Chapter 14.13

ARTERIAL AND MAJOR COLLECTOR STREETS - REPAYMENT OF COSTS ADVANCED BY CITY UPON DEVELOPMENT OF ABUTTING LAND

Sections:

14.13.010 Purposes. 14.13.020 Requirement for repayment.

14.13.030 Arterial and major collector streets - Defined.

14.13.040 Development permit - Defined. 14.13.050 Acquisition costs. 14.13.060 Construction costs - Defined. 14.13.070 Advancement of costs - Defined. 14.13.080 Exemptions. 14.13.090 Arterial and major collectors fund. 14.13.095 Extension of time for repayment of advanced costs. 14.13.100 Adjustments. 14.13.101 Credit for land dedication for bridges and grade separations.

• 14.13.102 Adjustments where repayment not made a condition of development permit.

The purpose of this chapter is to promote and carry out the purposes and policies of the general plan for the City of San José, and, in particular, to provide a means whereby the proposed arterial and major collector streets called for in the plan and essential for the orderly, environmentally alert development of the balanced community contemplated by the plan may be provided.

The general plan of the City of San José envisions a balanced community with an appropriate mixture of residential, educational, recreational, industrial, and commercial uses. Under the plan the city accepts its fair share of the housing required for the region. The plan allows orderly growth which respects environmental concerns at the same time it provides for the needs of an increasing population.

In order to accomplish the purposes of the plan without causing unacceptable traffic congestion and doing violence to the environment, it is necessary that the arterial and major collector streets, which are an integral and essential part of the plan, be constructed in a timely fashion calculated to prevent undue traffic congestion from occurring. The city, with its limited financial resources, cannot itself fund the acquisition and construction costs for these streets. If the purposes of the plan are to be accomplished, the owners and developers of the lands which include or are contiguous to these streets must share this burden. Under Titles 19 and 20 of this Code, when lands which include or are contiguous to these streets (hereinafter "subject lands") are sought to be developed, the owners or developers of the subject lands may be required, without cost to the city, to convey to city such rights-of-way as are necessary for such streets and to construct all

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required improvements for such streets. However, if the streets are to be constructed in a timely fashion programmed to avoid increasing traffic congestion and damage to the environment while, at the same time, accommodating orderly growth, acquisition of the rights-of-way necessary for and construction of the required improvements required for the streets cannot always await development of subject lands. It will be necessary in many instances for the city to acquire the rights-of-way for the city to construct the required improvements for the streets and to advance the costs therefor prior to the time that the subject lands are sought to be developed. The provisions of this chapter provide a means whereby the acquisition and construction costs advanced by the city may be repaid to the city by owners or developers of the subject lands at the time that they seek to develop the subject lands.

(Prior code § 7700; Ords. 19313, 19663.)

Whenever the city advances the costs of rightsof-way or improvements for a portion of an arterial or major collector street, owners or developers of land which abuts upon such portion of such arterial or major collector street shall repay such advanced costs to city when and if such land is sought to be developed and a development permit is issued or approved therefor. Such repayment shall be required as a condition in any development permit issued or approved for such land. Except in the case of approval of a tentative map, such condition shall further provide that such permit shall not become effective unless and until the permittee, within the time provided in such permit, shall have repaid to city the acquisition costs and construction costs advanced by city; and no such development permit shall have any force or effect unless and until such repayment shall have been made within the time provided. In the case of the approval of a tentative map such condition shall provide that such repayment shall be made prior to and as a prerequisite to approval of a final or parcel map based upon such tentative map; and such repayment shall be made prior to and as a prerequisite to approval of a final

or parcel map for such land (even if repayment was for any reason not imposed as a condition of the tentative map).

To the extent repayment has been made before issuance or approval of a development permit, it shall not be made a condition of issuance or approval of such permit. If a required repayment has not been made a condition in any development permit or if for any reason such required repayment has not been made, such repayment shall be made prior to and as a prerequisite to the issuance of a building permit on any portion of the land covered by the development permit.

The director of public works is authorized to accept moneys paid to city by owners or developers of land abutting an arterial or major collector street if they, for any reason, desire to repay city in full acquisition or improvement costs advanced by city even though such owner or developer has not yet applied for or received a development permit, and such repayment shall be applied to any later requirement for such repayment imposed as a condition in a subsequent development permit for such land.

