Part 2 — COMMON PROCEDURES

A.

The purpose of this part is to establish common procedures for the filing of applications, notice of public hearings, appeal of decisions, and enforcement of permits for all development permits and other approvals governed by this Chapter 20.100.

B.

The procedures of this Part 2 shall apply to all development permits and approvals governed by this Chapter 20.100, unless specifically modified by another section of this chapter.

(Ord. 26248.)

A.

All applications pursuant to this Chapter 20.100 shall be filed with the director in a form prescribed by the director.

B.

Except as provided in Subsection C below, a separate application shall be filed for each site and each application shall be signed by:

All owners of the real property included in the site or sites; or

Such person or persons having the lawful power of attorney of the property owner or a qualified tenant to apply for development permits; or

By a qualified tenant. A "qualified tenant" for purpose of this section shall mean the exclusive tenant of the entire site and parcel subject to the application, under a recorded lease which has a remaining term of five or more years at the time of application; or

An agent of a utility provider, with actual or apparent authority to apply for development permits on behalf of the utility provider, when the utility provider's development activity will occur entirely within the scope and location of a currently existing public services easement or public utility easement; or

The city manager of the City of San José or the executive director of the San José redevelopment agency for property owned or controlled by that respective entity.

C.

The following provisions shall govern development permit applications for the removal and relocation of a building from one parcel to another parcel in the city:

A single application pertaining to both parcels shall be required; and

The application shall be signed by all of the owners of each parcel or by such person or persons having the lawful power of attorney therefor.

(Ords. 26248, 28828.)

No application shall be deemed received until the following have been provided:

All fees for the application as set forth in the schedule of fees established by resolution of the council have been paid. No fee shall be deemed paid until any negotiable instrument has been cleared and funds received on the city's account.

All documents specified as part of the application in this chapter or on the application form have been filed.

(Ord. 26248.)

A.

An application for a permit pursuant to this chapter may be filed and processed concurrently with either:

A petition to rezone the property which is the subject of the application; or

A petition to prezone and annex the subject property to the city; or

Other development permits or approvals required by this title.

B.

When any application is filed concurrently pursuant to this chapter, the applicant shall sign a statement acknowledging that the application shall not be deemed complete and eligible for hearing until either:

The adoption date of the ordinance that rezones the property which is the subject of the application; or

The later effective date of:

a.

An ordinance that prezones the subject property; and

b.

A reorganization which annexes the subject property to the city.

C.

Any approval governed by this title may be approved after final adoption of an ordinance rezoning the property, but shall not be effective unless and until the referendum period has expired without challenge for the ordinance rezoning the property.

(Ords. 26248, 27077.)

A.

Whenever applications for the same site have been filed for one or more development permits or approvals required by this title, such development permit or approvals may be reviewed and acted on in a unified process.

B.

The following actions, where required to implement a project that requires approval of a development permit, may be reviewed and acted on in a unified process:

Determinations of public convenience or necessity governed by Chapter 6.84 of Title 6 of the San José Municipal Code.

Tree removal permits governed by Chapter 13.32 of Title 13 of the San José Municipal Code.

Major Encroachment Permits governed by Chapter 13.37 of the San José Municipal Code.

Historic Preservation permits governed by Chapter 13.48 of Title 13 of the San José Municipal Code.

Development Agreements governed by Chapter 18.02 of Title 18 of the San José Municipal Code.

Subdivision approvals governed by Title 19 of the San José Municipal Code.

Street and Easement Vacations governed by the Government Code or the Streets and Highways Code.

C.

The unified process shall use the public hearing procedures required for the highest level permit or approval. Permits and approvals are ranked as follows with the highest level permit or approval listed first: Development Agreement; rezoning, Major Encroachment Permit; Street or Easement Vacation; conditional use permit; subdivisions; determination of public convenience or necessity; planned development permit; special use permit; site development permit; historic preservation permit, single-family house permit- director's decision; development exception; development variance; tree removal permit-director's decision; single-family house permit-administrative decision; and tree removal permit-administrative decision.

