, activity, building, structure, or development types that require design review pursuant to the zoning regulations in the Oakland Planning Code (Title 17), but does not qualify for By-Right Residential Approval as set forth in Section 17.136.023, a design review exemption as set forth in Section 17.136.025, Small Project Design Review as set forth in Section 17.136.030, or Special Project Design Review as set forth in Section 17.136.038;

2.

Any construction, addition or alteration of structures requiring a Conditional Use Permit or variance, pursuant to the zoning regulations of Title 17 of the Oakland Planning Code;

3.

New construction of one (1) or two (2) dwelling units excluding any permitted Accessory Dwelling Units;

4.

New construction of three (3) or more dwelling units, or adding units to a property for a total of three (3) or more dwelling units on site, excluding any permitted Accessory Dwelling Units;

5.

New construction of principal facilities in the HBX or D-CE Zones;

6.

The creation of new HBX Work/Live unit or HBX Live/Work unit (see Sections 17.65.160 and 17.65.170); any new D-DT Work/Live unit, D-CE Work/Live or D-CE Live/Work unit (see Sections 17.101E.070 and 17.101E.080); or any new CIX, IG, or IO Work/Live units (see Section 17.73.040). This requirement shall apply for both: a) conversions of existing facilities to contain any of these unit types, and b) the construction of new buildings that contain any of these unit types;

7.

Cumulative additions over a three (3) year period not involving the creation of a dwelling unit that are outside the existing building envelope and exceed one thousand (1,000) square feet or one hundred percent (100%) of the total floor area or footprint on site, whichever is less;

8.

Exceptions to the parking accommodation requirements for One- and Two- to Four-Family Residential Facilities in Section 17.116.300;

New or modified Signs not qualifying for a design review exemption as set forth in Section 17.136.025 or Small Project Design Review as set forth in Section 17.136.030;

10.

Proposals for new or modified Telecommunications Facilities, pursuant to Chapter 17.128, but excluding those alterations to existing Telecommunications Facilities listed as a Small Project in Subsection 17.136.030.B.;

11.

Demolition or removal of any structure, or portion thereof, where the replacement project requires Regular Design Review, Conditional Use Permit or Variance;

12.

Demolition or removal of any Designated Historic Property (DHP), Potential Designated Historic Property (PDHP), or structure in the CIX-1A Zone pursuant to Section 17.136.075.

13.

Proposals involving five (5) or more Vehicular Residential Facilities.

B.

Pre-Application Review-Regular Design Review. Prior to application for Regular Design Review, any applicant or his or her representative seeking early project feedback may submit for a pre-application review of the proposal by a representative of the City Planning and Building Department. For projects of a larger scale or involving a significant policy issue, the Director of City Planning may, at his or her discretion, request that an applicant or his or her representative submit for a pre-application review of the proposal. During a pre-application review, the City representative will provide information about applicable design review criteria and pertinent procedures, including the opportunity for advice from outside design professionals. Where appropriate the City representative may also informally discuss possible design solutions, point out potential neighborhood concerns, and mention local organizations which the applicant is encouraged to contact before finalizing the proposal.

C.

Procedure for Consideration of Regular Design Review Proposals which Involve an Initial Decision by the Director of City Planning—Decisions Not Ultimately Appealable to City Council.

1.

Decision by the Director of City Planning. An application for Regular Design Review that is not referred to the City Planning Commission for initial decision as specified in Section 17.136.040(D) shall be considered by the Director of City Planning.

Notification Procedures. Notice shall be given by posting an enlarged notice at a location on the project site that is clearly visible from the street, alley, or private way providing access to the subject lot. Notice shall also be given by mail or delivery to all owners and occupants within three hundred (300) feet of the project site; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for decision on the application by the Director. During the required noticing period, the Planning and Building department shall receive and consider comments from any interested party.

3.

The Director or the applicant may seek the advice of outside design professionals. Any interested party must enter into the record any issues and/or evidence to the Director prior to the close of the written public comment period for his or her consideration; failure to do so will preclude the party from raising such issues during the appeal hearing and/or in court. The Director shall determine whether the proposal conforms to the applicable design review criteria, and may approve or disapprove the proposal or require such changes therein or impose such reasonable conditions of approval as are in his or her judgment necessary to ensure conformity to said criteria.

4.

Finality of Decision. A decision by the Director shall become final ten (10) calendar days after the date of initial decision unless appealed to the City Planning Commission or the Commission's Residential Appeals Committee in accordance with Section 17.136.080. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Director prior to the close of the written public comment period. In the event that the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Appeals considered by the City Planning Commission or the Commission's Residential Appeals Committee under the procedures specified in Section 17.136.080 shall be final immediately and are not ultimately appealable to the City Council.

D.

Procedure for Consideration of Regular Design Review Proposals which Involve an Initial Decision by the City Planning Commission—Decisions Ultimately Appealable to City Council.

1.

Decision by the City Planning Commission. The Director of City Planning may, at his or her discretion, refer an application for Regular Design Review to the City Planning Commission for an initial decision rather than acting on it himself or herself. In this case, the application shall still be considered a minor permit, but shall be processed according to the procedure in this Subsection. In these instances, any other minor permits associated with the application shall be considered concurrently by the Planning Commission, pursuant to Section 17.130.090. However, if the project involves a major variance or major conditional use permit; requires an Environmental Impact Report (EIR); or results in more than twenty-five thousand (25,000) square feet of new nonresidential floor area and is located in any zone other than the D-DT (when not combined with the S-7 Zone or in the D-DT-JLI Zone), D-LM, D-CO, or S-15 Zones, the Director of City Planning shall

refer the application to the City Planning Commission for an initial decision rather than acting on it himself or herself.

2.

Notification Procedures. Notice shall be given by posting an enlarged notice at a location on the project site that is clearly visible from the street, alley, or private way providing access to the subject lot. Notice shall also be given by mail or delivery to all owners and occupants within three hundred (300) feet of the project site; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for a hearing before the Commission. During the required noticing period, the Planning and Building department shall receive and consider comments from any interested party.

3.

The Planning Commission may seek the advice of outside design professionals. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Commission for its consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Commission shall determine whether the proposal conforms to the applicable design review criteria, and may approve or disapprove the proposal or require such changes therein or impose such reasonable conditions of approval as are in his or her or its judgment necessary to ensure conformity to said criteria.

4.

Finality of Decision. The initial decision of the Planning Commission shall become final ten (10) days after the date of decision unless appealed to the City Council in accordance with Section 17.136.090. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Commission prior to the close of the Commission's public hearing on the matter, in accordance with the above procedures. In the event that the last day of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

E.

Alternative Notification Procedures. If the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement the procedures set forth in Subsections C. and D. of this Section.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 103-2023; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13666, § 3(Exh. A), 11-16-2021; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13276, § 5(Exh. A), 12-9-2014; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13168, § 5(Exh. A-2), 6-18-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13028, § 2(Exh. A), 7-20-2010; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. No. 12971, § 2(Exh. A), 9-222009; Ord. No. 12955, § 2(Exh. A), 7-21-2009; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12776 § 3, Exh. A

(part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 12237 § 4 (part), 2000; Ord. 11816 § 2 (part), 1995: prior planning code § 9305)

Regular design review approval may be granted only if the proposal conforms to all of the following general design review criteria, as well as to any and all other applicable design review criteria:

A.

For Residential Facilities.

1.

That the proposed design will create a building or set of buildings that are well related to the surrounding area in their setting, scale, bulk, height, materials, and textures;

2.

That the proposed design will be sensitive to the topography and landscape;

3.

That, if situated on a hill, the design and massing of the proposed building relates to the grade of the hill;

4.

That the proposed design conforms in all significant respects with the Oakland General Plan and with any applicable design review guidelines or criteria, district plan, or development control map which have been adopted by the Planning Commission or City Council.

B.

For Nonresidential Facilities and Signs.

1.

That the proposal will help achieve or maintain a group of facilities which are well related to one another and which, when taken together, will result in a well-composed design, with consideration given to site, landscape, bulk, height, arrangement, texture, materials, colors, and appurtenances; the relation of these factors to other facilities in the vicinity; and the relation of the proposal to the total setting as seen from key points in the surrounding area. Only elements of design which have some significant relationship to outside appearance shall be considered, except as otherwise provided in Section 17.136.060;

2.

That the proposed design will be of a quality and character which harmonizes with, and serves to protect the value of, private and public investments in the area;

3.

That the proposed design conforms in all significant respects with the Oakland General Plan and with any applicable design review guidelines or criteria, district plan, or development control map which have been adopted by the Planning Commission or City Council.

C.

For Local Register Properties that are not Landmarks or located in the S-7 or S-20 Zone:

1.

That for additions or alterations, the proposal will not substantially impair the visual, architectural, or historic value of the affected site or facility. Consideration shall he given to design, form, scale, materials, texture, lighting, landscaping, Signs, and any other relevant design element or effect, and, where applicable, the relation of the above to the original design of the affected facility.

D.

For Potential Designated Historic Properties that are not Local Register Properties: That for additions or alterations,

1.

The design matches or is compatible with, but not necessarily identical to, the property's existing or historical design; or

2.

The proposed design comprehensively modifies and is at least equal in quality to the existing design and is compatible with the character of the neighborhood; or

3.

The existing design is undistinguished and does not warrant retention and the proposed design is compatible with the character of the neighborhood.

E.

For Retaining Walls:

1.

That the retaining wall is consistent with the overall building and site design and respects the natural landscape and topography of the site and surrounding areas;

2.

That the retaining wall is responsive to human scale, avoiding large, blank, uninterrupted or undesigned vertical surfaces;

3.

That the retaining wall respects the natural topography, avoiding obvious scars on the land;

4.

That the proposed design conforms in all significant respects with the Oakland General Plan and with any applicable design review guidelines or criteria, district plan, or development control map which have been adopted by the Planning Commission or City Council.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13090, § 4(Exh. A), 10-4-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 11816 § 2 (part), 1995; prior planning code § 9306)

17.136.055 - Special regulations for historic properties in the Downtown District (D-DT) and the Lake Merritt Station Area District (D-LM) Zones.

A.

The provisions of this Section shall only apply to proposals in the Downtown District (D-DT) Zones and Lake Merritt Station Area District (D-LM) Zones.

B.

Findings.

1.

Any exterior alteration to a character-defining element of a Designated Historic Property (DHP) or Potentially Designated Historic Property (PDHP) that: 1) does not match its exterior historical materials or appearance, and 2) is part of the existing building (not part of any proposed addition) shall be required to meet any applicable criteria in Chapter 17.136 and meet findings (a) and (b), below. The determination of whether a project meets these findings requires consultation with Historic Preservation staff.

a.

Any replacements of exterior character-defining elements are required because repair is not feasible. "Character-defining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance; and

b.

Consultation with Historic Preservation staff has determined that any replacement or repair that differs from the original feature is compatible with the character of the building, Area of Primary Importance (API) or Area of Secondary Importance (ASI), if applicable, and retains the character-defining appearance of the feature.

2.

Approval of applications for projects in an API that require Regular Design Review approval may be granted only upon determination that the proposal conforms to any applicable criteria in Chapter 17.136 and to the

following additional criteria:

a.

Any proposed new construction is compatible with the existing API in terms of massing, siting, rhythm, composition, patterns of openings, quality of material, and intensity of detailing;

b.

New street frontage has forms that reflect the widths and rhythm of the facades on the street, and entrances that reflect the patterns on the street;

c.

The proposal provides high visual interest that either reflects the level and quality of visual interest of the API contributors or otherwise enhances the visual interest of the API;

d.

The proposal is consistent with the visual cohesiveness of the API. For the purpose of this finding, visual cohesiveness is the architectural character, the sum of all visual aspects, features, and materials that defines the API. A new structure contributes to the visual cohesiveness of a district if it relates to the design characteristics of a historic district while also conveying its own time. New construction may do so by drawing upon some basic building features, such as the way in which a building is located on its site, the manner in which it relates to the street, its basic mass, form, direction or orientation (horizontal vs. vertical), recesses and projections, quality of materials, patterns of openings and level of detailing. When some combination of these design variables are arranged in a new building to relate to those seen traditionally in the area, but integral to the design and character of the proposed new construction, visual cohesiveness results;

e.

Where height is a character-defining element of the API there are height transitions to any neighboring contributing historic buildings. "Character-defining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance. APIs with a character-defining height and their character-defining height level are designated on the zoning maps; and

f.

For additions, the proposal meets either: 1) Secretary of Interior's standards for the treatment of historic resources; 2) the proposal will not adversely affect the character of the property or API; or, 3) upon the granting of a conditional use permit, (see Chapter 17.134 for the CUP procedure) and a hearing in front of the Landmarks Preservation Advisory Board for its recommendations, a project meets the additional findings in Subsection g., below.

g.

For construction of new principal buildings:

i.

The project will not cause the API to lose its status as an API;

ii.

The proposal will result in a building or addition with exterior visual quality, craftsmanship, detailing, and high quality and durable materials that is at least equal to that of the API contributors; and

iii.

The proposal contains elements that relate to the character-defining height of the API, if any, through the use of a combination of upper story setbacks, window patterns, change of materials, prominent cornice lines, or other techniques. APIs with a character-defining height and their character-defining height level are designated on the zoning maps.

3.

Approval of an application for a project that requires Regular Design Review Approval involving a DHP or PDHP outside of an API may be granted only upon determination that the proposal conforms to any applicable criteria in Chapter 17.136 and either meets each criteria (a), (b), and (c), or only (d), below:

a.

Any proposed new construction is compatible with the existing district and/or building in terms of massing, siting, rhythm, composition, patterns of openings, quality of material, and intensity of detailing;

b.

The proposal reflects the quality and visual interest of the building and/or ASI, or otherwise enhances the visual interest of the building or ASI;

c.

The proposal does not disqualify an ASI as an ASI; and

d.

If a project does not meet either finding (a), (b), or (c), above, approval of applications for projects may still be granted, but only after a hearing in front of the Landmarks Preservation Advisory Board for its recommendations and determination that the proposal meets the following criteria: The proposal will result in a signature building within the neighborhood, City, or region based on qualities including, but not necessarily limited to, exterior visual quality, craftsmanship, detailing, and high quality and durable materials.

C.

Required Hearings in Front of the Landmarks Preservation Advisory Board (LPAB).

Prior to project approval, the following projects require a hearing in front of the LPAB for its recommendations and/or advice to the decision making body:

a.

Any construction of a new principal building in an API;

b.

An addition to an API contributor when required by Subsection 17.136.055.B.2.f.

c.

With the exception of additions that are not visible from a street or other public area, projects in an API that would result in a building taller than the character-defining height of the district, if any. Districts with a character-defining height and their character-defining height levels are designated on the zoning maps. An addition is considered "visible from a street or other public area" if it is located within the "critical design area," defined as the area within forty (40) feet of any street line, public alley, public path, park or other public area.

d.

New construction or an addition to a building when required by Subsection 17.136.055.B.3.d.

e.

Any proposal involving a Local Register Property that requires Regular Design Review approval.

(Ord. No. 13812, § 4(Exh. A), 7-30-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13276, § 5(Exh. A), 12-9-2014; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 12955, § 2(Exh. A), 7-21-2009)

17.136.060 - Review by Landmarks Board in certain cases.

A.

Whenever an application is for regular design review in the S-7 Zone, or on a designated landmark site, the Director of City Planning shall refer the proposal to the Landmarks Preservation Advisory Board for its recommendations.

B.

Whenever an application is for regular design review in the S-20 Zone, and the Director of City Planning determines that a proposed addition or alteration will have a significant effect on the property's characterdefining elements that are visible from a street or other public area, the Director may, at his or her discretion, refer the project to the Landmarks Preservation Advisory Board for its recommendations. "Character-defining elements" are those features of design, materials, workmanship, setting, location, and association that identify a property as representative of its period and contribute to its visual distinction or historical significance. An addition or alteration is normally considered "visible from a street or other public area" if it affects a street face or public face of the facility or is otherwise located within the "critical design

area," defined as the area within forty (40) feet of any street line, public alley, public path, park or other public area.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11816 § 2 (part), 1995: prior planning code § 9303)

17.136.070 - Special regulations for designated landmarks.

A.

Designation. In any zone, the City Council may designate as a landmark any facility, portion thereof, or group of facilities which has special character, interest, or value of any of the types referred to in Section 17.07.030P. The designating ordinance for each landmark shall include a description of the characteristics of the landmark which justify its designation and a clear description of the particular features that should be preserved. Each ordinance shall also include the location and boundaries of a landmark site, which shall be the lot, or other appropriate immediate setting, containing the landmark. Designation of each landmark and landmark site shall be pursuant to the rezoning and law change procedure in Chapter 17.144.

B.

Design Review for Construction or Alteration. Except for projects that are exempt from design review as set forth in Section 17.136.025, no Building Facility, Telecommunications Facility, Sign, or other associated structure on any designated landmark site shall be constructed or established, or altered in such a manner as to affect exterior appearance unless plans for the proposal have been approved pursuant to the design review procedure in this Chapter and the applicable provisions of this Section. Furthermore, for a publiclyowned landmark, the designating ordinance may require such approval of proposed changes to major interior architectural features.

C.

Regular Design Review Criteria. Proposals involving designated landmarks that require Regular design review approval may be granted only upon determination that the proposal conforms to the Regular design review criteria set forth in Section 17.136.050 and to the additional criteria set forth below in Subdivisions 1, 2 and 3 or to one or both of the criteria set forth in Subdivision 4:

1.

That the proposal will not adversely affect the exterior features of the designated landmark nor, when subject to control as specified in the designating ordinance for a publicly-owned landmark, its major interior architectural features;

2.

That the proposal will not adversely affect the special character, interest, or value of the landmark and its site, as viewed both in themselves and in their setting;

3.

That the proposal conforms with the Design Guidelines for Landmarks and Preservation Districts as adopted by the City Planning Commission and, as applicable for certain federally related projects, with the Secretary of the Interior's Standards for the Treatment of Historic Properties;

4.

If the proposal does not conform to the criteria set forth in Subdivisions 1, 2 and 3:

i.

That the designated landmark or portion thereof is in such condition that it is not architecturally feasible to preserve or restore it, or

ii.

That, considering the economic feasibility of alternatives to the proposal, and balancing the interest of the public in protecting the designated landmark or portion thereof, and the interest of the owner of the landmark site in the utilization thereof, approval is required by considerations of equity.

D.

Duty to Keep in Good Repair. Except as otherwise authorized under Subsections B. and C. of this Section, the owner, lessee, or other person in actual charge of each designated landmark shall keep good repair all of the exterior portions thereof, all of the interior portions thereof when subject to control as specified in the designating ordinance, and all interior portions thereof the maintenance of which is necessary to prevent deterioration and decay of any exterior portion.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13028, § 2(Exh. A), 7-20-2010; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12513 Attach. A (part), 2003: Ord. 12237 § 4 (part), 2000; prior planning code § 7002)

17.136.075 - Regulations for demolition or removal of CIX-1A zoned properties, Designated Historic Properties, and Potentially Designated Historic Properties.

A.

With the exception of structures declared to be a public nuisance by the Building Official or City Council, Regular Design Review of the demolition or removal of a Designated Historic Property (DHP) or Potentially Designated Historic Property (PDHP) shall only be approved after the Regular Design Review of a replacement project at the subject site has been approved; however, demolition of nuisance structures must still undergo Regular Design Review for demolition as required by this Chapter.

B.

Regular Design Review approval for the demolition or removal of any Landmark, Heritage Property, structure rated "A" or "B" by the Oakland Cultural Heritage Survey, and structure on the City's Preservation Study List that are not in an S-7 or S-20 Zone, or Area of Primary Importance (API) as determined by the Oakland Cultural Heritage Survey may be granted only if the proposal conforms to the Regular design review criteria, all other applicable design review criteria, and the following additional criteria:

1.

The applicant demonstrates that: a) the existing property has no reasonable use or cannot generate a reasonable economic return and that the development replacing it will provide such use or generate such return, or b) the applicant demonstrates that the structure constitutes a hazard and is economically infeasible to rehabilitate on its present site. For this finding, a hazard constitutes a threat to health and safety that is not immediate;

2.

If a replacement facility is required by Subsection 17.136.075.A., the design quality of the replacement facility is equal or superior to that of the existing facility; and

3.

It is economically, functionally architecturally, or structurally infeasible to incorporate the historic structure into the proposed development.

C.

Regular Design Review Approval for the demolition or removal of any structure in the CIX-1A Zone, or an S- 7 or S-20 Zone, or an Area of Primary Importance (API) as determined by the Oakland Cultural Heritage Survey may be granted only if the proposal conforms to the general design review criteria, all other applicable design review criteria, and the following additional criteria:

1.

For the demolition of structures in the CIX-1A Zone; or contributors to an S-7 Zone, S-20 Zone, or API:

a.

The applicant demonstrates that: i) the existing property has no reasonable use or cannot generate a reasonable economic return and that the development replacing it will provide such use or generates such return, or ii) the applicant demonstrates that the structure constitutes a hazard and is economically infeasible to rehabilitate on its present site. For this criterion, a hazard constitutes a threat to health and safety that is not immediate; and

b.

It is economically, functionally, architecturally, or structurally infeasible to incorporate the historic structure, or existing structure in the CIX-1A Zone, into the proposed development.

2.

For the demolition of noncontributors to an S-7 Zone, S-20 Zone, or API: The existing structure is either: i) seriously deteriorated or a hazard; or ii) the existing design is undistinguished and does not warrant retention. For this finding, a hazard constitutes a threat to health and safety that is not immediate;

For the demolition of any structure in an S-7 Zone, S-20 Zone, or API:

a.

The design quality of the replacement structure is equal/superior to that of the existing structure; and

b.

The design of the replacement project is compatible with the character of the district, and there is no erosion of design quality at the replacement project site and in the surrounding area. This includes, but is not necessarily limited to, the following additional findings:

i.

The replacement project is compatible with the district in terms of massing, siting, rhythm, composition, patterns of openings, quality of material, and intensity of detailing;

ii.

New street frontage includes forms that reflect the widths and rhythm of the facades on the street and entrances that reflect the patterns on the street;

iii.

The replacement project provides high visual interest that either reflects the level and quality of visual interest of the district contributors or otherwise enhances the visual interest of the district;

iv.

If the design contrasts the new to the historic character, the replacement project enriches the historic character of the district;

v.

The replacement project is consistent with the visual cohesiveness of the district. For the purpose of this item, visual cohesiveness is the architectural character, the sum of all visual aspects, features, and materials that defines the district. A new structure contributes to the visual cohesiveness of a district if it relates to the design characteristics of a historic district. New construction may do so by drawing upon some basic building features, such as the way in which a building is located on its site, the manner in which it relates to the street, its basic mass, form, direction or orientation (horizontal vs. vertical), recesses and projections, quality of materials, patterns of openings and level of detailing. When a combination of some of these design variables are arranged in a new building to relate to those seen traditionally in the area, but integral to the design and character of the proposed new construction, visual cohesiveness results; and

vi.

The replacement project will not cause the district to lose its current historic status.

D.

Regular Design Review Approval for the demolition or removal of any structure rated "C" by the Oakland Cultural Heritage Survey or contributes to an Area of Secondary Importance (ASI) as determined by the Oakland Cultural Heritage Survey may be granted only if the proposal conforms to the general design review criteria, all other applicable design review criteria, and to either: 1., 2., or 3., below:

1.

The design quality of the proposed replacement project is at least equal to that of the original structure and the proposed replacement project is compatible with the character of the neighborhood; or

2.

The public benefits of the proposed replacement project outweigh the benefit of retaining the original structure and the proposed replacement project is compatible with the character of the neighborhood; or

3.

The existing design is undistinguished and does not warrant retention and the proposed design is compatible with the character of the neighborhood.

E.

For proposals that have received Design Review approval pursuant to this Section, the issuance of a demolition permit for any structure or portion thereof may be postponed by the Director of City Planning for a period not to exceed one hundred twenty (120) days from the date of application for such permit. The Director may do so upon determination that the structure or portion thereof is listed as a Local Register Property, or is on a study list of facilities under serious study by the Landmarks Preservation Advisory Board, the City Planning Commission, or the Director, for possible landmark designation under Section 17.136.070 or for other appropriate action to preserve it. During the period of postponement the Board, the Commission, or the Director shall explore means for preserving or restoring the structure or portion thereof. However, demolition may not be postponed under this Section if, after notice to the Director of City Planning, the Building Services Department, the Housing Conservation Division, their respective appeals boards, or the City Council determines that immediate demolition is necessary to protect the public health or safety. Any determination made by the Director of City Planning under this Section may be appealed pursuant to the administrative appeal procedure in Chapter 17.132.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13251, § 5(Exh. A), 7-29-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. No. 13028, § 2(Exh. A), 7-20-2010)

Editor's note— Ord. No. 13028, § 2(Exh. A), adopted July 20, 2010, amended Section 17.136.075 in its entirety to read as herein set out. Formerly, Section 17.136.075 pertained to postponement of demolition, and derived from the prior planning code, § 7005, and Ord. No. 12776, § 3, Exh. A (part), adopted in 2006.

17.136.080 - Appeal to Planning Commission—Regular design review.

Within ten (10) calendar days after the date of initial decision by the Director of City Planning on an application for Regular design review under the procedure specified in Subsection 17.136.040.C, an appeal

from said decision may be taken to the City Planning Commission by the applicant, the Landmarks Preservation Advisory Board, or any other interested party. In the case of appeals involving One-Family or Two- to Four-Family Residential Facilities, the appeal shall be considered by the Commission's Residential Appeals Committee. In the event the last day of appeal falls on a weekend or holiday when City offices are closed, the next date offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City Planning and Building Department and shall be filed with such Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Director or wherein his or her decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the Director of City Planning prior to the close of the written public comment period on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of such appeal, the Secretary of the City Planning Commission shall set the time for consideration thereof. Not less than seventeen (17) days prior to the date of the Commission's or Committee's consideration of the appeal, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented to the Director of City Planning prior to the close of the written public comment period for the underlying decision being appealed, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Commission or, if applicable, the Committee shall determine whether the proposal conforms to the applicable design review criteria, and may approve or disapprove the proposal or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to ensure conformity to said criteria. The Commission or, if applicable, the Committee may seek the advice of outside design professionals. The decision of the Commission or, if applicable, the Committee on a proposal being considered under the procedure specified in Subsection 17.136.040.C. shall be final immediately and is not ultimately appealable to the City Council.

in its judgment necessary to ensure conformity to said criteria. The Commission or, if applicable, the Committee may seek the advice of outside design professionals. The decision of the Commission or, if applicable, the Committee on a proposal being considered under the procedure specified in Subsection 17.136.040.C. shall be final immediately and is not ultimately appealable to the City Council.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 11816 § 2 (part), 1995: prior planning code § 9307)

Within ten (10) calendar days after the date of initial decision by the City Planning Commission on an application for Regular design review under the procedure specified in Subsection 17.136.040.D, an appeal from said decision may be taken to the City Council by the applicant, the Landmarks Preservation Advisory Board, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. No such appeal to the City Council is allowable under the procedure specified in Subsection 17.136.040.C. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion

by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

n for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the proposal conforms to the applicable design review criteria, and may approve or disapprove the proposal or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13778, 1-16-2024; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 11-182014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11816 § 2 (part), 1995: prior planning code § 9308)

A.

A design review approval shall be subject to the plans and other conditions upon the basis of which it was granted. Except as indicated in Subsection B. below or unless a different termination date is prescribed, the approval shall terminate three (3) years from the effective date of its granting unless, within such period, all necessary permits for construction, alteration, demolition, or removal, as the case may be, have been filed with the Planning and Building Department and diligently pursued towards completion. Upon written

request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a two-year extension of this date, with additional extensions subject to approval by the original reviewing officer or body. Expiration of any necessary building permit for the project may invalidate the design review approval if said approval or extension period has also expired. If litigation is filed challenging this approval, or its implementation, then the time

period stated above for obtaining necessary permits for construction or alteration and/or commencement of authorized activities is automatically extended for the duration of the litigation.

B.

In order to support implementation of the City's 2023-2031 Housing Element, the following shall supersede the applicable provisions in Subsection A. for the time period of January 31, 2023 to January 31, 2031:

1.

A design review approval granted for the creation of residential units between January 31, 2023 and January 31, 2026 shall terminate five (5) years from the effective date of its granting unless all necessary permits for construction, alteration, demolition, or removal, as the case may be, have been filed with the Planning and Building Department and diligently pursued towards completion within such period. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date; and

2.

A design review approval granted before January 31, 2023 for the creation of residential units that has not expired before that date shall be granted an automatic extension to January 31, 2028. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11816 § 2 (part), 1995; prior planning code § 9309)

17.136.120 - Design review related to Conditional Use Permit, Planned Unit Development, variance, or subdivision.

A.

Whenever design review approval is required for a proposal also requiring one or more other discretionary permits, such as a Conditional Use Permit, Planned Unit Development permit, or variance, the application for design review shall be submitted with the application for said other permit and shall be processed and considered as part of the same proposal. The reviewing officer or body shall, in considering the design review aspects of the proposal, determine whether it conforms to all the applicable design review criteria. Decisions on the design review aspects of a proposal also requiring one or more other discretionary permits, such as a Minor Conditional Use Permit or Minor Variance, shall still be appealable within ten (10) calendar days after the date of decision to the City Planning Commission or City Council to the extent such appeal would otherwise be allowed under Sections 17.136.080 and 17.136.090. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

B.

Whenever design review approval is required for a proposal also requiring subdivision approval, the application for design review approval shall be submitted with the tentative map or tentative parcel map required by the Oakland Municipal Code, and shall be subject to all the separate procedure and criteria pertaining to design review.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 11816 § 2 (part), 1995: prior planning code § 9311)

17.136.130 - Limitation on resubmission—Small project design review and Special project design review.

Whenever an application for Small project design review or Special project design review has been denied by the Director of City Planning, no Small project design review application or Special project design review application for essentially the same proposal affecting the same property, or any portion thereof, shall be filed within one (1) year after the date of denial; provided, however, that such proposal may be resubmitted as an application for Regular design review.

The limitation of this Section on resubmitting an application for Small project design review or Special project design review shall not apply in instances where the applicant can show, on the face of any subsequent application, changed circumstances sufficient to justify reconsideration of denial of the original application for Small project design review or Special project design review. Applications pursuant to this Section shall be considered by the Director of City Planning. A determination by the Director shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission. In event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Any such decision by the Planning Commission shall be final.

ty Planning. A determination by the Director shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission. In event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Any such decision by the Planning Commission shall be final.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13302, § 5(Exh. C), 4-21-2015; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11816 § 2 (part), 1995: prior planning code § 9312)

Chapter 17.138 - DEVELOPMENT AGREEMENT PROCEDURE

Sections:

17.138.010 - Title, purposes, and applicability.