In regard to any requirement to dedicate rightsof-way or construct improvements for an arterial or major collector street which was imposed as a condition in a development permit issued or approved either before or after the effective date of this chapter, such requirement shall not be satisfied by city's advancement of costs for acquisition of such rightsof-way or construction of such improvements; such requirement shall instead be deemed to be an obligation to repay city for costs it so advances for such required rights-of-way and improvements and shall be satisfied by repayment to city at the time when the requirement to dedicate or improve under the permit would have been required to be fulfilled.

ncement of costs for acquisition of such rightsof-way or construction of such improvements; such requirement shall instead be deemed to be an obligation to repay city for costs it so advances for such required rights-of-way and improvements and shall be satisfied by repayment to city at the time when the requirement to dedicate or improve under the permit would have been required to be fulfilled.

Except as otherwise provided in this chapter, the requirement for repayment set forth in this chapter shall apply notwithstanding any other provision of this Code. Nothing contained in this section shall be deemed or construed to limit the discretion of the body or officer conducting the proceeding to

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issue or not issue the development permit sought or to limit such officer's or body's discretion in any way, except as expressly provided in this section. (Prior code § 7701; Ords. 19313, 19663.)

For purposes of this chapter, arterial and major collector streets are those designated as such by the general plan for the City of San José as it now exists or may hereafter be amended or constituted. (Prior code § 7702; Ords. 19313, 19663.)

For purposes of this chapter, "development permit" shall mean and include any permit, variance, exception, adjustment, or approval of any kind issued or made under Title 20 of this Code and any approval of a tentative map under Title 19 of this Code.

(Prior code § 7703; Ords. 19313, 19663.)

For the purposes of this chapter, the term "acquisition costs" shall mean the sum total of the costs incurred and expenditures made by the city after the effective date of this chapter in the form of purchase price or eminent domain judgment for the acquisition of rights-of-way (excluding that for bus turnouts). Acquisition costs shall also include engineering costs for preparation of plat maps and boundary descriptions necessary for such acquisitions. Acquisition costs shall not, however, include costs specified in a purchase agreement as being made for alterations to existing improvements on the abutting property needed in order to continue that existing use and necessitated solely by city's acquisition of such required rights-of-way. The director of neighborhood preservation shall calculate acquisition costs on the basis of records kept by him.

(Prior code § 7704; Ords. 19313, 19663.)

For the purposes of this chapter, the term "construction cost" shall mean the sum total of all

costs incurred and expenditures made by city after the effective date of this chapter for the construction of street improvements, including but not limited to engineering costs and expenses, costs and expenses of preparing plans and specifications, costs and expenses for inspection, publication, advertising and printing, cost of the construction contract, cost of extra work and materials approved by city, and cost of preparation of environmental impact documents for the required improvements. The director of public works shall calculate construction costs on the basis of records kept by him.

Street improvements may include but shall not be limited to paving (including all preparation, removal, excavation, fill base material compaction), curbs, gutters, sidewalks, street lights (including cables and electrical conduit), utilities required to prevent later excavation of such streets, storm drain inlets and laterals, sanitary sewer laterals, median islands and any and all appurtenances to the foregoing improvements, but excluding improvements for bus turnouts, grade separations, and bridges and for storm drain and sanitary sewer facilities other than the inlets and laterals specified above. (Prior code § 7705; Ords. 19313, 19663.)

City shall, for the purposes of this chapter, be deemed to have advanced acquisition costs or construction costs as of the date following the effective date of this chapter when it either incurs or makes expenditures for such costs. Costs shall also be deemed advanced if city awards or enters into an agreement to pay such costs or files an action in eminent domain to acquire rights-of-way. If an owner dedicates rights-of-way without the city's first having filed eminent domain therefor, acquisition costs incurred prior to dedication shall not be required to be repaid. To the extent that federal or state funds have been contributed toward acquisition or construction costs, such contributions shall be subtracted from the total acquisition or construction costs to determine the costs advanced by city. (Prior code § 7706; Ords. 19313, 19663, 20656.)