D.

The hearing body shall make the findings, if any, applicable to each permit or approval.

(Ords. 26248, 27077, 27440, 27626, 29195, 30321, 30543.)

A.

Not later than thirty calendar days after an application has been received, the director shall notify the applicant if the application is not complete. The director shall specify those parts of the application which are incomplete and shall indicate the manner in which it can be made complete, including a list and thorough description of specific information needed to complete the application.

B.

Not later than thirty calendar days after the submittal of additional information in response to notification pursuant to the above section, the director shall notify the applicant if the application is still not complete. The director shall specify those parts of the application which are incomplete and shall indicate the manner in which it can be made complete, including a list and thorough description of specific information needed to complete the application.

C.

If the determination, pursuant to the above sections, is not made within the thirty-calendar day period, the application, together with the submitted materials, will be deemed complete and the application shall be eligible for hearing on the merits. Nothing herein shall preclude the director, the planning commission or the city council from denying the application on the grounds that the information provided is inadequate to demonstrate that the application should be approved in accordance with this title.

D.

Nothing herein precludes an applicant from waiving the right to a determination of incompleteness or from extending the period of time for a determination of completeness.

(Ord. 26248.)

A.

The determination of incompleteness by the director may be appealed in writing to the planning commission.

B.

The planning commission shall review the submitted documents at a public meeting and shall issue a final written determination not later than sixty days after the receipt of the written appeal, unless the applicant agrees to extend the time period.

C.

If the determination, pursuant to this section, is not made within the sixty calendar day period, the application together with the submitted materials will be deemed complete and the application shall be eligible for hearing on the merits. Nothing herein shall preclude the director, the planning commission or the city council from denying the application, on the grounds that the information provided is inadequate to demonstrate that the application should be approved in accordance with this chapter.

(Ord. 26248.)

A.

The applicant may amend or withdraw the application at will at any time prior to the opening of the required public hearing on the application. Thereafter, the application may be amended or withdrawn only with the consent of the decision maker before whom the matter is pending.

B.

The application may be amended in any way except where:

A change in boundaries would result in a change in the requirements for notice pursuant to Section 20.100.190; or

A change is determined by the director not to be covered by the environmental clearance issued for the application pursuant to Title 21.

C.

A change in the application may require additional fees to be paid as set forth in the schedule of fees related to the change.

(Ords. 26248, 28511.)

If required by the director, every application shall be accompanied by an application for, or verification of, environmental clearance or exemption for the project in accordance with Title 21 of the San José Municipal Code. Notwithstanding any provision in any other section, part, chapter or title of this Code, the city council shall be the initial decision making body on the application if that application requires certification of an environmental impact report for environmental clearance, unless the project as proposed includes all mitigation measures identified in the draft environmental impact report for the project as necessary to reduce the impacts of the project to a less than significant level.

(Ords. 26248, 29484.)

A.

Notice of time, place, and purpose of any hearing required by this chapter shall be as follows:

To the applicant and any appellants at the addresses designated for such purpose on the application; and

To the owners, as shown on the last equalized assessment roll adopted by the County of Santa Clara, within a three hundred foot radius of the property that is the subject of the application; and

To anyone who has submitted a request for notice as prescribed in Section 20.100.200; and

To any occupant of property within a three hundred foot radius of the property that is the subject of the application.

B.

The director may increase the three hundred- foot radius for notice. Nothing herein shall preclude the city from requiring or providing additional notice to other persons or in any other manner.

C.

Any notice of hearing by the director or planning commission shall be as prescribed by the director and shall be mailed by the director or authorized mail service, postage prepaid, at least ten calendar days before the date set for hearing. Upon the mailing of such notice, a declaration that such notice has been mailed shall be filed in the proceedings.

D.

Any notice of hearing by the city council shall be as prescribed by the city clerk and shall be mailed by the city clerk, or authorized mail service, postage prepaid, at least ten calendar days before the date set for the hearing. Upon the mailing of such notice, a declaration that such notice has been mailed shall be filed in the proceedings.