The provisions of this Chapter shall be known as the Development Agreement Procedure. The purposes of these provisions are to prescribe the procedure for consideration of development agreements and, by encouraging appropriate projects, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. This procedure shall apply to all proposals for development agreements.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Prior planning code § 9350)

17.138.015 - Projects eligible and special regulations for projects with development agreements.

A.

Any person having a legal or equitable interest in the real property involved may, upon approval pursuant to the development agreement procedure in this Chapter, enter into a development agreement with the City for any specific development project which involves either:

1.

A total of at least four (4) acres of land area; or

2.

Five hundred thousand (500,000) square feet of floor area; and is a project intended to be developed in stages; or

3.

Involves land sold or leased by the Redevelopment Agency or the successor to the Redevelopment Agency of the City, and is to be carried out by agreement with the Redevelopment Agency or the successor to the Redevelopment Agency.

B.

The development agreement shall not be approved unless the project has received, or simultaneously receives, whatever design review, conditional use permit, preliminary Planned Unit Development plan approval, and/or variance it may otherwise require. For the duration of the particular agreement, and unless otherwise provided in the terms thereof, there shall be a contractual guarantee that the project covered by the agreement may be pursued under the applicable procedural criteria, if any, and other zoning regulations, and plans or other documents referred to by any such criteria, as they existed when the agreement was approved and notwithstanding any subsequent changes in said zoning regulations or documents. However, the agreement may also subject the proposal to special conditions to benefit or protect the City for entering into the development agreement. The conditions may include, but are not limited to, supplemental restrictions on kinds of uses, Floor-Area Ratio, or density; special conditions or criteria for required subsequent zoning approvals, if any; and requirements for the reservation, dedication, or improvement of land for public purposes or accessible to the public.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Application for a development agreement shall be made by a person, or the authorized agent of a person, having a legal or equitable interest in the affected property. Application shall be made on a form prescribed by the City Planning and Building Department and shall be filed with such Department. The application shall be accompanied by the fee prescribed in the fee schedule in Chapter 17.150 and by the proposed development agreement and any supporting material which, between them, shall include the following:

A.

An identification of the affected property and the proposed parties to the agreement;

B.

A description of the development project, indicating the proposed kinds of uses, Floor-Area Ratio or density, and building height and size, and such additional information as may be required to allow the applicable criterion and factors to be applied to the proposal. Such information may include, but is not limited to, site and building plans, elevations, relationships to adjacent properties, and operational data. Where appropriate the description may distinguish between elements of the project which are proposed to be fixed under the agreement and those which may vary;

C.

An identification of any subsisting planned unit development permit or other special zoning approval which has already been obtained for the development project;

D.

The special conditions, if any, to be imposed pursuant to Section 17.138.015;

E.

The proposed duration of the agreement and timing of the development project;

F.

A program for periodic review under Section 17.138.090.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013; Prior planning code § 9351)

An application for a development agreement shall be considered by the City Planning Commission which shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property. Notice of the hearing shall also be given by mail or delivery to all persons shown on the last available equalized assessment roll as owning real property within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown in such records shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. If, however, the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement these procedures. The Commission shall determine whether the proposal conforms to the criterion set forth in Section 17.138.050, and may recommend approval or disapproval of the application, or recommend its approval subject to changes in the development agreement or conditions of approval, giving consideration to the factors set forth in Section 17.138.060. Should a decision not be rendered within sixty (60) days after the filing, the application shall be deemed approved except when, pursuant to the California Environmental Quality Act, an environmental document is required prior to decision, in which case should a decision not be rendered within sixty (60) days after final action on the environmental document, the application shall be deemed approved. In any case, however, the date by which a decision must be rendered may be extended by agreement between the Director of City Planning or the City Planning Commission and the applicant. The Commission shall, within ten days of its decision, forward its recommendations to the City Council.

(Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9352)

After a recommendation has been rendered by the Commission, the City Council shall set the date for consideration of the matter. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Notice of the hearing shall be given by mail or delivery to the applicant, to all parties who have commented on the initial application, and to other interested parties as deemed appropriate. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. The Council shall review the recommendation of the Commission and shall determine whether the proposal conforms to the criterion set forth in Section 17.138.050, and may approve or disapprove the proposed development agreement, or approve it subject to changes therein or conditions of approval, giving consideration to the factors set forth in Section 17.138.060. If the Council approves the development agreement or approves it subject to changes or conditions, it shall do so by ordinance and the agreement shall be effective upon the effective date of the ordinance. In any case, the decision of the Council shall be final.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9353) 17.138.050 - Criterion.

A development agreement may be approved only if it is found that the proposal is consistent with the Oakland General Plan and with any applicable district plan or development control map which has been adopted by the City Council, as said plans or map currently exist.

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; prior planning code § 9354)

17.138.060 - Factors for consideration.

In reviewing an application for a development agreement, the City Planning Commission and the City Council shall give consideration to the status and adequacy of pertinent plans; any uncertainty or issues about the affected area which may suggest the retention of flexibility; the traffic, parking, public service, visual, and other impacts of the proposed development project upon abutting properties and the surrounding area; the provisions included, if any, for reservation, dedication, or improvement of land for public purposes or accessible to the public; the type and magnitude of the project's economic benefits to Oakland, and of its contribution if any toward a meeting of housing needs; and to any other comparable, relevant factor.

(Prior planning code § 9355)

17.138.070 - Recordation.

Within ten (10) days after the effective date of the development agreement, the City Clerk shall record with the County Recorder a copy of the agreement. If the agreement is amended, canceled, or revoked pursuant to Section 17.138.080 or 17.138.090, the City Clerk shall record notice of such action with the recorder.

(Prior planning code § 9356)

A subsisting development agreement shall be enforceable by any party thereto. The interests of the applicant may not be transferred or assigned to a new person without the written consent of the city. In any case, the burdens of such agreement shall also bind, and its benefits shall also inure to, all successors in interest. A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Such amendments and cancellations shall be processed in the same manner as an original application and shall be subject to the same procedural requirements.

(Prior planning code § 9357)

Each development agreement shall be reviewed at least once every twelve (12) months, and the review period shall be specified in the agreement. Application for periodic review shall be made on a form prescribed by the City Planning and Building Department and shall be filed with such department. The application shall be accompanied by the fee prescribed in the city master fee schedule. Failure to file for such review within the time limits specified in the agreement shall render the agreement null and void. The applicant or successor in interest shall be required to demonstrate good faith compliance with the terms of the agreement. If the Director of City Planning finds that such compliance has been deficient, he or she shall forward this finding and his or her recommendation to the City Council, for consideration in accordance with the enforcement procedure in Chapter 17.152.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12237 § 4 (part), 2000: prior planning code § 9358)

Whenever a development agreement is proposed for a project which requires additional planned unit development or other special zoning approval, or subdivision approval, the application for the development agreement may be substituted with the application for said approval, but shall nonetheless be subject to all the separate procedure, and criterion and factors, pertaining to review of development agreements.

(Prior planning code § 9359)

Chapter 17.140 - PLANNED UNIT DEVELOPMENT PROCEDURE

Sections:

17.140.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Planned Unit Development Procedure. The purpose of these provisions is to prescribe the procedure for the review of Planned Unit Developments and to encourage those which are appropriately designed and located. This procedure shall apply to all proposed developments for which a permit is required by Section 17.142.030. Whenever such a development is subject to the real estate subdivision regulations, this procedure shall be complied with, and, in addition thereto, such regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12872 § 4 (part), 2008; prior planning code § 9400)

Application for a Planned Unit Development (PUD) permit shall be made by the owner of the affected property or his or her authorized agent, or by another party described in Section 17.142.040, on a form prescribed by the City Planning and Building Department and shall be filed with such Department. The application shall be accompanied by the fee prescribed in the fee schedule in Chapter 17.150, and by the following:

A.

A preliminary development plan of the entire development showing streets, driveways, sidewalks and pedestrian ways, and off-street parking and loading areas; location and approximate dimensions of structures; utilization of structures, including activities and the number of living units; estimated population; reservations for public uses, including schools, parks, playgrounds, and other open spaces; major landscaping features; relevant operational data; and drawings and elevations clearly establishing the scale, character, and relationship of buildings, streets, and open spaces. Such development plan shall include maps and information on the surrounding area within one hundred (100) feet of the development. All elements listed in this paragraph shall be characterized as existing or proposed, and sufficiently detailed to indicate intent and impact. In the case of a development intended to be constructed over a period of more than four (4) years, the design and arrangement of those portions of the project to be constructed more than four (4) years in the future may be shown in generalized, schematic fashion;

B.

A tabulation of the land area to be devoted to various uses, a tabulation of gross floor area to be devoted to various uses, and a calculation of the average residential density per net acre and per net residential acre;

C.

A stage development demonstrating that the developer intends to commence construction within one (1) year after the approval of the final development plan and will proceed diligently to completion;

D.

If it is proposed that the final development plan will be submitted in stages, a schedule for submission thereof.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. 12872 § 4 (part), 2008; prior planning code § 9401)

An application for a Planned Unit Development (PUD) permit shall be considered by the City Planning Commission which shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property. Notice of the hearing shall also be given by mail or delivery to all owners and occupants of real property within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. If, however, the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement these procedures. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Commission for its consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Commission shall determine whether the proposal conforms to the permit criteria set forth in Section 17.140.080 and to the Planned Unit Development regulations in Chapter 17.142, and may approve or disapprove the application and the accompanying preliminary development plan or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. In so doing, the Commission may, in its discretion, authorize submission of the final development plan in stages corresponding to different units or elements of the development. It may do so only upon evidence assuring completion of the entire development in accordance with the preliminary development plan and stage development schedule. The determination of the Commission shall become final ten (10) calendar days after the date of decision unless appealed to the City Council in accordance with Section 17.140.070. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Commission prior to the close of the Commission's public hearing on the matter, in accordance with the above procedures. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9402)

17.140.040 - Submission of final development plan.

A.

Except as indicated in Subsection B. below or unless a different termination date is prescribed, the applicant shall file with the Planning and Building Department a final plan for the entire development within three (3) years after the approval or modified approval of a preliminary development plan, or when submission in stages has been authorized pursuant to Section 17.140.030, for the first unit of the development. The final plan shall conform in all major respects with the approved preliminary development plan. The final plan shall include all information included in the preliminary development plan plus the following: the location of water, sewerage, and drainage facilities; detailed building and landscaping plans and elevations; the character and location of signs; plans for street improvements; and grading or earthmoving plans. The final plan shall be sufficiently detailed to indicate fully the ultimate operation and

appearance of the development. Copies of legal documents required for dedication or reservation of group or common spaces, for the creation of nonprofit homes' association, or for performance bonds, shall also be submitted.

B.

In order to support implementation of the City's 2023-2031 Housing Element, the following shall supersede the applicable provisions in Subsection A. for the time period of January 31, 2023 to January 31, 2031:

1.

Any preliminary development plan granted between January 31, 2023 and January 31, 2026 that involves the creation of residential units shall terminate five (5) years from the effective date of its granting unless, within such period, the applicant files with the Planning and Building Department a final plan for the entire development, or when submission in stages has been authorized pursuant to Section 17.140.030, for the first unit of the development. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a threeyear extension of this date; and

2.

Any preliminary development plan granted before January 31, 2023 that involves the creation of residential units that has not expired before that date shall be granted an automatic extension to January 31, 2028, along with all associated final plans. The applicant shall file with the Planning and Building Department a final plan for the entire development within such approval period, or when submission in stages has been authorized pursuant to Section 17.140.030, for the first unit of the development. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-22020; Ord. 12872 § 4 (part), 2008; Ord. 11828 § 2, 1995: prior planning code § 9403)

Within thirty (30) days after the filing of the final development plan, the City Planning Commission shall forward such development plan and the original application to the City Engineer for review of public improvements, including streets, sewers, and drainage. The Commission shall not act on a final development plan until it has first received a report from the City Engineer or until more than thirty (30) days have elapsed since the plan and application were sent to the City Engineer, whichever is the shorter period.

(Prior planning code § 9404)

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an application for approval of a preliminary or final development plan, or for modification or amendment of any such plan, an appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when

endar days after the date of a decision by the City Planning Commission on an application for approval of a preliminary or final development plan, or for modification or amendment of any such plan, an appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when

City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of such appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the proposal conforms to the applicable criteria and standards, and may approve or disapprove the proposed development or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final.

oposal conforms to the applicable criteria and standards, and may approve or disapprove the proposed development or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Prior planning code § 9405)

17.140.070 - Appeal to Council.

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an application for approval of a preliminary or final development plan, or for modification or amendment of any such plan, an appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Commission and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which

ecifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which

supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of such appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal. The City Clerk shall notify the Secretary of the City Planning Commission of the receipt of said appeal and of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the proposal conforms to the applicable criteria and standards, and may approve or disapprove the proposed development or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9406)

A Planned Unit Development permit may be granted only if it is found that the development (including conditions imposed under the authority of Sections 17.142.060 and 17.140.030) conforms to all of the following criteria, as well as to the Planned Unit Development regulations in Chapter 17.142:

A.

That the location, design, size, and uses are consistent with the Oakland General Plan and with any other applicable plan, development control map, design guidelines, or ordinance adopted by the City Council or Planning Commission;

B.

That the location, design, and size are such that the development can be well integrated with its surroundings, and, in the case of a departure in character from surrounding uses, that the location and design will adequately reduce the impact of the development;

C.

That the location, design, size, and uses are such that traffic generated by the development can be accommodated safely and without congestion on major streets and will avoid traversing other local streets;

D.

That the location, design, size, and uses are such that the residents or establishments to be accommodated will be adequately served by existing or proposed facilities and services;

E.

That the location, design, size, and uses will result in an attractive, healthful, efficient, and stable environment for living, shopping, or working, the beneficial effects of which environment could not otherwise be achieved under the zoning regulations;

F.

That the development will be well integrated into its setting, will not require excessive earth moving or destroy desirable natural features, will not be visually obtrusive and will harmonize with surrounding areas and facilities, will not substantially harm major views for surrounding residents, and will provide sufficient buffering in the form of spatial separation, vegetation, topographic features, or other devices.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13090, § 4(Exh. A), 10-4-2011; Ord. 12872 § 4 (part), 2008; prior planning code § 9407)

Whenever a Planned Unit Development (PUD) permit has been granted, and so long as the permit is in effect, the boundary of the Planned Unit Development shall be indicated on the zoning maps of the city.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9408)

17.140.100 - Limitation on resubmission.

Whenever an application for a Planned Unit Development permit has been denied, no application for the same area or any portion thereof shall be filed by the same applicant within six (6) months after the date of denial.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9409)

17.140.110 - Adherence to approved plan, and modification thereof.

The applicant shall agree in writing to be bound, for himself or herself and his or her successors in interest, by the conditions prescribed for approval of a Planned Unit Development. The approved final plan and stage development schedule shall control the issuance of all building permits and shall restrict the nature, location, and design of all uses. Minor changes in an approved preliminary or final development plan may be approved by the Director of City Planning if such changes are consistent with the purposes and general character of the development plan. Proposed extensions to the time limit imposed by Section 17.140.040, upon application filed at any time before said period has expired, shall be referred to the City Planning Commission, and the Commission may approve, modify, or deny such proposals. The decision of the

Commission is appealable to the City Council. All other modifications, including revisions of the stage development schedule, shall be processed in the same manner as the original application and shall be subject to the same procedural requirements.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. 11828 § 3, 1995: prior planning code § 9410)

Chapter 17.142 - PLANNED UNIT DEVELOPMENT REGULATIONS[[54]]

Footnotes:

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Editor's note— Ord. No. 13763, § 5, adopted October 3, 2023, amended chapter 17.142 in its entirety to read as herein set out. Former chapter 17.142, §§ 17.142.002, 17.142.004, 17.142.010—17.142.016, 17.142.020—17.142.110, pertained to mini-lot and planned unit development regulations, and derived from ; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4(part), 2008; prior planning code § 7801)

Article I - Title, Purposes and Applicability

17.142.002 - Title and purposes.

The provisions of this Chapter shall be known as the Planned Unit Development Regulations. The purposes of these regulations are to:

A.

Encourage the comprehensive planning of tracts of land;

B.

Provide flexibility in the application of certain regulations in a manner consistent with the general purposes of the zoning regulations; and

C.

Promote a harmonious variety of uses, the economy of shared services and facilities, compatibility with surrounding areas, and the creation of attractive, healthful, efficient, and stable environments for living, shopping, or working.

(Ord. No. 13763, § 5, 10-3-2023)

17.142.004 - Applicability.

These regulations shall apply to either:

A.

Planned Unit Developments (PUDs) located on a single tract of land of at least four (4) acres in the RH Zones, and thirty thousand (30,000) square feet or more in all other zones, or on two (2) or more tracts of land equaling at least four (4) acres in the RH Zones, and thirty thousand (30,000) square feet or more in total in all other zones which may be separated only by a street or other right-of-way; or

B.

Projects in the D-DT-CPW Zone involving construction at or above one hundred (100) feet in height.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13763, § 5, 10-3-2023)

Article II - Planned Unit Developments

A.

A "Planned Unit Development" (PUD) is a large, integrated development adhering to a comprehensive plan and located either:

1.

On a single tract of land of at least four (4) acres in the RH Zones, and thirty thousand (30,000) square feet or more in all other zones;

2.

On two (2) or more tracts of land equaling at least four (4) acres in the RH Zones, and thirty thousand (30,000) square feet or more in total in all other zones which may be separated only by a street or other right-of-way; or

3.

In the D-DT-CPW Zone that involves construction at or above one hundred (100) feet in height.

B.

In developments that are approved pursuant to the Planned Unit Development regulations in this Chapter, certain uses may be permitted in addition to those otherwise allowed in the underlying zone, certain of the other regulations applying in said zone may be waived or modified, and the normally required design review process may also be waived for developments at the time of initial granting of a Planned Unit Development (PUD) permit. Unless otherwise specified in the PUD permit, any future changes within the Planned Unit Development shall be subject to applicable design review regulations.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13763, § 5, 10-3-2023)

17.142.030 - Developments for which Planned Unit Development permit approval is required or requested.

A.

The following developments are permitted only upon the granting of a Planned Unit Development permit pursuant to the Planned Unit Development procedure in Chapter 17.140.

1.

Any Planned Unit Development incorporating any of the bonuses set forth in Section 17.142.100.

2.

Any integrated development which is primarily designed for or occupied by Commercial Activities, which is located in any Commercial Zone, and which is developed under unified control, in accordance with a comprehensive plan, on a single tract with thirty thousand (30,000) square feet or more of land area, or on two (2) or more tracts which total such area and which are separated only by a street or other right-of-way.

3.

Any development in the D-DT-CPW Zone involving construction at or above one hundred (100) feet in height.

B.

Unless required by the Planning Director, other large, integrated developments involving the same minimum land area thresholds of a Planned Unit Development, as defined in Section 17.142.020, are permitted without such a permit. However, an applicant for such a development may request a Planned Unit Development permit pursuant to the Planned Unit Development procedure in Chapter 17.140.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13763, § 5, 10-3-2023)

If any of the bonuses set forth in Section 17.142.100 are proposed for a development, the tract or tracts of land included in such development must be in one (1) ownership or control or the subject of a joint application by the owners of all the property included. The holder of a written option to purchase; any governmental agency, including the Redevelopment Successor Agency of the City; or a redeveloper under contract with the Redevelopment Successor Agency shall be deemed the owner of such land for the purposes of this Section. Unless otherwise provided as a condition for approval of a Planned Unit Development (PUD) permit, the permittee may divide and transfer units of any development for which a permit is required by Section 17.142.030. The transferee shall complete each such unit, and use and maintain it, in strict conformance with the approved permit and development plan.

(Ord. No. 13763, § 5, 10-3-2023)

If any of the bonuses set forth in Section 17.142.100 are proposed for a Planned Unit Development, the application for a Planned Unit Development (PUD) permit pursuant to said Section shall utilize the following professionals in the design process for the development:

A.

An architect licensed by the State of California; and

B.

A landscape architect licensed by the State of California, or an urban planner holding or capable of holding membership in the American Institute of Certified Planners.

(Ord. No. 13763, § 5, 10-3-2023)

The City Planning Commission or, on appeal, the City Council may, as a condition of approval of any development for which a permit is required by Section 17.142.030, require that suitable areas for schools, parks, or playgrounds be set aside, improved, and dedicated for public use, or be permanently reserved for the owners, residents, employees, or patrons of the development. Whenever group or common open space is provided, the Commission or the Council, as the case may be, may require that an association of owners or tenants be created for the purpose of maintaining such open space. Such an association, if required, may undertake other functions. It shall be created in such a manner that owners of property shall

automatically be members and shall be subject to assessments levied to maintain said open space for the purposes intended. The period of existence of such association shall be not less than twenty (20) years, and it shall continue thereafter until a majority vote of the members shall terminate it.

(Ord. No. 13763, § 5, 10-3-2023)

The City Planning Commission or, on appeal, the City Council may, as a condition of approval of any development for which a permit is required by Section 17.142.030, require a cash bond or surety bond for the completion of all or specified parts of the development deemed to be essential to the achievement of the purposes set forth in Section 17.142.010. The bond shall be in a form approved by the City Attorney, in a sum of one hundred percent (100%) of the estimated cost of the work, and conditioned upon the faithful performance of the work specified within the time specified.

(Ord. No. 13763, § 5, 10-3-2023)

The bonuses set forth in Section 17.142.100 may, upon approval pursuant thereto and except as otherwise specified therein, be permitted for a Planned Unit Development in any Residential or Commercial Zone, or in the S-1, S-3, S-15, or D-CO-1 Zones.

(Ord. No. 13812, § 4(Exh. A), 7-30-2024; Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13763, § 5, 103-2023)

The minimum total land area of any Planned Unit Development incorporating any of the bonuses set forth in Section 17.142.100 shall be four (4) acres in the RH Zones, and thirty thousand (30,000) square feet in all other zones.

(Ord. No. 13763, § 5, 10-3-2023)

For Planned Unit Developments qualifying under Sections 17.142.080 and 17.142.090, the following exceptions to otherwise applicable regulations may be permitted upon the granting of a Planned Unit Development permit pursuant to the Planned Unit Development procedure in Chapter 17.140:

A.

Additional Permitted Activities Where Increase in Overall Density or Floor-Area Ratio (FAR) Is Proposed. Except in the RH Zones, the following activities, as described in the use classifications in Chapter 17.10, may be permitted in a Planned Unit Development incorporating an increase in overall density or Floor-Area Ratio pursuant to Subsection E. of this Section, in addition to the activities generally permitted in the zone where the development is located:

1.

Civic Activities:

Limited Child-Care

Community Education

2.

Commercial Activities, provided that such activities shall not occupy in the aggregate more than five percent (5%) of the total floor area in such development, and further provided that the maximum floor area devoted to such activities by any single establishment shall be three thousand (3,000) square feet:

General Food Sales

Full Service Restaurant

Limited Service Restaurant and Cafe

Fast-Food Restaurant

Convenience Market

Alcoholic Beverage Sales

Consumer Service (see Section 17.102.170 for special regulations relating to massage services and Section 17.102.450 for special regulations related to laundromats)

Medical Service

B.

Further Additional Permitted Activities Where No Increase in Overall Density or Floor-Area Ratio Is Proposed. Except in the RH Zones, the following activities, as described in the use classifications, may be

permitted in a Planned Unit Development for which no increase in overall density or Floor-Area Ratio is proposed pursuant to Subsection E. of this Section, in addition to the activities listed in Subsection A. of this Section and in addition to the activities generally permitted in the zone in which the development is located. The special limitations prescribed in Subsection A.3. of this Section with respect to location and amount of floor area devoted to Commercial Activities shall not apply in such a development.

1.

Residential Activities:

Semi-Transient

Civic Activities:

Health Care (Nursing Home)

Recreational Assembly

Nonassembly Cultural

Administrative

Utility and Vehicular

Commercial Activities:

Mechanical or Electronic Games

General Retail Sales

Consumer Service (see Section 17.102.170 for special regulations relating to massage services and Section 17.102.450 for special regulations related to laundromats)

Consultative and Financial Service

Consumer Cleaning and Repair Service

Group Assembly

Personal Instruction and Improvement Services

Administrative

Business, Communication, and Media Service

Broadcasting and Recording Service

Research Service

General Wholesale Sales

Automobile and Other Light Vehicle Gas Station and Servicing

Automotive Fee Parking

Animal Care

Animal Boarding

4.

Industrial Activities:

Custom Manufacturing

C.

Additional Permitted Facilities in the RH Zones without the S-9 Combining Zone. In the RH Zones without the S-9 Combining Zone, the following facilities, as described in the use classifications, may be permitted in addition to the facilities otherwise permitted in said zone, provided that at least fifty percent (50%) of the dwelling units in the total development shall be One-Family Dwellings:

1.

Residential Facilities:

Two- to Four-Family Dwelling

Multifamily Dwelling

D.

Additional Permitted Facilities in Other Zones. Except in the RH Zones with the S-9 Combining Zone, the following facilities, as described in the use classifications, may be permitted in addition to the facilities otherwise permitted in the zone in which the development is located:

1.

Residential Facilities:

One-Family Dwelling

Two- to Four-Family Dwelling

Multifamily Dwelling

Rooming House

2.

Nonresidential Facilities:

Open

Drive-In

3.

Signs:

Residential

Business

E.

Increase in Overall Density or Floor-Area Ratio.

1.

Except in the RH and RD-1 Zones with the S-9 Combining Zone, the maximum overall number of living units in Residential Facilities and the maximum overall Floor-Area Ratio, if any, otherwise permitted or conditionally permitted in the zone in which the development is located may be increased by up to thirtythree percent (33%) if the overall development contains a combination of two (2) or more of the following dwelling types and if not more than three-fourths (¾) of the total number of living units are included in any one of such types:

a.

Detached buildings each containing only one living unit;

b.

Town house or similar semi-detached or attached buildings each containing only one (1) or two (2) living units;

c.

Buildings each containing two (2) to four(4) living units;

d.

Buildings each containing five (5) or more living units.

2.

Except in the RH Zones with the S-9 Combining Zone, the maximum overall number of living units in Residential Facilities and the maximum overall Floor-Area Ratio, if any, otherwise permitted or conditionally permitted in the zone in which the development is located may be increased by up to twenty-five percent (25%) in a development other than one described in Subsection E.1. of this Section.

F.

Distribution of Facilities without Reference to Lot or Block Line. The overall number of living units and amount of floor area, off-street parking and loading facilities, usable open space, and landscaping and screening may be located within the development without reference to lot lines or blocks, except as otherwise provided in Subsection 17.142.110.I and except that any provided parking spaces serving Residential Activities shall be located within two hundred (200) feet of the building containing the living units served.

G.

Waiver or Reduction of Yard and Other Dimensional Requirements. Except as otherwise provided in Subsection 17.142.110.C, the minimum lot area, width, and frontage; height; and yard requirements otherwise applying may be waived or modified for the purpose of promoting an integrated site plan.

H.

Limitations on Signs. Except in the RH Zones and except in a development incorporating an increase in density or Floor-Area Ratio pursuant to Subsection E. of this Section, Signs may be developed subject to the limitations prescribed therefor in the CC-2 Zone rather than those in the zone in which the development is located.

(Ord. No. 13763, § 5, 10-3-2023)

The following regulations shall apply to all developments for which a permit is required by Section 17.142.030:

A.

Density and Floor-Area Ratio (FAR) Calculation. The maximum overall number of living units in Residential Facilities and the maximum overall Floor-Area Ratio, if any, shall be based on the land area within the development, excluding the following:

1.

Publicly dedicated land area, including but not limited to streets, freeways, alleys, parks, and paths.

B.

Density in the RH Zones. In the RH Zones, the maximum number of dwelling units shall be as prescribed in said zones.

C.

Height in the RH Zones. In the RH Zones, no building shall exceed the normally required maximum height, except as would otherwise be allowed by Subsection 17.108.020.A and except for the same projections as are allowed by Section 17.108.030.

D.

Performance Standards. Any Commercial or Industrial Activities in the development shall be subject to the applicable provisions of the performance standards in Chapter 17.120.

E.

Yards and Courts. Subject to the provisions of this article, the minimum yard and court requirements otherwise applying to individual lots may be waived or modified within a PUD, and other facilities may be located within said development without reference to lot lines.

F.

Usable Open Space. In the RH-1, RH-2 and RH-3 Zones, two hundred (200) square feet of group usable open space per dwelling unit and one hundred (100) square feet of private usable open space per dwelling unit shall be provided for Residential Facilities. In any other zone, developments incorporating an increase in overall density or Floor-Area Ratio pursuant to Subsection 17.142.100.E shall provide usable open space for Residential Facilities in the amount required in the individual zoning chapters and in Chapter 17.126, and private usable open space may be substituted for required group space in the ratio prescribed in said chapters.

G.

Undergrounding of Utilities. In any development which is primarily designed for or occupied by Residential Activities, all electric and telephone facilities; fire alarm conduits; streetlight wiring; and other wiring, conduits, and similar facilities shall be placed underground by the developer. Electric and telephone facilities shall be installed in accordance with standard specifications of the serving utilities. Street lighting and fire alarm facilities shall be installed in accordance with standard specifications of the Electrical Department.

H.

Other Regulations. Except as otherwise provided in Section 17.142.100 and in this Section, and except as more restrictive regulations may be prescribed pursuant to Section 17.142.060 or otherwise as a condition of approval of a Planned Unit Development permit pursuant to Section 17.142.030, the development shall be subject to the regulations generally applying in the zone in which it is located and the provisions of Section 17.108.080.

I.

Developments Divided by Boundaries. Any development which is divided by a boundary between zones shall be subject as if it were a single lot to the provisions of Subsections B.2., 3., and 4. of Section 17.154.060 with respect to calculation of required parking, loading, and usable open space; calculation of maximum number of living units or Floor-Area Ratio; and distribution of the resulting number of living units or amount of floor area.