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§ 14.13.095

The requirements of this chapter shall not be applicable to:

• A. Parcels of land which, at the time acquisition costs are advanced, are one-half acre or less in area (exclusive of street rights-of-way) and have an existing residential dwelling thereon and are designated on the general plan of the City of San José for a use which allows residential use at a density of five dwelling units per acre or less;

• B. A permit which does not authorize an increase in the number of residential dwelling units thereon or which, for a nonresidential use, does not authorize an alteration of use or increase the size of the buildings thereon in excess of five hundred square feet of interior space;

• C. Rights-of-way acquired or improvements constructed pursuant to special assessment districts;

D. Rights-of-way acquired or improvements constructed within a redevelopment area. The director of public works shall be authorized to certify whether repayment is exempted under the provisions of this section. (Prior code § 7707; Ord. 19663.)

All moneys repaid to city pursuant to this chapter shall be collected by the director of public works and placed into a special fund which is hereby created and established for said purpose and which shall be known as the arterial and major collectors fund. Such money so placed and deposited in such fund shall be expended for the acquisition of rightsof-way for, and the construction of the improvements described in Section 14.13.060 for existing and proposed arterial and major collector streets. (Prior code § 7708; Ord. 19663.)

• A. At the time the director of planning, or the city council acting on an appeal of the direc-

tor's decision, approves a tentative map subdividing one parcel into two parcels for lands subject to the provisions of this chapter, the director or the city council on appeal may, but shall not be required to, extend the time for repayment of advanced costs upon a determination an unfair or inequitable result or an unnecessary hardship would result if the time for repayment is not extended.

• B. The director or the city council on appeal shall not extend any time for repayment of advanced costs pursuant to this section unless all of the following requirements have been met:

  1. The subdivider has submitted a written request to extend the time for repayment to the director of planning at least four days before the date and time set for the public hearing before the director of planning on the tentative map. The written request shall state the reasons and shall set forth facts to support the request. Upon receipt of the written request for an extension, the director of planning may continue the public hearing before the director of planning to allow the director of public works to prepare the report described in Section 14.13.095.B.2.

  2. The director of public works has submitted to the director of planning a written report which analyzes the subdivider's request and includes a recommendation for approval or denial based on an evaluation of the facts provided by the subdivider. The report shall also set forth the approximate amount of repayment owed to the city by the subdivider.

  3. The subdivider has executed a binding agreement with the city for repayment of advanced costs in an amount determined by the director of public works. The agreement shall require repayment of advanced costs upon either of the following dates, whichever occurs first:

     • a. The date the subdivider applies for a development permit as defined by this chapter; or

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• b. Eighteen months from the date the final or parcel map is approved.

• C. If the subdivider enters into a binding agreement for repayment under the terms of this section, repayment shall not be a prerequisite to approval of the final or parcel map that is the subject of the subdivider' s written request notwithstanding the provisions of Section 14.13.020.

• D. If a subdivider is dissatisfied with any action taken by the directors of planning or public works with respect to any action pursuant to this section, the subdivider may appeal to the city council in accordance with the provisions of Section 19.12.230 of the San José Municipal Code.

• (Ord. 23705.)

In accordance with the provisions hereinafter set forth in this section, and notwithstanding any other provisions of this Code, the council may, but shall not be required to, make adjustments to the development permit condition required under Section 14.13.020. Only the council may make such adjustments and the council may make only such adjustments in such condition as it finds reasonably necessary because of unusual circumstances peculiar to the subject land and/or the uses which may lawfully and feasibly be made thereof to avoid an unfair or inequitable result or an unnecessary hardship (hereinafter "adjustment limitation"). Adjustments to the development permit condition required under Section 14.13.020 shall be made only once in connection with the development of any subject lands and shall be made only in connection with the first development permit in which such condition is imposed.

In any development permit issued or approved by the council, such condition may be adjusted by the council at the time of and in connection with its issuance or approval of the development permit.

Whenever such condition is contained in a development permit issued or approved by an offi-

cer or body other than the council, such condition may be appealed to the city council for adjustment, as follows:

1. If the procedure under which such development permit is issued or approved provides for an appeal to the council, the appeal provided for herein shall be made pursuant to such procedure, except that the council may make adjustments in such condition only in accordance with the adjustment limitation and except as provided in the following sentence. If such procedure provides an intermediate right of appeal to an officer or body other than the council and if no other person who has such intermediate right of appeal invokes it, the permittee need not do so and may instead (within the time provided for such intermediate appeal) appeal such condition directly to the council, in which event permittee shall be deemed to have waived any other objections he may have to such development permit and shall not have the right to raise them before the council.