E.

Notwithstanding the above, the failure of the director or city clerk to mail any notice or the failure of any person to receive the same shall not affect, in any way whatsoever, the validity of any proceedings taken under this part, nor of any action or decision of the director, planning commission or city council made or taken in any such proceedings, nor prevent the director, the planning commission or city council from proceeding with any hearing at the time and place set therefor.

F.

All fees for mailings set forth in the schedule of fees adopted by resolution of the city council shall be paid by the applicant prior to mailing the notice. Failure of the applicant to comply with this provision could result in a delay of a hearing and/or a decision on an application.

(Ords. 26248, 27185.)

Any person may request to be given notice of any public hearing with regard to any application or appeal by filing a request for notice and self-addressed stamped envelopes with the director at any time after the application has been received. Said request shall be filed in the project file. A separate request and envelopes must be provided for each separate permit, approval applied for, or appeal with regard to any project.

(Ord. 26248.)

A.

With respect to any permit or approval, the director, planning commission, or city council as designated by this title, may:

Deny the permit or approval; or

Grant a permit or approval based on the plan proposed by the applicant, and may make such permit or approval subject to conditions; or

Grant a permit approval based on a plan substantially different from the plan proposed by the applicant, and may make such permit or approval subject to conditions; provided, however, that any variance or such exception shall not be greater than the amount of variance or exception requested in the application, nor, in the case of a variance, be a different type of variance or for a variance which covers a different part of the subject property from that designated in the application.

B.

The director shall mail a copy of the decision to the applicant at the addresses shown for such purpose on the application.

(Ords. 26248, 27185.)

Decisions on permits or approvals pursuant to this chapter are subject to appeal as set forth in Table 20- 260 which lists the initial decision maker and the decision making body which will hear any appeal.

Table 20-260 Appeal Hearing Body

Application Initial Decision Making Appeal Decision Making Body 1 Body 2

Administrative permit Director of Planning No Appeal

Site development permit Director of Planning Planning Commission

Site development permit - projects within Director of Planning City Council downtown districts and exceeding 150 feet and FAR of 6:1

Single-family house permit Director of Planning

Administrative decision Director of Planning No Appeal

Director's hearing Director of Planning Planning Commission

Planned development permit Director of Planning Planning Commission

Special use permit Director of Planning Planning Commission

Special use permit - for schools that are elementary Director of Planning City Council or secondary (public or private), post secondary, trade and vocational, or driving (class C & M license) in the PQP public/quasi-public zoning district

Special use permit - for church/religious assembly Director of Planning City Council in the PQP public/quasi-public zoning district

Special use permit - for privately-operated Director of Planning City Council museums, libraries, parks, playgrounds, or community centers in the PQP public/quasi-public zoning district

Conditional use permit Planning Commission City Council

Conditional use permit - stadium, more than 2,000 City Council No Appeal seats including incidental support uses

Conditional use permit - drinking establishments City Council No Appeal with an approved maximum occupancy load of over 250 persons that operate between 12:00 midnight and 6:00 a.m.

Conditional use permit involving off-premises sale City Council No Appeal of alcoholic beverages requiring a determination under Chapter 6.84 where findings required by planning commission under Section 6.84.030.B.1. through 4. cannot be made

Conditional use permit or planned development City Council No Appeal permit for mobilehome park conversion of use

Variance Director of Planning Planning Commission

Exception Director of Planning Planning Commission

Tree removal permit Director of Planning

Administrative decision Director of Planning No Appeal

Director's hearing Director of Planning Planning Commission

Zoning code verification certificate Director of Planning No Appeal

The City Council is the initial decision making body for a project that requires certification of an environmental impact report for environmental clearance unless the project as proposed includes all mitigation measures identified in the draft environmental impact report for the project as necessary to reduce the impacts of the project to a less than significant level.

The City Council is the appeal decision making body for all projects in which appeals have been filed for both approval of the project under this chapter and environmental clearance for the project under Title 21 of this Code.

