Chapter 4.88

URBAN AGRICULTURE INCENTIVE ZONE

Parts:

• 1 Purpose and General Provisions 2 Application and Contract Process

Part 1

PURPOSE AND GENERAL PROVISIONS

Sections:

• 4.88.010 Purpose.

• 4.88.020 Definitions.

• 4.88.030 General provisions.

• 4.88.040 Urban agriculture incentive contract.

• 4.88.050 Rules and regulations.

• 4.88.060 Eligibility criteria.

This chapter is adopted in accordance with the Urban Agriculture Incentive Zones Act (California Government Code Section 51040 et seq.), including all amendments thereto to promote urban agricultural use of otherwise vacant, unimproved, and blighted property parcels by providing a tax incentive for properties that produce eggs from chickens or honey from bees and agricultural products. (Ord. 29820.)

• A. Except where the context otherwise requires, the following definitions shall govern the construction of the provisions of this Chapter 4.88 of Title 4.

  1. "Blighted property" means a property improved only with paving at grade or with

legal minor accessory buildings or accessory structures suitable for urban agricultural use.

  2. "Director" means the director of planning, building and code enforcement, or his or her designee. 

  3. "Urban agricultural use" means the exclusive use of property for the production of eggs from chickens or honey from bees in compliance with Title 7 of this Code, or horticultural crops to be harvested, sold or donated, and may include value-added agricultural products, where the primary ingredients of the product are grown and produced on-site, limited sales and donation of eggs from chickens, honey from bees or agricultural products grown on site may occur, subject to the provisions of Part 9 of Chapter 20.80 of this Code, if applicable, and sales, pickups, and donations of eggs from chickens, honey from bees, or horticultural products grown on-site. 

  4. "Urban agriculture incentive zone" means the area designated by the city pursuant to the Urban Agriculture Incentive Zones Act (California Government Code Section 51040 et seq.) to promote urban agricultural use of otherwise vacant, unimproved, and blighted property parcels by providing a tax incentive for properties that are engaged in an urban agricultural use. 

  5. "Urban agriculture incentive contract" means an enforceable contract entered into between the city and the owner(s) of eligible property in the urban agriculture incentive zone to promote urban agricultural use by providing a tax incentive for properties that are engaged in an urban agricultural use. 

• B. Where a word or phrase is not defined in this part, but is defined in Chapter 20.200 of Title 20 of this Code, the definitions set forth in

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§ 4.88.020

Chapter 20.200 shall govern the construction of the provisions of this title, except where the context otherwise requires.

(Ord. 29820.)

• A. The urban agriculture incentive zone includes all vacant, unimproved or blighted property parcels, located in incorporated areas of the City of San José that are least 0.10 acres in size and less than 1.0 acre in size.

• B. The city and owners of vacant, unimproved, or blighted property parcels within the urban agriculture incentive zone may enter into an enforceable contract to restrict use to urban agricultural use.

• C. The city may impose fees upon contracting property owners for the reasonable costs of implementing and administering the contracts, as set forth in the schedule of fees and charges adopted by resolution of the city council.

• (Ord. 29820.)

The city shall maintain a standard form "Urban Agriculture Incentive Zone Contract" approved as to form by the city attorney. A contract entered into pursuant to this chapter must include at least the following provisions:

• A. An initial term of at least five years;

• B. A restriction that the property under contract be at least 0.10 of an acre, and less than 1.0 acre;

• C. A requirement that the entire property be dedicated to urban agricultural use;

• D. A prohibition against dwellings on the property during the term of the contract;

• E. Consent to allow initial and periodic inspections of the property by the director, the Santa Clara County Tax Assessor, the Santa Clara County Agriculture Commissioner, and the state board of equalization, as may be necessary for tax assessment purposes or to determine the

property owner's compliance with the Urban Agriculture Incentive Zones Act, this contract and the law;

• F. Agreement that the property owner will pay all costs associated with inspections performed by the city or city's designee, in the amount set forth in the schedule of fees and charges adopted by resolution of the city council;

• G. A requirement that the contract be binding upon, and inure to the benefit of, all successors in interest to the property owner;

• H. Cancellation provisions in accordance with Section 4.88.090;