(Ord. No. 13763, § 5, 10-3-2023)

Chapter 17.144 - REZONING AND LAW CHANGE PROCEDURE

Sections:

The provisions of this Chapter shall be known as the Rezoning and Law Change Procedure. The purpose of these provisions is to prescribe the procedure by which changes may be made in the text of the zoning regulations and in the application thereof to specific properties. This procedure shall apply to all proposals to rezone property, to change the text of the zoning regulations, or to establish, amend, or delete any development control map or designated landmark or landmark site.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9500)

The City Council shall not rezone any property, change the text of any provision of the zoning regulations, or establish, amend, or delete any development control map or designated landmark or landmark site until after it has received, pursuant to this procedure, a recommendation and/or findings from the City Planning Commission.

(Prior planning code § 9501)

A.

Private Party Initiation. The owner of any property, or his or her authorized agent, may make application to the Planning and Building Department to rezone such property, to amend or delete any development control map applicable thereto, or to establish, amend, or delete a designated landmark or landmark site applicable thereto.

B.

Commission Initiation. The City Planning Commission may, and upon request of the City Council shall, initiate action to rezone any property, to change the text of the zoning regulations, or to establish, amend, or delete any development control map or designated landmark or landmark site. Such initiation shall be for the purpose of reviewing the merits of the proposal and shall not imply advocacy by the Commission for the rezoning or other change.

C.

Landmarks Board Initiation. The Landmarks Preservation Advisory Board may initiate action to rezone any property to or from the S-7 Zone or to establish, amend, or delete any designated landmark or landmark site. Such initiation shall be for the purpose of reviewing the merits of the proposal and shall not imply advocacy by the Board for the rezoning or other change.

D.

Parks and Recreation Advisory Commission (PRAC) Initiation. The PRAC may initiate action to rezone property to or from the OS Zone or to establish, amend, or delete the park category designation of any site.

Such initiation shall be for the purpose of reviewing the merits of the proposal and shall not imply advocacy by the PRAC for the rezoning or other change.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12078 § 5 (part), 1998; prior planning code § 9502)

A private party application shall be made by the owner of the affected property, or his or her authorized agent, on a form prescribed by the City Planning and Building Department and shall be filed with such Department. The application shall be accompanied by a description of the property or such other information as may be required by the City Planning Commission, and by the fee prescribed in the fee schedule in Chapter 17.150.

(Ord. No. 13763, § 5, 10-3-2023; Prior planning code § 9503)

Whenever an application or proposal, other than one initiated by the Landmarks Preservation Advisory Board, is to rezone property to or from the S-7 Zone or to establish, amend, or delete a designated landmark or landmark site, the City Planning and Building Department shall promptly refer the application or proposal to said Board for its recommendations. The City Planning Commission shall not act on the application or proposal until it has first received a report from the Board or until more than thirty (30) days have elapsed since the proposal was sent to the Board, whichever is sooner. However, the thirty (30) day period may be extended by agreement between the Commission or private party applicant, as the case may be, and the Board.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Prior planning code § 9504)

17.144.055 - Review by Parks and Recreation Advisory Commission in certain cases.

Whenever an application or proposal, other than one initiated by the Parks and Recreation Advisory Commission (PRAC), is made to rezone property to or from the OS Zone or to establish, amend, or delete a park category designation, the City Planning and Building Department shall promptly refer the application or proposal to the PRAC for its recommendations. The City Planning Commission shall not act on the proposal until it has heard a report from the PRAC or until more than thirty (30) days have elapsed since the proposal was sent to the PRAC, whichever is sooner. However, the thirty (30) day period may be extended by agreement between the City Planning Commission or private party applicant, as the case may be, and the PRAC.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12078 § 6, 1998)

17.144.060 - Planning Commission action on private party application.

In the case of private party initiation, the City Planning Commission shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property. Notice of the hearing shall also be given by mail or delivery to all owners and occupants of real property within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized

f the hearing shall be given by posting an enlarged notice on the premises of the subject property. Notice of the hearing shall also be given by mail or delivery to all owners and occupants of real property within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized

assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date for the hearing. If, however, the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement these procedures. Following Commission action on any environmental document which may be required pursuant to the California Environmental Quality Act in connection with the proposal, the Commission shall make a decision on the application; provided that the Commission may, with the consent of the applicant, defer action until necessary studies or plans shall have been completed for the area. The Commission shall consider whether the existing zone or regulations are inadequate or otherwise contrary to the public interest, and may approve, modify, or disapprove the application. In case of approval or modified approval, the Commission shall forward its recommendation to the City Council for appropriate action. In case of denial of a private party application, the decision of the Commission shall become final ten (10) calendar days after the date of the decision unless appealed to the City Council in accordance with Section 17.144.070. In event the last date of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9505)

17.144.070 - Appeal to Council by private party.

Within ten (10) calendar days after the date of an adverse decision by the City Planning Commission on a private party application, an appeal from said decision may be taken to the City Council by the applicant. In event the last date of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department. The appeal shall state specifically wherein it is claimed the Commission erred in its decision. The appeal shall be considered in accordance with Section 17.144.090.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. 12872 § 4 (part), 2008; Prior planning code § 9506)

17.144.080 - Planning Commission action on Commission or Landmarks Preservation Advisory Board proposal.

In the case of initiation by the City Planning Commission or the Landmarks Preservation Advisory Board, the Commission shall, within a reasonable period of time, hold a public hearing on the proposal. Notice of the hearing shall be given in the same manner as set forth in Section 17.144.060. In addition, notice of the hearing shall be mailed or delivered not less than seventeen (17) days prior to the date set for the hearing to the owners and occupants of all real property included in the proposal; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. If, however, the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement these procedures. When the proposal involves changing the text of the zoning regulations, notice of the hearing shall be given in the official newspaper of the city at least seventeen (17) days prior to the date set for the hearing. Following Commission action on any environmental document which may be required pursuant to the California Environmental Quality Act in connection with the proposal, the Commission shall make a decision on the proposal; provided that the Commission may defer action until completion of such studies or plans as may be necessary to determine the advisability of the proposal. The Commission shall

consider whether the existing zone or regulations are inadequate or otherwise contrary to the public interest, and may approve, modify, or disapprove the proposal. The Commission shall, in every case, make a recommendation to the City Council for appropriate action.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9507)

Upon receipt of an appeal by a private party, or upon receipt of a recommendation from the City Planning Commission, the City Council shall set the date for consideration of the matter. After setting the hearing date, the Council, prior to hearing the appeal or recommendation, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available scheduled meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal. In the case of receipt of a recommendation from the City Planning Commission, the City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Notice of the hearing shall be given by mail or delivery to all parties who have commented on the matter and to other interested parties as deemed appropriate. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing.

In the case of an appeal by a private party, the City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. Upon an appeal by a private party, or upon the receipt of a recommendation from the City Planning Commission, the Council may approve, modify, or reverse the decision or may approve, modify, or disapprove the Commission's recommendations, as the case may be. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9508)

Whenever a private party application has been denied by the City Council, no such application for the same proposal affecting the same property, or any portion thereof, shall be filed within one (1) year after the date of denial.

(Prior planning code § 9509)

Chapter 17.148 - VARIANCE AND EXCEPTION PROCEDURE

Sections:

17.148.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the Variance and Exception Procedure. The purpose of these provisions is to prescribe the procedure for the relaxation of any substantive provision of the zoning regulations, under specified conditions, so that the public welfare is secured and substantial justice done most nearly in accord with the intent and purposes of the zoning regulations. This procedure shall apply to all proposals to vary the strict requirements of the zoning regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9600)

17.148.020 - Definition of Major and Minor Variances and Minor Zoning Exceptions.

A.

Major Variance. A "Major Variance" is the relaxation of a specific requirement in the zoning regulations which involves any of the following provisions:

1.

Allowable activity types or facility types;

2.

Maximum number of living units;

3.

Minimum lot area, except in the situation mentioned in Section 17.106.010.B;

4.

Maximum Floor Area Ratio (FAR), except for One-Family Dwellings and Two- to Four-Family Dwellings;

5.

Maximum size of Commercial or Industrial establishments.

B.

Minor Variance. A "Minor Variance" is the relaxation of a specific requirement in the zoning regulations which does not involve any of the provisions listed in Subsection A. of this Section and exceeds the allowance for minor zoning exceptions in Subsection C. of this Section.

C.

Minor Zoning Exception. A "Minor Zoning Exception" is the relaxation of a specific requirement in the zoning regulations which does not result in more than a ten percent (10%) deviation from an applicable numeric zoning standard or involve any of the provisions listed in Subsection A. of this Section.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13677, § 4(Exh. A), 1-18-2022; Ord. No. 13357, § 3(Exh. A), 2- 16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12237 § 4 (part), 2000: Ord. 12138 § 4 (part), 1999; prior planning code § 9601)

In all zones, application for a variance or minor zoning exception shall be made by the owner of the affected property, or his or her authorized agent, on a form prescribed by the Planning and Building Department and shall be filed with such Department. The application shall be accompanied by such information, including but not limited to, site and building plans, drawings and elevations, and operational data, as may be required to permit the review of the proposal in the context of the required findings, and by the fee prescribed in the fee schedule in Chapter 17.150.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12376 § 3 (part), 2001: prior planning code § 9602)

A.

Major Variances.

1.

In All Zones. An application for a Major Variance shall be considered by the City Planning Commission which shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property involved in the application. Notice of the hearing shall also be given by mail or delivery to all owners and occupants of real property in the City within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Commission for its consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Commission shall determine whether the conditions required in Section 17.148.050 are present, and may grant or deny an application for a variance or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations. The decision of the Commission shall become final ten (10) calendar days after the date of decision unless appealed to the City Council in accordance with Section 17.148.070. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Commission prior to the close of the Commission's public hearing on the matter, in accordance with the above procedures. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

2.

Alcoholic Beverage Sales Commercial Activities. In addition to following the provisions of Subsection A.1. of this Section, the City Planning Commission shall also determine whether the proposal conforms to the

criteria for findings of "Public Convenience and Necessity" set forth in Subsection 17.103.030.B.3.

B.

Minor Variances.

1.

In All Zones. An application for a Minor Variance shall be considered by the Director of City Planning. However, the Director may, at his or her discretion, refer the application to the City Planning Commission rather than acting on it himself or herself. In this case, the application shall still be considered a minor permit, but shall be processed according to the procedure in Subsection A. of this Section. In these instances, any other minor permits associated with the application shall be considered concurrently by the Planning Commission, pursuant to Section 17.130.090. At his or her discretion, an administrative hearing may be held. Notice shall be given by posting an enlarged notice on the premises of the subject property involved in the application; notice shall also be given by mail or delivery to all owners and occupants of real property in the City within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than

seventeen (17) days prior to the date set for the hearing, if such is to be held, or, if not, for decision on the application by the Director. Any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence: (a) to the Director prior to the close of the written public comment period for his or her consideration, or (b) to the Commission while the hearing is open for its consideration, whichever is applicable; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Director shall determine whether the conditions required in Section 17.148.050 are present, and may grant or deny the application for a variance or require such changes in the proposed use or impose such reasonable conditions of approval as are in his or her judgment necessary to carry out the purposes of the zoning regulations. The decision of the Director of City Planning shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.148.060. In those cases which are referred to the Commission by the Director, the decision of the Commission shall become final ten (10) days after the date of decision unless appealed to the City Council in accordance with Section 17.148.070. Any party seeking to appeal the determination will be limited to issues and/or evidence presented (a) to the Director prior to the close of the written public comment period, or (b) to the Commission prior to the close of the Commission's public hearing on the matter, whichever is applicable, in accordance with the above procedures. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal.

C.

Minor Zoning Exceptions.

1.

In All Zones. An application for a Minor Zoning Exception shall be considered by the Zoning Manager, or his or her designee. The Zoning Manager, or his or her designee, shall determine whether the proposal meets the requirements for a Minor Zoning Exception as set forth in this Chapter. At the time of Minor Zoning

Exception application, the owner of the affected property, or his or her authorized agent, shall obtain from the Planning and Building Department, a notice poster to install on the project site; and a Notice to Neighboring Properties form which includes the project description and contact information. Prior to the subject application being deemed complete, the applicant shall install the notice poster provided at the time of application at a location on the project site that is clearly visible from the street, alley, or private way providing access to the subject lot; and provide by mail or delivery a copy of the completed project notice form, as well as a set of reduced plans (consisting of at least a site plan and building elevations that show all proposed exterior work) to all owners and occupants of the City of Oakland lot or lots adjacent to the project site and directly across the street abutting the project site. All required posting of the site and notification of adjacent and across the street property owners and occupants shall be completed by the project applicant not less than ten (10) days prior to the earliest date for final decision on the application. During the required noticing period, the Planning and Building Department shall receive and consider comments from any interested party. The Zoning Manager, or his or her designee, may approve or disapprove a Minor Zoning Exception proposal and may require such changes therein or impose such reasonable conditions of approval as are in his or her judgment necessary to carry out the purposes of the zoning regulations. The decision by the Zoning Manager, or his or her designee, shall be final immediately and not appealable.

D.

Alternative Notification Procedures. If the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement the procedures set forth in Subsections A. and B. of this Section.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 12237 § 4 (part), 2000; Ord. 11831 § 6, 1995; prior planning code § 9603)

17.148.050 - Findings required.

A.

With the exception of variances for Adult Entertainment Activities or Sign Facilities, a variance may be granted only upon determination that all of the following conditions are present:

1.

That strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstances or conditions of design; or, as an alternative in the case of a minor variance, that such strict compliance would preclude an effective design solution improving livability, operational efficiency, or appearance.

2.

That strict compliance with the regulations would deprive the applicant of privileges enjoyed by owners and occupants of similarly zoned property; or, as an alternative in the case of a Minor Variance, that such strict

compliance would preclude an effective design solution fulfilling the basic intent of the applicable regulation.

3.

That the variance, if granted, will not adversely affect the character, livability, or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy.

4.

That the variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.

5.

That the elements of the proposal requiring the variance (e.g., elements such as buildings, walls, fences, driveways, garages and carports, etc.) conform with the design review criteria set forth in the design review procedure in Chapter 17.136.

6.

That the proposal conforms in all significant respects with the Oakland General Plan and with any other applicable guidelines or criteria, district plan, or development control map which have been adopted by the Planning Commission or City Council.

7.

For proposals involving One-Family Residential Facilities on a lot: That, if the variance would relax a regulation governing maximum height, minimum yards, maximum lot coverage or maximum floor area ratio, the proposal also conforms with at least one of the following additional criteria:

a.

The proposal when viewed in its entirety will not adversely impact abutting residences to the side, rear, or directly across the street with respect to solar access, view blockage and privacy to a degree greater than that which would be possible if the residence were built according to the applicable regulation and, for height variances, the proposal provides detailing, articulation or other design treatments that mitigate any bulk created by the additional height; or

b.

Over sixty percent (60%) of the lots in the immediate vicinity are already developed and the proposal does not exceed the corresponding as-built condition on these lots and, for height variances, the proposal provides detailing, articulation or other design treatments that mitigate any bulk created by the additional height. The immediate context shall consist of the five (5) closest lots on each side of the project site plus the ten (10) closest lots on the opposite side of the street (see illustration I-4b); however, the Director of City Planning may make an alternative determination of immediate context based on specific site conditions. Such determination shall be in writing and included as part of any decision on any variance.

B.

A variance for Adult Entertainment Activities shall be granted upon a determination that all of the following conditions are present, notwithstanding any conflicting requirements contained elsewhere in the zoning regulations:

1.

That strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstance or conditions of design;

2.

That strict compliance with the regulations would deprive the applicant of privileges enjoyed by owners and occupants of similarly zoned property;

3.

That the variance will not adversely affect the use of churches, temples or synagogues; public, parochial or private elementary, junior high or high schools; public parks and recreation centers; public or parochial playgrounds; residences; child care facilities; elderly residential care facilities; hospitals; medical clinics; colleges; or libraries, all within a five hundred (500) foot radius by engendering sounds, activities, visual depictions or advertisements that create an exterior atmosphere which unreasonably interferes with the operations of such surrounding uses;

4.

That the variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.

C.

A variance for Sign Facilities shall be granted upon a determination that all of the following conditions are present, notwithstanding any conflicting requirements contained elsewhere in the zoning regulations:

1.

That strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstance or conditions of design;

2.

That strict compliance with the regulations would deprive the applicant of privileges enjoyed by owners and occupants of similarly zoned property; and

3.

That the variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.

D.

A Minor Zoning Exception shall be granted upon a determination that:

1.

The elements of the proposal requiring the Minor Zoning Exception (e.g., elements such as buildings, walls, fences, driveways, garages, carports, etc.) conform with the applicable design review criteria set forth in the design review procedure in Chapter 17.136; and

2.

For proposals involving One-Family Residential Facilities, the Minor Zoning Exception when viewed in its entirety would not adversely impact abutting properties to the side, rear, or directly across the street with respect to solar access, view blockage and privacy to a degree greater than that which would be possible if the proposal were built according to the applicable regulation.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-22013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: prior planning code § 9604)

Within ten (10) calendar days after the date of a decision by the Director of City Planning on an application for a Minor Variance, an appeal from said decision may be taken to the City Planning Commission by the applicant or any other interested party. In the case of appeals involving One-Family or Two- to Four-Family Residential Facilities, the appeal shall be considered by the Commission's Residential Appeals Committee. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning and Building Department and shall be filed with such Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Director or wherein his or her decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the Director of City Planning prior to the close of the written public comment period on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of such appeal, the Secretary of the City Planning Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior to the date of the Commission's or Committee's consideration of the appeal, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented to the Director

of City Planning prior to the close of the written public comment period for the underlying decision being appealed, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Commission or, if applicable, the Committee shall determine whether the conditions required in Section 17.148.050 are present, and may grant or deny an application for a variance or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations. The decision of the Commission or, if applicable, the Committee shall be final.

ittee shall determine whether the conditions required in Section 17.148.050 are present, and may grant or deny an application for a variance or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations. The decision of the Commission or, if applicable, the Committee shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12376 § 3 (part), 2001: Ord. 12237 § 4 (part), 2000; prior planning code § 9605)

17.148.070 - Appeal to Council—Major Variances.

A.

With the exceptions of appeals for Adult Entertainment Activities or for Signs, appeals to the City Council shall be governed by the following:

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an

application for a Major Variance, an appeal from said decision may be taken to the City Council by the applicant, the holder of the variance, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of such appeal, the Council shall set the date for consideration thereof. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

n for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal

is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the conditions required by Section 17.148.050 are present, and may grant or deny an application for a variance or require such changes in the proposed use or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations. The decision of the City Council shall be made by resolution and shall be final.

B.

Appeals to the City Council relating to Adult Entertainment Activities or for Signs shall be governed by the following:

Within ten (10) calendar days after the date of a decision by the City Planning Commission on an application for a Major Variance, an appeal from said decision may be taken to the City Council by the applicant, the holder of the variance, or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal, the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item, in accordance with the above procedures, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the conditions required by Section 17.148.050 are present, and shall grant an application for variance if it determines that all the said criteria are present or require such changes in the proposed use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final. The City Council shall vote on the appeal within thirty (30) days after its first hearing of the appeal and must decide the appeal within sixty (60) days of the appeal being filed.

f approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said criteria. The decision of the City Council shall be made by resolution and shall be final. The City Council shall vote on the appeal within thirty (30) days after its first hearing of the appeal and must decide the appeal within sixty (60) days of the appeal being filed.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13357, § 3(Exh. A), 2-162016; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12899 § 4, Exh. A (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9606)

A.

A variance or minor zoning exception shall be subject to the plans and other specified conditions upon the basis of which it was granted. Except as indicated in Subsection B. below or unless a different termination date is prescribed, the permit shall terminate three (3) years from the effective date of its granting unless, within such period, all necessary permits for construction or alteration have been filed with the Planning and Building Department and diligently pursued towards completion, or the authorized activities have commenced in the case of a variance not involving construction or alteration. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a two-year extension of this date, with additional extensions subject to approval by the original reviewing officer or body. Expiration of any necessary building permit for the project may invalidate the variance approval if said approval or extension period has also expired. If litigation is filed challenging this approval, or its implementation, then the time period stated above for obtaining necessary permits for construction or alteration and/or commencement of authorized activities is automatically extended for the duration of the litigation.

B.

In order to support implementation of the City's 2023-2031 Housing Element, the following shall supercede the applicable provisions in Subsection A. for the time period of January 31, 2023 to January 31, 2031:

1.

A variance or minor zoning exception granted for the creation of residential units between January 31, 2023 and January 31, 2026 shall terminate five (5) years from the effective date of its granting unless all necessary permits for construction, alteration, demolition, or removal, as the case may be, have been filed with the Planning and Building Department and diligently pursued towards completion within such period. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date; and

2.

A variance or minor zoning exception granted before January 31, 2023 for the creation of residential units that has not expired before that date shall be granted an automatic extension to January 31, 2028. Upon written request and payment of appropriate fees submitted no later than the expiration date of this approval, the Zoning Manager, or his or her designee, may grant up to a three-year extension of this date.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9607)

17.148.100 - Variance related to Conditional Use Permit, Regular Design Review, Planned Unit Development, or subdivision.

Whenever a variance is required for a proposal also requiring a Conditional Use Permit, Regular Design Review, or a Planned Unit Development permit, application for the variance shall be included in the application for said Conditional Use Permit, Regular Design Review, or Planned Unit Development permit,

and shall be processed and considered as part of same. Whenever a variance is proposed within a proposed subdivision, the application for the variance shall be submitted with the tentative map or tentative parcel map required by the Oakland Municipal Code, and may be processed and considered therewith. In either case, however, the reviewing officer or body shall, in considering such a variance, determine whether the conditions required in Section 17.148.050 are present.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9609)

Whenever an application for a major variance has been denied by the City Council or denied by the Planning Commission and the applicant fails to file a timely appeal with the City Council, no such application for essentially the same proposal affecting the same property, or any portion thereof, shall be filed within one (1) year after the date of denial. This Section shall not apply in instances where the applicant can show, on the face of any subsequent application, changed circumstances sufficient to justify a rehearing. Applications for hearing pursuant to this Section shall be considered by the Director of City Planning. A decision by the Director shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission. In event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Any such decision by the City Planning Commission shall be final.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; prior planning code § 9610)

17.148.120 - Termination of a Variance related to an activity.

A.

A Variance granted pursuant to the provisions of this Chapter that permits an otherwise prohibited activity shall not be of any force or effect if the following is true:

1.

With the exception of closures required to repair damage or destruction to the facility containing the activity, the subject activity is nonresidential and has ceased, or has been suspended, for a consecutive period of three (3) or more years. In the M, CIX, IG, IO, D-CE-5, D-CE-6, D-CO-5, and D-CO-6 Zones, the subject Truck-Intensive Industrial Activity (as defined in Section 17.103.065) has ceased, or has been suspended, for a consecutive period of six (6) or more months.

B.

A single, one-year extension of the period described in subsection (A) may be granted by, and at the discretion of, the Planning Director, or his or her designee. The request for the extension shall be: 1) in writing, 2) made by the applicant or owner of the subject site, and 3) made prior to the three (3) year period described in subsection (A). Notwithstanding the above, no extension request shall be granted for TruckIntensive Industrial Activities (as defined in Section 17.103.065) in the M, CIX, IG, IO, D-CE-5, D-CE-6, D- CO-5, and D-CO-6 Zones.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. No. 13596, § 2(Exh. A), 6-2-2020)

Chapter 17.150 - FEE SCHEDULE

Sections:

The provisions of this Chapter shall be known as the Fee Schedule. The purpose of these provisions is to prescribe the fees for the filing of applications for, or making appeals under, the procedures of the zoning regulations. This fee schedule shall apply to all such filings.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9800)

Fees, and regulations pertaining to fees, for the filing of applications and appeals shall be in accordance with the city master fee schedule.

(Prior planning code § 9804)

Chapter 17.152 - ENFORCEMENT

Sections:

The provisions of this Chapter shall be known as the Enforcement Regulations. The purpose of these regulations is to ensure compliance with the zoning regulations. These provisions shall apply to the enforcement of the zoning regulations, but shall not be deemed exclusive.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9900)

17.152.020 - Official action.

All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, the zoning regulations.

(Prior planning code § 9901)

A.

Infractions. Any person who violates or causes or permits another person to violate any provision of the zoning regulations is guilty of an infraction unless otherwise provided.

B.

Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the zoning regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.

C.

Any Violation a Public Nuisance. In addition to the penalties provided in this Section, any use or condition caused or permitted to exist in violation of any of the provisions of the zoning regulations shall be and is declared to be a public nuisance and may be summarily abated as such by the city.

D.

Injunction as Additional Remedy. Any violation of any provision of the zoning regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

E.

Penalties. Any person convicted of an infraction under the provisions of this Section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the third conviction within a oneyear period may be charged by the City Attorney or District Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.

F.

Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain code compliance of previously noticed or cited violations shall be charged against the property. Fees shall be in the amount described in the master fee schedule for charged reinspection by the Housing Conservation Division of the Office of Community Development. The Housing Division Official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property in the manner as set forth by Section 15.08.130 of the Oakland Housing Code.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 9902)

Pursuant to Section 836.5 of the California Penal Code, the Planning Investigator and the supervising Housing Representatives of the Housing Conservation Division of the Office of Community Development or their authorized agents are authorized to enforce the provisions of the zoning regulations and arrest violators thereof.

(Prior planning code § 9903)

Whenever they shall have cause to suspect a violation of any provision of the zoning regulations, or whenever necessary to the investigation of an application for or revocation of any zoning approval under any of the procedures prescribed in the zoning regulations, the officials responsible for enforcement of the zoning regulations, or their duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner. No secured building shall be entered without the consent of the owner or occupant. An owner or occupant or agent thereof who refuses to permit such entry and investigation shall be guilty of violating the zoning regulations and subject to the penalties prescribed in Section 17.152.030.

(Prior planning code § 9904)

17.152.060 - General revocation procedures.

The provisions of Sections 17.152.060 through 17.152.230 shall outline the process by which zoning revocation hearings are required to be conducted.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)

17.152.070 - Filing and commencement of revocation complaints.

A.

Any member of the public, city official, including any City Councilmember, City Planning Commissioner or city employee, may file a complaint with the City Planning and Building Department and request that revocation proceedings be commenced under this Chapter to revoke or amend any land use-related approval granted, or land use permit held or issued, including subdivisions. However, this Chapter shall not apply to Deemed Approved Alcoholic Beverage Sales Regulations (Chapter 17.156) and Deemed Approved Hotel and Rooming House Regulations (Chapter 17.157) as those Chapters have specific revocation procedures.

B.

All revocation complaints shall identify the property that is the subject of the complaint and shall state facts and circumstances which justify commencement of revocation proceedings.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

17.152.080 - Investigation of revocation complaints.

Upon receiving a revocation complaint from the public, city official, or city employee that a violation of the zoning regulations, any prescribed condition of approval or public nuisance exists on or is emanating from any property that is the subject of a zoning permit issued pursuant to one of the sections of the Zoning Regulations listed in Section 17.152.070, the City Planning Director shall cause said complaint to be reviewed by the City Attorney and investigated by a City Planner. The City Planning Director, within ten (10) days of receiving any such complaint, shall send a copy of the complaint to the property owner and permit holder, if the latter is different from the property owner. The City Planner, with advice from the City Attorney, shall determine in writing whether sufficient evidence exists to set a revocation hearing. Sufficient evidence exists if there is substantial evidence that a violation of the zoning regulations, any prescribed condition of

send a copy of the complaint to the property owner and permit holder, if the latter is different from the property owner. The City Planner, with advice from the City Attorney, shall determine in writing whether sufficient evidence exists to set a revocation hearing. Sufficient evidence exists if there is substantial evidence that a violation of the zoning regulations, any prescribed condition of

approval or public nuisance exists on, or is emanating from any property that is the subject of a Zoning permit issued pursuant to one of the sections of the Zoning Regulations listed in Section 17.152.070. Copies of the determination shall be sent to the complainant, the property owner, permit holder, if the latter is different from the property owner, any affected neighborhood group(s) and any other person who has requested notice of any action on that complaint or that address and, as soon as the same becomes technologically feasible, posted on the city's web site.

Revocation complaints shall be reviewed, investigated and a determination regarding setting a hearing shall be made by the City Planner within twenty (20) days of the date the revocation complaint is received by the Planning and Building Department. If no decision regarding setting a public hearing is made within the required twenty (20) day period, the complainant, within ten (10) days of the date the city's determination was required to be made, may make a written demand to the City Planning Director that a hearing be set. Upon receipt of any such demand, the City Planning Director immediately shall set the matter for hearing before a Hearing Officer at the next available date. The matter shall then be heard and decided by the Hearing Officer in the same manner and time that appeals are heard.

If a determination is made that sufficient evidence does not exist to set a revocation hearing, the complainant, within ten (10) days of the date of the City's determination, may appeal the City Planner's determination to a City Hearing Officer. If no proper appeal is made, the City Planner's decision shall be final. Upon receipt of any such appeal, the matter shall be scheduled before the Hearing Officer at the next available date and the Hearing Officer shall determine whether sufficient evidence exists to set a revocation hearing and may grant or deny the appeal. The Hearing Officer in making his/her decision on the appeal shall not be required to hear witnesses or accept new evidence not considered by the City Planner.

In all cases the Hearing Officer's decision on the appeal shall be made within twenty (20) days of the date of the appeal and shall be final. If the appeal is granted, the matter shall be returned to the City Planning Director for public hearing scheduling before a different hearing officer. The City Planning Director shall set the matter for hearing at the next available hearing date. If the appeal is denied, or the City Planner's determination is sustained, the Hearing Officer's decision shall be final and not appealable. In each instance, the Hearing Officer's determination shall be in writing and shall be supported by findings.

aring scheduling before a different hearing officer. The City Planning Director shall set the matter for hearing at the next available hearing date. If the appeal is denied, or the City Planner's determination is sustained, the Hearing Officer's decision shall be final and not appealable. In each instance, the Hearing Officer's determination shall be in writing and shall be supported by findings.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

17.152.090 - Administrative record.

If the City Planner or the Hearing Officer determines that sufficient evidence exists to set a revocation hearing, the City Planner, with assistance from the City Attorney, immediately shall prepare a revocation administrative record. The revocation administrative record shall include a clear statement of each alleged violation and/or the nature of any public nuisance that is occurring on or emanating from the property that is the subject of the revocation proceedings. The revocation administrative record also shall include a general summary of the evidence that will be used by the city at the revocation hearing to prosecute the alleged violations. At the discretion of the Hearing Officer, and upon a good cause request by the city, the revocation administrative record may be amended.

(Ord. 12233 § 3 (part), 2000)

17.152.100 - Notice.

