Part 3 — REQUIREMENTS†

• 19.38.305 Determination of land dedication and/or payment of parkland fees.

• 19.38.310 Formula for dedication of land.

• 19.38.315 Number and type of units designated.

• 19.38.320 Additional dedication or payment requirement for additional units.

• 19.38.325 Fee in lieu of land dedication.

• 19.38.330 Land dedication procedure.

• 19.38.335 Fee payment procedure.

• 19.38.340 Appeals.

• A. The purposes for which dedication of land and/or payment of fees is required by this

  • *Editor’s note— See the editor's note at Part 1.

• A. Every residential subdivider shall dedicate land, pay a parkland fee in lieu of dedication, or

  • †Editor’s note— See the editor's note at Part 1.

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SUBDIVISIONS

§ 19.38.305

• both, for park or recreational purposes in conformity with the conditions, provisions, standards and formulas contained in this chapter. Alternatively, a subdivider may satisfy the requirements of this chapter by entering into a parkland agreement for the construction of park facilities, recreational facilities or both pursuant to Section 19.38.410.

• B. Every tentative map and parcel map (if a tentative map was not required by the city engineer) for a residential project shall contain a condition requiring compliance with this chapter.

• C. Except where the condition required by Subsection B. above is fully satisfied by dedication of land, such condition may be deemed satisfied where prior to approval of the parcel map or final map the subdivider has paid the parkland fees due in full or, in the alternative, has entered into a binding parkland agreement with the city. Such agreement shall provide for the payment of fees and/or the construction of improvements. A parkland agreement for the construction of improvements may require the subdivider to pay fees to the city which are incidental to the construction of the improvements.

• D. Failure to pay the parkland fees within the time specified in Section 19.38.335 or to construct improvements within the time set forth in the parkland agreement shall result in the imposition of additional charges as set forth in the schedule of fees and credits as well as loss of any credits previously granted pursuant to this chapter.

• (Ord. 27949.)

• A. The director shall indicate on the tentative map whether the city will accept land dedication or require payment of a fee in lieu thereof, or a combination of both. The director's determination shall be based upon, but not limited to, consideration of the following:

  1. The General Plan of the City of San José;

  2. The city's policies for the development of park facilities and recreational facilities;

  3. The topography, geology, access, and location of land in the subdivision that is suitable for the development or renovation of park facilities or recreational facilities;

  4. The size and shape of the subdivision and land available for dedication;

  5. The location of existing or proposed park sites and trails.

• B. The director shall consult with the director of public works and the director of planning, building and code enforcement in making the determination whether to require the dedication of land.

• C. Land to be dedicated shall not be of such size, shape or location as to make the development of the subdivision unfeasible, and shall permit the balance of the subdivision to be developed in an orderly and efficient manner. The director shall determine the feasibility of all dedications pursuant to this section. Additionally, land to be dedicated must meet the following criteria:

  1. Be at least ½ acre in size, excluding hillsides over a ten percent grade, riparian set back areas and environmental mitigation areas. The director may accept dedications of land less than ½ acre if the land to be dedicated is located adjacent to an existing or planned park facility or recreational facility; and

  2. Can be graded to create a sufficiently flat area of less than three percent grade in any direction; and

  3. Be located adjacent to a public street in order to promote public safety and facilitate policing.

• D. The subdivider, as required by the city, in addition to the land dedicated pursuant to Subsection A., shall:

  1. Provide reasonable improvements and access to the land dedicated including, but not limited to, full street improvements

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§ 19.38.305

and utility connections, such as curbs, gutters, street paving, traffic control devices, street trees, and sidewalks, to land which is dedicated pursuant to this chapter;

2. Provide for fencing along the property line of that portion of the subdivision contiguous to the dedicated land; and

3. Provide improved drainage through the site.

• E. Prior to making a determination to require land dedication pursuant to Subsection A. above, the director may consult with the subdivider as to the desirability of requiring dedication rather than fees, as well as to the nature of any such dedication.