(Ords. 26248, 26455, 27091, 27185, 28731, 28958, 29046, 29195, 29312, 29364, 29484, 29690, 30321.)

A.

An appeal may be filed by the applicant or any property owner or any tenant of property within one thousand feet of the subject site.

B.

Any appeal must be accompanied by the fee as set forth in the schedule of fees adopted by resolution of the city council.

(Ord. 26248.)

A.

A notice of appeal must be filed with the director of planning within ten calendar days after the copy of the written decision of the initial decision maker is mailed to the applicant. If no such appeal is filed by 5:00 p.m. on the tenth day, the decision of the initial decision maker becomes final on the eleventh day.

B.

Any notice of appeal shall set forth the specific grounds of the appeal.

(Ord. 26248.)

An appeal may be withdrawn by the appellant at their will prior to the expiration of the appeal period set forth in Section 20.100.240. Any request for withdrawal made after the appeal period shall be acted upon by the planning commission or city council at the scheduled public hearing on the appeal.

(Ord. 26248.)

If a notice of appeal has been duly accepted by the director, the decision of the initial decision maker shall not be final and it shall be of no force and effect unless the appeal is withdrawn prior to the appeal hearing.

(Ord. 26248.)

Any appeal to the planning commission is subject to the following:

The director shall, subject to the rules of the commission, set a date for the hearing. The date of hearing shall be not less than ten nor more than sixty calendar days after receipt of the notice of appeal.

The planning commission shall hold at least one public hearing on the matter. The director shall provide a report and recommendation to the commission. In addition, the director shall file with the commission at its hearing all relevant papers, documents, and exhibits which are part of the file. The planning commission shall hear the matter de novo.

Within a reasonable time after the commission has concluded its hearing, it shall, by resolution, set forth its findings and decision on the matter. The decision of the planning commission is final and is not subject to further appeal.

A copy of the decision of the planning commission shall be mailed to the applicant and the appellant at the addresses shown for such purpose on the application and notice of appeal.

(Ord. 26248.)

Any appeal to the city council is subject to the following:

The director shall, within ten calendar days of receipt of the appeal, file a copy of the application and the notice of appeal with the city clerk.

The council shall hold at least one public hearing on the matter. The hearing of the city council shall be de novo. The city clerk shall set the date of the public hearing by the council. The date of hearing shall be the first available date not less than ten days after receipt of the notice of appeal. Within a reasonable time after the council has concluded its hearing, it shall, by resolution, set forth its findings and decision on the matter.

The decision of the council shall be final. The city clerk shall mail a certified copy of the decision of the council to the applicant and the appellant at the addresses shown for such purpose on the application and notice of appeal.

(Ords. 26248, 27185.)

A.

After the time for any appeal has expired and no appeal has been filed by a qualified appellant, the permit or other approval issued shall be deemed final, subject to the provisions of Subsection 20.100.290 D. below.

B.

If the applicant fails to file a timely and valid appeal of the permit or other approval within the applicable appeal period, such inaction by the applicant shall be deemed to constitute all of the following on behalf of the applicant:

Acceptance of the permit or approval by the applicant; and

Agreement by the applicant to be bound by, to comply with, and to do all things required of or by the applicant pursuant to all of the terms, provisions, and conditions of the permit or other approval and the provisions of this title applicable to such permit or other approval.

C.

If the applicant is a qualified tenant, such tenant shall, and it shall be the responsibility of such tenant to, inform the property owner(s) of the issuance of the permit or other approval, together with the terms, conditions and provisions of such Permit or other approval, including without limitation provisions

contained in such permit or approval that require dedication of land, restrictive covenants or other commitments beyond the scope of a tenancy.

D.

No permit or other approval shall have any force or effect prior to, and a permit shall be deemed effective on, the date that all of the following have occurred:

The elapse of the appeal period applicable to that permit; and

The fulfillment of all conditions precedent to the effectiveness of that permit as set forth in the permit; and

The payment to city in full of all fees applicable to that permit.