Not less than seventeen (17) days prior to the revocation hearing, written notice shall be given to the complainant, property owner, and permit holder, if the latter is different from the property owner, of the date, time and place of the revocation hearing. The time and place of the revocation hearing shall be set, if at all possible, between 7:00 p.m. and 10:00 p.m. during the week. Notice also shall be given to other interested individuals, entities and neighborhood organizations that have requested notification, and to similar individuals and groups, as the Zoning Manager deems necessary. The revocation administrative record shall be mailed with the notice to the property owner and permit holder. Notices also shall be appropriately posted on the property that is the subject of the revocation proceedings. All posted and mailed notices to individuals and entities other than the owner and permit holder shall indicate the availability of the revocation administrative record. Notice by mail is deemed given on the date it is properly addressed and placed in the U.S. mail system. At the discretion of the Hearing Officer, and upon a good cause request by the city, the revocation administrative record may be amended.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

The City Planning Director shall appoint an administrative Hearing Officer to conduct the revocation proceedings. The administrative Hearing Officer who conducts the revocation proceedings shall not be any individual who reviewed or investigated the complaint, determined the sufficiency of the evidence to set the hearing, prepared the revocation administrative record, or gave notice of the revocation proceedings. A Deputy City Attorney shall be appointed by the City Attorney to advise the administrative Hearing Officer. The Advisor to the Hearing Officer shall not be the same attorney who assists the City Planner, or who presents the city's case to the Hearing Officer.

(Ord. 12233 § 3 (part), 2000)

The revocation hearing shall be conducted by the Hearing Officer appointed by the Planning Director. Formal rules of evidence shall not apply to the conduct of the hearing. Witnesses may be sworn at the discretion of the Hearing Officer. The Hearing Officer, for good cause, shall have the authority and discretion to permit examination of witnesses. The city's case shall be presented to the Hearing Officer by a Deputy City Attorney and a City Planner. The property owner, permit holder and other interested individuals or entities may be represented by counsel at the hearing.

The revocation hearing shall be public and members of the public shall be given a reasonable opportunity to testify and present evidence. Evidence may be submitted in writing to the Hearing Officer by any interested individual or entity. Copies of written evidence submitted to the Hearing Officer shall be provided to any individual or entity requesting copies. The hearing may be continued from time-to-time. The continued hearing time, if at all possible, also shall be set between 7:00 p.m. and 10:00 p.m. during the week.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

The decision of the Hearing Officer shall be in writing and shall be supported by findings. The Hearing Officer's decision shall be made within thirty (30) days of the date the hearing is opened by the Hearing Officer, unless an extension is granted in writing by the complainant, property owner and permit holder. If a decision is not made by the Hearing Officer within thirty (30) days, any interested individual or entity, within ten (10) days of the date the Hearing Officer was required to make a decision, may lodge a letter of complaint with the City Planning Commission. There shall be no fee for this letter complaint. The Commission shall, upon receipt of the Complaint, order the hearing to be completed and a written decision rendered within ten (10) days of the date of the Commission's order. Copies of the decision shall be sent to the complainant, the property owner, permit holder, if the latter is different from the property owner, any affected neighborhood group(s) and any other individual or entity who has requested notice of any action on that complaint or that address and, as soon as the same becomes technologically feasible, posted on the city's web site. The Hearing Officer's decision shall become final ten (10) calendar days after the date of the decision, unless appealed to the City Planning Commission in accordance with Section 17.152.150. In the event the last day of appeal falls on a weekend or holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

In the event the Hearing Officer, or, on appeal, the City Planning Commission or the City Council, determines there has been a violation of any provisions of the Zoning Regulations, or upon evidence that there has been a failure to comply with any prescribed condition of approval, or a determination is made that a public nuisance exists on or is emanating from the property that is the subject of the revocation proceedings, the Hearing Officer, or, on appeal, the City Planning Commission or City Council, may amend or revoke any zoning permit associated with the property, add additional conditions of approval, abate the public nuisance, impose fines and/or penalties and/or issue any other reasonable remedial order to address the violations, failures and/or public nuisance. All penalties and fines imposed by the Hearing Officer, City Planning Commission or City Council shall be set forth in a written decision.

(Ord. 12233 § 3 (part), 2000)

17.152.150 - Appeal to Planning Commission.

If the Hearing Officer's decision is properly appealed to the City Planning Commission, the City Planning Director, upon receipt of a valid appeal, shall forward a complete Hearing Officer hearing record, including a transcript of the Hearing Officer proceedings and the Hearing Officer's written decision, to the City Planning Commission. The Hearing Officer's record of proceedings shall be forwarded to the City Planning Commission prior to the date the Commission hears the appeal. The appeal hearing before the Commission shall not be a de novo hearing.

Any appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Hearing Officer or wherein his/her decision is not supported by the evidence in the record. Upon receipt of such appeal, the Secretary to the Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the appellant, any adverse individuals and/or entities, or the attorney, spokesperson, or representative of such individual or entity, other interested groups and neighborhood associations that have requested notification; and to similar groups and

individuals as the Secretary deems appropriate, of the date, time and place of the hearing on the appeal, and, as soon as the same become technologically feasible, post the date, time and place of the hearing on the city's web site. Notice of the appeal shall be posted on the property.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

17.152.160 - Procedure on appeal to City Planning Commission.

A.

In its review of the appeal, the City Planning Commission shall consider whether:

1.

There were procedural or substantive errors by the Hearing Officer;

2.

The decision is supported by sufficient evidence;

3.

Sufficient findings were made by the Hearing Officer; or,

4.

There was other error or abuse of discretion by the Hearing Officer.

The City Planning Commission may sustain, modify or overturn the Hearing Officer's decision. The Commission's decision shall be in writing and shall be supported by findings. The Commission's decision on the appeal shall be made within thirty (30) days of the date the appeal is made. The appeal shall be considered made on the date it is received by the City.

B.

In conducting the appeal, the City Planning Commission shall be authorized to not allow any individual or entity to introduce new written, recorded or photographic evidence on appeal, unless it is shown by substantial evidence that the new evidence was improperly excluded by the Hearing Officer, or, with due diligence, the new evidence could not have been presented to the Hearing Officer. Individuals will not be allowed to call witnesses or present new testimonial evidence at the appeal hearing. However, in compliance with the Commission's standard rules, individuals and entities will be allowed to speak to the staff report. The Commission shall be authorized to limit the time spent on each appeal. The Commission also shall be authorized to refer the entire matter and/or any new evidence back to the Hearing Officer for findings of fact and recommendations. If such referral occurs, the Commission shall retain jurisdiction over the matter. The Commission's decision on the appeal shall be appealable to the City Council. The Commission's decision shall be final, unless appealed to the City Council within ten (10) days of the date of the decision.

C.

Subject to the extensions allowed by this code, if no decision is made by the Commission within the required thirty (30) day period, any interested individual or entity may appeal the Hearing Officer's decision to the City Council within ten (10) days of the date the Commission was required to make a decision. If no appeal is made within the required ten day period, the Hearing Officer's decision shall be considered final. If an appeal is properly made to the City Council, the City Council shall hear the appeal in the same manner it would hear an appeal from the City Planning Commission.

(Ord. 12872 § 4 (part), 2008; Ord. 12233 § 3 (part), 2000)

Upon receipt of the appeal, the City Council shall set the date for consideration thereof. After setting the hearing date, the City Clerk shall notify the Secretary of the Planning Commission of the receipt of the appeal and of the date, time and place set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the appellant, any adverse individual or entity, or to the attorney, spokesperson, or representative of such individual or entity; other interested groups and neighborhood associations who have requested notification; and similar groups and individuals as the Secretary deems appropriate, of the date, time and place of the hearing on the appeal, and as soon as the same becomes technologically feasible, post the date, time and place of the hearing on the city's web site. The City Council shall affirm, modify or reverse the Commission's decision. The decision of the City Council shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

A.

In its review of the appeal, the City Council shall consider whether:

1.

There were procedural or substantive errors below;

2.

The decision is supported by sufficient evidence;

3.

Sufficient findings were made below; or,

4.

There was other error or abuse of discretion below.

The appeal hearing before the City Council shall not be a de novo hearing. The City Council may sustain, modify or overturn the City Planning Commission's or Hearing Officer's decision. The City Council's decision shall be in writing and shall be supported by findings.

B.

In conducting the appeal, the City Council shall be authorized to not allow any individual or entity to introduce new, written or photographic evidence on appeal, unless it is shown by substantial evidence that the new evidence was improperly excluded by the Hearing Officer, or, with due diligence, the new evidence could not have been presented below. Individuals and entities will not be allowed to call witnesses or present new testimonial evidence at the appeal hearing. However, in compliance with the City Council's standard rules, individuals and entities will be allowed to speak on the appeal. The City Council shall be authorized to limit the time spent on each appeal. The City Council's decision shall not be appealable. The City Council's decision shall be made by resolution. The Council shall vote on the appeal within thirty (30) days after opening the hearing on appeal. If the Council is unable to decide the appeal at that meeting, it shall appear for a vote on each regular meeting of the Council thereafter until decided. However, the Council must decide the appeal within sixty (60) days of the appeal being filed. The Council shall be authorized to refer the matter or any new evidence back to the City Planning Commission for findings of fact and recommendations. If any such referral is made, the City Council shall retain jurisdiction over the matters.

(Ord. 12233 § 3 (part), 2000)

In addition to the penalties provided elsewhere in the Zoning Regulations, any public nuisance, use or condition caused or permitted to exist in violation of any city, state or federal law or regulation shall be considered a public nuisance and a violation of the Zoning Regulations, if a permit has been issued pursuant to any of the sections referenced in Section 17.152.070 to allow any activity or facility to be established or conducted on the property on which said public nuisance, use or condition exists. In addition to anyone else authorized by the Planning Code, the city's Hearing Officer, City Planning Commission and City Council shall be authorized to abate said public nuisances pursuant to the procedures set forth in Sections 17.152.060 through 17.152.170 of these regulations and/or pursuant to any other authorized procedure.

(Ord. 12233 § 3 (part), 2000)

17.152.200 - Liens, penalties and expenses of abatement.

A.

If the Hearing Officer, City Planning Commission or City Council, as part of a final decision, imposes any fine and/or monetary penalty, such fine and/or monetary penalty, in addition to being a personal obligation of the property owner and permit holder, shall constitute a special assessment against that real property that is the subject of the final decision by the Hearing Officer, City Planning Commission or City Council;

B.

In addition, any and all reasonable expenses necessarily incurred by the City Planning and Building Department, City Building Official and/or any other City department, in abating any condition determined to be a public nuisance by a final decision of the Hearing Officer, City Planning Commission or City Council,

also shall be a personal obligation of the permit holder and property owner and constitute a special assessment against the property that is the subject of the final decision.

C.

Said reasonable expenses, fines and monetary expenses, among other ways, may be collected by the city pursuant to the provisions of Subsection D. of this Section.

D.

For purposes of this Section, the personal obligation requirement shall apply to individuals and entities. The Building Official shall give the permit holder and owner of such premises a written notice showing the amount of the penalty, fine and expense and requesting payment thereof. If the amount of such penalty, time and expense are not paid to the Building Official within five (5) days after the date of such notice, the Building Official shall forward a report of the penalty, fine and expense to the City Planning Commission for a confirmation hearing.

owner of such premises a written notice showing the amount of the penalty, fine and expense and requesting payment thereof. If the amount of such penalty, time and expense are not paid to the Building Official within five (5) days after the date of such notice, the Building Official shall forward a report of the penalty, fine and expense to the City Planning Commission for a confirmation hearing.

The property owner and permit holder shall be given at least seventeen (17) days' notice of the confirmation hearing before the City Planning Commission. Said notice shall be in writing. The amount of the penalty, fine and expense shall be confirmed by the City Planning Commission, unless the Commission finds, based upon evidence in the record, that the Building Official erred in imposing or computing the amount of the penalty, fine or expense. If such error is found, the Commission may modify the amount of the penalty, fine or expense as warranted.

Upon confirmation of the penalty, fine or expense the Commission shall direct that the Building Official shall record in the Office of the County Recorder of the County of Alameda, State of California, a certificate substantially in the following form:

NOTICE OF LIEN

Pursuant to Chapter 17.152 of the Oakland Planning Code, a penalty, fine and expense in the amount of $_______ was assessed by the Building Official, and confirmed by the City Planning Commission against the herein described real property and said amount has not been paid, nor any part thereof, and the City of Oakland does hereby claim a lien upon the hereinafter described real property in said amount; the same shall be a lien upon said real property until said sum has been paid in full. The real property herein abovementioned and upon which a lien is claimed is that certain parcel of land lying and being in the City of Oakland, County of Alameda, State of California and particularly described as follows, to wit:

(insert description of property)

Dated this ___ day of __, 20.

---

Building Official

City of Oakland

Such lien attaches upon recordation of the notice of lien. The description of the parcel in the notice of lien shall be that used for the same parcel as the County Assessor's map book for the current year. The County Assessor shall enter each assessment on the county tax roll opposite the affected parcel of land. The amount of the assessment shall be collected and shall be subject to the same penalties and the same procedures for foreclosure and sale, in case of delinquencies, as provided for ordinary municipal taxes.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12233 § 3 (part), 2000)

Fees and regulations pertaining to fees, including fees pertaining to complaints and appeals, shall be in accordance with the city's master fee schedule, provided that no city official or employee shall be required to pay a fee to file a complaint with the City Planning and Building Department. There shall be no fee for lodging a revocation complaint with the city. To make an appeal, the property owner, permit holder and any individual or entity representing the interests of the project owner or permit holder shall pay one hundred percent (100%) of the appeal fee set by the city's master fee schedule. However, to make an appeal, the complainant, or anyone representing the complainant's interest shall pay fifty percent (50%) of the appeal fee established by the city's master fee schedule.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12233 § 3 (part), 2000)

While the city shall make a good faith effort to post revocation notices and determinations on the city's web site, the city's failure to so post shall not constitute error and shall not serve as a basis for invalidating any decision made pursuant to this Chapter.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)

The complainant, property owner, permit holder and appellant, if applicable, may agree in writing to extend any deadline contained in this Chapter.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12233 § 3 (part), 2000)

Chapter 17.153 - DEMOLITION, CONVERSION AND REHABILITATION REGULATIONS FOR RESIDENTIAL HOTELS

17.153.010 - Title, purpose and findings.

A.

Title. The provisions of this Chapter shall be known as the Demolition, Conversion and Rehabilitation Regulations for Residential Hotels.

B.

Purpose. The purpose of this Chapter is to benefit the general public by minimizing the adverse impact on the housing supply and on displaced very low and extremely low income, elderly, and disabled persons, which results from the loss of Residential Hotel Units as a naturally occurring affordable housing option. This is to be accomplished by establishing a process for identifying and preparing a registry of known existing Residential Hotel Units, and by regulating the demolition, conversion and rehabilitation of Residential Hotel Units.

C.

Findings. The City Council finds that:

1.

The City of Oakland is experiencing a severe housing affordability crisis that requires immediate emergency action by the City government.

2.

Residential Hotels are often housing of last resort for the poor, especially in areas with extremely high costs of housing such as Oakland.

3.

The housing affordability crisis continues to overwhelm Oakland residents and threatens the public health, safety and/or welfare of our citizenry.

4.

A number of economic forces, including the dearth of hotels and the high cost of new construction in Oakland, create incentives for developers to purchase Residential Hotels and repurpose them for nonresidential uses, such as boutique hotels, or reconfigure them for other residential uses that result in the displacement of existing tenants or the removal of rental units from the market.

5.

The loss of Residential Hotels in Oakland would exacerbate the already overwhelming burden on public and non-profit agencies that provide protective, social, health, psychological, nutritional, and other important and necessary services to the tenant population of such hotels.

6.

The City Council has determined that Residential Hotels are an essential component of the City's supply of Naturally Occurring Affordable Housing (NOAH) as they are a flexible and easily accessible form of housing that provides very low, and extremely low-income residents the ability to remain in Oakland and to avoid homelessness.

7.

The City of Oakland Housing and Community Development Department prepared a report in September of 2015 which states that from 1985 through 2015, the City lost approximately seven hundred ninety-nine

(799) Residential Hotel units in Downtown Oakland, and many more units are at-risk of being lost or are already lost to the supply of NOAH units.

8.

The California State Legislature has recognized the need for retaining Residential Hotels to provide housing for low, very low, and extremely low-income individuals in legislation, and in justifying such legislation:

The Legislature finds and declares that the need for decent housing among individuals of very low and low income is great, and that residential hotels are often the only form of housing affordable to these individuals. Many residential hotels are in poor condition and in need of rehabilitation, and many are being demolished or converted to other uses. California Health and Safety Code § 50519(a).

9.

The unrestricted demolition, conversion or rehabilitation of Residential Hotels exacerbates the housing crisis by making such units unaffordable to low, very low, and extremely low-income Oakland residents, and may result in the displacement of Oakland residents from their homes and communities.

10.

Based on the previous findings, the City finds that there is a current and immediate threat to the public health, safety, and/or welfare associated with the Demolition, Conversion and Rehabilitation of Residential Hotels.

11.

It is in the public interest that the conversion, demolition and amenity rehabilitation of residential hotel units be regulated and mitigated. Furthermore, in order to protect the resident tenants and to conserve limited housing resources, remedies must be provided where conversion or demolition occurs.

12.

Projects that transform an existing Residential Hotel or rebuild Residential Hotel Units as new deedrestricted affordable housing would provide stable housing for the populations most severely impacted by the loss of Residential Hotel units, and serve an over-riding public benefit, as long as they minimize unit loss and are deed-restricted to extremely low and very low income households.

13.

Residential Hotel buildings that have been continuously vacant for ten (10) years or more may constitute a public health and safety hazard; and may require additional amenities in order to bring those Residential Hotel units back into the housing stock.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

The following terms, whenever used in this Chapter, shall be construed as defined herein. Words and phrases not defined herein shall be construed as defined in Chapter 17.09 of the Oakland Planning Code or

in the Oakland Municipal Code.

"Affordable Housing Organization" means a religious, hospital, scientific, or charitable fund, foundation, limited liability company, or corporation, including a limited partnership in which the managing general partner is an eligible nonprofit corporation or eligible limited liability company, or a veterans' organization, as described by California Revenue and Taxation Code Section 214, subsection (g).

"Affordable Housing Project" means a property used primarily for housing and related facilities, owned or operated by an affordable housing organization where, pursuant to legally binding restrictions, all of the units, except for resident manager units, are restricted as affordable housing at an affordable rent or affordable housing cost, as those terms are defined in California Health and Safety Code Sections 50053 and 50052.5, to occupancy by extremely low, very low, low, and/or moderate-income households, as those terms are defined California Health and Safety Code Sections 50079.5, 50093, 50105 and 50106.

"Commercial Hotel" means a hotel that operates as a Commercial Activity, as defined in Section 17.10.260, which provides lodging to guests that is not used or is not intended to be used as a primary residence.

"Commercial Hotel Unit" means a Rooming Unit or Efficiency Unit, as defined in Section 17.09.040 of the Oakland Planning Code, that operates within a Commercial Hotel or has been granted a Conditional Use Permit for Conversion, as set forth in Section 17.153.050.

"Conversion" means any action that converts one (1) or more existing Residential Hotel Units to a Commercial Hotel Unit, or converts the Residential Hotel to a Commercial Activity or another Residential Activity, as those terms are defined in Chapter 17.10 of the Oakland Planning Code, regardless of whether substantial improvements have been made to such units.

"Demolition" means any action that eliminates an existing Residential Hotel Unit, including but not limited to complete or partial demolition of a Residential Hotel unit, combining two (2) or more existing Residential Hotel Units to make a larger new unit, or any other action that eliminates one (1) or more existing Residential Hotel Unit.

"Director" means the Director of the Planning and Building Department, or the designee of the Director of the Planning and Building Department, or the designee of the City Administrator.

"Owner" means an owner of record of a Residential Hotel, or an entity or individual with a long-term lease or some form of equitable interest in a Residential Hotel.

"Rehabilitation, Amenity" means any action that reduces the size of Residential Hotel Units or eliminates or reduces the size of private or communal amenities in a Residential Hotel or Residential Hotel unit, such as bathrooms, kitchens, elevators or laundry through complete or partial removal of those facilities, including reduction in the number of toilets or sinks in a bathroom. It also means any action that adds a kitchen or kitchenette to a Rooming Unit within an existing Residential Hotel.

"Residential Hotel" is defined in accordance with California Health and Safety Code Section 50519, and means any building built before 1960 containing six (6) or more Rooming Units, as defined in Section 17.09.040, intended or designed to be used, or which are used, rented, or hired out, to be occupied, or which are occupied, for sleeping purposes by guests, which is also the primary residence of those guests, and where the entrances to the individual units are generally accessed via a shared lobby area. See also

the process for Status Determination in Section 17.153.030. Any building or units that are constructed to satisfy the requirements of Section 17.153.050(A) shall be subject to the provisions of this Chapter.

"Residential Hotel Unit" means a Rooming Unit or Efficiency Dwelling Unit, as those terms are defined in Section 17.09.040 of the Oakland Planning Code, intended or designed to be used, or which are used, rented, or hired out, to be occupied, or which are occupied, for sleeping purposes by guests, which is also the primary residence of those guests, and are located within a Residential Hotel. Any unit that is constructed to satisfy the requirements of Section 17.153.050(A) shall be subject to the provisions of this Chapter.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

17.153.030 - Residential Hotel Status determination.

This Section sets forth the process to establish the status of facilities preliminarily determined by the city to be Residential Hotels and Residential Hotel Units, and therefore subject to the regulations in this Chapter.

A.

Notification by City. Within thirty (30) days of the adoption of this ordinance, the Planning and Building Department shall notify by mail the property owners preliminarily determined by the City to be operating a Residential Hotel subject to the provisions of this Chapter. The City shall include in its notification a summary of this Chapter and instructions regarding the required filing of an Initial Usage Report or Statement of Exemption, as described in Section 17.153.030(B) below. All filings shall be accompanied by supporting evidence. Buildings that do not meet the definition of a Residential Hotel as set forth in Section 17.153.020 may be considered for an Exemption, as stated in Section 17.153.030(B)(2) below. If the owner or operator intends to file a Statement of Exemption, they must file it with the Planning and Building Department within ninety (90) calendar days of the mailing date of the notice; otherwise, the owner or operator shall file an Initial Usage Report within one hundred eighty (180) calendar days. All filings shall be accompanied by supporting evidence. However, upon application by an owner or operator and upon showing a good cause, the Director may grant an extension of time not to exceed thirty (30) days for filing either the Statement of Exemption or the Initial Usage Report.

B.

Filing for Status Determination. All properties notified by the Planning and Building Department of their preliminary Residential Hotel status must file an Initial Usage Report or a Statement of Exemption to determine the legal status of the subject property as of December 13, 2016.

1.

Initial Usage Report. The Initial Usage Report shall be filed by the owner or operators within one hundred eighty (180) calendar days after the City mails notification pursuant to Section 17.153.030(A). Upon application by an owner or operator and upon showing a good cause, the Director may grant an extension of time not to exceed thirty (30) days for filing the Initial Usage Report. The Initial Usage Report shall be accompanied by evidence, such as a certified copy of the Residential Hotel's tax returns, transient occupancy tax records, residential landlord tax records, Planning and Building Permit records, Alameda County Assessor records, to confirm the following required information:

a.

Floor plans showing all the legal units, communal facilities such as bathrooms, kitchens, laundry facilities or other shared amenities, as well as any ground floor commercial space and lobby area, as of December 13, 2016.

b.

The floor plans shall also indicate the legal number and location of private bathrooms, and the number and location of communal bathrooms, including shower, toilet and sink facilities, as of December 13, 2016.

2.

Statement of Exemption. If the owner or operation intends to file a Statement of Exemption, the owner must file with the Planning and Building Department within ninety (90) calendar days of the mailing date of the notice. Upon application by an owner or operator and upon showing a good cause, the Director may grant an extension of time not to exceed thirty (30) days for filing the Statement of Exemption. The Statement of Exemption shall be accompanied by evidence, such as a certified copy of the property's tax

returns, transient occupancy tax records, residential landlord tax records, Planning and Building Permit records, Alameda County Assessor records, floor plans, or any other evidence necessary to prove the property does not meet the afore-mentioned definition of Residential Hotel or that individual units do not meet the definition of a Residential Hotel Unit, as set forth in Section 17.153.020. The owner has the burden of proving by a preponderance of the evidence that the Residential Hotel is exempt from the provisions of this article.

C.

Insufficient Filing. If the Director determines that additional information is needed to make a determination, the Director shall request the additional information in writing. The owner shall furnish the requested information within thirty (30) calendar days upon receipt of the written request. If the requested information is not furnished, the Director will issue the Certificate of Status confirming that the building is a Residential Hotel that is composed entirely of individual Residential Hotel Units.

D.

Failure to File Statement of Exemption or Initial Usage Report. If a presumed Residential Hotel that is sent notice of their preliminary Residential Hotel status and of a requirement to file a Statement of Exemption or Initial Usage Report, does not submit one (1) within the time set forth in Section 17.153.030(B), the Director shall mail a second notice to the owner of record by registered or certified mail stating that the owner has ten (10) calendar days to submit the Initial Usage Report or Statement of Exemption. If these are not filed within ten (10) calendar days, the Director will issue the Certificate of Status, confirming that the building is a Residential Hotel that is composed entirely of individual Residential Hotel Units.

E.

Certificate of Status. The Director shall review the Initial Usage Report or Statement of Exemption and evidence submitted. Within one hundred twenty (120) days of receipt of a complete Statement of Exemption or Initial Usage Report, supported by evidence, the Director shall certify the information

provided in the Initial Usage Report or certify an Exemption. If the property is deemed a Residential Hotel, the Certificate of Status, including a graphic floor plan, shall be posted permanently in the lobby or entranceway of the Residential Hotel.

F.

Appeal of Certificate of Status or Exemption. An owner or operator, or any interested party, may appeal the Certificate of Status or Exemption issued by the Director within ten (10) calendar days of the mailing of the Certificate of Status or Statement of Exemption, provided that there was no challenge pursuant to the provisions of Section 17.153.070 below, pursuant to the administrative appeal procedures set forth in Chapter 17.132. The Director's determination on the Certificate of Status or Exemption shall be final if a timely appeal is not filed.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

Except as set forth in Section 17.153.060, and notwithstanding Section 17.153.050, the following actions shall be prohibited:

A.

Any Amenity Rehabilitation of Residential Hotel Units or a Residential Hotel; or

B.

Conversion or Demolition of a Residential Hotel Unit or a Residential Hotel, if there have been any adjudicated cases evidencing tenant harassment or illegal evictions during the immediately preceding five (5) years.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

Except as set forth in Section 17.153.060 and notwithstanding whether the requirements of Section 17.153.030 have been met, any Demolition or Conversion of Residential Hotel Units or a Residential Hotel, shall only be permitted upon the granting of a Conditional Use Permit pursuant to the Conditional Use Permit procedure in Chapter 17.134. The City shall not approve a Demolition or Conversion of Residential Hotel Units or a Residential Hotel unless the application conforms to the general use permit criteria described in Chapter 17.134 and, prior to the Demolition or Conversion, the Residential Hotel owner satisfies the following additional conditions:

A.

Add to the City's housing supply replacement Residential Hotel rental units that are affordable to extremely low or very low income households, as those terms are defined in California Health and Safety Code Sections 50079.5, 50093, 50105 and 50106, although in the event of either a deed in lieu of foreclosure or foreclosure by a Project lender, or a termination, non-renewal or material reduction of project-based Section 8 or other project-based rental assistance for Assisted Units, the maximum tenant household

income and maximum rent limitations for Assisted Units may be increased to amounts necessary to make operation of the Project financially feasible, including the payment of all required operating costs and debt service, but in no event may (a) the maximum tenant household income limitation exceed sixty percent (60%) of AMI, or (b) the maximum annual rent limitation exceed thirty percent (30%) of sixty percent (60%) of AMI; and equivalent in number, size, services and facilities offered to each unit proposed for Demolition or Conversion, and within two (2) miles of the subject facility, that must obtain a certificate of occupancy for such new Residential Hotel units prior to the proposed Demolition or Conversion taking place; and

B.

Whenever a Residential Hotel Unit is to be converted or demolished, and will result in tenant displacement, the Residential Hotel Owner shall:

1.

Provide the tenant(s) a one hundred twenty (120) day written notice of the Conversion or Demolition. All such written notices shall comply with the legal requirements for service by mail; and

2.

Submit a list of the names of any tenants residing in the Residential Hotel, and any tenants who have moved, been removed, or evicted during the preceding one hundred eighty (180) calendar days and the reasons for the move, removal, or eviction.

3.

Refer the tenant(s) to an equivalent unit if available; and if an equivalent unit is not available or if the tenant(s) chooses not to live in the equivalent unit, then provide the tenant(s) with a relocation allowance, as specified for studio units in Sections 8.22.450 and 8.22.820 of the Oakland Municipal Code, including any additional payments for tenant households that contain members who qualify as lower income, elderly, disabled and/or minor children, as set forth in Oakland Municipal Code Sections 8.22.450(B) and 8.22.820; and

4.

Satisfy the requirements of any other tenant relocation programs, such as those set forth in Oakland Municipal Code Chapter 15.60 related to code enforcement cases; and

5.

Offer any displaced tenant a first right of refusal to rent the replacement units built to satisfy requirements in Section 17.153.050(A).

C.

Provide the Director with proof that the above actions have been taken.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

17.153.060 - Exceptions to the restrictions and Conditional Use Permit requirements.

Upon the granting of a written determination by the Director, the following are not subject to the restrictions set forth in Section 17.153.040 nor do they require the granting of a Conditional Use Permit as set forth in Section 17.153.050; all other local, state, federal requirements set forth in other Chapters of Title 17 shall still apply; and the requirements shall still apply:

A.

Any rehabilitation of an existing Residential Hotel that is or will become an Affordable Housing Project as defined in Section 17.153.020, and complies with the following additional criteria below. An Affordable Housing Project that is exempt from the provisions of this Chapter shall lose its exempt status and become subject to the provisions of this Chapter when it ceases to be an Affordable Housing Project or meet the additional criteria below:

1.

The units are restricted to occupancy by extremely low and/or very low-income households, as those terms are defined California Health and Safety Code Sections 50079.5, 50093, 50105 and 50106. However, in the event of either a deed in lieu of foreclosure or foreclosure by a Project lender, or a termination, non-renewal or material reduction of project-based Section 8 or other project-based rental assistance for Assisted Units,

the maximum tenant household income and maximum rent limitations for Assisted Units may be increased to amounts necessary to make operation of the Project financially feasible, including the payment of all required operating costs and debt service, but in no event may (a) the maximum tenant household income limitation exceed sixty percent (60%) of AMI, or (b) the maximum annual rent limitation exceed thirty percent (30%) of sixty percent (60%) of AMI; and

2.