• F. Notwithstanding Subsection A. above, if the proposed subdivision contains 50 or fewer parcels and is not a condominium project, stock cooperative or community apartment project as such terms are defined in California Civil Code Section 1351, as amended, the subdivider shall be allowed to pay parkland fees, as determined in accordance with Section 19.38.325.

• G. If a phased project results in a total subdivision project of more than 50 parcels, the total project will be treated as one subdivision for purposes of this chapter and the director may require land dedication which could not have been otherwise required pursuant to Subsection F. of this section.

• (Ord. 27949.)

• A. The amount of land to be dedicated shall be determined pursuant to the following formula:

  • Minimum acreage dedication = .003 acres × Number of dwelling units × Average number of persons per dwelling unit.

• B. For purposes of this section, the estimated residential population of the subdivision shall be determined on the basis of the type of

dwelling unit allowed and the average household size for the dwelling unit as indicated in the most recent available federal census data.

• C. If the most recent federal census does not include information about the average household size for a particular type of dwelling unit, the city council may adopt a resolution specifying an average household size for that type of dwelling unit.

• (Ord. 27949.)

• A. The subdivider shall designate on the tentative map the maximum number of dwelling units for the subdivision. Subdividers of condominiums, community apartment projects or stock cooperative projects shall designate the maximum number of dwelling units for the purposes of this chapter only, and such designation shall not, in accordance with Government Code Section 66427, constitute an approval of the design or location of the units. If the number is not designated, the total number of dwelling units shall be the maximum number of such units permitted by the city's general plan, or existing zoning, whichever is greater, on the land included within the proposed subdivision at the time the city approves the tentative map.

• B. The subdivider shall designate on the tentative map the dwelling unit type of each dwelling. If the dwelling unit type is not designated by the subdivider, the dwelling unit type which yields the highest subdivision population shall be used to determine the subdivision population.

• (Ord. 27949.)

The subdivider shall be required to dedicate additional land and/or pay additional fees, pursuant to the provisions of this chapter, if at any time after the recordation of the final map there is an increase in the number of units to be built or a change in the dwelling unit type designated pursu-

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§ 19.38.340

ant to Section 19.38.315 which results in an increase in density. The additional fees, shall be the fees in effect at the time of payment. (Ord. 27949.)

When a parkland fee is to be paid in lieu of land dedication, the subdivider shall pay the parkland fees as set forth in the schedule of fees and credits. The parkland fees imposed pursuant to this chapter shall be based on the value of land in the City of San José as set forth in the schedule of fees and credits.

(Ord. 27949.)

• A. Where a dedication of land is required, it shall be accomplished in accordance with the provisions of the California Subdivision Map Act and this Title.

• B. Real property dedicated to the city shall be conveyed by grant deed, free and clear of encumbrances. Deeds, in a form acceptable to the director of public works, shall be given to the director at the time the final subdivision map or final parcel map, for which the deeds are given, is submitted for approval, unless the parkland agreement specifies a different procedure for transmittal of the grant deed.

• C. If a subdivision map or a final parcel map is rejected by the city or withdrawn by a subdivider prior to the city's approval, the deeds shall be returned to the subdivider. If the map is approved, the deeds received will be recorded by the director.

• D. The subdivider shall provide all instruments required to convey the land and shall also provide a preliminary title report and title insurance in favor of the city in an amount equal to the value of the property being conveyed as estimated by the city.

• (Ord. 27949.)

• A. When payment of the parkland fee in lieu of dedication of land is required by this chapter,

the subdivider may pay the parkland fees due on the subdivider's project in full prior to city's approval of the parcel map or final map. Alternatively, as a condition of city's approval of the subdivider's final map or parcel map, the subdivider shall enter into a parkland agreement with the city which provides for payment of the parkland fees in full, concurrent with the issuance of the first building permit for the subdivider's project, but no later than one year after city's approval of the subdivider's final or parcel map unless the schedule of fees and credits provides for delayed payment of the parkland fees. No building permit shall be issued for property for which payment of parkland fees is a prerequisite unless and until such parkland fees have been paid in full.