2. If the procedure under which such development permit is issued or approved does not provide for an appeal to the council then, notwithstanding the provisions of this Code relating to such procedure, such condition may be appealed by the permittee to the council for adjustment. If such procedure provides for a right of appeal to an officer or body other than the council and if no other person who has such right of appeal invokes it, the permittee need not do so and may instead appeal such condition directly to the council, in which event permittee shall be deemed to have waived any other objections he may have to such development permit and shall not have the right to raise them before the council. Any appeal under this subparagraph 2 must be made within ten days after the issuance or approval of such development permit and shall be made by filing notice thereof with the person or body issuing or approving such development permit and the clerk of the council; provided that if

her objections he may have to such development permit and shall not have the right to raise them before the council. Any appeal under this subparagraph 2 must be made within ten days after the issuance or approval of such development permit and shall be made by filing notice thereof with the person or body issuing or approving such development permit and the clerk of the council; provided that if

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the procedure under which the development permit is issued or approved provides for a right of appeal to an officer or body other than the council and such right of appeal is not invoked, the notice of appeal under this subparagraph 2 shall be made within the time provided in such other procedure for appeal to such other body or officer. After affording the permittee a hearing on the matter (notice of which shall be given to the permittee by mailing the same to him at the address shown for such purpose on the notice of appeal), the council may make adjustments to such condition but only in accordance with the adjustment limitation. If the council makes any adjustment in such condition, the officer or body who issued or approved the development permit shall amend the development permit to incorporate the adjustment.

No adjustment shall be made in those cases where a requirement to dedicate and improve is converted under Section 14.13.020 into an obligation for repayment of the city's advancement for the costs of such rights-of-way or improvements. (Prior code § 7709; Ord. 19663.)

Notwithstanding any provision herein in this chapter to the contrary, whenever an owner of land through which an arterial or major collector street runs for which city's advanced costs therefor would be subject to repayment under this chapter ("reimbursable costs") dedicates to city, without cost to city, rights-of-way for a bridge or grade separation within such land which such owner would not be required to so dedicate under applicable law, including this chapter ("grade right-of-way"), and before city enters into a contract or contracts to pay all of such reimbursable costs subject to such repayment by the owner as aforesaid and before reimbursement to city by the owner, city may, but shall not be required to, if the owner will not otherwise dedicate such grade right-of-way, on the basis of data and recommendations provided by the department of

public works, total the sum of the reimbursable costs which city is already bound to pay by contract or has already paid and the estimated amount of reimbursable costs not yet advanced which would have been incurred had city acquired and improved the arterial and/or major collector streets running through such land at the time of such dedication and assuming a grade separation or bridge was never constructed on the dedicated grade right-ofway ("presumed reimbursable costs"), and credit the amount of the fair market value established on the basis of a written appraisal report of such grade right-of-way so dedicated ("separation costs") against the presumed reimbursable costs, and the owner of such land shall be required, when and if such land is sought to be developed and a development permit is issued and approved therefor, to pay city only the difference between the presumed reimbursable costs, and the separation costs, if any, instead of the actual amount of the reimbursable costs and such repayment of such difference shall be required as a condition in any development permit issued or approved for such land. (Ord. 20247.)

Notwithstanding any other provisions of this Code, including Section 14.13.100, if repayment was not for any reason made a condition of the development permit as contemplated by Section 14.13.020, the city council may, but shall not be required to, make an adjustment to the repayment required by said section under the circumstances and conditions set forth in this section instead of Section 14.13.100.

The council may make only such adjustments as it finds reasonably necessary because of unusual circumstances peculiar to the subject land and/or the use which may lawfully and feasibly be made thereof to avoid an unfair or inequitable result or an unnecessary hardship. Adjustments shall be made only once in connection with the development of any subject lands.

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If only one development permit is issued or approved, or if repayment is not made a condition of any of the development permits issued or approved with respect to any subject lands, the adjustment to repayment may be made by the council upon the written request of the person required to make repayment, made by filing written notice thereof with the city clerk within twenty days after the request for repayment is made by the city.

If repayment is made a condition of some but not all of the development permits, the adjustment shall be made in accordance with the provisions of Section 14.13.100. (Ord. 20656.)