The Project shall have an executed written agreement with the City or other public agency setting forth the number, type, location, approximate size and construction schedule of all units, restricting the occupancy and rent or sale price of such units, and setting forth other terms and conditions as required for ensuring compliance with the requirements of this Section. Said agreement shall be recorded against the Affordable Housing units as covenants running with land, senior in priority to any private liens or encumbrances except as provided below, and shall be enforceable by the City against the Project for the full affordability term. Additional restrictions, deeds of trust, rights of first refusal, or other instruments may be required by the City Administrator as reasonably needed to enforce these restrictions. The City Administrator shall have the authority to subordinate such restrictions to other liens and encumbrances if he or she determines that the financing of the Affordable Housing units would be infeasible without said subordination; and

3.

The executed written agreement with the City or other public agency shall extend for at least another twenty-five (25) years beyond the date of application for an Exception; and

4.

The proposed actions minimize the reduction in number of units by only allowing new unit types to be Rooming Units, Efficiency Units or one-bedroom units; and

5.

For a Residential Hotel that will be subject to new restrictions on occupancy and affordability, the executed written agreement with the City or other public agency shall require that the new rental units remain affordable for at least fifty-five (55) years.

B.

Any Residential Hotel that is converted to a Transitional Housing Activity, as defined in Oakland Municipal Code 17.10.116 and per State of California Government Code 65582.

C.

Any Residential Hotel that has been completely vacant and unoccupied continuously for more than ten (10) years, as demonstrated by the applicant, is not subject to restrictions on Amenity Rehabilitation; but these properties remain subject to restrictions on Conversion and Demolition; or

D.

Any Amenity Rehabilitation, which:

(1)

Is determined by the Chief Building Official to be necessary to address imminent health and safety threats, as long as that imminent health and safety threat was not caused by any voluntary action of the owner of said facility; and

(2)

Does not result in temporary displacement of any tenant for more than sixty (60) days or permanent displacement of any tenant; or

E.

Any Demolition, which is determined by the Chief Building Official to be necessary to meet life safety standards, provided that:

(1)

It involves the minimum amount of Demolition necessary to meet life safety standards; and

(2)

The condition of the Residential Hotel or Residential Hotel Unit, which necessitates the life safety upgrades, was not caused by any voluntary action of the owner of said facility; or

F.

A proposed project that will involve Demolition or Conversion of existing Residential Hotel Units and create or retain at the property a number of units equal to the number of Residential Hotel units in the existing property as Affordable Housing and complies with the following additional criteria below. A project that has

Affordable Housing units that is exempt from the provisions of this Chapter shall lose its exempt status and become subject to the provisions of this Chapter when it ceases to have Affordable Housing units or meet the additional criteria below.

1.

The affordable units are restricted to occupancy by extremely low and/or very low-income households, as those terms are defined California Health and Safety Code Sections 50079.5, 50093, 50105 and 50106. However, in the event of either a deed in lieu of foreclosure or foreclosure by a Project lender, or a termination, non-renewal or material reduction of project-based Section 8 or other project-based rental assistance for Assisted Units, the maximum tenant household income and maximum rent limitations for Assisted Units may be increased to amounts necessary to make operation of the Project financially feasible, including the payment of all required operating costs and debt service, but in no event may (a) the maximum tenant household income limitation exceed sixty percent (60%) of AMI, or (b) the maximum annual rent limitation exceed thirty percent (30%) of sixty percent (60%) of AMI; and

2.

The Project shall have an executed written agreement with the City or other public agency setting forth the number, type, location, approximate size and construction schedule of all units, restricting the occupancy and rent or sale price of such units, and setting forth other terms and conditions as required for ensuring compliance with the requirements of this Section. Said agreement shall be recorded against the Affordable Housing units as covenants running with land, senior in priority to any private liens or encumbrances except as provided below, and shall be enforceable by the City against the Project for the full affordability term. Additional restrictions, deeds of trust, rights of first refusal, or other instruments may be required by the City Administrator as reasonably needed to enforce these restrictions. The City Administrator shall have the authority to subordinate such restrictions to other liens and encumbrances if he or she determines that the financing of the Affordable Housing units would be infeasible without said subordination; and

3.

The executed written agreement with the City or other public agency shall require that the new rental units remain affordable for at least fifty-five (55) years.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

A.

Waiver determinations may be granted by the Director to the restrictions set forth in Section 17.153.040 or the Conditional Use Permit requirements set forth in Section 17.153.050 on the following grounds:

1.

The requirements of this Chapter have been incorrectly applied; or

2.

Application of the requirements of this Chapter is unlawful under and/or conflict with federal, state, or local law and/or regulation, including constituting an unlawful taking of property without just compensation.

B.

Applications for Waiver Determinations. Applications for waiver determinations must be made no later than the date of application for a building or planning permit on a form provided by the City, and shall include payment of fees as established in the Master Fee Schedule. The Applicant has the burden of proving by a preponderance of the evidence the applicability and elements of this Section. The Applicant must submit full information in support of their submittal as requested by the Director. Failure to raise each and every issue that is contested in the application and provide appropriate supporting evidence will be grounds to deny the application and will also preclude the Applicant from raising such issues in court. Failure to submit such an application shall preclude such person from challenging the Residential Hotel regulations in court. The Director may require, at the expense of the Applicant, review of the submitted materials by a third party.

C.

The Director shall mail the Applicant a written determination on the application for a waiver.

D.

If an applicant for a waiver determination set forth in Section 17.153.070(A) that has been denied seeks to challenge the written determination of the Director, the Appellant must appeal to the City Planning Commission, and such appeal must be filed within ten (10) calendar days of the date from which the Director's written determination was issued and by 4:00 p.m. Appeals must be on the form provided by the City of Oakland and must state specifically wherein it is claimed there was error or abuse of discretion by the Director or wherein the decision is not supported by substantial evidence, and must include payment in accordance with the City of Oakland Master Fee Schedule. Failure to make a timely appeal will preclude an Appellant from challenging the City's decision in court. The appeal itself must raise each and every issue that is contested, along with all arguments and evidence in the record which supports the basis for the appeal. Failure to do so will preclude an Appellant from raising such issues during the appeal and/or in court.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

Before selling or otherwise transferring ownership of a Residential Hotel, the owner shall meet the following requirements:

A.

Provide to the Director by first class mail at least ninety (90) days' notice of the proposed offering for sale or transfer of the property; and

B.

Allow the City or its authorized representative or representatives ninety (90) days following the date of notice to tender an offer to purchase the property: and

C.

Upon receiving any such offer, engage in good-faith negotiations, during the remaining portion of the ninety-day period towards a purchase and sale agreement with the City or a non-profit or affordable housing organization identified by the City.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

The Director is hereby authorized to adopt administrative regulations consistent with this Chapter as needed to implement this Chapter, subject to the review and approval of the Office of the City Attorney, and to develop all related forms and/or other materials and take other steps as needed to implement this Chapter, and make such interpretations of this Chapter as he or she may consider necessary to achieve the purposes of this Chapter.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

Where a conflict exists between the requirements in this Chapter and applicable requirements contained in other Chapters of this Code, the applicable requirements of this Chapter shall prevail.

(Ord. No. 13509, § 2(Exh. A), 12-4-2018)

Chapter 17.154 - ZONING MAPS

Sections:

The provisions of this Chapter shall be known as the Zoning Maps. The purpose of these provisions is to describe the boundaries of zones, and the boundaries and other features of development control maps and designated landmarks and landmark sites, established and amended under the zoning regulations. These provisions shall apply to all property within the city, and to adjoining unincorporated territory where it is prezoned pursuant to Section 17.07.040.B.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; prior planning code § 10000)

17.154.020 - Maps and designated landmarks.

A.

Section Maps Showing Zone Boundaries. Subject to the provisions of Sections 17.154.030, 17.154.040, and 17.154.050, the zones referred to in the zoning regulations are established, and the boundaries between these zones are established and fixed, as shown on the zoning maps on file with the City Clerk.

Said section maps and all subsequent additions and revisions thereto are incorporated as part of this Section.

B.

Legend and Index for Zoning Maps. Subject to the provisions of Section 17.154.040, the legend for the zoning maps are incorporated as part of this Section.

C.

Development Control Maps. Subject to the provisions of Sections 17.154.030, 17.154.040, and 17.154.050, the boundaries and other features of development control maps are established and fixed as shown on the development control maps on file with the City Clerk, including all subsequent amendments thereto, and on such additional development control maps as are hereafter adopted. All such development control maps are incorporated as part of this Section.

D.

Designated Landmarks and Landmarks Sites. Subject to the provisions of Sections 17.154.040 and 17.154.050, the boundaries and other features of designated landmarks and landmark sites are established and fixed as indicated in such ordinances as are hereafter adopted pursuant to Section 17.136.070 and the rezoning and law change procedure in Chapter 17.144. All such ordinances are incorporated as part of this Section.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12776 § 3, Exh. A (part), 2006; prior planning code § 10002)

17.154.030 - Zoning of streets, freeways, public property, and annexed land.

Each street, freeway, alley, and path in Oakland, including the space under and over it, all unzoned public land in Oakland which is hereafter sold, and all land which is hereafter annexed to Oakland shall, in the absence of rezoning action hereafter to the contrary, be deemed to be in the same zone as the nearest zoned lots in Oakland which it abuts. In case the lots on opposite sides of such public way or such land are in different zones, the zone boundary shall be the centerline of such way or land.

(Prior planning code § 10004)

The Director of City Planning shall properly maintain the zoning maps, the legend and index therefor, the development control maps, and the ordinances designating landmarks and landmark sites. When appropriate he or she shall update these by changing the revision dates thereon and the street pattern, lot lines, or other orientation features, and by indicating approved Planned Unit Developments (PUDs) pursuant to Section 17.140.090. When land is annexed to Oakland, or prezoned pursuant to Section 17.07.040.B, he or she shall, where appropriate, create new development control maps with the zoning indicated pursuant to Section 17.154.030. Except as required by Section 17.154.030, however, he or she shall make no changes in zone boundaries or substantive changes in development control maps or

designated landmarks and landmark sites and all proposals for such changes shall be considered pursuant to the rezoning and law change procedure in Chapter 17.144.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13064, § 2(Exh. A), 3-15-2011; prior planning code § 10007)

17.154.050 - Interpretation of maps.

Except as otherwise provided in Section 17.154.030, the boundaries between zones and the boundaries and other features of development control maps and designated landmarks and landmark sites shall be interpreted specifically as shown on or in the maps and landmark ordinances. Should any uncertainty remain as to the location or meaning of a boundary or other feature, said location or meaning shall be determined by the Director of City Planning. Such interpretation shall be subject to appeal pursuant to the administrative appeal procedure in Chapter 17.132.

(Prior planning code § 10011)

17.154.060 - Application of regulations to lots divided by zone boundaries.

Wherever it is found, after applying the rules set forth in Section 17.154.050 for interpretation of zone boundaries, that any lot is divided by a boundary between zones, the provisions of the zoning regulations shall apply as follows to such lot:

A.

Application of All Regulations of One Zone to Existing Lot If Boundary Is Near Lot Line. If the lot was on the effective date of the zoning regulations, or of a subsequent rezoning or other amendment thereto resulting in division of the lot by a zone boundary, and the owner or developer of such lot, or of a portion or combination of such lot or lots, may at his or her option assume that all of the regulations applying in any zone covering fifty percent (50%) or more of the lot area apply to the entire lot or lots. However, this option shall not apply unless the entire lot or all such lots or parcel of land could be included in such zone by shifting the affected zone boundary by not more than thirty (30) feet, as measured perpendicularly to said boundary at any point.

B.

Application of Regulations Where Subsection A. is Inoperative. Wherever the provisions of Subsection A. of this Section do not apply or the option provided therein is not exercised:

1.

No activity type or facility type is allowed on any portion of the lot located in a zone where such type is not generally allowed, except for the accessory uses allowed by Subsections B.2. and B.3. of this Section.

2.

Accessory off-street parking and loading may be located on the lot without regard for zone boundaries; provided that no parking or loading shall be located on any portion of the lot located in a zone where the principal activity served is not generally allowed, except as such parking is specifically allowed by the

applicable individual zone regulations subject to the conditions set forth in Section 17.116.075; and further provided that parking and loading shall be subject to a conditional use permit requirement or other special controls on any portion of the lot located in any zone where such controls generally apply to parking or loading. The total amount of required parking and loading shall be calculated separately on the basis of the amount of the served use and the requirements applying in each zone; provided that the minimum size for which any parking or loading is required shall be deemed to be exceeded if it is exceeded by the total of such use on the entire lot.

3.

Accessory landscaping, fences, screening or retaining walls, and usable open space may be located on the lot without regard for zone boundaries. The total amount of required usable open space shall be calculated separately on the basis of the number of living units, or amount of floor area, and the usable open space requirements in each zone; provided that where reference is made to the total number of living units on a lot, the number on the entire lot shall be considered.

4.

The maximum permitted or conditionally permitted number of living units or Floor-Area Ratio, if any, on the lot shall be calculated separately on the basis of the amount of lot area and the density ratio and Floor-Area Ratio applying in each zone. The resulting maximum permitted or conditionally permitted total number of living units or amount of floor area may be distributed on the lot without regard for zone boundaries, except as otherwise provided in Subsection B.1. of this Section and except that the number of living units and amount of floor area within each zone shall not exceed the number or amount which would be allowed on the entire lot if it were completely within such zone.

5.

The minimum lot area, width, and frontage requirements of the zone which covers the greater or greatest portion of the lot area of the lot shall apply to the entire lot. If the lot area is divided equally between two (2) or more zones, the owner or developer of the lot may assume that the minimum lot area, width, and frontage requirements of either or any of such zones apply to the entire lot.

6.

All regulations not covered above shall apply separately to the portion of the lot within each zone, provided that where reference is made in such regulation to the total quantity of living units or other unit of measurement on a lot, the quantity on the entire lot shall be considered.

C.

Wherever a lot is divided by a boundary between height areas, the height area line may be moved up to thirty (30) feet in any direction upon the granting of Regular Design Review approval (see Chapter 17.136 for the Regular Design Review process) to accommodate the site plan of a proposed development project. In addition to the general Design Review Criteria contained in Chapter 17.136, the proposal must meet the following additional criteria:

The height area line adjustment creates a more successful site plan in terms of open space, parking, or building location; and

2.

Appropriate height transitions are incorporated into the building design and site plan to adjacent lower density residential properties that either share a parcel line or are across the street from the proposal.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Prior planning code § 10012)

Chapter 17.155 - SPECIAL REGULATIONS APPLYING TO MINING AND QUARRYING EXTRACTIVE ACTIVITIES

The City of Oakland recognizes that, historically, the extraction of minerals has benefited the economic well-being of the City and the needs of society and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety. The City also recognizes that surface mining within the City occurs in a diverse, established, urban environment, which presents unique health, safety and welfare issues and where geologic, topographic, climatic, biological, and other conditions are significantly different than in less urbanized areas. Therefore, reclamation operations and the applicable specifications, inspections, reporting, monitoring must be appropriate to the surrounding conditions.

The purpose and intent of this Section is to regulate surface mining operations as required by California's Surface Mining and Reclamation Act of 1975 (Public Resources Code Sections 2710 et seq.), as amended, hereinafter referred to as "SMARA", Public Resources Code (PRC) Section 2207 (relating to annual reporting requirements), and State Mining and Geology Board regulations (hereinafter referred to as "State regulations") for surface mining and reclamation practice (California Code of Regulations [CCR], Title 14, Division 2, Chapter 8, Subchapter 1, Sections 3500 et seq.), to ensure that:

A.

Reclamation activities eliminate hazards to public health and safety and restore mined lands to a standard that is safe, stable, and usable for development of reuses that will enhance the community;

B.

Adverse environmental effects are prevented or minimized in accordance with CEQA and other applicable requirements;

C.

Reclamation activities further adopted City goals, plans, policies, objectives and regulations, including, without limitation the City's General Plan;

D.

Reclamation activities appropriately consider values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

The definitions set forth in this Section shall govern the construction of this Chapter.

"Area of Regional Significance" means an area designated by the State Mining and Geology Board which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in a particular region of the State within which the minerals are located and which, if prematurely developed for alternate incompatible land uses, could result in the premature loss of minerals that are of more than local significance.

"Area of Statewide Significance" means an area designated by the board which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in the State and which, if prematurely developed for alternate incompatible land uses, could result in the permanent loss of minerals that are of more than local or regional significance.

"Approved Plan" means a land use and/or development plan and all conditions of approval and adopted mitigation measures, as approved by the City pursuant to Title 17 of the Oakland Municipal Code.

"Borrow Pits" mean excavations created by the surface mining of rock, unconsolidated geologic deposits or soil to provide material (borrow) for fill elsewhere.

"City" means City of Oakland.

"City Council" means City Council of the City of Oakland.

"Compatible Land Uses" means land uses inherently compatible with mining and/or that require a minimum public or private investment in structures, land improvements, and which may allow mining because of the relative economic value of the land and its improvements. Examples of such uses may include, but shall not be limited to, very low density residential, geographically extensive but low impact industrial, recreational, agricultural, silvicultural, grazing, and open space.

"General Plan" means the General Plan of the City of Oakland.

"Haul Road" means a road along which material is transported from the area of excavation to the processing plant or stock pile area of the surface mining operation.

"Idle" means surface mining operations curtailed for a period of one (1) year or more, by more than ninety (90) percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date.

"Incompatible Land Uses" means land uses inherently incompatible with mining and/or that require public or private investment in structures, land improvements, and landscaping and that may prevent mining because of the greater economic value of the land and its improvements. Examples of such uses may

include, but shall not be limited to, high density residential, low density residential with high unit value, public facilities, geographically limited but impact intensive industrial, and commercial.

"Mined Lands" mean the surface, subsurface, and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which structures, facilities, equipment, machines, tools or other materials or property which result from, or are used in, surface mining operations are located.

"Minerals" means any naturally occurring chemical element or compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to, coal, peat, and bituminous rock, but excluding geothermal resources, natural gas, and petroleum.

"Operator" means any person who is engaged in surface mining operations, or who contracts with others to conduct operations on his or her behalf, except a person who is engaged in surface mining operations as an employee with wages as his or her sole compensation.

"Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, or other measures.

"Reclamation Plan" means a plan for reclamation of mined lands as specified by SMARA.

"Stream Bed Skimming" means excavation of sand and gravel from stream bed deposits above the mean summer water level or stream bottom, whichever is higher.

"Surface Mining Operations" means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open-pit mining of minerals naturally exposed. mining by the auger method, dredging and quarrying, or surface work incident to an underground mine. Surface mining operations include, but are not limited to, in place distillation or retorting or leaching, the production and disposal of mining waste, prospecting and exploratory activities, borrow pitting, streambed skimming, and segregation and stockpiling of mined materials (and recovery of same).

"Use Permit" means a conditional use permit or other land use permit for mining activities.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

17.155.030 - Incorporation by reference.

The provisions of SMARA (PRC § 2710 et seq.), PRC Section 2207, and State regulations CCR § 3500 et seq., as those provisions and regulations may be amended from time to time, are made a part this Section by reference with the same force and effect as if the provisions therein were specifically and fully set out herein, excepting that when the provisions of this Section are more restrictive than correlative State provisions, this Section shall prevail.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Except as provided in this Section, no person shall conduct surface mining operations unless a Reclamation Plan and financial assurances for reclamation have first been approved by the City. Any applicable exemption from this requirement does not automatically exempt or limit a project or activity from the application of other regulations, ordinances or policies of City, including but not limited to, the application of CEQA. the requirements of an Approved Plan or other permits, the payment of development impact fees, or the imposition of other dedications and exactions as may be permitted under the law. The provisions of this Section shall apply to all lands within the City, public and private.

This Section shall not apply to the following activities, subject to the above-referenced exceptions:

A.

Excavations or grading conducted for farming or on-site construction or for the purpose of restoring land following a flood or natural disaster.

B.

Onsite excavation and onsite earthmoving activities which are an integral and necessary part of an approved construction project that are undertaken to prepare a site for construction of structures, landscaping, or other land improvements, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions:

1.

All required permits for the construction, landscaping, or related land improvements have been approved by a public agency or agencies in accordance with applicable provisions of State law and locally adopted plans and ordinances, including, but not limited to, the California Environmental Quality Act ("CEQA", Public Resources Code, Division 13, § 21000 et seq.).

2.

The City's approval and CEQA review (if applicable) of the construction project included the onsite excavation and onsite earthmoving activities.

3.

The approved construction project is consistent with the General Plan and zoning of the site.

4.

Surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if the City determines, in its discretion, that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued.

C.

Permitted operation of a plant site used for mineral processing, including associated onsite structures, equipment, machines, tools, or other materials, including the onsite stockpiling and onsite recovery of mined materials, subject to all of the following conditions:

1.

The plant site is located on lands designated for industrial or commercial uses in the City's general plan.

2.

The plant site is located on lands zoned industrial or commercial, or are contained within a zoning category intended exclusively for industrial activities by the City.

3.

None of the minerals being processed is being extracted onsite.

4.

All reclamation work has been completed pursuant to the approved Reclamation Plan for any mineral extraction activities that occurred onsite after January 1, 1976.

D.

Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than one thousand (1,000) cubic yards in any one location of one (1) acre or less.

E.

Surface mining operations that are required by federal law in order to protect a mining claim, as specified in Public Resources Code Section 2714(e).

F.

Any other surface mining operations that the State Mining and Geology Board determines to be of an infrequent nature and which involve only minor surface disturbances.

G.

The solar evaporation of sea water or bay water for the production of salt and related minerals.

H.

Emergency excavations or grading conducted by the Department of Water Resources or the Reclamation Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters or other emergencies.

I.

Road construction and maintenance for timber or forest operations, as specified in Public Resources Code Section 2714(j)(1); and

J.

Excavation, grading, or other earthmoving activities in an oil or gas field, as specified in Public Resources Code Section 2714(k).

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

No person who obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a permit to mine, so long as the vested right continues and as long as no substantial changes have been made in the mining operation except in accordance with SMARA, State regulations, this Section and any other applicable requirements. Where a person with vested rights has continued surface mining in the same area subsequent to January 1, 1976, he shall obtain City approval of a Reclamation Plan covering the mined lands disturbed by such subsequent surface mining. In those cases where an overlap exists (in the horizontal and/or vertical sense) between pre- and post-Act mining, the Reclamation Plan shall call for reclamation proportional to that disturbance caused by the mining after the effective date of the Act (January 1, 1976), as determined by the City to be necessary or appropriate to accommodate reuse of the proposed site according to City plans, policies, ordinances, and other applicable requirements.

All other requirements of State law, this Section or an approved plan shall apply to vested mining operations.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

17.155.060 - Process.

A.

Applications under the requirement for an Approved Plan or Reclamation Plan for surface mining or land reclamation projects shall include, at a minimum, each of the elements required by SMARA (§ 2772-2773) and State regulations, and any other requirements determined, in the discretion of the Planning Director or designee, to be necessary or appropriate to facilitate an evaluation of the proposed Reclamation Plan.

B.

Within thirty (30) days of the acceptance of a complete application for a Reclamation Plan or as a requirement of an Approved Plan for surface mining operations and/or a Reclamation Plan, the Planning and Building Department shall notify the State Department of Conservation of the filing of the application(s). Whenever mining operations are proposed in the one hundred (100) year flood plain of any stream, as shown in Zone A of the Flood Insurance Rate Maps issued by the Federal Emergency Management Agency ("FEMA"), and within one (1) mile, upstream or downstream, of any State highway bridge, the Planning and Building Department shall also notify the State Department of Transportation ("Caltrans") that the application has been received.

C.

The Planning and Building Department shall process the application(s) in accordance with the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) and the City's environmental review guidelines.

D.

Subsequent to the appropriate environmental review, the Planning and Building Department shall prepare a staff report with recommendations for consideration by the City Planning Commission. The City Planning Commission shall hold at least one (1) noticed public hearing on Use Permit and/or Reclamation Plan. Notice shall be given by mail or delivery to all owners and occupants of real property in the City limits within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. At the conclusion of such hearing or hearings, the Planning Commission shall recommend to the City Council that it should approve, approve with changes, or deny the subject Reclamation Plan and/or Use Permit.

E.

The City Council shall hold at least one (1) noticed public hearing on a Use Permit and/or Reclamation Plan. Notice shall be given by mail or delivery to all owners and occupants of real property in the City limits within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notice shall be given not less than seventeen (17) days prior to the date set for the hearing.

F.

Prior to final approval of a Reclamation Plan, financial assurances (as provided in this Chapter), any amendments to the Reclamation Plan, existing financial assurances, or those financial assurances required as part of an Approved Plan, the City Council shall certify to the State Department of Conservation that the Reclamation Plan and/or financial assurance complies with the applicable requirements of State law, and submit the plan, assurance, or amendments to the State Department of Conservation for review.

Pursuant to PRC § 2774(d), the State Department of Conservation shall be given thirty (30) days to review and comment on the Reclamation Plan and forty-five (45) days to review and comment on the financial assurance. The Planning and Building Department shall evaluate written comments received, if any, from the State Department of Conservation during the comment periods. Staff shall prepare a response describing the disposition of the major issues raised by the State for the City Council's approval. In particular, when the Planning and Building Department's position is at variance with the recommendations and objections raised in the State's comments, the response shall address, in detail, why specific comments and suggestions were not accepted. Copies of any written comments received and responses prepared by the Planning and Building Department shall be promptly forwarded to the operator/applicant.

G.

The City Council shall then take action to approve, conditionally approve, or deny Use Permit and/or Reclamation Plan, and to approve the financial assurances pursuant to PRC § 2770(d) or any other requirement of an Approved Plan.

H.

The Planning and Building Department shall forward a copy of each approved Use Permit for mining operations, an Approved Plan and/or approved Reclamation Plan, and a copy of the approved financial assurances to the State Department of Conservation. By July 1 of each year, the Planning and Building Department shall submit to the State Department of Conservation for each active or idle mining operation a copy of the Approved Plan, or Reclamation Plan amendments, as applicable, or a statement that there have been no changes during the previous year.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

A.

All Reclamation Plans shall comply with the provisions of SMARA (§ 2772 and § 2773) and State regulations (CCR § 3500-3505). Reclamation Plans approved after January 15, 1993, Reclamation Plans for proposed new mining operations, and any substantial amendments to previously approved Reclamation Plans, shall also comply with the requirements for reclamation performance standards (CCR § 3700-3713).

B.

The City may impose additional performance standards as developed either in review of individual projects, as warranted, through the formulation and adoption of Citywide performance standards or through an Approved Plan.

C.

Reclamation activities shall be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance. Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations. Reclamation may be done on an annual basis, in stages compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the City. Each phase of reclamation shall be specifically described in the Reclamation Plan and shall include (a) the beginning and expected ending dates for each phase; (b) all reclamation activities required; (c) criteria for measuring completion of specific reclamation activities; and (d) estimated costs for completion of each phase of reclamation.

D.

The information, analysis and other specifications submitted as part of the Reclamation Plan shall demonstrate that the improvements and financial assurances are sufficient to reclaim the site in a condition that meets all applicable State and City standards, and that is appropriate for the proposed reuse of the site and consistent with the land use and other applicable policies of the General Plan.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

The person submitting the Reclamation Plan shall sign a statement accepting responsibility for reclaiming the mined lands in accordance with the Reclamation Plan. Said statement shall be kept by the Planning and Building Department in the mining operation's permanent record. Prior to sale or transfer of the operation, the new operator shall submit a signed statement of responsibility as well as evidence required to demonstrate the financial assurance requirement set forth in this Section or the Planning and Building Department for placement in the permanent record.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

A.

Approved Plans. In addition to any findings required by the Approved Plan or for surface mining operations, a finding shall be included that the project complies with the provisions of SMARA and State regulations.

B.

Reclamation Plans. For Reclamation Plans, the following findings shall be required:

1.

That the Reclamation Plan complies with SMARA Sections 2772 and 2773, and any other applicable provisions;

2.

That the Reclamation Plan complies with applicable requirements of State regulations (CCR § 3500-3505, and § 3700-3713).

3.

That the Reclamation Plan and potential use of reclaimed land pursuant to the plan are consistent with this Section, the City's General Plan and any applicable resource plan, element or an Approved Plan.

4.

That the Reclamation Plan has been reviewed pursuant to CEQA and the City's environmental review guidelines, and all significant adverse impacts from reclamation of the surface mining operations are mitigated to the maximum extent feasible.

5.

That the land and/or resources such as water bodies to be reclaimed will be restored to a condition that is compatible with, and blends in with, the surrounding natural environment, topography, and other resources, or that suitable off-site development will compensate for related disturbance to resource values.

That the Reclamation Plan will restore the mined lands to a safe, stable and usable condition which is readily adaptable for alternative land uses consistent with the General Plan, and other City Approved Plans, policies, ordinances and regulations.

7.

That a written response to the State Department of Conservation has been prepared, describing the disposition of major issues raised by that department. Where the City's position is at variance with the recommendations and objections raised by the State Department of Conservation, said response shall address, in detail, why specific comments and suggestions were not accepted.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

A.

To ensure that reclamation will proceed in accordance with the approved Reclamation Plan, the City shall require as a condition of approval security which will be released upon satisfactory performance. The applicant may pose security in the form of a surety bond, trust fund, irrevocable letter of credit from an accredited financial institution, or other method acceptable to the City and the State Mining and Geology Board as specified in State regulations, and which the City determines are adequate to perform reclamation in accordance with the surface mining operation's approved Reclamation Plan and/or an Approved Plan. Financial assurances shall be made payable to City and the State Department of Conservation.

B.

Financial assurances will be required to ensure compliance with elements of the Reclamation Plan, including but not limited to, revegetation and landscaping requirements, restoration of aquatic or wildlife habitat, restoration of water bodies and water quality, slope stability and erosion and drainage control, disposal of hazardous materials, and other measures, if determined necessary by the Planning and Building Department to comply with the requirements of an Approved Plan.

C.