• B. Subdivisions for which parkland fees required under this chapter have been paid in full shall not be required to pay additional fees under this chapter except to the extent required for any additional or changed residential units pursuant to Section 19.38.320.

• C. Unless otherwise specified in the schedule of fees and credits, the parkland fee to be paid shall be the fee set forth in the schedule of fees and credits in effect:

  1. At the time of payment in the event the subdivider pays the parkland fee prior to city's approval of the final map or parcel map; or

  2. On the date city executes the parkland agreement with the subdivider for the payment of the parkland fee as provided in Subsection A., above.

• (Ord. 27949.)

The subdivider may appeal any condition imposed pursuant to this chapter. The appeal procedure shall be as set forth in this title.

(Ord. 27949.)

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§ 19.38.345

• A. Subject to the requirements of Subsection B., below, the parkland fees collected pursuant to this chapter shall be used for the development, including acquisition of, or renovation of:

  1. Park facilities, or

  2. Recreational facilities; or

  3. Park facilities or recreational facilities on public agency property pursuant to a joint use agreement.

• B. The facilities developed or renovated with parkland fees must serve or benefit the residential project that paid such parkland fees.

• (Ord. 27949.)

for some other purpose for which fees are collected and which serve the project for which the parkland fees was originally charged. (Ord. 27949.)

If during the time between dedication of land for park purposes and commencement of development, circumstances arise which indicate that another site would be more suitable for local park or recreational purposes serving the subdivision, the land may be sold upon the approval of the city council with the proceeds being deposited in the park trust fund and used as provided in Section 19.38.345.

(Ord. 27949.)

• A. Parkland fees shall be deposited into the park trust fund. Money in the park trust fund, including accrued interest, shall be expended solely for the uses specified in Sections 14.25.350 and 19.38.345. The director of finance shall report to the city council at least annually on income, expenditures, and status of the park trust fund.

• B. Parkland fees collected pursuant to this chapter shall be committed by the city for a specific project to serve residents of the subdivision. Such commitment shall be in a budgetary year within five years of receipt of payment or within five years after the issuance of building permits on one-half ( 1/2) of the lots created by the subdivision, whichever occurs later.

• C. If parkland fees are not committed as specified in Subsection B., these fees shall be distributed and paid to the then record owners of the subdivision in the same proportion that the sizes of their lots bear to the total area of all lots in the subdivision.

• D. If the administrative costs of refunding uncommitted fees pursuant to Subsection C. exceeds the amount to be refunded, the city council, after a public hearing, may determine that the uncommitted fees shall be allocated

Part 4

CREDIT REQUIREMENTS*

Sections:

• 19.38.410 Subdivider credit for public park and recreation improvements.

• 19.38.420 Credit for school district property and public agency property.

• 19.38.430 Credit for stormwater detention facilities.

• 19.38.440 Credit for trail dedication.

• 19.38.450 Credit for public park and recreation improvements by community facilities or assessment districts.

• A. No credit shall be given for private recreation improvements in the subdivision except as provided in this section.

• B. A common interest development, as defined in Section 1351 of the California Business and

  • *Note— See the editor's note at Part 1.

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§ 19.38.420

Professions Code, as amended, shall be eligible for a partial credit against the requirements of this chapter.

• C. Credit will be given only when the subdivider has agreed to construct the eligible improvements and has entered into a parkland agreement which requires construction of the improvements within a specified time period.

• D. The amount of the credit and the improvements eligible for credit shall be determined pursuant to the schedule of fees and credits. The total credit shall not exceed 50 percent of the requirement imposed under this chapter.

