Chapter 17.39 — NOISE CONTROL

The purpose of this chapter is to promote and preserve the peace and tranquility characteristic of a semirural environment while accommodating reasonable activities which tend to produce noise by regulating the days, hours and sources of such activities. There is a substantial personal and economic benefit for the general public in such regulations, since without effective regulation excessive noise has a detrimental effect on the health and well-being of those living and working within earshot of such noise and it adversely impacts the value of real property in the vicinity.

(Ord. 04-03 § 3 Exh. A (part))

No person shall cause or permit noise on property owned, leased, occupied or otherwise in the control of that person which exceeds sixty (60) decibels as measured at a listening point on any other property, with the following exceptions:

A.

Specified Activities. Construction, yard maintenance and golf course maintenance activities which occur during the times specified in this chapter are exempt from the sixty- (60) decibel limit.

B.

Amplified Sound at Private Clubs. Decibel limits set forth in Section 17.39.7 shall prevail over this general decibel limit.

C.

Community Events. This limitation shall not apply to community events open to the general public, such as concerts in the park and other events sponsored by the city or the local school districts.

(Ord. 04-03 § 3 Exh. A (part))

A.

Intent. The purpose of this section is to regulate hours of construction in order to balance the desire of Orinda residents for a reasonably quiet home environment with the desire of their neighbors, also Orinda

residents, to improve their properties efficiently and economically. The City Council recognizes the cost to individual homeowners of requiring rented equipment to lie idle and the fact that unanticipated weather conditions may affect home construction project timing. On the other hand, the City Council expects that residents will carefully plan home construction projects to avoid typical adverse weather conditions, to finish as quickly as possible and to impact fellow neighbors as little as possible. Although exceptions to the limitations of this section may be granted, the council intends that such exceptions be granted only when the Zoning Administrator determines them to be reasonable and necessary, balancing the rights of all interested persons.

B.

General. It is unlawful to conduct or maintain construction activities in the City of Orinda during times other than those set forth in this subsection.

1.

Weekdays. Monday through Friday, construction activities may occur between the hours of eight a.m. and six p.m.

2.

Saturdays. On Saturdays, construction activities may occur between the hours of ten a.m. and five p.m.

3.

Sundays. On Sundays, construction activities are prohibited except for minor maintenance and improvement projects conducted by no more than two persons, one of whom resides on the property fulltime, between the hours of ten a.m. and five p.m. and not involving the use of heavy construction equipment.

4.

Holidays. On the following holidays, construction activities are prohibited: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. This rule supersedes the restrictions in subsections (B)(1), (B)(2) and (B)(3) of this section. No exceptions from this holiday prohibition may be granted.

C.

Notice. An applicant for a building permit or grading permit shall post a sign describing the permitted hours of construction and permitted hours for use of heavy equipment in a conspicuous location near the property entrance legible from the edge of the roadway. The exact wording of the sign shall be prescribed by the Planning Department. In addition, an applicant for a building permit or grading permit shall provide written notice to each residence within three hundred (300) feet of any portion of the subject property in the form and manner prescribed by the Planning Department.

D.

Heavy Construction Equipment. It is unlawful to use heavy construction equipment for residential construction on Saturdays and Sundays except as otherwise provided in this chapter. The Zoning Administrator shall have the discretion to determine if a particular machine is considered "heavy construction equipment" for purposes of Section 17.39.2.

E.

Exceptions. The Zoning Administrator may grant an exception from the limitations on the use of heavy construction equipment for a residential construction project on a single parcel and may impose conditions on the exception permit as necessary to minimize the public detriment, as follows:

1.

One-Time Exception for Use of Heavy Construction Equipment. The Zoning Administrator shall issue a permit for the use of heavy construction equipment on Saturdays and Sundays for no more than two days in a twelve- (12) month period measured from the date of the last exception for heavy construction equipment use granted for the property, at the request of the property owner, if all other permit requirements have been met.

2.

Exception for Cause. The Zoning Administrator may issue a permit for the use of heavy construction equipment on Saturdays and Sundays in addition to the one-time exception in subsection (E)(1) of this section, where the Zoning Administrator finds that, due to the nature of the project: (1) it is more efficient and cost-effective to operate heavy construction equipment during such times, and (2) as conditioned, the burden of the permitted activity on surrounding residents is reasonable.

(Ord. 04-03 § 3 Exh. A (part))

It is unlawful to use power equipment for yard maintenance except as set forth in this section.

A.

Weekdays. Monday through Friday between the hours of eight a.m. and six p.m.

B.

Saturdays and Sundays. Saturday and Sunday between the hours of ten a.m. and five p.m., except that use of a chainsaw, wood chipper or gas powered leaf blower is prohibited on Sundays.

C.

Holidays. On the following holidays, the use of power equipment for yard maintenance is prohibited: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. This rule supersedes subsections A and B of this section. No exceptions from this holiday prohibition may be granted.

(Ord. 04-03 § 3 Exh. A (part))

Maintenance of the Orinda Country Club golf course shall occur in the following times:

A.

Lawnmowers. Lawnmowers may be operated daily between five-thirty a.m. and five p.m., except as provided in subsection C.

B.

Leaf blowers. Except as provided in subsection C, leaf blowers may be operated between eight a.m. and five p.m. Monday through Saturday and on holidays and leaf blowers may not be operated on Sundays.