• A. If city from and after the effective date of this chapter advances to the county of Santa Clara the costs of rights-of-way or improvements located in the unincorporated area of the county, which rights-of-way are acquired from parcels located in the city or in the unincorporated area of the county, and the rights-of-way or parcels located in the unincorporated area of the county are subsequently annexed to the city and such advanced costs are repaid to city pursuant to Section 14.13.020, the person who has made such repayment shall be entitled to a refund for any portion of such costs which the county returns to city by way of reimbursement for such advance given by city to county. The council shall also grant a refund upon application therefor by any person who paid city funds pursuant to this chapter if it finds that a refund is required by law.

• B. If city advances the costs of rights-of-way or improvements, whether in incorporated or unincorporated areas, and city subsequently receives federal or state contributions, in whole or in part, for the costs of rights-of-way or improvements that it has advanced, then the person who has made a repayment of costs of such rights-of-way or improvements shall be entitled to a ratable refund of such costs in the

proportion that the federal or state contribution bears to the total cost of the right-of-way or improvements.

(Prior code § 7710; Ords. 19663, 20656.)

• A. Any nonprofit organization, or child day care center, for which full payment in one lump sum of the reimbursement fee required by this chapter would cause financial hardship, may apply to the city council for permission to pay the reimbursement fee in installment payments.

• B. Such hardship application must be in writing and submitted to the director of public works within thirty calendar days after approval of the development permit containing the condition for payment of the reimbursement fee. The city council, in its sole discretion, may, for good cause, extend the thirty-day period.

• C. Applications for hardship installment payments shall be accompanied by a written statement of facts demonstrating the financial need of the applicant and a written statement of intent by the applicant to repay the obligation.

• D. Upon receipt of a written application to pay the reimbursement fee in installments, the director of public works shall schedule a hearing on the request before the city council. Written notice of the time, date and place of the hearing shall be given to the applicant.

• E. After the hearing, if the council, in its sole discretion, finds that payment of the reimbursement fee in one lump sum would cause the applicant a financial hardship, the council may approve an agreement with the applicant for installment payments.

• F. The city council may deny any application for installment payments for any reason including, but not limited to, the fact that sufficient funds have not been budgeted and appropriated for this purpose for the fiscal year in which an application is submitted.

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• G. For the purpose of this Section 14.13.115, the term "nonprofit organization" means an organization which is tax exempt under Section 501(c) and (d) of the federal Internal Revenue Code, but which is not an organization formed or existing primarily for political purposes.

• H. For the purpose of this section, the term "child day care center" means any child day care facility as defined by Section 20.200.190 of Title 20 of this Code.

(Ords. 23494, 24403.)

There is hereby established a reimbursement payment account fund to be used to advance to the traffic capital program the funds which are subject to reimbursement through installment payment agreements.

(Ord. 23494.)

• A. No request for installment payments shall be granted unless the applicant enters into an installment payment agreement with the city.

• B. Installment payment agreements shall, at a minimum, contain the following terms and conditions:

  1. The reimbursement fee shall be paid in installments of no less than a year, including interest at the rate determined by the city council to be in the public interest.

  2. The first installment shall be in the amount of twenty percent of the total reimbursement fee and shall be paid at the time of execution of the agreement by the applicant.

  3. The remaining installments shall be made on at least an annual basis. The agreement shall have a maximum term of five years for reimbursement fee amounts up to fifty thousand dollars with up to one additional year for each additional five thousand dollars, up to a maximum term of ten years.

  4. The unpaid balance, including interest, shall constitute a lien on the property burdened by the reimbursement requirement.

  5. In the event the applicant conveys, exchanges or transfers all or any part of the property subject to the lien to any third person, whether voluntarily or involuntarily, all of the remaining unpaid balance including interest shall be due and payable prior to or simultaneous with the conveyance, transfer, or exchange.

• C. No more than one installment payment agreement entered into pursuant to this Section 14.13.115 shall be in effect at any time for any parcel of property.

• (Ord. 23494.)

The city clerk shall record the installment payment agreement with the Santa Clara county recorder. The installment payment agreement shall constitute a lien on the property burdened by the reimbursement requirement.

(Ord. 23494.)

The effective date of this chapter is declared to be August 11, 1978.

(Prior code § 7711; Ord. 19663.)