• E. Private recreation improvements shall be owned by:

  1. An incorporated nonprofit homeowners association composed of all property owners in the subdivision and any of the subdivisions annexed into the association, and which is an organization, operated under recorded land agreements through which each lot owner in the subdivision is automatically a member, and each lot is subject to a charge for a proportionate share of expenses for maintaining the facilities; or

  2. In the case of apartments, the owner(s) of the parcel(s).

• F. Use of the private recreation improvements shall be restricted for recreation purposes by a recorded covenant which runs with the land in favor of the future owners of the property and which expressly cannot be defeated or eliminated without the consent of the city.

• (Ord. 27949.)

• A. The subdivider may enter into a parkland agreement which obligates the subdivider to make public park and recreation improvements to property dedicated by the subdivider to the city or to existing park facilities or recreational facilities in exchange for credit towards subdivider's dedication requirements. Credit

will be granted up to the actual cost of the improvements in accordance with this section.

• B. In order for park facilities improvements and recreational facilities improvements to be eligible for credit, the director must find that the improvements are consistent with the city's construction standards, policies and practices and that it is in the best interest of the city to accept the improvements.

• (Ord. 27949.)

• A. Real property dedicated by the subdivider for a new public school will be eligible for credit equal to its square footage if the following requirements are met:

  1. The real property dedicated to the school district would be available and open to the general public for recreational use during non-school hours; and

  2. The dedicated real property is improved with public park improvements in accordance with city's standards; and

  3. The school district grants an easement to the city in a form acceptable to the city attorney which restricts the improved school property for public park and recreational purposes.

• B. Credit for public agency property will be eligible for credit equal to its square footage if the following requirements are met:

  1. The public agency property is not available for public park or recreational purposes and meets the requirements for dedication for park facilities purposes as specified in Section 19.38.305; and

  2. The public agency property is improved with public park improvements in accordance with city's standards; and

  3. The public agency grants an easement to city in a form, acceptable to city's attorney, which allows use of the property for public park and recreational purposes; and

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§ 19.38.420

4. The public agency property is no more than 50 percent of an improved park site dedicated to the city pursuant to this chapter.

• (Ord. 27949.)

• A. Real property that is dedicated by the subdivider to the city for public park and recreational purposes which also serves as a storm water detention facility for the subdivider's residential project will be eligible for credit against the requirements of this chapter as provided in this section.

• B. Credit may be granted if the storm water detention facility meets the following criteria:

  1. The stormwater detention facility meets applicable city requirements for management of peak stormwater runoff flow, volume and duration, and/or reduction of stormwater pollutant loading from subdivider's residential project.

  2. The stormwater detention facility is a minimum of eight thousand (8,000) square feet of uninterrupted flat contiguous turf having a grade suitable for active recreational purposes, excluding the area for vegetated swales, infiltration basins, or the intake area around the drain inlet of the stormwater detention facility, and the subdivider demonstrates to the satisfaction of the director that the stormwater detention facility will be available for public park and recreational purposes for at least 300 calendar days per year.

  3. The subdivider has provided the city with the management and maintenance requirements for the stormwater detention facility demonstrating to the satisfaction of the director and the director of public works that the stormwater detention facility can be operated and maintained to manage peak stormwater runoff flow, vol-

ume and duration, and/or reduce stormwater pollutant loading during the full range of storm events for which it was designed.

4. The subdivider has demonstrated to the satisfaction of the director and the director of public works that the stormwater detention facility can be maintained:

   • a. In accordance with applicable maintenance standards for stormwater detention facilities and city park maintenance standards; and

   • b. To conform to all applicable laws and regulations relating to stormwater detention facilities.

5. The subdivider must also demonstrate to the satisfaction of the director that there is a funding mechanism in place that will provide for the ongoing maintenance needs of the stormwater detention facility as a stormwater detention facility and as a park facility.

• C. The total amount of credit for the dedication of a stormwater detention facility to the city shall be 50 percent of the actual square footage of the stormwater detention facility that is used for eligible park and recreational purposes.