C.

Men's and Women's Invitational. During the men's invitational and the women's invitational events, lawnmowers and leaf blowers are permitted from four a.m. to eight a.m. and five p.m. to nine-thirty p.m.

(Ord. 04-03 § 3 Exh. A (part))

If a natural disaster or other unforeseen event requires the operation of machinery to avert an imminent serious threat to public health, safety and welfare, the time and decibel limits of this chapter shall not apply.

(Ord. 04-03 § 3 Exh. A (part))

The following regulations apply to outdoor social events and swim activities at private clubs in Orinda.

A.

General Sound Amplification Limits. A sound amplification device shall not create a sound which is greater than sixty (60) decibels from seven a.m. to ten p.m. or greater than fifty-five (55) decibels from ten p.m. to seven a.m. as measured at a listening point off premises, except as otherwise specified in this section.

B.

Time Limitations. Amplified sound at swim activities and outdoor social events shall be prohibited except as follows:

1.

May through August: ten a.m. to nine p.m., except that extended hours of eight a.m. to ten p.m. shall be permitted for no more than twenty (20) days;

2.

September through April: noon to eight p.m., except that extended hours of noon to ten pm. shall be permitted for no more than twenty (20) days;

C.

Dial Settings. The dial settings on sound amplification systems shall be marked to indicate the maximum setting that will not exceed fifty-five (55) and sixty (60) decibels.

D.

Speakers. Sound system speakers shall be attached to the ground or a permanent structure where possible and positioned to direct sound away from surrounding residences to the greatest extent possible.

E.

Portable Sound Amplification. The use of portable sound amplification devices is prohibited at all times.

F.

Notice by Calendar. Each private club shall publish a calendar of events at least four weeks before the beginning of the swim season. The calendar shall be posted prominently at the club entrance and shall be made available to members of the public who provide a written signed request. The calendars shall state that scheduling changes may occur from time to time and that prior notice of changes will be given to interested parties to the extent possible.

G.

Internal Enforcement. The club shall designate one or more persons to be responsible for enforcing the rules set forth in this section on club premises at all times. Information for contacting the responsible person or persons at any time during the day and the night shall be included on the calendar and posted prominently at the pool entrance.

H.

Disc Jockeys. Social events at swimming pools are prohibited from using disc jockeys, except for club socials supervised by an adult club official charged with the duty to enforce the regulations in this section.

I.

Posting. The rules set forth in this section shall be posted in conspicuous locations on all weather placards by the entrance, the sound system controls and in the pool area.

(Ord. 04-03 § 3 Exh. A (part))

A.

Animal Noise. No person shall own, possess, harbor, control or keep on any premises, any dogs, fowl or other animals, that bark, bay, cry, howl or make any other noise so continuously or incessantly as to

unreasonably disturb the peace or quiet of any two persons living in different households within three hundred (300) feet of the location of the disturbance.

B.

Violation. Any person who shall keep or permit to remain on any premises any animal as defined in subsection A of this section is guilty of a violation of this title, provided that during the time that the animal is making such a noise, no person or other animal is trespassing or threatening to trespass or no person is teasing or provoking the animal. This section shall not be construed to prohibit the keeping of any watchdog, provided that the keeper takes immediate steps to quiet such dog whenever it barks, and provided that the keeper never leaves the dog unattended on the premises in a place where its barking, if prolonged or repeated an undue number of times, disturbs the peace or quiet of any two persons living in different households within three hundred (300) feet of the locations of the disturbance.

(Ord. 04-03 § 3 Exh. A (part))

The following regulations apply to mechanical equipment which is permanently affixed to a structure or on the ground, including but not limited to air conditioners, pool equipment and spa equipment, except for emergency back-up power generators.

A.

Mechanical Equipment Installed On or After July 1, 2004.

1.

Mechanical equipment shall be screened or enclosed with sound-insulated materials so that at the property line, it does not create noise that exceeds forty-five (45) decibels.

2.

Mechanical equipment shall be installed closer to a habitable structure on the property it serves than to a habitable structure on adjacent properties, unless the property owner demonstrates to the Building Official or Zoning Administrator that such location is not feasible. Regardless of the location of the mechanical equipment, it must be screened or enclosed with sound-insulated materials so that at the property line it does create noise that exceeds forty-five (45) decibels.

B.

Mechanical Equipment Installed Before July 1, 2004. Mechanical equipment that creates noise that exceeds forty-five (45) decibels at the nearest property line, as verified by the Planning Department, shall be screened or enclosed to attenuate the noise level to no more than forty-five (45) decibels at the property line within sixty (60) days of receipt of notice from the city to screen or enclose.

(Ord. 04-03 § 3 Exh. A (part))

The following regulations shall apply unless otherwise specified in this chapter.

A.

Violation. A separate violation exists for each hour (or the actual time period, if less than an hour) during which a violation of this chapter occurs, except that a violation of Section 17.39.7 concerning the regulation of amplified sound exists every thirty (30) minutes (or the actual time period if less than thirty (30) minutes) during which a violation occurs. Time shall be measured from the reporting of the violation to the City of Orinda Police Department or a Planning Department employee.

B.

Verification. A violation shall be verified by a police officer or other City of Orinda personnel and using a decibel meter where required.

C.