• I. A requirement that urban agricultural use must commence on the property within ninety days of execution of the urban agriculture incentive contract;

• J. A requirement that the property owner:

  1. Notify the director in writing of any cessation of urban agricultural use for any reason, including but not limited to, cessation due to the loss of a tenant who was conducting urban agricultural use on the property. This notice must be given within two weeks of the cessation of the urban agricultural use; and

  2. Resume urban agricultural use within three months of any such cessation or the city may cancel the contract;

• K. A requirement that the property owner defend and indemnify the city from any claims arising from any use of the property;

• L. A requirement that the property owner submit a landscape documentation package, if required by Chapter 15.11 of Title 15;

• M. A prohibition on the use of pesticides or fertilizers on the property, except for those

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§ 4.88.060

pesticides or fertilizers allowed by the United States Department of Agriculture's National Organic Program;

• N. A requirement that the property owner comply with all provisions of the Urban Agriculture Incentive Zones Act, this chapter, and other applicable requirements of the Municipal Code, including but not limited to Titles 7, 9, 17, 20 and 24 of the Code;

• O. A requirement to maintain a metered potable water service connection or approved potable water well;

• P. A prohibition on the production, cultivation, growing and harvesting of marijuana;

• Q. A prohibition of the raising of livestock (except poultry for egg laying), fur-bearing animals and dairy-producing animals;

• R. A requirement that during the term of the urban agriculture incentive contract the property be assessed pursuant to Section 422.7 of the California Revenue and Taxation Code, including all applicable amendments thereto;

  • S. A notification that if the property owner cancels the urban agriculture incentive contract, the city must assess a cancellation fee pursuant to Subparagraph B of Paragraph (2) of Subdivision (a) of Section 51042 of the California Government Code, including all applicable amendments thereto; and

• T. Inclusion of a site plan as an exhibit to the urban agriculture incentive contract.

• (Ord. 29820.)

The city manager may adopt rules and regulations necessary to administer and implement the urban agriculture incentive zones and urban agriculture incentive contracts. (Ord. 29820.)

A property shall not be eligible for an urban agriculture incentive contract if:

• A. The property has been subject to the State Williamson Act within the three years prior to the date of the application for the urban agriculture incentive contract; or

• B. The land use designation on the property does not support agriculture or urban agricultural use, or the zoning district in which the property is located does not support urban agricultural use; or

• C. Approval of the urban agriculture incentive contract would adversely impact the city's ability to achieve the housing goals set forth in the general plan. For parcels that are included in the city's adequate sites inventory ("inventory") in the general plan's housing element there must be excess units in the city's adopted inventory at the time of contract approval at least equal to the number of units identified in the inventory as allowed on the property proposed for the incentive; or

• D. Property taxes or assessments are delinquent; or

• E. Approval of the contract would result in an annual combined cumulative tax revenue loss from all approved contracts to the city, county and other recipients of ad valorem property taxes for all properties under contract within the city, of greater than two hundred fifty thousand dollars, as measured on a fiscal year basis; or

• F. The property contains any improvements, other than paving at grade or minor legal accessory buildings or structures in good usable condition; or

• G. The property has code violations, with a record of notice to the property owner of such violations; or

• H. The urban agricultural use proposed by the property owner would not comply

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§ 4.88.060

  - with all provisions of the Urban Agriculture Incentive Zones Act, this chapter, and other applicable requirements of this Code, including but not limited to Titles 7, 9, 17, 20 and 24 of this Code; or 

• I. The applicant fails to demonstrate that urban agricultural use can be established on the property, within ninety days of contract, including but not limited to a legal existing source of water (e.g., a source of water with a potable metered water service connection or potable approved water well).

• (Ord. 29820.)

Part 2

APPLICATION AND CONTRACT PROCESS

Sections:

• 4.88.070 Application and approval process.

• 4.88.080 Application deadlines.

• 4.88.090 Contract cancellation.

• 4.88.100 Sunset provision.