(Ords. 26248, 27185, 28677.)

A.

Within thirty (30) days of the permit or other approval becoming effective, in accordance with the provisions of Section 20.100.290, fulfillment of all conditions precedent to release pursuant to this chapter and the payment of fees, a certificate identifying the permit or other approval shall be recorded by the city. The permit or other approval and the rights and restrictions therein shall run with the land to the fullest extent allowed by law.

B.

If any permit or other approval is revoked after a hearing on an order to show cause pursuant to this chapter, a certificate of revocation shall be recorded with the county recorder's office.

C.

The provisions of Sections 20.100.300A. and B. above shall not apply to the following permits:

Administrative permits that do not include the installation of utility structures; or

Tree removal permits; or

Special use permits that only include demolition of existing buildings or structures; or

Planned development permits that only include demolition of existing buildings or structures; or

Single-Family House Permits subject to administrative approval under Section 20.100.1040.A. or B.

(Ords. 26248, 27185, 28677, 29195, 30133.)

A.

No person shall use, maintain or suffer the use or maintenance of any real property except in full and complete compliance with this chapter and in precise conformity to all the requirements and conditions of any permit or approval issued pursuant to this chapter.

B.

Any use permitted by this title shall be conducted in full compliance with all local and state laws. Any permit hereunder is subject to revocation if it is conducted in such a manner as to cause a nuisance as defined by this title.

(Ord. 26248.)

A.

The director may issue a notice of noncompliance for any failure to comply with any requirement of this title or any condition of a development permit or approval.

B.

The notice of noncompliance shall be sent by certified mail to the address of the subject property and the owner of the property at the address shown on the last equalized assessment roll adopted by the County of Santa Clara.

C.

Such notice shall set forth the action necessary to come into compliance and a time frame for compliance.

(Ord. 26248.)

If the noncompliance is not abated, corrected, or rectified within the time specified by the director in said notice, the director may issue an order to show cause why such permit or approval shall not be revoked,

suspended or modified. An order to show cause shall be set for a public hearing before the planning commission, except that in the case of a conditional use permit for which the city council is the initial decision-making body, the order to show cause shall be set for a public hearing before the city council, all pursuant to Section 20.100.340.

(Ords. 26248, 28731.)

A.

At the time specified in the order to show cause or at such later time to which the matter is continued, the planning commission, or city council as appropriate, shall hold a hearing to determine if the permit or approval shall be revoked.

B.

The procedures set forth in this Chapter 20.100 shall equally apply to a hearing on an order to show cause except as hereinafter expressly set forth.

C.

The decision of the planning commission shall be final except for conditional use permits and single-family house permits-city council decision. The decision of the city council shall be final on permits for which the city council is the initial decision-making body or the appellate body.

D.

The decision of the planning commission on an order to show cause relating to a conditional use permit may be appealed to the city council by the owner or tenant of the subject property.

(Ords. 26248, 28731.)

After a hearing on an order to show cause, the planning commission, or city council as appropriate under the processes set forth in this chapter, at its discretion may revoke, suspend, or modify any permit or other approval upon finding that:

A violation of any condition of a development permit, development variance, development exception or other approval was not abated, corrected or rectified within the time specified on the notice of violation; or

A violation of any city ordinance or state law was not abated, corrected or rectified within the time specified on the notice of noncompliance; or

A use as presently conducted creates a nuisance.

(Ords. 26248, 28731.)

A.

When a revocation of a permit or approval has become final, the city shall file a revocation certificate with the county recorder.

B.

Any building or structure built under any approval which is later revoked shall be deemed to be in violation of this chapter and this title as if no such approval had ever been issued.

C.

Irrespective of prior permits or approvals issued, it shall be a violation of this title to utilize any property for which the approval has been revoked, for any purpose which requires an approval under this title, without obtaining the necessary approvals pursuant to this chapter, except as set forth in Section 20.100.370.

(Ord. 26248.)