Civil Penalty. A violation of this chapter shall be subject to civil penalties, in addition to all other penalties and remedies under local, state and federal law. When a violation of this chapter occurs, both the property owner and the person or persons whose conduct causes or permits the violation, if not the same, shall be responsible for the payment of fines imposed under this chapter. The amount of the civil penalty shall be that established by the City Council from time to time in the comprehensive fee schedule, except as specified in this section.

1.

Penalty Enhancement. If the violator or property owner fails to correct the violation, subsequent administrative citations may be issued for the same violation(s). The amount of the civil penalty assessed for each section violated shall not exceed the following amounts:

a.

First administrative citation: the amount shown on the city's comprehensive fee schedule,

b.

Second administrative citation within one year for violation of the same code section: two times the fee schedule amount,

c.

Third or subsequent administrative citation within one year for violation of the same code section: five times the fee schedule amount.

2.

Effect of Payment. Payment of the civil penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city.

Place of Payment. All civil penalties assessed shall be payable to the city at the address provided on the administrative citation.

4.

Late Fee. If payment of a civil penalty and proof of correction is not received by the Compliance Officer within twenty-one (21) days of service of the citation, then a late fee shall be assessed. The amount of the late fee shall be one hundred (100) percent of the total amount of the civil penalty owed.

5.

Failure to Pay is a Debt. The failure of any person to timely pay a civil penalty assessed by administrative citation or any late fee constitutes a debt to the city. To enforce that debt, the Director of Finance or designee may file a claim with the small claims court, or pursue any other legal remedy to collect such money.

D.

Private Cause of Action. After making a good faith effort to resolve a noise problem directly with the person or persons responsible for the noise, and on providing credible evidence of that good faith effort, an individual may bring a private civil action for a violation of this chapter, which is a nuisance.

E.

Citation. When a violation of this chapter has been established and no courtesy notice is required, the Compliance Officer shall issue an administrative citation to the person or entity responsible for the violation, imposing the penalty provided by this section. (Gov. Code Sections 53069.4 and 36901.)

F.

Contents of Citation. Each administrative citation shall be in a form prescribed by the Zoning Administrator and shall contain the following information:

1.

The date of the violation;

2.

The address or a definite description of the location where the violation occurred;

3.

The section of this chapter violated and a description of the violation;

4.

The amount of the fine for the violation;

5.

A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;

6.

An order prohibiting the continuation or repeated occurrence of the violation described in the administrative citation;

7.

A description of the administrative citation appeal process, including the time within which the administrative citation may be contested; and

8.

The name and signature of the Compliance Officer.

G.

Service of Citation. The Compliance Officer may issue an administrative citation to the: (1) violator, (2) property owner, (3) tenant, (4) whoever is in control of the premises or the activity which constitutes a violation, or (5) all of them, in any manner provided in subsection E of this section.

1.

Personal Service. The Compliance Officer may serve the administrative citation directly to a responsible party. If so, the Compliance Officer may obtain the signature of the responsible person on the administrative citation to establish personal service of the citation. If that person is not located, refuses or otherwise does not sign the administrative citation, the lack of signature shall in no way affect the validity of citation and proceedings. In such cases, the Compliance Officer shall serve the citation as provided in subsection (E)(2) of this section.

2.

Service by Mail. If the Compliance Officer is unable to locate the responsible party, or the responsible party refuses or otherwise does not sign the citation, the administrative citation shall be served on the responsible party as follows:

a.

The administrative citation shall be mailed to the responsible party by first class mail. If the responsible party is the property owner, it shall be sent to the mailing address maintained for the property by the County Tax Assessor. If the responsible party is the tenant or other possessor of property where the violation exists, it shall be sent to the property address, if possible. In all other cases, service shall be made at the responsible party's last known address.

b.

The failure of any responsible party to receive a properly addressed and mailed citation shall not affect the validity of any proceeding under this chapter.

c.

Service of the administrative citation in the manner described in this section shall be effective on the date of mailing.

(Ord. 04-03 § 3 Exh. A (part))

17.39.11 - Definitions.

For purposes of this chapter, the following terms shall be defined as follows:

"Amplified sound" means any sound whose decibel level is increased by artificial means beyond the natural decibel level.

"Club social" means an outdoor event sponsored by a private club for some or all club members and their guests; the definition excludes, for example, sporting events and personal social events by invitation only.

"Construction activities" means and includes any act of building, altering, demolishing, grading, excavating, renovating or repairing property or structures and includes unloading machinery, equipment, materials and supplies and other preparatory activities on the site. The term "construction activities" excludes routine home repairs inside the residence.

"Disc jockey" means a person who operates sound amplification systems for social events and whose responsibilities may include selecting recorded music and providing commentary by microphone.

"Heavy construction equipment" means earth-moving machines, tractors, forklifts, bulldozers, backhoes, jackhammers and heavy compressors.

"Listening point" means a location on residential real property where a resident, using his or her property in a reasonable manner, should be free of unwanted amplified sounds. A listening point will be found: (1) within thirty (30) feet of any portion of the residential structure or ancillary structures, decks, patios and other outdoor gathering places, or (2) in other areas outside the thirty- (30)foot limit where typical residential uses and activities including but not limited to gardening, reading or exercise might occur from time to time.

"Off premises" means that a sound is heard on property other than that from which the sound originates.