Cost estimates for the financial assurance shall be submitted to the Planning Department for review and approval prior to the operator securing financial assurances. The Planning Director shall forward a copy of the cost estimates, together with any documentation received supporting the amount of the cost estimates, to the State Department of Conservation for review. If the State Department of Conservation does not comment within forty-five (45) days of receipt of these estimates, it shall be assumed that the cost estimates are adequate, unless the City has reason to determine that additional costs may be incurred. The Planning Director shall have the discretion to approve the financial assurance if it meets the requirements of this Chapter, SMARA, State regulations and any requirements of an Approved Plan.

D.

The amount of the financial assurance shall be based upon the estimated costs of reclamation to a safe, stable and usable condition in accordance with an Approved Plan for the years or phases stipulated in the

approved Reclamation Plan, including any maintenance of reclaimed areas as may be required, subject to adjustment for the actual amount required to reclaim lands disturbed by surface mining activities since January 1, 1976, and new lands to be disturbed in the upcoming year. Cost estimates should be prepared by a California registered Professional Engineer and/or other similarly licensed and qualified professionals retained by the operator and approved by the Planning Director. The estimated amount of the financial assurance shall be based on an analysis of physical activities necessary to implement the approved Reclamation Plan in accordance with an Approved Plan for the site, the unit costs for each of these activities, the number of units of each of these activities, and the actual administrative costs. Financial assurances to ensure Reclamation Plan implementation and compliance with revegetation, restoration of water bodies, restoration of aquatic or wildlife habitat, and any other applicable element of the approved Reclamation Plan shall be based upon cost estimates that include, but may not be limited to, labor, equipment, materials, mobilization of equipment, administration, monitoring, inspections and reasonable profit by a commercial operator other than the permittee. A contingency factor of ten percent (10%) shall be added to the cost of financial assurances.

E.

In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the City or State Department of Conservation may need to contract with a third party commercial company for reclamation of the site.

F.

The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed (including any maintenance required).

G.

The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved Reclamation Plan. The financial assurances shall include estimates to cover reclamation for existing conditions and anticipated activities during the upcoming year, excepting that the permittee may not claim credit for reclamation scheduled for completion during the coming year.

H.

Revisions to financial assurances shall be submitted to the Planning Director each year prior to the anniversary date for approval of the financial assurances. The financial assurance shall cover the cost of existing disturbance and anticipated activities for the next calendar year, including any required interim reclamation. If revisions to the financial assurances are not required, the operator shall explain, in writing, why revisions are not required.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

17.155.110 - Interim management plans.

A.

Within ninety (90) days of a surface mining operation becoming idle, the operator shall submit to the Planning and Building Department a proposed Interim Management Plan (IMP). The proposed IMP shall fully comply with the requirements of SMARA, including but not limited to all Approved Plan conditions, and shall provide measures the operator will implement to maintain the site in a stable condition, taking into consideration public health and safety. The proposed IMP shall be submitted on forms provided by the Planning and Building Department, and shall be processed as an amendment to the Reclamation Plan. IMPs shall not be considered a project for the purposes of environmental review.

B.

Financial assurances for idle operations shall be maintained as though the operation were active, or as otherwise approved through the idle mine's IMP.

C.

Upon receipt of a complete proposed IMP, the Planning and Building Department shall forward the IMP to the State Department of Conservation for review. The IMP shall be submitted to the State Department of Conservation at least thirty (30) days prior to approval by the Planning Director.

D.

Within sixty (60) days of receipt of the proposed IMP, or a longer period mutually agreed upon by the Planning Director and the operator, the Planning Director shall review and approve or deny the IMP in accordance with this Chapter. The operator shall have thirty (30) days, or a longer period mutually agreed upon by the operator and the Planning Director, to submit a revised IMP. The Planning Director shall approve or deny the revised IMP within sixty (60) days of receipt. If the Planning Director denies the revised IMP, the operator may appeal that action to the City Council. The decision of the City Council shall be final.

E.

The IMP may remain in effect for a period not to exceed five (5) years, at which time the City Council may renew the IMP for another period not to exceed five (5) years, or require the surface mining operator to commence reclamation in accordance with its approved Reclamation Plan.

(Ord. No. 13763, § 5 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Surface mining operators shall forward an annual surface mining report to the State Department of Conservation and to the City Planning and Building Department on a date established by the State Department of Conservation, on forms furnished by the State Mining and Geology Board. New mining operations shall file an initial surface mining report and any applicable filing fees with the State Department of Conservation within thirty (30) days of permit approval, or before commencement of operations,

whichever is sooner. Any applicable fees, together with a copy of the annual inspection report, shall be forwarded to the State Department of Conservation at the time of filing the annual surface mining report.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

The Planning Director, through the Building Department Inspection Services Division or other agency or other designee, shall arrange for inspection of a surface mining operation within six (6) months of receipt of the Annual Report required in Section 12, to determine whether the surface mining operation is in compliance with applicable requirements, including, without limitation, the Approved Plan, Reclamation Plan, approved financial assurances, and State regulations. In no event shall less than one (1) inspection be conducted in any calendar year. Said inspections may be made by a State-registered geologist, Stateregistered civil engineer, State-licensed landscape architect, or State-registered forester, who is experienced in land reclamation and who has not been employed by the mining operation in any capacity during the previous twelve (12) months, or other qualified specialists, as selected by the Planning Director. All inspections shall be conducted using a form approved and provided by the State Mining and Geology Board.

The Planning and Building Department shall notify the State Department of Conservation within thirty (30) days of completion of the inspection that said inspection has been conducted, and shall forward a copy of said inspection notice and any supporting documentation to the mining operator. The operator shall be solely responsible for all costs of inspections required by the City in furtherance of this Section in accordance with the City master fee schedule or other applicable fee agreements or requirements.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

If the Planning Director, through the Building Department Inspection Services Division or other designee, based upon an annual inspection or otherwise confirmed by an inspection of the mining operation, determines that a surface mining operation is not in compliance with this Section, the Approved Plan, the Reclamation Plan or other applicable requirements, the City shall follow the procedures set forth in Public Resources Code, Sections 2774.1 and 2774.2 concerning violations and penalties.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

17.155.150 - Appeals.

A decision by the City Council to either approve or deny a Reclamation Plan pursuant to this Section shall be considered a final agency action.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

The City shall establish such fees as it deems necessary to cover the reasonable costs incurred in implementing this Section and the State regulations, including but not limited to, processing of applications, annual reports, inspections, monitoring, enforcement and compliance. These fees may be set forth in the City master fee schedule; however, failure to include such fees in the master fee schedule shall not limit the City's ability to impose fees it determines are necessary or desirable to fulfill the purposes of this Section, State regulations and other applicable requirements. Such fees shall be paid by the operator, as required by the City, at the time of filing of the Reclamation Plan application, as a part of a fee

agreement through an Approved Plan or at such other times as are determined by the City to be appropriate in order to ensure that all reasonable costs of implementing this Section are borne by the mining operator.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Chapter 17.156 - DEEMED APPROVED ALCOHOLIC BEVERAGE SALE REGULATIONS

Sections:

Article I - Title and Scope

17.156.010 - Title, purpose, and applicability.

The provisions of this Chapter shall be known as the title and scope of the Deemed Approved Alcoholic Beverage Sale Regulations. The purpose of these provisions is to specify the title, purposes, and applicability of the Deemed Approved Alcoholic Beverage Sale regulations and to require conformity to said regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15000)

17.156.020 - Title of Deemed Approved Alcoholic Beverage Sale regulations.

The provisions of this Chapter shall be known as the Deemed Approved Alcoholic Beverage Sale Regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15001)

17.156.030 - Purpose of Deemed Approved Alcoholic Beverage Sale regulations.

The general purposes of the Deemed Approved Alcoholic Beverage Sale regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations comply with the Deemed Approved performance standards at Article III of this Chapter and to achieve the following objectives:

A.

To protect residential, commercial, industrial, and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

B.

To provide opportunities for Alcoholic Beverage Sale Activities to operate in a mutually beneficial relationship to each other and to other commercial and civic services;

C.

To provide mechanisms to address problems often associated with the public consumption of alcoholic beverages, such as litter, loitering, graffiti, unruly behavior and escalated noise levels;

D.

To provide that Alcoholic Beverage Sale Commercial Activities are not the source of undue public nuisances in the community;

E.

To provide for properly maintained Alcoholic Beverage Sale establishments so that negative impacts generated by these activities are not harmful to the surrounding environment in any way;

F.

To monitor that Deemed Approved Activities do not substantially change in mode or character of operation.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15002)

17.156.040 - Applicability of Deemed Approved Alcoholic Beverage Sale regulations.

A.

To Which Property Applicable. The Deemed Approved Alcoholic Beverage Sale regulations shall apply, to the extent permissible under other laws, to all Legal Nonconforming Alcoholic Beverage Sale Commercial Activities within the city.

B.

Duplicated Regulation. Whenever any provision of the Deemed Approved Alcoholic Beverage Sale regulations and any other provision of law, whether get forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contain restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in the Deemed Approved Alcoholic Beverage Sale regulations.

C.

Relationship to the Zoning Regulations. The Nonconforming Use provisions of the zoning regulations including, but not limited to, Sections 17.114.020, 17.114.050B, 17.114.070(A)(4), 17.114.080(A)(1) and (2), shall apply to the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. No. 12899 § 4, Exh. A, 2008; Ord. 11624 § 2, 1993: prior planning code § 15003)

There is created an Alcoholic Beverage Sales Administrative Hearing Officer. The Alcoholic Beverage Sales Administrative Hearing Officer shall be a city staff person and shall conduct public hearings and make recommendations intended to encourage and achieve the compliance of particular sites as appropriate. This Section is not intended to restrict the powers and duties otherwise pertaining to other city officers or

bodies, in the field of monitoring and ensuring the harmony of Alcoholic Beverage Sale Commercial Activities in the city. These parties shall have the powers and duties assigned to them by the Planning Code, by the zoning regulations, by other codes and ordinances, by the City Charter, or by valid administrative authority.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15010)

Article II - Definitions

The provisions of this article shall be known as the definitions. The purpose of these provisions is to promote consistency and precision in the interpretation of the Deemed Approved Alcoholic Beverage Sale regulations. The meaning and construction of words and phrases as hereinafter set forth shall apply throughout the Deemed Approved Alcoholic Beverage Sale regulations, except where the context of such words or phrases clearly indicates a different meaning or construction.

(Ord. 11624 § 2, 1993: prior planning code § 15100)

17.156.070 - Definitions.

As used in this Chapter:

"Alcoholic beverage" means alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances, and sales of which requires a State Department of Alcoholic Beverage Control license.

"Alcoholic Beverage Sales Commercial Activity" means the retail sale, for on- or off-premises consumption, of liquor, beer, wine, or other alcoholic beverages, excluding Full-Service Restaurants and Limited-Service Restaurants and Cafes that comply with the below-listed definition of Full-Service Restaurant or LimitedService Restaurant and Cafe.

"Condition of approval" means a requirement which must be carried out by the activity in order to retain its Deemed Approved Status.

"Deemed Approved Activity" means any Legal Nonconforming Alcoholic Beverage Sales Commercial Activity, as defined in this Section, in existence immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations shall be considered a Deemed Approved Activity as long as it complies with the Deemed Approved performance standards as set forth in Section 17.156.090, and shall no longer be considered a Legal Nonconforming Activity.

"Deemed Approved Status" means the status conferred upon a Deemed Approved Activity. Deemed Approved Status replaces legal nonconforming status.

"Full-Service Restaurant" means any activity described in Oakland Planning Code Section 17.10.272.

"Illegal activity" means an activity which has been finally determined to be in noncompliance with the Deemed Approved performance standards in Article III of this Chapter. Such an activity shall lose its

Deemed Approved Status and shall no longer be considered a Deemed Approved Activity.

"Legal Nonconforming Alcoholic Beverage Sales Commercial Activity" or "Legal Nonconforming Activity" means an Alcoholic Beverage Sales Commercial Activity which was a nonconforming use pursuant to the Nonconforming Use Regulations in Chapter 17.114, and for which a valid state of California Alcoholic Beverage Control license had been issued and used in the exercise of the rights and privileges conferred by the license, at a time immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations. Such an Activity shall be considered a Deemed Approved Activity, and shall no longer be considered a Legal Nonconforming Activity, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in Section 17.156.040C, as of the effective date of the Deemed Approved Alcoholic Beverage Sale regulations.

"Limited-Service Restaurant and Cafe" means any activity described in Oakland Planning Code Section 17.10.274.

"Officer" means Administrative Hearing Officer, as provided for at Section 17.156.050.

"Performance standards" means regulations prescribed in the Deemed Approved Performance Standards in Article III of this Chapter.

"Premises" means the actual space within a building devoted to alcoholic beverage sales.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13527, § 2, 4-2-2019; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 12999, § 4(Exh. A), 3-16-2010; Ord. 12154 § 2, 1999: Ord. 11624 § 2, 1993: prior planning code § 15100—15120)

Article III - Deemed Approved Performance Standards

17.156.080 - Title, purpose, and applicability.

The provisions of this article, shall be known as the Deemed Approved performance standards. The purpose of these standards is to control dangerous or objectionable environmental effects of Alcoholic Beverage Sales Commercial Activities. These standards shall apply to all Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15200)

17.156.090 - Performance standards and Deemed Approved Activities.

An activity shall retain its Deemed Approved Status only if it conforms with all of the following Deemed Approved performance standards:

A.

That it does not result in adverse effects to the health, peace or safety of persons residing or working in the surrounding area;

B.

That it does not result in jeopardizing or endangering the public health or safety of persons residing or working in the surrounding area;

C.

That it does not result in repeated nuisance activities within the premises or in close proximity of the premises, including but not limited to disturbance of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, loitering, graffiti, illegal parking, excessive loud noises, especially in the late night or early morning hours, traffic violations, curfew violations, lewd conduct, or police detentions and arrests;

D.

That it does not result in violations to any applicable provision of any other city, state, or federal regulation, ordinance or statute;

E.

That its upkeep and operating characteristics are compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.

(Ord. 11624 § 2, 1993: prior planning code § 15210)

Article IV - Deemed Approved Status Procedure

The provisions of this article shall be known as the Deemed Approved Status procedure. The purpose of these provisions is to: (A) provide notice of Deemed Approved Status upon Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations; (B) prescribe the procedure for the imposition of conditions of approval upon these activities; and (C) prescribe the procedure for appealing conditions of approval or the revocation of a Deemed Approved Status.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15300)

All Alcoholic Beverage Sales Commercial Activities that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Alcoholic Beverage Sale regulations shall automatically become Deemed Approved Activities as of the effective date of the Deemed Approved Alcoholic Beverage Sale regulations and shall no longer be considered Legal Nonconforming Activities. Each such Deemed Approved Activity shall retain its Deemed Approved Status as long as it complies with the Deemed Approved performance standards at Section 17.156.090.

(Ord. 12154 § 3, 1999: Ord. 11624 § 2, 1993: prior planning code § 15310)

17.156.120 - Notification to owners and occupants of Deemed Approved Activities.

The Officer shall notify the owner of each Deemed Approved Activity, and also the property owner and occupant if not the same, of the activity's Deemed Approved Status. Such notice shall be sent via U.S. mail; shall include a copy of the performance standards of Article III of this Chapter with the requirement that these be posted in a conspicuous and unobstructed place visible from the entrance of the establishment for public review; notification that the activity is required to comply with all these same performance standards; that a review fee is required, and the amount of such fee provided in the master fee schedule; and that the activity is required to comply with all other aspects of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15320)

17.156.130 - Procedure for consideration—Intent.

The provisions of Sections 17.156.130 through 17.156.190 shall outline the process by which Deemed Approved Activities are required to be reviewed.

(Ord. 11624 § 2, 1993: prior planning code § 15330)

17.156.140 - Procedure for consideration of violations to performance standards.

Upon receiving a complaint from the public, Police Department, or any other interested party that a Deemed Approved Activity is in violation of the performance standards at Section 17.156.090, and once it is determined by the City that violations appear to be occurring, then the Deemed Approved Status of the Deemed Approved Activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with Section 17.156.180.

Approved Activity is in violation of the performance standards at Section 17.156.090, and once it is determined by the City that violations appear to be occurring, then the Deemed Approved Status of the Deemed Approved Activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with Section 17.156.180.

The purpose of the public hearing is to receive testimony on whether the operating methods of the Deemed Approved Activity are causing undue negative impacts in the surrounding area. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. At the public hearing, the Administrative Hearing Officer shall determine whether the Deemed Approved Activity conforms to the Deemed Approved Performance Standards set forth in Section 17.156.090 and to any other applicable criteria, and may continue the Deemed Approved Status for the activity in question or require such changes or impose such reasonable Conditions of Approval as are in the judgment of the Administrative Hearing Officer necessary to ensure conformity to said criteria and such conditions shall be based on the evidence before the Officer. The decision of the Officer shall be based upon information compiled, by staff and testimony from the business owner and all other interested parties. New conditions of approval shall be made a part of the Deemed Approved Status and the Deemed Approved Activity shall be required to comply with these conditions. The determination of the Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.156.160. Any party seeking to appeal the determination will be limited to issues and/or oral, written, and/or documentary evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 11624 § 2, 1993: prior planning code § 15340)

17.156.150 - Procedure for consideration of violations to conditions of approval.

In the event of a violation of any of the provisions set forth in Sections 17.156.010 through 17.156.140 of these regulations, or upon evidence that there has been a failure to comply with any prescribed condition of approval, the Officer may hold a public hearing. Notification of the public hearing shall be in accordance with Section 17.156.180.

The purpose of this public hearing is to receive testimony and determine whether violations to any conditions of approval attached to the site have occurred. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The Officer may add to or amend the existing conditions of approval based upon the oral, written, and/or documentary evidence presented; or alternatively may revoke the Deemed Approved Activity's Deemed Approved Status. The determination of the Administrative Hearing Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.156.160. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo. The decision of the Planning Commission shall be final unless appealed to the City Council in accordance with Section 17.156.170.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 11624 § 2, 1993: prior planning code § 15350)

17.156.160 - Appeal to Planning Commission.

Within ten (10) calendar days after imposition of conditions of approval on a Deemed Approved Activity or the revocation of Deemed Approved Status, an appeal may be taken to the City Planning Commission by the Deemed Approved Activity owner or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Officer or

vity owner or any other interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Officer or

wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the Administrative Hearing Officer prior to the close of the public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and the required appeal fee in accordance with Section 17.156.190, the Secretary to the Planning Commission shall set the date for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the applicant; the appellant in those cases where the applicant is not the appellant; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

During the hearing on the appeal, the appellant will be limited to issues and/or oral, written, and/or documentary evidence presented to the Administrative Hearing Officer prior to the close of the public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Planning Commission shall determine whether the established use conforms to the applicable Deemed Approved performance standards and/or conditions of approval, and may continue or revoke a Deemed Approved Status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said performance standards. The decision of the Planning Commission on the appeal to the conditions of approval imposed by the Administrative Hearing Officer shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7- 2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15360)

17.156.170 - Appeal on the revocation of a Deemed Approved Status to the City Council.

Within ten (10) calendar days after the date of a decision by the City Planning Commission to revoke a Deemed Approved Status, an appeal from said decision may be taken to the City Council by any interested party. In the event the last date of appeal falls on a weekend or holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and an appeal fee in accordance with Section 17.156.190, the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the owner of the Deemed Approved Activity; the property owner; adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate, of the time, date and place of the hearing on the appeal. During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the Deemed Approved Activity conforms to the applicable Deemed Approved performance standards, and may approve or disapprove the revocation or require such changes therein or impose such reasonable conditions of approval as are in its judgment necessary to carry out the purposes of the zoning regulations and ensure conformity to said standards. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11624 § 2, 1993: prior planning code § 15370)

The Officer shall notify the owner of each Deemed Approved Activity, and also the property owner and occupant if not the same, of the time and place of the public hearing. Such notice shall be sent via U.S. mail, and shall include notification that the Deemed Approved Status of the Deemed Approved Activity will be considered before the Officer. The public hearing shall be noticed by posting notices on the premises of the subject property; notice shall also be given by mail or delivery to all owners and occupants of real property in the city within three hundred (300) feet of the subject property; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing, if such is to be held. Fees for notification shall be in accordance with Section 17.156.190 and paid for by the Deemed Approved Activity in question.

A.

Notice on Site. A city-provided notice shall be posted on the premises of the subject activity, placed in the window of the activity (if a window facing the street is not present, then the placard will be required to be posted onto the exterior of the building). All notices shall advertise the time, date, purpose and location of the public hearing for each particular site. All notices shall be given not less than seventeen (17) days prior to the date set for the hearing.

B.

Notice by Mail. Notice by mail is deemed given on the date the notice is placed into the U.S. mail system.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12154 § 4, 1999: Ord. 11624 § 2, 1993: prior planning code § 15380)

Fee, and regulations pertaining to fees, including the review, notification, appeal, and reinspection of Deemed Approved Activities shall be in accordance with the city master fee schedule.

(Ord. 11624 § 2, 1993: prior planning code § 15400)

Article V - Enforcement Procedure

The provisions of this article shall apply to the enforcement of the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code (part))

All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, the Deemed Approved Alcoholic Beverage Sale regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15500)

A.

Infractions. Any person who violates, causes, or permits another person to violate any provision of these regulations is guilty of an infraction unless otherwise provided.

B.

Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator and shall be punishable accordingly.

C.

Any Violation a Public Nuisance. In addition to the penalties provided in this Section, any use or condition caused or permitted to exist in violation of any of the provisions of this Chapter shall be and is declared to be a public nuisance and may be summarily abated as such by the city.

D.

Injunction as Additional Remedy. Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

E.

Penalties. Any person convicted of an infraction under the provisions of this Section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the second conviction within a oneyear period may be charged by the City Attorney or District Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.

F.

Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of the Deemed Approved Activity. Fees shall be in the amount described in Section 17.156.190 for charged reinspections. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 11624 § 2, 1993: prior planning code § 15510)

17.156.230 - Enforcement.

The city shall designate the appropriate personnel to enforce the provisions of these regulations.

(Ord. 11624 § 2, 1993: prior planning code § 15520)

The officials responsible for enforcement of the Planning Code, or their duly authorized representatives, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of these regulations, or whenever necessary to the investigation of violations to the Deemed Approved performance standards or conditions of approval prescribed in these regulations. An owner or occupant or agent thereof who refuses to permit such entry and investigation shall be guilty of infringing upon the violations and penalties as outlined in Section 17.156.220 and subject to related penalties thereof.

(Ord. 11624 § 2, 1993: prior planning code § 15530)

Chapter 17.157 - DEEMED APPROVED HOTEL AND ROOMING HOUSE REGULATIONS

Sections:

Article I - Title and Scope

17.157.010 - Title.

The provisions of this Chapter shall be known as the Deemed Approved Hotel Regulations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

The general purposes of the Deemed Approved Hotel Regulations are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that Hotels and Rooming Houses that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Hotel Regulations comply with the Deemed Approved performance standards at Article III, Section 17.157.060 of this Chapter and to achieve the following objectives:

A.

To protect residential, commercial, industrial and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

B.

To provide opportunities for Deemed Approved Hotel Activities to operate in mutually beneficial relationship to each other and to other commercial and civic services;

C.

To regulate those businesses that provide over night or short term accommodations in order to provide a standard of quality commonly expected of the hospitality industry;

D.

To provide that Deemed Approved Hotel Activities are not the source of undue public nuisances or visual blight in the community;

E.

To provide for properly maintained Deemed Approved Hotel Activities so that negative impacts generated by these activities are not harmful to the surrounding environment in any way;

F.

To monitor that Deemed Approved Hotel Activities do not substantially change in mode or character of operation.

G.

To assure that guests and residents at Deemed Approved Hotel Activities are provided safe, clean, and secure accommodations.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

17.157.030 - Applicability of Deemed Approved Hotel regulations.

A.

To Which Property Applicable. The Deemed Approved Hotel regulations shall apply, to the extent permissible under other laws, to all Legal Nonconforming Hotels and Rooming Houses within the city.

B.

Duplicated Regulation. Whenever any provisions of the Deemed Approved Hotel regulations and any other provision of law, whether set forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in the Deemed Approved Hotel regulations.

C.

Relationship to the Zoning Regulations. The Nonconforming Use provisions of the zoning regulations including, but not limited to, OPC Sections 17.114.020, 17.114.070(A)(4), 17.114.080(A) (1) and (2), shall apply to the Deemed Approved Hotel regulations.

(Ord. 12137 § 2 (part), 1999)

There is created a Hotel Administrative Hearing Officer. The Hotel Administrative Hearing Officer shall conduct public hearings and establish findings and conditions intended to encourage and achieve compliance with the Hotel Performance Standards at Section 17.157.060 of particular sites as appropriate. This Section is not intended to restrict the powers and duties otherwise pertaining to other city officers or bodies, in the field of monitoring and ensuring the harmony of Deemed Approved Hotel Activities in the city. These parties shall have the powers and duties assigned to them by the city codes and ordinances, by the City Charter, or by valid administrative authority.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

Article II - Definitions

17.157.050 - Definitions.

As used in this Chapter:

"Condition of approval" means a requirement which must be carried out by the activity in order to retain its Deemed Approved Status.

"Deemed Approved Hotel Activity" means any Hotel or Rooming House that is legal nonconforming and in existence immediately prior to the effective date of the Deemed Approved Hotel regulations. Said business(es) shall be considered a Deemed Approved Hotel Activity as long as it complies with the Deemed Approved Hotel performance standards as set forth in Section 17.157.060 of this Chapter. Said business(es) shall no longer be considered a Legal Nonconforming Activity.

"Deemed Approved Status" means the status conferred upon a Deemed Approved Hotel Activity. Deemed Approved Status replaces legal nonconforming status.

"Illegal activity" means any activity which has been finally determined to be in noncompliance with the Deemed Approved performance standards in Section 17.157.060. Such an activity shall lose its Deemed Approved Status and shall no longer be considered a Deemed Approved Hotel Activity.

"Hotel" shall mean any activity as described in OMC Section 4.24.020.

"Legal Nonconforming Hotel Activity" means any Hotel or Rooming House which was a nonconforming use pursuant to the Nonconforming Use Regulations in OPC Chapter 17.114 at a time immediately prior to the effective date of the Deemed Approved Hotel regulations. Such an activity shall be considered a Deemed Approved Activity, and shall no longer be considered a Legal Nonconforming Activity, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in OPC Section 17.157.030C, as of the effective date of the Deemed Approved Hotel regulations.

"Officer" means Administrative Hearing Officer, as provided for at Section 17.157.040.

"Performance standards" means regulations prescribed in the Deemed Approved Performance Standards set forth in Section 17.157.060.

"Permanent Residential Activity" means any activity described in OPC Section 17.10.110.

"Rooming House" shall mean any facility described in OPC Section 17.10.690 housing Semi-Transient Residential Activities and/or Permanent Residential Activities.

"Semi-Transient Residential Activity" means any activity described in OPC Section 17.10.120.

"Transient Habitation Commercial Activity" means any activity described in OPC Section 17.10.440.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

Article III - Deemed Approved Performance Standards

An activity shall retain its Deemed Approved Status only if it conforms with the provisions of Chapter 5.34 Hotel Rates and Registration Requirements; Chapter 8.03 Hotel, Motel, and Rooming House Operating Standards; Chapter 15.08 Oakland Housing Code, and any applicable provisions of this code.

(Ord. 12137 § 2 (part), 1999)

Article IV - Deemed Approved Status Procedure

The purpose of the provisions of this article is to: (A) provide notice of Deemed Approved Status upon Hotels and Rooming Houses that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Hotel regulations; (B) prescribe the procedure for the imposition of conditions of approval upon those activities; and (C) prescribe the procedure for appealing conditions of approval of a Deemed Approved Status.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12137 § 2 (part), 1999)

All Hotels and Rooming Houses that were Legal Nonconforming Activities immediately prior to the effective date of the Deemed Approved Hotel regulation shall automatically become Deemed Approved Hotel Activities as of the effective date of the Deemed Approved Hotel regulations and shall no longer be considered Legal Nonconforming Activities. Each such Deemed Approved Activity shall retain its Deemed Approved Status as long as it complies with the Deemed Approved performance standards at Section 17.157.070.

(Ord. 12137 § 2 (part), 1999)

The city shall notify the owner of each Deemed Approved Hotel Activity, and also the property owner and occupant if not the same, of the activity's Deemed Approved Status. Such notice shall be sent via U.S. mail; shall include a copy of the performance standards of Article III of this Chapter; notification that the activity is required to comply with all these same performance standards; and that the activity is required to comply with all other aspects of the Deemed Approved Hotel regulations.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

17.157.100 - Procedure for consideration—Intent.

The provisions of Sections 17.157.100 through 17.157.160 shall outline the process by which Deemed Approved Hotel Activities are required to be reviewed.

(Ord. 12137 § 2 (part), 1999)

17.157.110 - Procedure for consideration of violations to performance standards.

As a result of an annual or bi-annual inspection pursuant to OMC Subsection 8.030.60.B or upon receiving a complaint from the public, Police Department, or any other interested party that a Deemed Approved Hotel Activity is in violation of the performance standards at Section 17.157.060, and once it is determined by the City that violations appear to be occurring, then the Deemed Approved Status of the Deemed Approved Hotel Activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with Section 17.157.150.

el Activity is in violation of the performance standards at Section 17.157.060, and once it is determined by the City that violations appear to be occurring, then the Deemed Approved Status of the Deemed Approved Hotel Activity in question shall be reviewed by the Administrative Hearing Officer at a public hearing. Notification of the public hearing shall be in accordance with Section 17.157.150.

The purpose of the public hearing is to receive testimony on whether the operating methods of the Deemed Approved Hotel Activity is in violation of the performance standards at Section 17.157.060, are causing undue negative impacts in the surrounding area, and/or whether the property is not being maintained in a manner to be habitable by guests or residents. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. At the public hearing, the Administrative Hearing Officer shall determine whether the Deemed Approved Activity conforms to the Deemed Approved Performance Standards set forth in Section 17.157.060 and to any other applicable criteria, and may continue the Deemed Approved Status for the activity in question or require such changes or impose such reasonable Conditions of Approval as are in the judgment of the Administrative Hearing Officer necessary to ensure conformity with said criteria and such conditions shall be based on the evidence before the Officer. The decision of the Officer shall be based upon information compiled by staff and testimony from the business owner and all other interested parties. New conditions of approval shall be made a part of the Deemed Approved Status and the Deemed Approved Hotel Activity shall be required to comply with these conditions. The determination of the Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.157.130. Any

party seeking to appeal the determination will be limited to issues and/or oral, written, or documentary evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12137 § 2 (part), 1999)

17.157.120 - Procedure for consideration of violations of conditions of approval.