• D. Credit will be given only when the subdivider has entered into an agreement with the city in which the subdivider has agreed to construct the stormwater detention facility and eligible park and recreational improvements within a specified time period or phase of the project.

• E. Credit for stormwater detention facilities under this section is a pilot program and shall expire and be of no further force and effect as of February 10, 2008 unless council by further action amends or extends the pilot program.

• (Ord. 27949.)

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§ 19.38.600

• A. Real property dedicated by the subdivider to city for a trail will be eligible for credit equal to the square footage of land to be dedicated if the following requirements are met:

  1. The real property to be dedicated meets the city's trail requirements; and

  2. The subdivider dedicates the real property to the city in accordance with the procedures specified in Section 19.38.330; and

  3. The real property to be dedicated shall be used for a trail that is identified in the city's general plan or in the city's master plan for parks and recreational facilities; and

  4. The real property to be dedicated is not less than 24 feet wide; and

  5. The land real property to be dedicated is not already dedicated for public park or recreational purposes.

• (Ord. 27949.)

The subdivider may propose that a community facilities district or special assessment district be formed, pursuant to the provisions of this Code or applicable state law, in order to fund the construction or acquisition of park facilities and/or recreational facilities that will meet or exceed the requirements of this chapter. If the city agrees, and such a district is formed to fund the construction or acquisition of park facilities and/or recreational facilities that will meet or exceed the requirements of this chapter, the subdivider's obligation under this chapter will be deemed satisfied. (Ord. 27949.)

Part 5

EXEMPTIONS*

Sections:

Low income units shall be subject to the requirements of this chapter including the payment of the parkland fee established by resolution of the city council in the schedule of fees and credits. (Ords. 27949, 28804.)

Moderate income units shall be subject to the requirements of this Chapter, including the payment of the Park Impact Fee established by resolution of the City Council in the Schedule of Fees and Credits.

(Ord. 30541.)

Part 6

RESIDENTIAL CARE FACILITIES FOR THE ELDERLY

Sections:

Residential care facilities for the elderly that meet the requirements set forth in this ordinance shall be eligible to defer the obligation to pay the parkland fee.

(Ord. 25619.)

*Editor’s note— See the editor's note at Part 1.

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§ 19.38.610

In order to be eligible for the deferment of payment of the parkland fee, a residential care facility for the elderly must meet the following requirements:

• A. 100 percent of the residential units included in the residential care facility for the elderly must be covered by the license issued by the state of California to provide care to non-ambulatory elderly residents prior to occupancy of the first unit.

• B. The residential care facility for the elderly must provide the following care and have the following attributes:

  1. Assistance in dressing, grooming, bathing and other personal hygiene;

  2. Assistance with taking medication;

  3. Central storing and distribution of medication;

  4. Arrangement of and assistance with medical and dental care, including transportation of residents to doctor or dentist appointments;

  5. Supervision of resident schedules and activities;

  6. Monitoring of food intake and special diets;

  7. Designed for residents who are physically incapable of travel outside the facility without personal assistance from the staff; and

  8. Residents receive transportation assistance from the facility on a limited basis for required activities such as medical appointments.

(Ord. 25619.)

• A. The owner of the property on which the residential care facility for the elderly is to be constructed may enter into a written agreement with the city in order to defer the payment of the parkland fee until such time that the residential care facility for the elderly no

longer meets the eligibility requirements of Section 19.38.610. The agreement shall be recorded in the Santa Clara county recorder's office.

• B. The deferred fees shall earn interest at the same rate earned by city's pooled funds.

• C. At the time that the residential care facility for the elderly ceases to meet the eligibility requirements set forth in Section 19.38.610, the owner of the property on which the residential care facility for the elderly is constructed shall be responsible for payment of the deferred fees including the interest earned on those fees during the deferment period.

• (Ord. 25619.)