"Portable sound amplification device" means a portable radio and a portable tape and CD player ("boom box").

"Power equipment for yard maintenance" means motorized equipment to move, mow, trim, saw, chop, break, cut, prune, or otherwise dispose of vegetative matter and shall include but is not limited to motorized leaf blowers, chainsaws, mowers, tillers, hedge trimmers, saws, weed-eaters, scythes, stump grinders, mulchers, and brush chippers.

"Sound-amplifying devices or equipment" means any device for the amplification of the human voice, music, or any other sound, including but not limited to portable radios and tape and CD players, public address systems, megaphones, sound systems for announcing athletic events, including practices, and sound systems for broadcasting music. Sound-amplifying equipment and devices for purposes of this chapter exclude vehicle radios and other sound systems at a level not heard outside the vehicle,

music, or any other sound, including but not limited to portable radios and tape and CD players, public address systems, megaphones, sound systems for announcing athletic events, including practices, and sound systems for broadcasting music. Sound-amplifying equipment and devices for purposes of this chapter exclude vehicle radios and other sound systems at a level not heard outside the vehicle,

emergency service vehicle horns and sirens and sound-amplifying equipment used on school district property for school district purposes.

(Ord. 04-03 § 3 Exh. A (part))

Chapter 17.40 - PLANNING AUTHORITY

The Planning Agency for the City of Orinda has several integral components.

(Ord. 99-5 § 2 Exh. A (part))

The City Council sets land use planning policy, adopts and amends the general plan, and enacts general zoning and planning legislation, including zoning maps, (legislative function). It also hears appeals of Planning Commission decisions on specific applications (quasi-adjudicative function).

(Ord. 99-5 § 2 Exh. A (part))

The Planning Commission recommends policies, amendments of the general plan, and planning regulations to the City Council. The Planning Commission hears appeals of Zoning Administrator's decisions and makes the final determination on all permits required in this title except for those specifically allocated to the Zoning Administrator under Section 17.40.4.

(Ord. 99-5 § 2 Exh. A (part))

Except when a permit or approval listed below is related to a project for which Planning Commission review is required, the Zoning Administrator is authorized by the provisions of this title to make final determinations and impose conditions related to such determinations on applications for the following types of permits and approvals:

A.

Design review (Chapter 17.30).

1.

A residential addition that meets either subsections A.1.a. or b. of this section:

a.

The floor area of the addition is under one thousand five hundred (1,500) square feet; or

b.

The floor area of the resulting structure is:

i.

Less than one hundred twenty-five (125) percent of the average floor area in the neighborhood or, if the lot on which the structure is located is less than the average lot size in the neighborhood, the lot area/floor area ratio of the resulting structure is less than one hundred twenty-five (125) percent of lot area/floor area ratio in the neighborhood; and

ii.

The maximum floor area of the resulting home does not exceed three thousand (3,000) square feet; and

iii.

No new nonconformity will be created and no existing nonconformity will be increased.

2.

A renovation involving a change in a door or window, if design review is requested under Subsection 17.30.3.A.6. of this title.

3.

An attic or basement conversion and design review is requested under Subsection 17.30.3.A.8. of this title.

B.

Elevated decks (Section 17.35.3).

C.

Tree permits (Section 17.21.3).

D.

Lot line adjustments (Section 17.20.3), and certain voluntary mergers (Section 17.20.7).

E.

Sign permits (Section 17.18.12).

F.

Commercial use permits (Subsection 17.8.5.D.).

G.

Temporary events (Chapter 17.37).

H.

Certain wireless communications facilities (Subsection 17.34.6.A.).

I.

Extensions for permits and approvals (Section 17.44.3 and Title 16, Subdivisions).

J.

Large family day care (Section 17.3.6).

K.

Exceptions and variances for projects not otherwise subject to Planning Commission review.

L.

Reasonable accommodations (Section 17.46.4).

The Zoning Administrator may refer a matter to the Planning Commission when, in the discretion of the Zoning Administrator, it is determined that the public interest would be served.

(Ord. 07-07 § 14; Ord. 07-02 § 5: Ord. 05-07 § 10: Ord. 05-01 § 4: Ord. 04-06 § 5: Ord. 02-03 § 28: Ord. 995 § 2 Exh. A (part))

(Ord. No. 10-10, § 2(exh. A), 1-4-11; Ord. No. 13-03, § 2(Att. A), 12-17-13)

17.40.5 - Planning Director.

The Planning Director is the senior executive manager of the Planning Department. The Planning Director advises the City Council, the Planning Commission, and the City Manager and serves as Zoning Administrator for the quasi-adjudicative functions listed immediately above. The term "Zoning Administrator" includes delegates.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

17.40.6 - City Engineer.

The City Engineer processes subdivision applications in conjunction with the Planning Director and consults with the Planning Director on other engineering matters related to planning, zoning and planning applications.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

The staff members of the Planning Department process applications for improvement projects regulated by the Orinda Municipal Code and answer inquiries from the general public. Staff members also provide general information to the public. From time to time, the staff members of the Planning Department suggest policies, general plan and zoning amendments, and regulations for consideration by the other components of the planning agency. Certain staff members advise the City Council, the Planning Commission and the Zoning Administrator concerning specific issues.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

Chapter 17.41 - APPLICATIONS

Sections:

The Planning Director shall prescribe the form for each application provided as required under this title. The Planning Director may require an applicant to submit such information and supporting data considered necessary to the processing of the particular application.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

The City Council shall, by resolution, fix the fee to be charged for the filing and processing of each application, the preparation of environmental impact documents and the appeal from the decision of a subordinate agency. The City Council also may require cash deposits, bonds or other guarantees of performance as may be appropriate to ensure that the requirements of this Title and any conditions of approval are met.