In the event of a violation of any of the provisions set forth in Sections 17.157.010 through 17.157.110 of these regulations, or upon evidence that there has been a failure to comply with any prescribed condition of

approval, the Officer may hold a public hearing. Notification of the public hearing shall be in accordance with Section 17.157.150.

The purpose of this public hearing is to receive testimony and determine whether violations to any conditions of approval attached to the site have occurred. While the hearing is open, any interested party must enter into the record any issues and/or oral, written, and/or documentary evidence to the Administrative Hearing Officer for his or her consideration; failure to do so will preclude the party from raising such issues and/or evidence during the appeal hearing and/or in court. The officer may add to or amend the existing conditions of approval based upon the oral, written, or documentary evidence presented; or alternatively may revoke the Deemed Approved Hotel Activity's Deemed Approved Status. The determination of the Administrative Hearing Officer shall become final ten (10) calendar days after the date of decision unless appealed to the City Planning Commission in accordance with Section 17.157.130. Any party seeking to appeal the determination will be limited to issues and/or evidence presented to the Administrative Hearing Officer prior to the close of the Administrative Hearing Officer's public hearing on the matter, as the appeal is not de novo. The decision of the City Planning Commission shall be final unless appealed to the City Council in accordance with Section 17.157.140.

(Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12137 § 2 (part), 1999)

17.157.130 - Appeal to City Planning Commission.

Within ten (10) calendar days after imposition of conditions of approval on a Deemed Approved Hotel Activity or the revocation of Deemed Approved Status, an appeal may be taken to the City Planning Commission by the Deemed Approved Activity owner or any other interested party. In the event the last date of appeal falls on a weekend or a holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the City. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Officer or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the Administrative Hearing Officer prior to the close of the public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and the required appeal fee in accordance with Section 17.157.160 the Secretary of the City Planning Commission shall set a date for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the owner of the Deemed Approved Hotel Activity; the property owner; the appellant in those cases where the appellant is not the owner; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

During the hearing on the appeal, the appellant will be limited to issues and/or oral, written, and/or documentary evidence presented to the Administrative Hearing Officer prior to the close of the public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the City Planning Commission shall determine whether the Deemed

Approved Hotel Activity conforms to the applicable Deemed Approved performance standards and/or conditions of approval, and may continue or revoke a Deemed Approved Status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said performance standards. The decision of the City Planning Commission on the appeal to the conditions of approval imposed by the Administrative Hearing Officer shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13270, § 3(Exh. A), 11-18-2014; Ord. No. 13172, § 3(Exh. A), 7- 2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12137 § 2 (part), 1999)

17.157.140 - Appeal on the revocation of a Deemed Approved Status to the City Council.

Within ten (10) calendar days after the date of a decision by the City Planning Commission to revoke a Deemed Approved Status, an appeal from said decision may be taken to the City Council by any interested party. In the event the last date of appeal falls on a weekend or a holiday when City offices are closed, the next date such offices are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planning Director and shall be filed with the Planning and Building Department, along with the appropriate fees required by the City's Master Fee Schedule. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Commission or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to City Planning Commission prior to the close of its public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues and/or evidence during the appeal and/or in court. The appeal is not de novo. Upon receipt of the appeal and an appeal fee in accordance with Section 17.157.160, the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Not less than seventeen (17) days prior thereto, written notice shall be given to: the owner of the Deemed Approved Hotel Activity; the property owner; the appellant in those cases where the appellant is not the owner; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

During the hearing on the appeal, the appellant will be limited to issues and/or evidence presented prior to the close of the City Planning Commission's public hearing on the item and raised in the appeal itself, as the appeal is not de novo. The appellant shall not be permitted to present any other issues and/or evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the Council shall determine whether the Deemed Approved Hotel Activity conforms to the applicable Deemed Approved performance standards and/or conditions of approval, and may approve or disapprove the revocation of the Deemed Approved Status; or require such changes to the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said performance standards. The decision of the City Council shall be made by resolution and shall be final.

approval, and may approve or disapprove the revocation of the Deemed Approved Status; or require such changes to the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to carry out the purposes of the zoning regulations and ensure conformity to said performance standards. The decision of the City Council shall be made by resolution and shall be final.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13270, § 3(Exh. A), 1118-2014; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12137 § 2 (part), 1999)

The Officer shall notify the owner of each Deemed Approved Activity, and also the property owner and occupant if not the same, of the time and place of the public hearing. Such notice shall be sent via U.S. mail, and shall include notification that the Deemed Approved Status of the Deemed Approved Hotel Activity will be considered by the Officer. The public hearing shall be noticed by posting notice on the premises of the subject property; notice shall also be given by mail or delivery to all owners and occupants of real property in the city within three hundred (300) feet of the subject property; provided, however, that failure to send notice to any such owner where his or her address is not shown on the last available equalized assessment roll shall not invalidate the affected proceedings. Such notices shall be given not less than seventeen (17) days prior to the date set for the hearing, if such is to be held. Fees for notification shall be in accordance with Section 17.157.160 and paid for by the Deemed Approved Hotel Activity in question.

A.

Notice on Site. A notice shall be posted on the premises of the subject activity, placed in the window of the activity (if a window facing the street is not present, then the notice will be required to be posted onto the exterior of the building). All notices shall advertise the time, date, purpose and location of the public hearing for each particular site. All notices shall be given not less than seventeen (17) days prior to the date set for the hearing.

B.

Notice by Mail. Notice by mail is deemed given on the date the notice is placed into the U.S. mail system.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12137 § 2 (part), 1999) 17.157.160 - Fee schedule.

Fee, and regulations pertaining to fees, including the appeal, and reinspection of Deemed Approved Hotel Activities shall be in accordance with the city master fee schedule.

(Ord. 12137 § 2 (part), 1999)

Article V - Enforcement Procedure

All officials, departments, and employees of the city vested with the authority to issue permits, certificates, or licenses shall adhere to, and require conformance with, the Deemed Approved Hotel regulations.

(Ord. 12137 § 2 (part), 1999)

A.

Infractions. Any person who violates, causes or permits another person to violate any provision of these regulations is guilty of an infraction unless otherwise provided.

B.

Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, or caused by such violator and shall be punished accordingly.

C.

Any Violation a Public Nuisance. In addition to the penalties provided in this Section, any use or condition caused or permitted to exist in violation of any of the provisions of this Chapter shall be and is declared to be a public nuisance and may be abated as such by the city after appropriate notice and opportunity to be heard.

D.

Injunction as Additional Remedy. Any violation of any provision of these regulations shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

E.

Penalties. Any person convicted of an infraction under the provisions of this Section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the second conviction within a oneyear period may be charged by the City Attorney or District Attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under State law.

F.

Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction, abatement, and prosecution of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations shall be charged against the owner of the Deemed Approved Hotel Activity. Fees shall be in the amount described in Section 17.157.160 for charged reinspections. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. 12137 § 2 (part), 1999)

The City shall designate the appropriate personnel to enforce the provisions of these regulations.

(Ord. 12137 § 2 (part), 1999)

Chapter 17.158 - ENVIRONMENTAL REVIEW REGULATIONS

Sections:

Part 1 - General Provisions

Article 1.1 - Title and Scope

The provisions of this article shall be known as the title and scope of the environmental review regulations. The purpose of these provisions is to specify the title, purposes, and applicability of the environmental review regulations and to require conformity to said regulations. These provisions shall apply to the entire environmental review regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1000)

17.158.020 - Title of environmental review regulations.

The provisions of this Chapter shall be known as the environmental review regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1001)

The purpose of the environmental review regulations is to facilitate conformance by the city of Oakland with the California Environmental Quality Act, the National Environmental Policy Act, the National Historic Preservation Act, and other relevant and applicable federal, state, and local environmental laws and regulations, and to achieve the purposes set forth in those laws and regulations and in the Oakland Comprehensive Plan.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1002)

17.158.040 - Applicability of environmental review regulations.

A.

City CEQA Procedures. The city CEQA procedures at Section 17.158.140 shall apply to all projects sponsored or assisted by the city or Redevelopment Agency, and to all private projects requiring any discretionary approvals from the city.

B.

City NEPA Procedures. The city NEPA procedures shall apply to all city, Redevelopment Agency, and private projects involving funding or any other form of participation by a federal agency, if the federal agency requires that city or redevelopment agency undertake NEPA environmental review on its behalf.

C.

City Section 106 Procedures. The city Section 106 procedures shall apply to all city, Redevelopment Agency, and private projects involving funding or any other form of participation by a federal agency, if the federal agency requires that the city or redevelopment agency undertake Section 106 historic preservation consultation on its behalf under the requirements of the National Historic Preservation Act.

D.

Other Environmental Review Procedures. The other environmental review procedures shall apply to projects as indicated in those procedures.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1003)

These environmental review regulations shall generally apply to the whole of a project, and not separately to each individual permit that a project may require. A single environmental review shall be performed for each project, and shall apply to every permit required for that project. If a project is determined to be exempt from environmental review, every permit related to the project shall likewise be deemed exempt.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1004)

Where there is or has been amendments or changes to applicable federal, state, or local laws, regulations, or guidelines, including but not limited to CEQA, NEPA, and NHPA, the applicable amendments or changes shall be incorporated herein.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1005)

Where a conflict exists between these environmental review regulations and applicable Federal, or State regulations, or guidelines, including but not limited to CEQA, NEPA, and NHPA, the applicable Federal, or State regulations or guidelines shall prevail.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1006)

Article 1.2 - Definitions and Abbreviations

The provisions of this article shall be known as the definitions and abbreviations. The purpose of these provisions is to promote consistency and precision in the interpretation of the environmental review regulations and to supplement the definitions that are found in CEQA, NEPA, NHPA, and their implementing regulations and guidelines. The meaning and construction of words and phrases as set forth in these provisions shall apply throughout the environmental review regulations, except where the context of such words or phrases clearly indicate a different meaning or construction.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1020)

"Agency" means the city of Oakland Redevelopment Agency.

Certification of a final EIR. In certifying a final EIR, the final decision-making body must find that the FEIR has been prepared in compliance with CEQA, the CEQA guidelines, and the city CEQA procedures. In addition, the decision-making body also must find that the environmental document reflects the

independent judgment, review and analysis of the city. Certification does not imply that the decisionmaking body endorses the project. Rather, certification indicates that the decision-making body found that the final EIR adequately discusses the potential adverse environmental effects, ways in which such affects might be mitigated, and alternatives to the project which would reduce or avoid the adverse effects.

"CEQA" means the California Environmental Quality Act (Public Resources Code Section 21000 et seq.).

"City" means the City of Oakland; the body or officer acting for the City of Oakland, or the Redevelopment Agency of the City of Oakland.

"City CEQA Procedures" means the city regulations which delineate the procedures for implementing CEQA, as prescribed at Section 17.158.140.

City Planning Commission. This Commission is responsible for developing policies for and maintaining the city's Comprehensive Plan. In addition, the Commission has major responsibility for adoption and administration of the zoning regulations and subdivision regulations. The Commission also certifies the adequacy of environmental information used in determining whether or not development projects should be approved, and is the final appeal body for all environmental review determinations, except where otherwise stated.

"City project" means a project sponsored or assisted by the city or the Redevelopment Agency of the city.

"Decision" means the first discretionary approval or denial of a project.

"Decision-making body" means any individual, officer, board or commission representing the city permitted to approve or disapprove a project.

"Discretionary action" means an action which requires the exercise of judgment or deliberation when the decision-making body decides to approve or disapprove a particular activity, as distinguished from situations where the decision-making body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations. See Section 17.158.190 for discretionary actions typically processed by the city.

"Discretionary project" means a project that requires approval of one or more discretionary actions, including but not limited to those listed at Section 17.158.190, even if the project also requires approval of one or more ministerial actions, including but not limited to those listed at Section 17.158.180.

"EIR" means an environmental impact report.

"Environmental review" means any of procedures or other provisions of the environmental review regulations that may be applicable to a particular project or action.

"Environmental Review Coordinator" means the staff person, as designated by the Environmental Review Officer, who is responsible for coordinating the environmental review process.

"Environmental Review Officer" means the staff person, as designated by the City Manager, who is responsible for the environmental impact review process, or his or her designee.

Findings. Prior to approving a project, the decision-making body is required by CEQA to make findings regarding the feasibility of mitigation measures and alternatives identified in the EIR.

"Guidelines" means the guidelines for implementation of CEQA, known as the State CEQA Guidelines, as prescribed by the Secretary for Resources of the state of California, and as developed by the State Office of Planning and Research.

Historic Property. "Historic property" are those properties that are designated City landmarks; are listed on the National Register of Historic Places, or as a California Registered Historical Landmark, or as a California Point of Historical Interest; are contributory to an S-7 Preservation Combining Zone pursuant to Section 17.84.010 of this Code; or have received an "A" or "B" rating by the Oakland Cultural Heritage Survey.

Ministerial Action. Ministerial describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying the project. The public official merely applies the law but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements. Common examples of ministerial permits include dog licenses, business licenses, and marriage licenses. See Section 17.158.180 for ministerial actions typically processed by the city.

Ministerial Project. A project that requires approval of one or more ministerial actions, including but not limited to those listed at Section 17.158.180, and does not require approval of any discretionary actions, including but not limited to those listed at Section 17.58.190.

Mitigation Monitoring Program. A "mitigation monitoring program" is used to ensure that the significant adverse environmental effects of a proposed project are avoided or reduced to a level of insignificance through the implementation of the mitigation measures recommended in the EIR or the mitigated negative declaration. The program provides a means for the city to verify that measures to mitigate project impacts are in place when the project is implemented.

"NEPA" means the National Environmental Policy Act.

"NHPA" means the National Historic Preservation Act. (See also "Section 106.")

"Notice of availability" means a brief notice that is attached to the released draft EIR. The notice shall invite response to the draft EIR, give final date for receiving such responses, advise to whom the responses shall be directed, and may provide other pertinent information for the environmental documentation of the proposed project.

"Notice of determination" means a brief notice which the city shall cause to be filed with the County Clerk after the city approves a private project or determines to carry out a public project which is subject to the requirements of CEQA.

"Notice of Exemption" means a brief notice which the city may cause to be filed with the County Clerk after the city approves a private project or determines to carry out a public project and has determined that the project is exempt from CEQA as being ministerial, categorically exempt, an emergency, or subject to another exemption from CEQA.

"Notice of preparation" means a brief notice sent by the city to notify the responsible agencies, trustee agencies, involved federal agencies, the immediately adjacent property owners and persons showing interest in the proposed project. The purpose of the notice is to solicit guidance from those agencies and individuals as to the scope and content of the environmental information to be included in the EIR.

"Private project" means a project sponsored by a person or entity other than a government agency.

Project. For CEQA purposes, "project" means the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately, as defined in Section 15378 of the State CEQA Guidelines. For the purposes of NEPA, Section 106, and other pertinent environmental laws and regulations, "project" shall have whatever meaning may be defined in those laws and regulations.

"Project sponsor" means the private individual, group or corporation, or independent public agency proposing the project and applying for city approval; in the case of a city project, the department or public officer responsible for the project.

"Public improvement by a private party (P-job)" means a public improvement constructed by a private party such as a sewer or street extension to serve new construction pursuant to Section 12.20.010 of the Oakland Municipal Code.

"Public project" means a project sponsored by a government agency, including but not limited to the city or the Redevelopment Agency of the city.

"Section 106" means Section 106 of the National Historic Preservation Act. (See also "NHPA.")

State CEQA Guidelines. See "Guidelines."

"Statement of overriding considerations" means a finding statement made by the decision-making body if it is determined that the benefits outweigh the unavoidable adverse environmental effects of a project. This statement of overriding consideration must be supported by evidence in the administrative record.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 11766 § 2 (part), 1994: prior planning code §§ 1022—1034) Article 1.3 - General Regulations

The provisions of this article inclusive, shall be known as the general regulations. The purpose of these provisions is to set forth certain regulations that shall apply to all provisions of the environmental review regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1060)

The Environmental Review Officer shall function as the official city repository for environmental review records, and as a clearinghouse for the receiving and processing of all environmental documents. The Environmental Review Officer shall maintain a library of all EIRs prepared by the city as lead agency, and all EIRs prepared by other public agencies as lead agency and referred to the city for comment. If and when

other city officers, departments, boards, or commissions receive environmental documents from other agencies, they shall advise the Environmental Review Officer and send a copy of the document and any response or comments they have made on the document to the Environmental Review Officer.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1070)

When a public agency other than the city refers a negative declaration, draft EIR, or other environmental document on a project to the city for review and comment, the Environmental Review Officer may comment directly to said public agency, or may choose to refer such comments, in cases when such project may have potentially significant impact on city goals and objectives or planning policies, or if the project is considered to be of a controversial nature, to the City Planning Commission or the City Council for action. The Planning Commission may in some cases choose to refer the matter to the City Council. The City Manager, or other officers and departments, may review and comment directly as well, except in those cases where the City Council has acted on the matter. All comments by city departments and officers shall be consistent with adopted city policies. In cases where a coordinated city response is deemed appropriate, the Environmental Review Officer shall be responsible for such coordination, unless the City Council, City Planning Commission, or City Manager designates another city officer or department to coordinate the response.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1080)

A.

Master Fee Schedule. Fees as shown in the master fee schedule are payable to the city to assist in covering processing costs at the time of filing of a request for each step of the environmental review process. For instance, when a project sponsor requests an exemption determination or environmental review, a fee is collected. If it is determined that an EIR is required, the city collects the EIR fee before beginning work on the EIR. The fee schedule may be revised by the City Council from time to time. Fees are charged for environmental determinations, initial studies, administration of EIR contracts, copies of environmental documents, public notification, challenges or appeals of any environmental determination, and any other environmental review matters as identified in the master fee schedule.

B.

Effect of Nonpayment of Fees. Processing of requests for exemption determinations, initial studies, and EIR preparation may be suspended for nonpayment of the appropriate fees, and any related permit application may be considered incomplete. Challenges and appeals shall not be considered timely if the appropriate fees are not paid prior to the deadline for such challenges or appeals.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1090)

Part 2 - California Environmental Quality Act ("CEQA") Procedures Article 2.1 - General Provisions

The provisions of this part shall be known as the California Environmental Quality Act procedures, and may be referred to as the city CEQA procedures. The purpose of these provisions is to provide a basis for implementation of the California Environmental Quality Act (CEQA) by the city as directed by Section 15022 et seq. of the State CEQA Guidelines. These provisions shall apply to all projects sponsored by the city or Redevelopment Agency, and to all private projects requiring any discretionary approvals from the city.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1100)

CEQA obliges every public agency and every citizen to take all action necessary to protect, rehabilitate and enhance the environment of California. Major consideration shall be given by the city to prevent environmental damage, both in making decisions on city projects and in regulating the activities of private individuals and corporations. The Oakland Policy Plan, a component of the Oakland Comprehensive Plan, contains three goals that relate to the purpose of these procedures: (1) To protect and improve Oakland's physical environment; (2) To conserve with care the open space and natural resources which will be needed by present and future generations; and (3) To recognize natural environmental hazards in planning for the city's future development. It is the policy of the city that consideration of environmental effects shall be incorporated into project conceptualization, design and planning at the earliest feasible time.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1110)

The Guidelines for implementation of CEQA as described in Section 15000 et seq. of the California Code of Regulations shall be followed by the city and are incorporated by reference into these procedures. Incorporation by reference shall include any revisions or amendments to CEQA or the State CEQA Guidelines. Section 15022 of said Guidelines requires cities to provide additional directions and information and these are provided in these environmental review regulations. Where a conflict between the Guidelines and these environmental review regulations exist, the Guidelines shall prevail.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1120)

Projects requiring only ministerial approvals are not subject to environmental review under CEQA, pursuant to Section 21080(b)(1) of CEQA and Section 15268 of the State CEQA Guidelines. Projects requiring any discretionary approvals may be subject to environmental review under CEQA unless otherwise exempt, pursuant to Section 21080(a) of CEQA, and Section 15002(i) of the State CEQA Guidelines. See also Sections 17.158.180 and 17.158.190 of these environmental review regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1130)

Ministerial actions typically processed by the City include, but are not limited to:

A.

Issuance of building, plumbing, mechanical, and electrical permits;

B.

Issuance of sign and banner permits;

C.

Issuance of sewer permits;

D.

Issuance of sidewalk, driveway, curb, and gutter permits;

E.

Issuance of ministerial demolition permits, as defined in Chapter 15.36 of the Oakland Municipal Code, except where either the demolition or replacement project requires any discretionary approvals, pursuant to Title 17 of the Oakland Planning Code;

F.

Issuance of reroofing permits;

G.

Issuance of pest control permits;

H.

Approval of individual utility service connections or disconnections;

I.

Approval of final subdivision maps;

J.

Approval of parcel map waivers, including lot line adjustments and lot combinations;

K.

Approval of design review exemptions, as defined in Chapter 17.136 of the Oakland Planning Code;

L.

Issuance of business licenses and payment of business taxes;

M.

Granting of permits by the Police and Fire Departments.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11766 § 2 (part), 1994: prior planning code § 1140)

Discretionary actions typically processed by the City include, but are not limited to:

A.

Certain approvals granted under the zoning regulations, including but not limited to:

1.

Conditional Use Permits;

2.

Small Project Design Review, as defined in Chapter 17.136 of the Oakland Planning Code;

3.

Special Project Design Review, as defined in Chapter 17.136 of the Oakland Planning Code;

4.

Regular Design Review, as defined in Chapter 17.136 of the Oakland Planning Code;

5.

Development Agreements;

6.

Planned Unit Developments;

7.

Rezonings;

8.

Variances.

B.

Certain approvals granted under the subdivision regulations, including but not limited to:

1.

Private access easements;

Tentative parcel maps;

3.

Tentative tract maps.

C.

Certain permits issued under other City codes, regulations, and ordinances, including but not limited to:

1.

Discretionary demolition permits, as defined in Chapter 15.36 of the Oakland Municipal Code, and as related to any demolition or removal of structures on a site where the zoning regulations requires design review to alter the exterior appearance of the applicable building facility, regardless of whether the owner intends to create a surface parking lot or a vacant lot pursuant to Section 15.36.080;

2.

Encroachment permits;

3.

Excavation permits;

4.

Grading permits;

5.

House moving permits;

6.

Obstruction permits;

7.

Permits for private construction of public improvements ("P-job" permits);

8.

Special activity permits issued by the City Administrator;

9.

Tree removal permits.

D.

Amendments to the zoning regulations, subdivision regulations, other codes and regulations governing the issuance of discretionary permits, or the Oakland General Plan.

E.

Projects sponsored or assisted by the City or the Redevelopment Agency.

(Ord. No. 13596, § 2(Exh. A), 6-2-2020; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. No. 13064, § 2(Exh. A), 3-15-2011; Ord. 12872 § 4 (part), 2008; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11766 § 2 (part), 1994: prior planning code § 1150)

17.158.200 - Decision on projects.

The City Planning Commission or other appropriate decision-making body shall not approve a project for which the environmental review process is required without following the procedures outlined below.

A.

Exempt Projects. If the project is exempt, some finding to this effect shall be included in the record. If action is by resolution, the resolution will typically contain a clause declaring that the project is exempt from the requirements of CEQA.

B.

Negative Declarations. If a negative declaration has been prepared, the decision-making body shall review this document and approve the negative declaration concurrently in approving the project's discretionary permit application. After making a decision, the decision-making body or its agent shall notify the Environmental Review Officer, to cause a Notice of Determination (NOD) to be filed with the County Clerk. If the project requires discretionary approval from any State agency, the Environmental Review Officer shall also cause the notice of determination to be filed with the State Office of Planning and Research. The filing of the notice of determination is a mandatory requirement under CEQA Guidelines Section 15075.

The NOD shall include the following information:

1.

A project identification including its common name and its location;

2.

A brief description of the project;

3.

The date of project approval;

4.

A statement of determination that the project would not have a significant effect on the environment;

A statement that a negative declaration or an environmental impact report has been prepared pursuant to the provisions of CEQA;

6.

The address and location where a copy of the negative declaration may be examined.

C.

Environmental Impact Report (EIR). If an EIR has been prepared, the decision-making body shall certify the final EIR before approving the discretionary permits for the project. However, no project for which an EIR was completed and certified, and which identifies one or more significant environmental effects shall be approved without making one or more findings for each of the identified significant environmental effects. Such findings shall be supported by substantial evidence in the record. The following possible findings are identified in CEQA Guidelines Section 15091:

1.

Changes or alterations have been required in, or incorporated into, the project which would avoid or substantially lessen the identified significant environmental effect as identified in the final EIR;

2.

Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the City. Such changes have been adopted by such other agency or can and should be adopted by such other agency;

3.

Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the final EIR.

Should a finding be made that mitigation measures are not feasible, the decision-making body shall adopt a "statement of overriding consideration" as described in CEQA Guidelines Section 15093.

4.

If the benefits of a proposed project outweigh the unavoidable adverse environmental effects, the environmental effects may be considered acceptable. The decision-making body shall state in writing the specific reasons to support its action based on the final EIR and/or information in the record. If a statement of overriding consideration is adopted, it should be identified in the notice of determination.

nefits of a proposed project outweigh the unavoidable adverse environmental effects, the environmental effects may be considered acceptable. The decision-making body shall state in writing the specific reasons to support its action based on the final EIR and/or information in the record. If a statement of overriding consideration is adopted, it should be identified in the notice of determination.

After making a decision, the decision-making body or its agents shall notify the Environmental Review Officer, who shall cause a Notice of Determination (NOD) to be filed with the County Clerk and if required, the State Office of Planning and Research.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 11766 § 2 (part), 1994: prior planning code § 1160)

17.158.210 - Time limits, extension or waiver of time limits.

The Review Officer shall have authority to extend or waive time limits as provided in the Guidelines. Such action is appealable to the City Planning Commission within ten (10) days of the Review Officer's decision. The decision of the City Planning Commission is final. However, failure to adhere to the prescribed time limits, shall not in and of itself, prejudice the city from requiring appropriate environmental review.

A.

Review of Application for Completeness. At the time the city receives an application for a permit or other entitlement that requires discretionary review, the city will have thirty (30) days to review the application for completeness of required information for environmental determination. As noted in Section 15101 of the CEQA Guidelines, if no written determination of the completeness of the application is made within that period, the application will be deemed complete on the thirtieth day. The running of CEQA processing time periods should begin on the same date as the permit processing time limits.

B.

Initial Study. The Environmental Review Officer or his/her representative shall determine within thirty (30) days after receiving an application as complete whether the Environmental Review Officer will direct that a negative declaration or an EIR, or a previously prepared negative declaration or an EIR may serve as

environmental documentation for the proposed project. The thirty (30) day time limit may be extended fifteen (15) days upon the consent of the Environmental Review Officer and the project sponsor (CEQA Guidelines Section 15102).

C.

Negative Declarations. The negative declaration must be completed within one hundred five (105) days from the date that the Environmental Review Officer or his/her representative has determined that the application is complete. CEQA Guidelines Section 15107 states that this statutory requirement applies to private sponsored projects only.

D.

Notice of Preparation. Upon completion of an initial study, and it is determined that an EIR is required, a notice of preparation shall be prepared. All responsible and trustee agencies, interested individuals and organizations shall have thirty (30) days after receipt of the notice to respond and comment on the scope of project environmental effects.

E.

Environmental Impact Report. With respect to private projects, the preparation and certification of the final EIR shall be completed within one-year of the date that an application is accepted as complete. Upon the mutual consent of both the Environmental Review Officer and the project sponsor, this one-year time limit may be extended once for a period of not more than ninety (90) days (CEQA Guidelines Section 15108).

F.

Projects Subject to CEQA and NEPA. If a project is subject to both CEQA and NEPA environmental processing, the one-year time limit for the preparation of an EIR, and the one hundred five (105) day time

limit for a negative declaration may be waived under certain conditions as discussed in Section 15110 of the CEQA Guidelines. Specifically, this time limit waiver shall apply when additional time is needed to prepare a combined EIR/EIS or combined negative declaration/FONSI, and if the time to prepare the combined documents would be shorter than the time required to prepare the documents separately.

G.

Statute of Limitations. As stated in Section 15112 of the CEQA Guidelines, the statute of limitations for environmental documents are as follows:

(a)

Notice of exemption: thirty-five (35) days after the filing of the notice with the County Clerk.

(b)

Notice of determination: thirty (30) days after filing of the notice and the posting of the notice by the County Clerk, and/or the State Office of Planning and Research.

(c)

If neither a notice of exemption nor a notice of determination has been filed with the appropriate agency, the statute of limitations shall be for one hundred eighty (180) days after the decision-making body's decision on the proposed project.

The statute of limitations are not waiting periods for the project sponsor. Therefore, the project sponsor may proceed at their own risk of possible legal challenge, to carry out the project as soon as the necessary and required permits for the project have been granted by the appropriate permit-granting agencies.

H.

Suspension of Time Periods. As authorized by Section 15109 of the CEQA Guidelines, the Environmental Review Officer may suspend the running of the time period for the preparation of negative declarations and EIRs, if the Environmental Review Officer or his/her representative determines that the project sponsor has caused an unreasonable delay in meeting requests for information or collection of required fees.

In addition, the Planning Commission may disapprove a project application without prejudice, if there is an unreasonable delay in meeting requests for additional information or other indications of unresponsiveness that would affect the timely and expeditious preparation of the environmental documentation for the project.

The Environmental Review Officer will allow the project sponsor no more than three months to respond before a recommendation may be made to the City Planning Commission to disapprove the project without prejudice. Requests for information to the project sponsor or his/her representatives shall be made in written form, and at least one written notice sent by registered mail to the project sponsor shall be sent a minimum of two weeks before the three-month time limit ends, to allow the project sponsor time to respond. The Environmental Review Officer will allow a renewed application submitted with new fees, to start at the same point where the project was suspended or disapproved without prejudice provided the project description has not been substantially altered and will not increase the adverse environmental

effects of the project as compared with the project that was disapproved without prejudice. If after a oneyear period after the proposed project application has been denied without prejudice, and the project sponsor has not taken steps to re-initiate processing of the environmental documentation for the proposed project, the environmental review file will be closed permanently. Any subsequent resurrection of the proposed project will be treated as a new project and require submittal of a new application and collection of new fees.