• A. To qualify for the urban agriculture incentive contract specified in Section 4.88.040, the property owner must seek a determination that the property is eligible for an urban agriculture incentive contract from the department of planning, building and code enforcement. The property owner shall file an application, including site plans and information establishing zoning, on a form provided by the director, and pay all fees for the application as set forth in the schedule of fees and charges established by resolution of the city council. The director shall make a determination as to whether the property is an urban agriculture incentive zone property as described in Subsections A and B of Section 4.88.030 and meets the eligibility criteria for an urban agriculture incentive contract set forth in Section 4.88.060.

• B. If the director determines that the property is an urban agriculture incentive zone property as described in Subsections A and B of Section 4.88.030 and meets the eligibility criteria for an urban agriculture incentive contract set forth in Section 4.88.060, the director will forward the application to the city manager.

• C. The city will review the application and may conduct site inspections at any time after the date a complete application is filed.

• D. The application and urban agriculture incentive contract may be approved by the city manager if it meets all the requirements of the Urban Agriculture Incentive Zones Act and this chapter. The property owner shall also apply for and obtain any necessary change of use permit, conditional use permit, or other approvals required to conduct the proposed urban agricultural use on the property prior to execution of any approved urban agriculture incentive contract by the city manager. Nothing in this chapter shall be construed as limiting the application or requirements of any and all applicable provisions of state law and this Code, including but not limited to the requirements of Titles 7, 9, 17, 20 and 24 of this Code.

• E. If the city manager denies the application, the city manager shall send written notice of the denial to the applicant.

• F. The city manager shall execute the approved urban agriculture incentive contract upon determination that the property owner has obtained all required approvals for the proposed urban agricultural use. Following final approval of the urban agriculture incentive contract, the city manager shall send written notification to the Santa Clara County Tax Assessor and to the property owner. Once executed, the property owner shall record the urban agriculture incentive contract against the property. Once the contract is recorded against the property, the Santa Clara County Tax Assessor will apply the reduced property tax valuation methodology to the property at the next property tax lien date.

• (Ord. 29820.)

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§ 4.90.010

For calendar year 2016, the deadline to submit an application for a contract to the director shall be December 16, 2016. Fees for any application submitted for calendar year 2016 shall be paid in full upon the effective date of the resolution of the city council setting forth the fees and charges for such application. Thereafter, the deadline to submit an application for an urban agriculture incentive contract to the director for any fiscal year shall be August 1 and such application shall not be deemed received until the fees have been paid. (Ord. 29820.)

• A. The city manager may cancel the urban agriculture incentive contract upon finding that a property owner is in breach of its terms. If the city manager cancels the urban agriculture incentive contract, the cancellation shall be final unless the property owner files an appeal to the City of San José Appeals Hearing Board on a form provided by City of San José Appeals Hearing Board and pays all fees for the appeal as set forth in the schedule of fees and charges established by resolution of the city council, within fifteen business days of the cancellation. Any appeal shall be decided by the City of San José Appeals Hearing Board. The appeal hearing shall be a review based on substantial evidence in the record and shall be conducted in accordance with the rules and regulations of the City of San José Appeals Hearing Board.

• B. The Santa Clara County Tax Assessor and the property owner will be notified if the city cancels the contract and the cancellation is upheld if appealed.

• C. A property owner may cancel an urban agriculture incentive contract entered into pursuant to this chapter at any time by submitting written verification of payment of the required fee, as set forth in Subsection D below, and written notice to the director. Upon cancellation of the contract prior to the expira-

tion of its term, the property owner shall record a notice of cancellation of the contract against the property.

• D. If the contract is cancelled by the city or property owner prior to the expiration of its term, the property owner must pay to the county a cancellation fee equal to the cumulative value of the tax benefit received during the duration of the contract, as determined by the Santa Clara County Tax Assessor. The city may waive payment of all or a portion of the fee, if the city manager determines that the cancellation was caused by extenuating circumstances despite the good faith effort by the property owner.

(Ord. 29820.)

The City shall not enter into a new urban agriculture incentive contract or renew an existing urban agriculture incentive contract after January 1, 2029, unless the Urban Agriculture Incentive Zones Act is amended to authorize contracts after that date. Any urban agriculture incentive contract entered into pursuant to the Urban Agriculture Incentive Zones Act and this chapter on or before January 1, 2029 will be valid and enforceable for the duration of the urban agriculture incentive contract.

(Ord. 29820, 30190.)