(Ord. 99-5 § 2 Exh. A (part))

Only a qualified applicant (including an agent of the applicant) may file an application. A qualified applicant is a person or an agent of a person who has either: (1) a freehold interest in the land which is the subject of the application; (2) a possessory interest in that land which gives entitlement to exclusive possession; or (3) a contractual interest which is specifically enforceable and thereby may become a freehold or exclusive possessory interest. The Planning Director may require an applicant to submit proof of the interest. The Planning Director may require an agent to submit evidence of authority to act for the applicant.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

The Planning Director shall endorse on the application the date it is received. The Planning Director shall review each application and may reject it within thirty (30) days if it is incomplete or inaccurate consistent with the provisions of the State Permit Streamlining Act, in accord with state law. If it is found that it is complete, the Planning Director shall accept it for filing. When a public hearing is required, the Planning Director shall set the time for the holding of a public hearing.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

If an application is denied and the decision is final, a new application for substantially the same project shall not be made for one year from the date the decision is final.

(Ord. 99-5 § 3 Exh. A (part))

Chapter 17.42 - NOTICE, HEARING, DECISION*

Sections:

A.

Planning Commission Decisions. A duly noticed public hearing shall be held by the Planning Commission for any discretionary permit authorized by this title, prior to deliberations and rendering a final decision, except as set forth in Section 17.42.1(B).

B.

Zoning, Administrator Decisions. A duly noticed public hearing shall be held by the Zoning Administrator for any discretionary permit to be decided by the Zoning Administrator under this code when a hearing is requested by the applicant, a person entitled to notice under this code and under state law, or any other interested person. Written notice of the application and the right to request a hearing or submit written comments, or both, shall be sent by first class mail to those entitled to notice no less than fifteen (15) days before the date of the Zoning Administrator review and decision. If no request for a hearing is made within ten days of the date of the notice, the Zoning Administrator shall make the decision on the application, including written comments received, without a public hearing. The terms of this subsection are subject to the authority of the Zoning Administrator to refer a matter to the Planning Commission under Section 17.40.4, where a hearing is mandatory.

(Ord. 03-06 § 2 (part))

The Planning Director shall give notice of a public hearing as required by law, subject to the provisions of Section 17.42.1(B) of this chapter.

A.

Form. The form of the notice shall contain:

1.

The time and place of the hearing;

2.

A general explanation of the matter to be considered, including a general description of the area affected;

3.

Other information which is required by statute or specific provision of this code or which the Planning Director considers necessary or desirable.

B.

Statutory Requirements. Notice of matters set for hearing under this title shall be given as shown in this chart, unless otherwise provided.

These notice requirements state existing law. If state law prescribes a different notice requirement, notice shall be given in that manner. A reviewing body designated to hear the matter may direct that notice be given in a manner that exceeds the notice requirement prescribed by state law, to the extent deemed appropriate to advise potentially affected parties.

(Ord. 03-06 § 2 (part))

A.

Conduct of Hearings. The City Council, Planning Commission and Zoning Administrator may from time to time adopt rules and regulations governing the conduct of public hearings. It is expected that the level of formality may vary, depending on the scope of the proposal and the level of review. These rules shall comply with minimum procedural standards prescribed by Government Code Section 65804 and the provisions of the Orinda Municipal Code. Each component of the planning agency may supplement the rules and regulations as it determines necessary or convenient. Public hearings shall be conducted in accordance with the applicable rules.

B.

Opportunity to Speak. Each person interested in a matter shall be given an opportunity to be heard, consistent with the rules and regulations.

C.

Presentation of Evidence. In a public hearing for a final determination by the Zoning Administrator or the Planning Commission, the applicant shall speak first and shall have the right to respond after all other speakers have given testimony.

D.

Voting. Except as otherwise provided in this code, an affirmative vote of a majority of a quorum is required to approve or conditionally approve an application under this title. If there is a tie, or that majority otherwise does not exist, the application shall be deemed to have been denied.

E.

Findings. Written findings shall be prepared for adoption at the next meeting based on testimony, discussion and findings made by the decisionmakers at the hearing.

(Ord. 03-06 § 2 (part))

A decision on an application for a permit or approval required under this title shall be in writing. Specific findings of fact shall be made for all applicable standards, to approve a project. To deny a project, specific findings of fact showing the failure to meet one standard shall be sufficient. Findings shall be based on substantial evidence. "Substantial evidence" is specific credible, factual evidence which is relevant to the applicable standard. "Substantial evidence" excludes speculation and unsubstantiated opinion, as well as irrelevant facts and opinions. Conditions of approval may be imposed as reasonably necessary to achieve the purposes of this title and the general plan.