(Ord. No. 13172, § 3(Exh. A), 7-2-2013; Ord. 11766 § 2 (part), 1994: prior planning code § 1170)

The following are administrative appeals or challenges of environmental determinations made by the Environmental Review Officer, or by his or her representative. Legal challenges to the adequacy of environmental determinations are described in Section 17.158.210G. Failure to administratively appeal may limit the issues that one may raise in another administrative level or in a legal challenge in a court of law. The process governing appeals/challenges is illustrated in Figure 1. However, this text takes precedence over the figure.

A.

Any determination of exemption, except those made by a final decision-making body, may be appealed in writing and with the appropriate fee according to the master fee schedule to the City Planning Commission, prior to the close of the public comment period on the underlying permits/decision. The determination of the City Planning Commission shall be final.

B.

Initial Study. The determination of the Environmental Review Officer may be appealed by the project sponsor, in writing and with the appropriate fee as found in the master fee schedule, within twenty-one (21) days from the day the project sponsor has been notified, to the Planning Commission, whose decision shall be final.

C.

Negative Declaration. The negative declaration notice shall invite written challenges to the finding of no significant effect. Such written challenges shall be submitted with the appropriate challenge fee, as shown on the current master fee schedule. The challenge shall run concurrently with the twenty-one (21) or thirty (30) day public review period for the negative declaration notification. The City Planning Commission shall consider any and all such challenges, and may reject them or may direct that an appropriate environmental document be prepared (e.g., environmental exemption, mitigated negative declaration, negative declaration, or environmental impact report). The City Planning Commission's decision shall be final.

D.

Determination of Need For an Environmental Impact Report. The Environmental Review Officer's determination that the preparation of an EIR is necessary may be appealed by the project sponsor, in writing and with the appropriate fee in the master fee schedule, within twenty-one (21) days of the project sponsor's receipt of this environmental determination. The City Planning Commission shall consider such

appeal and may reject or direct that an appropriate environmental document be prepared. The City Planning Commission's decision shall be final.

E.

Notwithstanding any provisions to the contrary, although the environmental determination of the City Planning Commission is final, where another decision-making body must approve the project itself, that decision-making body must make an environmental determination prior to taking action on the project.

F.

Certification of an Environmental Impact Report. The certification of the EIR by the City Planning Commission may be appealed in writing and with the appropriate fee as found in the master fee schedule, to the City Council within ten days from the City Planning Commission decision to certify the EIR. The City Council shall retain jurisdiction to determine whether the EIR shall be certified.

(Ord. 11766 § 2 (part), 1994: prior planning code §§ 1180—1186)

Article 2.2 - Exemption Process

The provisions of this article shall be known as the exemption process. The purpose of these provisions is to prescribe the procedure for making, appealing, and processing determinations of exemption from environmental review under CEQA. This process shall apply to all projects which are determined to be exempt from environmental review under CEQA.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1200)

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For a public project, any city body or officer may make a finding that an action is not subject to environmental review, consistent with the provisions of these procedures. The Environmental Review Officer or his/her representative, the Environmental Review Coordinator, may be requested to make or to confirm such finding by forwarding to him or her a request for determination of exemption from environmental review on a form prescribed by the City Planning Department. In evaluating a proposed activity to determine if there is no possibility that the activity may have a significant effect on the environment, the overall consequences of the city's discretionary action shall be considered, including direct and indirect results.

For a private project, the project sponsor shall submit a request for determination of exemption from environmental review on a form prescribed by the Environmental Review Officer and the appropriate fee according to the master fee schedule. In evaluating a proposed activity to determine if there is no possibility that the activity may have a significant effect on the environment, the overall consequences of

the discretionary action shall be considered, including direct and indirect results. Should the project sponsor believe that the proposed project is not an exemptible project, the project sponsor may prepare and submit a request for environmental review. The process for this step is discussed in Section 17.58.320A of these Environmental Review Regulations.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1210)

Any determination of exemption except those made by a final decision-making body, may be appealed to the City Planning Commission as set forth in Section 17.158.220A.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1220)

17.158.260 - Notice of exemption.

Following approval of an exempt project, the Environmental Review officer may be responsible for preparing a notice of exemption, and may cause the notice of exemption and any pertinent fees to be filed with the County Clerk.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1230)

17.158.270 - Considerations in making exemption determinations.

A.

Applicability to Overall Project. When determining whether a particular action or permit is exempt from environmental review, the overall project to which the action or permit is related shall be considered, and the exemption criteria shall be applied to the overall project, not the individual action or permit. If the project is determined to be exempt, all actions and permits related to it shall likewise be deemed exempt. If the project is determined not to be exempt, a single environmental review shall be performed covering all actions and permits related to the project, and none of those actions or permits shall be finalized or issued until environmental review is performed. For example, an easement abandonment for the purpose of constructing a small addition to an existing house would probably be exempt, but a similar easement abandonment for the purpose of constructing a ten-unit apartment building probably would not be exempt.

B.

Applicability of Single and Multiple Exemptions. A project may be subject to more than one exemption from CEQA, in which case all applicable exemptions may be cited. If it is determined that a particular exemption does not apply to a project because of the qualifiers pertaining to that exemption, the project may still be exempt under another exemption. For example, a project involving grading and the construction of a new single- family home on a site with a fifteen (15) percent slope would not be exempt under Categorical Exemption Class 4, "Minor Alterations to Land," because of the qualifier that the slope be less than ten percent, but could still be exempt under Categorical Exemption Class 3, "New Construction or Conversion of Small Structures," because that class has no qualifier pertaining to slope. However, the "rule of reason" must be applied when considering possible multiple exemptions. For example, it would not be reasonable

to exempt a five hundred (500) unit subdivision on a flat site under Class 4 because the project involved grading on a slope of less than ten percent.

(Ord. 12776 § 3, Exh. A (part), 2006: Ord. 11766 § 2 (part), 1994: prior planning code § 1240)

Section 15022(a)(1)(c) of the State CEQA Guidelines requires cities to list those specific activities that are considered to be within the twenty-nine (29) classes of categorical exemptions listed in Article 19 of the Guidelines, provided that none of the exceptions to categorical exemptions identified in Guidelines Section 15300.2, nor any of the qualifiers listed in the individual exemption classes in Sections 15301 through 15329, inclusive, of the State CEQA Guidelines, apply. These activities include but are not limited to the following:

A.

New Construction or Conversion of Small Structures.

1.

Three or fewer single-family homes (Section 15303(a), Class 3).

2.

Apartments with six or fewer units in a single structure (Section 15303(b), Class 3).

3.

Nonresidential buildings with a legal occupant load of thirty (30) persons or less as determined in accordance with the provisions of the Oakland Building Code (Section 15303(c), Class 3).

4.

Utility extensions to serve such construction (Section 15303(d), Class 3).

5.

Accessory structures including but not limited to garages, carports, patios, swimming pools, and fences (Section 15303(e), Class 3).

B.

Additions and Alterations.

1.

Minor interior or exterior alterations to existing structures (Section 15301(a), Class 1).

2.

Additions of ten thousand (10,000) square feet or less to existing structures (Section 15301(e), Class 1).

Seismic retro-fitting of buildings and structures (Section 15302, Class 2).

4.

Minor addition to schools (Section 15314, Class 14).

C.

Condominium Conversions.

1.

Conversion of existing multiple-family residential rental units into condominiums (Section 15301(k), Class 1).

2.

Conversion of existing commercial units in one structure from single to condominium type ownership (Section 15301(o), Class 1).

D.

Subdivision Matters.

1.

Tentative parcel maps for four or fewer lots (Section 15315, Class 15).

2.

Parcel map waivers (Section 15305(a), Class 5).

3.

Private access easements (Section 15305, Class 5).

E.

Tree Removal Permits.

1.

Nondevelopment related tree removal permits (Section 15301(h), Class 1).

2.

Development related tree removal permits if no single tree to be removed has a diameter at breast height of thirty-six (36) inches or greater, and the cumulative trunk area of all trees to be removed, not including hazardous trees, does not exceed 0.1 percent of the total lot area (Section 15304, Class 4).

F.

Other Development Permits.

1.

Encroachment permits (Section 15305(b), Class 5).

2.

Abandonment of public easements (Section 15305, Class 5).

3.

Grading, excavation, and obstruction permits for new construction projects listed in subsection A of this section (Section 15303, Class 3).

4.

Grading, excavation, and obstruction permits for additions and alterations listed in subsection B of this section (Section 15301, Class 1).

G.

Demolition of Nonhistoric Structures.

1.

Three or fewer single-family homes (Section 15301(I)(1), Class 1).

2.

Apartments with six or fewer units in a single structure (Section 15301(I)(2), Class 1).

3.

Nonresidential buildings with a legal occupant load of thirty (30) persons or less as determined in accordance with the provisions of the Oakland Building Code (Section 15301(I)(3), Class 1).

4.

Accessory structures including but not limited to garages, carports, patios, swimming pools, and fences (Section 15301(I)(4), Class 1).

H.

Land and Housing Acquisition.

1.

Land acquisition for open space (Sections 15315, 15316, 15317, or 15325; Classes 15, 16, 17, or 25 respectively).

Land acquisition for construction of three or fewer single-family homes for low and moderate income households (Section 15303, Class 3).

3.

Sales of surplus public property (Section 15312(a)(b)(1)(2)(3), Class 12).

4.

Annexations of areas containing existing public or private structures developed to densities allowed by the current zoning or pre-zoning; provided, that extension of utility services would have a capacity to serve only the existing facilities (Section 15319(a)(b), Class 19).

5.

Leasing of space by the city (Section 15327, Class 27).

6.

Acquisition of housing for housing assistance programs (Section 15326, Class 26).

I.

Minor Projects in Public Rights-of-Way.

1.

Construction of handicap ramps on public rights-of-way (Section 15301(c), Class 1).

2.

Installation of new traffic signalization equipment (Section 15301(c), Class 1).

3.

Easement abandonments (Sections 15301, 15305, or 15312; Classes 1, 5, or 12 respectively).

4.

Street vacations (Sections 15301, 15305, or 15312; Classes 1, 5, or 12 respectively).

J.

Signs and Accessory Structures.

1.

On-premise signs, including those encroaching into the public right of way if permitted by applicable city codes (Section 15311(a), Class 11).

Surface parking lots of no more than sixty thousand (60,000) square feet that are accessory to existing commercial, industrial, or institutional facilities (Section 15311(b), Class 11).

3.

Temporary or moveable facilities such as vending carts, sidewalk tables and chairs, newspaper racks, and portable restrooms (Section 15311(c), Class 11).

K.

Information Collection.

1.

Planning and zoning studies for information gathering purposes only (Section 15306, Class 6).

L.

Public Gatherings.

1.

Public gatherings such as the Festival at the Lake (Section 15323, Class 23).

M.

Energy Plants.

1.

Installation of cogeneration equipment meeting the conditions as described in Section 15329 of the CEQA Guidelines (Section 15329(a)(1)(2), (b)(1), (2), (3), Class 29).

(Ord. 11766 § 2 (part), 1994: prior planning code § 1250)

As described in Section 15260 through Section 15277, inclusive, of the CEQA Guidelines, there are statutory exemptions to CEQA granted by the State Legislature. The purpose of statutory exemptions is to excuse the environmental review process for an entire class of projects. This is in contrast to categorical exemptions where there may be exceptions cited if the proposed project would otherwise have a potentially adverse environmental effect. The list and description of statutory exemptions is not a comprehensive listing as cited in CEQA or the CEQA Guidelines, but rather, it is a list of those that are pertinent to the city. Omission of statutory exemptions that are found in CEQA and the CEQA Guidelines, do not void their appropriate application to specific projects in instances shown below. Therefore, statutory exemptions are described but not limited to those below:

A.

Ongoing Project.

1.

If a public project was approved prior to November 23, 1970, the project shall be exempt from CEQA unless a substantial portion of public funds allocated for the project have not been spent, making it feasible to modify the project or in some other way mitigate potentially adverse environmental effects. An ongoing project may also be subject to CEQA if there are modifications to the project in such a way that there may be new significant effect on the environment (Section 15261(a)(1)(2)).

2.

A private project is exempt from CEQA if the project received an entitlement for use from a public agency prior to April 5, 1973, unless after April 5, 1973, the project received additional discretionary governmental approvals that involve a greater degree of responsibility or control over the project as a whole than did the approvals of entitlements prior to April 5, 1973 (Section 15261(b)(1) (2)(3)).

B.

Feasibility and Planning Studies. Feasibility and planning studies for possible future actions which have not been approved, adopted, or funded are exempt. However, the study should still require environmental consideration. This statutory exemption would not apply to the adoption of a plan that will have a legally binding effect on later activities. For example, the adoption of the Oakland general plan would be subject to CEQA, and an EIR should be prepared (Section 15262).

C.

General Plan Time Extension. The granting of a time extension by the State Office of Planning and Research to the city for the preparation and adoption of one or more elements of the general plan would be statutorily exempt (Section 15266).

D.

Ministerial Projects. Ministerial projects as defined by Section 17.158.090, and described in Section 17.158.180, are exempt from the requirements of CEQA (Section 15268).

E.

Emergency Projects. The following projects are defined as emergency projects and not subject to CEQA:

1.

Projects to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster stricken area in which a state of emergency has been proclaimed by the Governor pursuant to the California Emergency Services Act (Section 15269(a)).

2.

Emergency repairs to public service facilities necessary to maintain service (Section 15269(b)).

Specific actions necessary to prevent or mitigate an emergency (Section 15269(c)).

F.

Projects Which are Disapproved. This statutory exemption allows disapproval on the merits of a project prior to the initiation of the CEQA process, where the city can clearly see that findings for the project cannot be made (Section 15270(a)(b)(c)).

G.

Specified Mass Transit Projects. The institution or increase of passenger or commuter service on rail lines or high-occupancy vehicle lanes already in use, including the modernization of existing stations and parking facilities; facility extensions not to exceed four miles in length which are required for transfer of passengers from or to exclusive public mass transit guideway or busway public transit services (Section 15275(a)(b)).

H.

Railroad Grade Separation Projects. Railroad grade projects which eliminate an existing grade crossing or which reconstruct an existing grade separation (Section 21080.13).

I.

Restriping of Streets or Highways. Projects for restriping of streets or highways to relieve traffic congestion (Section 21080.19).

J.

Right-of-Way. Projects of less than one mile in length within a public street or highway, or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline (Section 21080.21).

(Ord. 11766 § 2 (part), 1994: prior planning code § 1260)

17.158.300 - General rule exemptions.

As authorized by Section 15061(b)(3) of the CEQA Guidelines, the Environmental Review Officer, or his/her representative may determine that although a project may not be statutorily or categorically exempt from CEQA, a preliminary review can with reasonable certainty show that there is no possibility that a project may have a significant effect on the environment. Therefore, the project would not be subject to CEQA.

The general rule would apply where it can be plainly seen without an initial study that a proposed project would not exceed the critical thresholds for adverse environmental effects. For example, in the case of a zoning change where the new zoning classification is at least as restrictive or more restrictive as the existing zoning classification for an area. Such a condition would occur if an area were downzoned from a multifamily zoning classification to a single-family zoning district.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1270)

Article 2.3 - CEQA Environmental Review Process

The provisions of this article shall be known as the environmental review process. The purpose of these provisions is to prescribe the procedures for preparing and processing CEQA environmental documents, including initial studies, negative declarations, mitigated negative declarations, and environmental impact reports. This process shall apply to all projects which are determined to require environmental review under CEQA.

(Ord. 11766 § 2 (part), 1994: prior planning code § 1300)

17.158.320 - CEQA environmental review process.

The following description of the environmental review process is illustrated by Figure 2, Environmental Review Process Under CEQA.

A.

Request for Environmental Review. If after review of a request for determination of environmental exemption the Environmental Review Officer finds that a project is not exempt, or it can be clearly seen by a project sponsor that a public or private project is not exempt, a request for environmental review and fee shall be submitted and shall be accompanied by information which, in the judgment of the environmental review officer, is sufficient to permit completion of an initial study. Consistent with Section 15102 of the CEQA Guidelines, the Environmental Review Officer shall determine within thirty (30) days after accepting an application as complete whether the city intends to prepare an EIR or a negative declaration or use a previously prepared EIR or negative declaration. However, failure to determine whether an EIR or negative declaration is needed within the required time frame shall in no way prejudice the city from requiring such documents. This thirty (30) day period may be extended fifteen (15) days upon the mutual consent of the city and the project applicant. Typically, the information needed to prepare an initial study may include but may not be limited to the following:

1.

Project description;

2.

Statement of project objectives;

3.

Site plan and elevations;

4.

Preliminary drainage plan;

Preliminary grading plan;

6.

Preliminary landscaping plan;

7.

Completed environmental checklist form.

B.

Initial Study. Initial study of the environmental effects of the project shall be conducted by the Environmental Review Officer or the Environmental Review Coordinator using a comprehensive checklist form authorized by the Environmental Review Officer. An initial study need not be prepared if the Environmental Review Officer, after preliminary review, determines that the project clearly may have a significant effect on the environment and that an EIR should be prepared (CEQA Guidelines Section 15060(c)). The determination of the Environmental Review Officer that an EIR is required may be appealed by the project sponsor as described in Section 17.158.220B.

C.

Thresholds of Significant Environmental Impact. The Environmental Review Officer may prepare criteria for assessing significant adverse environmental impact thresholds, that the City Planning Commission may adopt to serve as guidelines for determining the levels of significant effects on the environment. As guiding standards, the threshold criteria would be used to provide information in evaluating the environmental effects of a project, and to assist in determining whether a proposed project would be exempt or require additional environmental review.

(Ord. 11766 § 2 (part), 1994: prior planning code §§ 1310—1313)

If the Environmental Review Officer determines on the basis of the initial study that the project will not have a significant effect on the environment, a negative declaration shall be prepared.

==> picture [384 x 616] intentionally omitted <==

When a project would require federal funding or federal agency approvals, a joint CEQA/NEPA environmental document may be prepared to satisfy the requirements of both federal and state environmental standards. A notice of finding of no significant impact (FONSI) prepared for the project to meet National Environmental Policy Act (NEPA) requirements may serve as a valid substitute for a negative

declaration required under CEQA; provided, that the procedures for the preparation of a negative declaration listed below are satisfied.

1.

The Environmental Review Officer shall have notices posted consistent with the notification requirements as prescribed by Sections 17.134.040A and B, 17.136.040, 17.140.030, 17.142.030, 17.144.060 and 17.148.040A and B of the Oakland Zoning Regulations. The notice shall advise interested citizens that a negative declaration has been prepared. The notification of responsible and trustee agencies, private individuals, and property owners shall be consistent with notification for discretionary action on other related permits for the project. When the project has no identifiable site, such notices shall be substituted by a notice published one time in a newspaper of general circulation. The Environmental Review Officer may use additional means of notification, such as prescribed by Section 17.130.020 of the Oakland Zoning Regulations.

2.

A period of at least twenty-one (21) calendar days following the date the notices are placed at the site or published in the newspaper shall be allowed for response prior to action on the negative declaration by the decision-making body. However, when a negative declaration has been submitted to the State Clearinghouse, the review period shall be at least as long as that of the Clearinghouse (normally thirty (30) days). Negative declarations, as well as draft EIRs are submitted to the State Clearinghouse when one or more state agency would have either permit approval, or trustee status for natural resources affected by the proposed project.

3.

A notice that the city proposes to adopt a negative declaration shall be forwarded to interested persons or parties as specified in the Guidelines Section 15072 et seq. In addition, it shall be forwarded to members of the City Planning Commission; if the project is subject to approval by the Planning Commission, this may be done at the same time the Commission is sent the staff report on the project application. The Environmental Review Officer will notify any public agency and private individual which commented on the negative declaration, of the public hearings on the project for which the negative declaration was prepared.

4.

The negative declaration notice shall invite written challenges to the finding of no significant effect as set forth Section 17.158.220C. If the negative declaration is forwarded to the State Clearinghouse, it shall also be accompanied by a "notice of completion and environmental document transmittal form."

5.

At the conclusion of the public comment and challenge period, the negative declaration shall be signed and dated by the Environmental Review Officer, declaring that the document has been prepared in accordance to CEQA, the CEQA Guidelines, and these environmental review regulations. If challenges were received during the public comment period, and such challenges were rejected by the City Planning Commission, the Planning Commission shall have the Environmental Review Officer attach an explanation for the rejection to the negative declaration.

6.

The Environmental Review Officer shall forward the negative declaration to the appropriate sponsoring department for public projects, or to the project sponsor for a private project, for the project sponsor to forward to the decision-making body which has jurisdiction for approving or denying the project.

7.

Decision on the project shall take place as outlined in Section 17.158.200.

B.

Preparation of a Mitigated Negative Declaration. If the initial study identified potentially significant environmental effects, but revisions to the proposed project plans or proposals made by or agreed to by the project sponsor would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur, and there is no substantial evidence before the Environmental Review Officer that the project as revised may have a significant effect on the environment, then the Environmental Review Officer may have prepared a mitigated negative declaration. In addition, a mitigated negative declaration may be prepared in the event a negative declaration is prepared and subsequently challenged, or if the Planning Commission decides prior to a decision on the project to require a mitigated negative declaration. The following procedures would apply.

e environment, then the Environmental Review Officer may have prepared a mitigated negative declaration. In addition, a mitigated negative declaration may be prepared in the event a negative declaration is prepared and subsequently challenged, or if the Planning Commission decides prior to a decision on the project to require a mitigated negative declaration. The following procedures would apply.

If there are mitigation measures that can be readily identified by the Environmental Review Officer or his/her representative, that can clearly reduce or avoid the significant adverse environmental effects that were identified in the initial study or through the public comment period, the Environmental Review Officer will recommend that the project sponsor agree to incorporate the mitigation measures into the proposed project. A written letter identifying the mitigation measures will be sent to the project sponsor. The project sponsor will have fourteen (14) days upon receipt of the letter, to respond to the Environmental Review Officer indicating agreement to incorporate the mitigation measures into the proposed project. Upon the mutual agreement between the Environmental Review Officer or his/her representative, and the project sponsor, the project sponsor may be given a reasonable extension of time to consider the incorporation of the identified mitigation measures, provided the project sponsor has requested the time extension with the fourteen (14) day response period. If within the fourteen (14) day period, the project sponsor either refuses to the terms of the letter, or does not respond within the time frame, the Environmental Review Officer will make a determination that an EIR would be required for the project. The procedures for preparing an EIR as outlined in this statement would then apply.

If however, the project sponsor agrees to the mitigation measures necessary to avoid or reduce the identified significant environmental effects to a level of insignificance, the mitigated negative declaration should be processed as outlined by steps 1 through 7 for a negative declaration as described in Section 17.158.330.

(Ord. 11766 § 2 (part), 1994: prior planning code §§ 1400—1402)

17.158.340 - Preparation of environmental impact reports.

A.

Preparation of Draft EIR. If it is determined that the proposed project may have a significant effect on the environment, an EIR shall be prepared. Such determination may be made by the Environmental Review Officer during the preliminary review of the project, or after the preparation of an initial study. The City Planning Commission or the City Council may also call for the preparation of an EIR. The project sponsor may appeal the determination by the Environmental Review Officer to prepare an EIR to the City Planning Commission as set forth in Section 17.158.220B.

made by the Environmental Review Officer during the preliminary review of the project, or after the preparation of an initial study. The City Planning Commission or the City Council may also call for the preparation of an EIR. The project sponsor may appeal the determination by the Environmental Review Officer to prepare an EIR to the City Planning Commission as set forth in Section 17.158.220B.

When the Environmental Review Officer has collected the EIR fee from the project sponsor, the Environmental Review Officer shall send via U.S. mail to each responsible agency a notice of preparation (NOP) stating that an EIR will be prepared. The NOP will be sent via U.S. mail to all responsible and trustee agencies, all surrounding communities who share a border with the city, individuals, organizations who have expressed an interest in the project or in projects in their areas of concern and interest, and owners of property which share a boundary with the site of the proposed project. The Environmental Review Officer shall have notices posted consistent with the notification requirements as prescribed by Sections 17.134.040A and B, 17.136.040, 17.140.030, 17.142.030, 17.144.060 and 17.148.040A and B of the Oakland Zoning Regulations. When the project has no identifiable site, such notices shall be substituted by a notice published one time in a newspaper of general circulation. The Environmental Review Officer may use additional means of notification, such as prescribed by Section 17.130.020 of the Oakland Zoning Regulations.

B.

The NOP shall contain sufficient information describing the proposed project and the potential environmental effects identified by the city. At a minimum, the NOP shall include the following information:

1.

Description of the project area;

2.

Location of the project as shown on a map;

3.

Probable environmental effects of the proposed project.

All agencies, organizations and individuals shall have thirty (30) days after receiving the NOP to respond with specific detail about the scope and content of the environmental information to be contained in the draft EIR.

When one or more state agency will be either a responsible or trustee agency, the Environmental Review Officer will have the NOP sent to the State Clearinghouse. The State Clearinghouse will ensure that the state agencies reply to the city within the required time.

If a project would require federal agency funding or approval, the project will also need to comply with the federal NEPA requirements or procedures in addition to CEQA requirements. An environmental impact statement (EIS) prepared for the project to meet NEPA requirements may be substituted for the CEQA-

required EIR provided that the EIS, or a combined EIR/EIS must comply with NEPA and CEQA statutory requirements.

C.

The following are the minimum procedures for the preparation of an draft EIR, and may be supplemented as necessary by the Environmental Review Officer:

1.

Pre-Qualification Procedure. The Director of City Planning shall prepare a standardized procedure for the selection of qualified environmental consultants.

2.

Preparation of the Administrative Draft of the Draft EIR. The environmental consultant shall prepare an administrative draft of the draft EIR (ADEIR). The ADEIR is an internal document to be comprehensively reviewed by the city to ensure the adequacy of the environmental document to meet the objectives of CEQA, the CEQA Guidelines, and this statement. When the Environmental Review Officer or his/her representative, is satisfied that the document represents, in his or her judgment, an accurate and complete draft EIR, and that it is ready for public review, he or she shall sign a declaration to this effect which shall constitute the top sheet of the released report. The declaration shall invite responses to the report, give the final date for receipt of such responses, advise to whom responses shall be addressed, and provide other pertinent information. At this time, the draft EIR is released for public review and comment, and the project sponsor may also review and comment on the draft EIR.

D.

Public Review of Draft EIR. A period of no less than thirty (30) days following the release of the draft EIR by the Environmental Review Officer shall be allowed for public review of the draft EIR. If the State Clearinghouse is involved, the review period shall be at least forty-five (45) calendar days. The State Clearinghouse shall be involved if one or more state agency would have jurisdiction by law with respect to the proposed project, or if the environmental effects of the proposed project would have statewide, regional or areawide significance according to the criteria set forth in Section 15206 of the CEQA Guidelines. The review period shall begin when the site has been posted or a notice has been published as specified below.

1.

The Environmental Review Officer shall have notices posted consistent with the notification requirements as prescribed by Sections 17.134.040A and B, 17.136.040, 17.140.030, 17.142.030, 17.144.060 and 17.148.040A and B of the Oakland Zoning Regulations, to advise interested persons that a draft EIR has been prepared and that comments are invited. Notices of Availability shall advise interested citizens that a draft EIR has been prepared. The notification of responsible and trustee agencies, private individuals, and property owners shall be consistent with notification for discretionary action on other related permits for the project. When the project has no identifiable site, such notices shall be substituted by a notice published one time in a newspaper of general circulation. The Environmental Review Officer may use additional means of notification, such as prescribed by Section 17.130.020 of the Oakland Zoning Regulations.

The Environmental Review Officer shall provide a copy of the draft EIR to:

a.

Project sponsor.

b.

Each member of the City Planning Commission.

c.

All persons and organizations who have requested it.

d.

The Oakland Main Library and, if appropriate, the branch library closest to the site of the project.

e.

Other state, regional or local agencies, which have jurisdiction by law and/or special expertise with respect to the environmental characteristics of the project or the project location, as specified in the CEQA Guidelines Section 15087(f).

The city may charge and collect a reasonable fee for each copy of the draft EIR to recover actual costs for reproduction of the document as allowed under CEQA Guidelines Section 15045.

3.

The City Planning Commission may schedule and conduct a public hearing on the draft EIR. CEQA Guidelines Section 15087 states that public hearings are encouraged, but not required as an element of the CEQA public participation process.

E.

Preparation of Final EIR. The final EIR shall consist of the draft EIR, summary or verbatim comments and recommendations received during the public comment period on the draft EIR; a list of persons, organizations and public agencies commenting on the draft EIR; the responses of the lead agency to significant environmental points raised in the review and consultation process (Section 15132 of the CEQA Guidelines).

After a final EIR has been prepared, it shall be forwarded to the City Planning Commission for certification. Such certification shall be deemed to be a finding that the document has been prepared in compliance with CEQA, the CEQA Guidelines, and this statement. In addition, the City Planning Commission shall also certify that the final EIR reflects the independent judgment of the city. Certification of the final EIR does not imply that the City Planning Commission endorses the proposed project, nor that the permit application(s) for the project will be approved. The final EIR shall be prefaced by a signed cover sheet carrying this certification. The cover sheet shall also note that the preparation of the final EIR has been overseen by the

Environmental Review Officer or his/her representative, and that the conclusions and recommendations in the document represent the independent conclusions and recommendations of the city.

1.

The Environmental Review Officer shall forward the final EIR to the City Planning Commission, or to the appropriate decision-making body in the city.

2.

Decision on the project shall take place as outlined in Section 17.158.200.

F.

Mitigation Monitoring Program. CEQA, as amended by AB 3180 requires local agencies to establish a monitoring program to ensure that the measures to mitigate the environmental impacts of approved projects are implemented. The purpose of the mitigation monitoring program is to ensure that all significant environmental impacts identified in the environmental documentation that can be mitigated, will indeed be mitigated after the project is approved.

AB 3180 requires local agencies to establish a monitoring program to ensure that the measures to mitigate the environmental impacts of approved projects are implemented. The purpose of the mitigation monitoring program is to ensure that all significant environmental impacts identified in the environmental documentation that can be mitigated, will indeed be mitigated after the project is approved.

For a project for which a mitigated negative declaration or an EIR has been certified, at the time the project is approved, the mitigation measures will be compiled into a checklist form. The checklist will identify the agency responsible for ensuring that the mitigation measure is implemented. The Environmental Review Officer or his representative will provide a mitigation monitoring compliance form to each agency identified on the checklist form. The compliance form will identify the mitigation measure, and allow spaces for compliance date, and inspection or field survey dates. The compliance form shall be returned to the Environmental Review Officer when the mitigation measures have been implemented.

(Ord. 11766 § 2 (part), 1994: prior planning code §§ 1500—1505, 1510)