Upon revocation or nonrenewal of a conditional use permit:

A residential property which was subject to a conditional use permit may be utilized for unconditionally permitted residential purposes in accordance with this title.

A property, other than residential, which was subject to a preexisting site development permit may be utilized in accordance with and conformity to the site development permit.

It shall be a violation to this title to utilize any property, which was not subject to a separate site development permit, other than for residential or agricultural purposes in accordance with other provisions of this title, after a conditional use permit has been revoked or not renewed (either because of failure to apply for a new or renewed conditional use permit or because of denial), without obtaining a new development permit pursuant to this chapter.

(Ord. 26248.)

A.

In the event that a real property owner desires to have their property released from a final permit or other approval previously granted and issued by the city, the property owner may apply for such release of permit or other approval on a form provided by the director.

B.

Each application for release of permit or other approval shall be subject to the following requirements:

For permits or other approvals that have not been implemented in any manner and whose term of expiration has not yet elapsed, the director may administratively accept and grant such release requests in writing.

For permits or other approvals that have been implemented in whole or in part, the director may accept and consider such release requests and may grant a release request in writing only if the director first determines that releasing the permit or other approval would meet all of the following criteria:

a.

Releasing the permit or other approval would not result in any harm or other adverse impact upon the real property, persons located on the real property, persons or property in the area surrounding the real property or to the city; and

b.

Releasing the permit or other approval would not result in a situation that would constitute a violation of any applicable law.

C.

Nothing contained in this section shall prevent or preclude the director from determining that the protection, preservation or furtherance of the public interest, health, safety or welfare would be better served through the processing of an amendment or adjustment to the original permit or other approval or a new permit or other approval rather than granting a release of such permit or other approval. The director shall require an amendment or adjustment to a permit or other approval or a new permit or other approval for any release application that does not meet the criteria of Subsection 20.100.380.B.2., above.

D.

Any applicant for a release of permit or other approval who is granted a release of the permit or other approval shall thereafter use the real property released from the permit or other approval only in a manner that conforms to the provisions of this title as if no such permit or other approval had been issued. Irrespective of prior permits or other approvals issued, it shall be a violation of this title to utilize any property for which a permit or other approval has been released for any purpose that requires a permit or other approval under this title without having first obtained the required permit or other approval; provided,

however, that the property may be utilized in a manner that would be allowed under the provisions of Section 20.100.370, as if the permit or other approval had been revoked rather than released.

E.

When a permit or other approval has been released pursuant to the provisions of this section, the city shall file a release certificate with the county recorder in the same manner as a revocation certificate.

(Ord. 27185.)

A.

The director of planning shall have the authority to pursue a final decision on any permit or other approval application on file with the director for a period of at least six months where there is inactivity on the application on the part of the applicant for at least six consecutive months.

B.

Alternatively, if an applicant fails to process his or her application on file with the director and such inactivity by the applicant on the application continues for a period of at least six consecutive months and additional work would be required by the director to continue to process the application, the director shall have the authority to require the applicant to first pay additional fees to continue processing the application in order to account for work that was not paid for under the original application fee or in cases where the application fees paid by the applicant were at a different rate than those fees in effect at the time of reactivation of the application after a period of inactivity by the applicant.

C.

In addition to the ability provided to the director pursuant to the provisions of this section to pursue a final decision on any permit or other approval application on file with the director, the director also shall have the authority to deem an application withdrawn without holding any hearing on that application where the period of inactivity on an application on the part of the applicant has transpired for at least twelve consecutive months. The director shall provide a courtesy notice to the applicant at the last known address of the applicant on record with the director of the director's intention to deem an application withdrawn at least thirty days prior to deeming such application withdrawn, and the notice shall specify the date that the application is to be deemed withdrawn.

D.

For purposes of this section "inactivity" on an application means that the director has requested from the applicant or has provided the applicant with notice of additional information, materials and/or fees needed by the director from the applicant to continue to process the application and the applicant has failed to adequately respond to that request or notice.

(Ords. 27185, 28511.)