(Ord. 03-06 § 2 (part))

A decision of the Planning Commission or the Zoning Administrator shall be effective ten days after the date of the decision unless appealed as provided in Chapter 17.43 of this title. A decision is final on the date it is made, even though the written form of the decision is approved at a later date. A decision is final on the date it is made, even though findings are reduced to writing and ratified at a later time.

(Ord. 03-06 § 2 (part))

Chapter 17.43 - APPEALS

Sections:

17.43.1 - Appellant.

Any interested person, including but not limited to a resident, a member of the City Council or the Planning Commission, the Planning Director, the City Engineer and the City Manager may appeal a decision of any component of the City of Orinda Planning Agency.

(Ord. 02-03 §§ 30, 33: Ord. 99-5 § 2 Exh. A (part))

An appeal of a decision under this title must be filed on or before the tenth calendar day after the decision is made, even if written findings are ratified after the date the decision is made. There is no right to appeal a decision after the ten-day period has run.

(Ord. 99-5 § 2 Exh. A (part))

To appeal a decision of the planning agency, a written notice of appeal in a form approved by the Planning Director from time to time shall be submitted. The form shall specify the grounds for the appeal in sufficient detail to enable other interested persons to prepare a response. The Planning Director shall have final authority to determine if a notice of appeal meets this specificity requirement and may require amendment of an inadequate notice of appeal prior to setting the matter for hearing. An inadequate notice of appeal shall not toll the ten-day appeal filing period.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

17.43.4 - Fee.

The appellant, but not city employees and officials, shall be required to file a fee to offset the costs of the appeal in the amount established by the City Council from time to time.

(Ord. 99-5 § 2 Exh. A (part))

Notice of a hearing on an appeal shall be given in the same manner as notice was given for the initial hearing of the proposed project.

(Ord. 99-5 § 2 Exh. A (part))

The appeal shall be set for hearing as soon as is reasonable and practical.

A.

Hearing Body. An appeal of a decision of the Zoning Administrator shall be heard by the Planning Commission. An appeal of a decision of the Planning Commission, including a decision on an appeal from the Zoning Administrator, shall be heard by the City Council.

B.

Type of Hearing. The hearing of an appeal is a de novo hearing. The body hearing the decision is not bound or limited in any way by the evidence or the decision in the hearing appealed from. The appellate body shall not affirm, modify or overturn the original decision; the appellate body shall make its own independent decision. However, the appellate body may consider the information in the record of the prior hearing in reaching its decision on the appeal.

C.

Subject of Hearing. The plans or other proposal which will be considered by the City Council on appeal from the Planning Commission shall be only the plans or other proposal before the Planning Commission at the time of the commission's decision. The appellant shall offer no new plans or proposals, and no variations of a plan or proposal, on appeal.

D.

Opportunity to Speak. Each person interested in an appeal shall be given an opportunity to be heard, consistent with the rules and regulations of the appellate body.

E.

Presentation of Evidence. In a public hearing for an appeal of a final determination by the Zoning Administrator or the Planning Commission, the applicant shall speak first and shall have the right to respond after all other speakers have given testimony.

F.

Voting. Except as otherwise provided, an affirmative vote of a majority of a quorum is required to approve or conditionally approve an application on appeal. If there is a tie, or that majority otherwise does not exist, the application shall be deemed to have been denied.

(Ord. 02-03 § 31: Ord. 99-5 § 2 Exh. A (part))

A decision on an appeal of a decision on an application for a permit or approval required under this title shall be in writing. Specific findings of fact shall be made for all applicable standards, to approve the project on appeal. To deny the project on appeal, specific findings of fact showing the failure to meet one standard shall be sufficient. Findings shall be based on substantial evidence. "Substantial evidence" is specific credible, factual evidence which is relevant to the applicable standard. "Substantial evidence" excludes speculation and unsubstantiated opinion, as well as irrelevant facts and opinions. Conditions of approval may be imposed as reasonably necessary to achieve the purposes of this title and the general plan.

(Ord. 99-5 § 2 Exh. A (part))

Any interested person, including but not limited to a resident, a member of the City Council or the Planning Commission, the Planning Director, the City Engineer and the City Manager may seek reconsideration of a

quasi-adjudicative decision under this title made by the City Council, but not of other components of the Planning Agency. Only a member of the Council who voted on the application or appeal may make a motion to reconsider or vote on the motion to reconsider.

A.

Grounds. The City Council may reconsider a final decision if the City Council first finds that there were important factual or legal matters not presented at the hearing which were not discoverable by reasonable means at the time of the hearing. Reconsideration is not appropriate to rehear the same evidence and arguments. The failure of a potential witness to testify, or the failure of a party to present available evidence, shall not be a valid basis for reconsideration.

B.

Form of Request. The request for reconsideration shall be filed in writing within ten calendar days of the decision for which reconsideration is sought. The application must cite with specificity what important factual or legal matters were not presented and why they were not discoverable by reasonable means at the time of the hearing.

C.

Notice. If the request is granted, the city shall give notice in the same manner provided for the giving of notice of the original application.

D.

Hearing Date. The request shall be acted upon at the next regular business meeting of the decisionmaking body, with allowance for preparation of an agenda and staff report on the request.

E.

Voting. If the request for reconsideration is made by a member of the Council, that member shall not participate in the discussion or decision on either matter, but the member may give testimony during the public hearing.

F.

Fee. The applicant, but not city employees and officials, shall be required to file a fee to offset the costs of the reconsideration in the amount established by the City Council from time to time, which shall be the same as the fee for an appeal.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

17.43.9 - Code of Civil Procedure Section 1094.6 governing time for judicial review made applicable.

Section 1094.6 of the Code of Civil Procedure applies to adjudicatory decisions made under this title.

(Ord. 99-5 § 2 Exh. A (part))

Chapter 17.44 - PERMIT USE, MODIFICATION, REVOCATION AND TERMINATION

A.

The initial expiration date of a permit or other approval under this Title shall be one year from the effective date of that approval, unless a different date is specified in writing at the time of the initial approval.

B.

Any extension request shall be submitted in writing prior to the expiration of an approval, but no more than two months prior to that expiration.

C.

The City may approve an extension request only under the following conditions:

1.

The City regulations and standards relevant to the approval have not changed in any material way since the time of the approval; and

2.

There have been no material changes in the existing conditions at and around the project site since the

time of the approval. As used above, the term "material" refers to changes that could result in the denial of the permit and/or imposition of new or different conditions in connection with approval if the permit were considered anew.

D.

The expiration date of an approval may be extended for a maximum of one year by the Planning Director. Thereafter, any additional extension(s) must be considered by the Planning Commission, following a noticed public hearing.

E.

Expired approvals cannot be relied on for any purpose.

F.

A fee may be required for processing of an extension request consistent with the City Council adopted fee schedule.

(Ord. 02-03 § 32: Ord. 99-5 § 2 Exh. A (part))

(Ord. No. 15-02, § 2(Exh. A), 11-20-15)

If a use is established under a use permit under Title 17 and the use is discontinued for any reason for a period of six months or more, the permit becomes void and the use may not be resumed unless a new use permit is obtained.

(Ord. 99-5 § 2 Exh. A (part))

Editor's note— Ord. No. 15-02, § 2(Exh. A), adopted Nov. 20, 2015, deleted § 17.44.3 entitled "Extension of initial period for use permit or other approval", which derived from Ord. 99-5 § 2 Exh. A (part).

A new permit is required for a change in the scope, nature or operation of an existing use for which a permit was approved, a change in a condition of approval of a permit or other approval or a change to development plans that would affect a condition of approval, unless the original conditions of approval for the project provide otherwise.

(Ord. 99-5 § 2 Exh. A (part))

A permit obtained under this title may be revoked or amended by the approving body based on any one or more of the following grounds:

A.

The operation of the use violates this title or any other provision of the Orinda Municipal Code, state or federal law;

B.

The operation of the use violates a term, limitation or condition of the permit; or

C.

The operation of the use causes or allows a nuisance or is otherwise detrimental to the public health, safety or general welfare.

(Ord. 99-5 § 2 Exh. A (part))

17.44.6 - Procedure for revocation of permit or other approval.

A.

If the Zoning Administrator finds that evidence exists that an outstanding permit or approval should be modified or revoked, the Zoning Administrator shall set the matter for hearing by the Planning Commission and shall give notice to the permittee and the public in the same manner as prescribed for the original application.

B.

The public hearing shall be conducted in the same manner as an original application. The city has the burden of proving the grounds for revocation, and findings shall be made in support of any action to revoke a previous approval. If the Planning Commission finds that grounds for revocation exist, it may revoke the use permit or other approval, or it may impose new conditions to allow its continuance in a manner which assures that issues related to the revocation proceeding are adequately addressed.

C.

An order revoking, modifying or declining to modify or revoke a permit or approval may be appealed to the City Council in accordance with the provisions of Chapter 17.43 of this title.

(Ord. 99-5 § 2 Exh. A (part))

Chapter 17.45 - DEVELOPMENT AGREEMENTS

Sections:

In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic cost of development, the Legislature adopted Government Code Sections 65864—65869.5 et seq., authorizing a local government to enter into a development agreement with an applicant for a development project. The objective of a development agreement is to provide assurance that, upon approval of the project, the applicant may proceed with the project in accord with existing policies, rules and regulations, subject to the conditions of approval.

(Ord. 99-5 § 2 (Exh. A (part))

A.

The City Council shall, by resolution, establish procedures and requirements for considering, adopting and reviewing a development agreement.

B.

The procedures and requirements for considering, adopting and reviewing a development agreement and the content of the development agreement shall comply with Government Code Sections 65864—65869.5 et seq.

(Ord. 99-5 § 2 (Exh. A (part))

Chapter 17.46 - REASONABLE ACCOMMODATION

It is the policy of the City of Orinda, pursuant to the federal Fair Housing Amendments Act of 1988, and the California Fair Employment and Housing Act ("fair housing laws"), to provide individuals with disabilities

reasonable accommodation in regulations and procedures to ensure equal access to housing and to facilitate the development of housing for individuals with disabilities. This section establishes a procedure for making requests for reasonable accommodation in the City's land use and zoning regulations and procedures to comply fully with the intent and purpose of fair housing laws.

(Ord. No. 13-03, § 2(Att. A), 12-17-13)

A.

"Reasonable accommodation" means providing individuals with disabilities or developers of housing for people with disabilities flexibility in the application of land use and zoning regulations and procedures, when necessary to eliminate barriers to housing opportunities. Examples of possible reasonable accommodations include changes to allow for ramps, handrails, or other accessibility improvements;

hardscape additions, such as widened driveways, parking areas, or walkways; building additions; and tree removal. Reasonable accommodation does not include changes that would: (1) impose an undue financial or administrative burden on the City; or (2) require a fundamental alteration in the nature of the City's land use and zoning program.

B.

"Individual with a disability" means someone 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 with a record of such impairment.

(Ord. No. 13-03, § 2(Att. A), 12-17-13)

17.46.3 - Application procedure.

A.

Requests for reasonable accommodation may be made by an individual with a disability, his or her representative, or a developer or provider of housing for individuals with disabilities.

B.

Requests shall describe, in writing, the requested accommodation and the regulation or procedure for which accommodation is sought. Requests shall also explain how the subject regulation or procedure acts as a barrier to fair housing opportunities and why the requested accommodation is necessary for an individual with a disability to use and enjoy a dwelling.

C.

Applicants shall submit memoranda, correspondence, pictures, plans, or other information reasonably necessary for the City to review the requested accommodation.

D.

To the extent permitted by law, including the California Public Records Act, the City shall endeavor to keep confidential any material submitted by an applicant marked "confidential" in order to protect the privacy of an individual with a disability.

E.

Requests may be filed at any time.

F.

If an individual with a disability needs assistance in making a request for reasonable accommodation, the City will provide assistance to ensure that the process is accessible.

(Ord. No. 13-03, § 2(Att. A), 12-17-13)

A.

The City will issue a written decision granting, granting with modifications, or denying requests for reasonable accommodation based on the following criteria:

1.

Whether the housing that is the subject of the request will be used by an individual with a disability protected under fair housing laws;

2.

Whether the requested accommodation is necessary to make housing available to an individual with a disability protected under fair housing laws;

3.

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

4.

Whether the requested accommodation would require a fundamental alteration in the nature of the City's land use and zoning program; and

5.

Whether the proposed accommodation will result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others.

B.

The City's written decision will explain the basis of the decision, including the City's findings as to the criteria set forth above. The written decision shall also give notice of the applicant's right to appeal and to

request reasonable accommodations in the appeal process as set forth below.

C.

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. City approval of a reasonable accommodation does not affect the applicability of regulations not at issue in the requested accommodation.

D.

The appeal procedure described in Chapter 17.43 shall apply to requests for reasonable accommodation. The City will provide assistance as necessary to ensure that the appeals process is accessible to individuals with disabilities.

(Ord. No. 13-03, § 2(Att. A), 12-17-13)

Reasonable accommodations are personal to the applicant and do not run with the land unless the City finds that the accommodation is physically integrated into the structure and cannot be easily removed or altered to comply with the City's zoning regulations or policies. Reasonable accommodations granted by the City shall remain in effect for as long as an individual with a disability occupies the affected dwelling(s) and shall be removed within sixty (60) days of the termination of such occupancy.

(Ord. No. 13-03, § 2(Att. A), 12-17-13)

Chapter 17.48 - AMENDMENTS TO ZONING MAP AND REGULATIONS

Sections:

This title may be amended by changing the zoning map or the zoning regulations.

(Ord. 99-5 § 2 Exh. A (part))

An amendment to the text of the zoning regulations or the zoning map may be initiated by a majority vote of the City Council or the Planning Commission, by the Planning Director, or by application of a property owner.

(Ord. 02-03 § 33 (part); Ord. 99-5 § 2 Exh. A (part))

Review by the Planning Commission is required. Following a public hearing by the Planning Commission, noticed in conformance with the requirements in Chapter 17.42, the Commission shall make specific

written findings in its recommendation, including reasons for its recommendation and a determination whether the proposed zoning text amendment regulation or zoning map amendment is consistent with the policies of the general plan and the purposes of this title. The Commission shall recommend approval, conditional approval or disapproval of the proposal as submitted or in modified form to the City Council.

(Ord. 99-5 § 2 Exh. A (part))

Consistent with the provisions of Government Code Section 65855, a Planning Commission recommendation of denial of an application for a zoning map amendment or zoning regulation amendment terminates amendment proceedings, unless appealed.

(Ord. 99-5 § 2 Exh. A (part))

The City Council shall consider the recommendation of Planning Commission at a public hearing noticed in accordance with the provisions of Chapter 17.42 of this title. The City Council shall, after the public hearings, approve, modify or reject the proposed amendment. If the City Council proposes to substantially modify the proposal and the substantial modification was not previously considered by the Commission, the City Council shall refer it to the Commission for a report before adoption of an ordinance amending the zoning regulations or map. If the Planning Commission fails to report within forty (40) days after referral or such longer period as the City Council designates, this failure is considered a vote for approval of the modification by the Commission. Before adoption of an ordinance, the City Council shall make findings that the proposed regulation or map amendment is consistent with the policies of the general plan and the notice and hearing provisions of this title.

(Ord. 99-5 § 2 Exh. A (part))

At or after a public hearing, the Planning Commission or the City Council may determine that the public interest would be served by:

A.

Revising the boundaries of an area proposed for a zoning map amendment;

B.

Considering a zoning map designation not originally presented in a motion, application or Commission recommendation;

C.

Considering a zoning regulation amendment not originally presented in a motion, petition or Commission recommendation.

(Ord. 99-5 § 2 Exh. A (part))