San Jose Municipal Code Part 3 Local Streamlined Ministerial Approval

A. This Section may be used instead of, but not in addition to, the State Streamlined Ministerial Approvals allowed pursuant to applicable Government Code Sections, for this Chapter of the San José Municipal Code.

B. Housing development projects on sites located in the Affordable Housing Overlay, Mixed-Income Housing Overlay, or Housing Element Residential Overlay; Emergency Residential Shelters that meet the requirements specified in Chapter 20.80; and Streamlined Infill Housing Developments that meet the requirements specified in this Part and in Part 4 of this Chapter.

(Ord. 31298.)

A. Development Standards. The following shall meet all objective site, design, and construction standards included in Title 17 (Building and Construction), Title 19 (Subdivisions), and Title 20 (Zoning) of this Code, and shall also comply with all objective design guidelines included in applicable specific plans or otherwise adopted by the City Council, and all administrative regulations adopted pursuant to Section 20.195.230 for the implementation of this Chapter 20.195:

1. Housing Development Projects located within the Affordable Housing Overlay, Mixed-Income Housing Overlay, or Housing Element Residential Overlay.

2. Emergency Residential Shelters that meet the requirements specified in Chapter 20.80.

3. Streamlined Infill Housing Development that meets the requirements specified in Chapter 20.195, Parts 3 and 4.

B. Ministerial Approval shall not be issued where any of the following apply:

1. The development would require the demolition or alteration of a historic resource as defined and outlined below.

a. Property listed in the San José Historic Resources Inventory, including property located within a designated or eligible National Register, California Register or City Landmark Historic District or designated historic district or Conservation Area classified in the Historic Resources Inventory as an Identified Structure.

i. An Identified Structure may be demolished if a historic report prepared by a qualified historic resources consultant meeting the Secretary of the Interior Professional Qualification Standards (Code of Federal Regulations, 36 CFR Part 61) documents and evaluates the property and determines it is not eligible for listing in the National Register, California Register, or the City of San José Historic Resources Inventory as a Candidate City Landmark.

b. Properties not listed in the San José Historic Resources Inventory containing one or more building(s) over 45 years old shall be documented and evaluated in a historic report prepared by a qualified historic resources consultant meeting the Secretary of the Interior Professional Qualification Standards (Code of Federal Regulations, 36 CFR Part 61). If the qualified historic resources consultant determines that the property is eligible for listing in the National Register, California Register, or the City of San José Historic Resources Inventory as a Candidate City Landmark, the building(s) may not be demolished through a ministerial process. If the qualified historic resources consultant determines that the property is not eligible under the above criteria, the building(s) may be demolished.

2. The site is designated as either prime farmland or farmland of statewide importance, as defined pursuant to United States Department of Agriculture land inventory and monitoring criteria, as modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction.

3. The site contains wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

4. The site is within a very high fire hazard severity zone, as determined by the California Department of Forestry and Fire Protection pursuant to Government Code Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.

5. The site is a hazardous waste site that is listed pursuant to Government Code Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless either of the following apply:

a. The site is an underground storage tank site that received a uniform closure letter issued pursuant to subdivision (g) of Section 25296.10 of the Health and Safety Code based on closure criteria established by the State Water Resources Control Board for residential use or residential mixed uses. This section does not alter or change the conditions to remove a site from the list of hazardous waste sites listed pursuant to Government Code Section 65962.5.

b. The State Department of Public Health, State Water Resources Control Board, Department of Toxic Substances Control, or a local agency making a determination pursuant to subdivision (c) of Section 25296.10 of the Health and Safety Code, has otherwise determined that the site is suitable for residential use or residential mixed uses.

6. The site is within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.

7. Within a special flood hazard area subject to inundation by the one percent (1%) annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site. A development may be located on a site described in this subparagraph if either of the following are met:

a. The site has been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction.

b. The site meets Federal Emergency Management Agency requirements necessary to meet the minimum flood plain management criteria of the National Flood Insurance Program pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.

8. Within a regulatory floodway as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency, unless the development has received a no-rise certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations. If a development proponent is able to satisfy all applicable federal qualifying criteria that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site.

9. Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), a habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.

10. Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).

11. Lands under conservation easement.

12. The development would have a specific, adverse impact upon public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

C. Infill Housing Standards. In addition to the requirements stated in this Part, an Infill Housing Development Project must meet all of the following criteria to be eligible for a streamlined ministerial approval process:

1. Land Use and Zoning

a. The project site must have a General Plan land use designation of Urban Residential, Transit Residential, Urban Village, or Mixed Use Commercial.

i. The project must provide residential units at a net density of forty (40) dwelling units per acre or greater. If the project is located in a General Plan land use designation that allows a density below 40 DU/AC, the project must provide at least 40 DU/AC.

a. The project is zoned Urban Residential, Transit Residential, Urban Village, or Mixed Use Commercial.

b. The infill housing development project is located in an area in which the per-capita VMT is less than or equal to the threshold of significance for residential uses or the project meets the screening criteria under the City's Transportation Analysis Policy (City Council Policy 5-1), as amended. If the project includes non-residential uses, the project must the CEQA screening criteria based on the proposed land use in Table 1 of the City's Transportation Analysis Policy, as amended.

2. Location

a. The project is located in an approved urban village (excluding Alum Rock Avenue Urban Village), Capitol Caltrain Urban Village Plan, Jackson-Taylor Specific Plan, Martha Gardens Specific Plan, or Midtown Specific Plan.

b. The project is within one-half (½) mile of an existing major transit stop as defined by Public Resource Code Section 21064.3, as amended.

c. The project site is not within the Airport Influence Area approved by Council.

d. The project site is not located within one hundred (100) feet of a City Landmark or City Landmark District.

e. The project is not located on a site known to contain archaeological or paleontological resources, or human remains.

f. The project is not located on a site within a mobilehome park.

g. The project is not located within three hundred (300) feet of a creek or edge of riparian vegetation, whichever is most restrictive.

h. The project site is not located on a hazardous waste site included in any list compiled pursuant to Section 65962.5 of the California Government Code.

3. Demolition. The Housing Development Project does not:

a. Demolish a unit occupied by tenants in a multi-unit dwelling (consisting of three (3) or more units) within the last five (5) years;

b. Demolish a project subject to an affordable housing regulatory agreement;

c. Demolish a unit protected under the Ellis Act; or

d. Reduce the total number of existing dwelling units on the site.

4. The project does not include or require the concurrent review of a:

a. Development Exception;

b. Variance;

c. Use Permit; or

d. Planned Development Permit.

(Ord. 31298.)

A. General. Any application for a Local Ministerial Approval sought by an Applicant shall be made pursuant to this Chapter.

B. Application. All applications pursuant to this Chapter 20.195 shall be filed with the Director in a form prescribed by the Director. The application shall be signed by:

1. All owners of the real property included in the housing development; and

2. The person or entity with written authority of the owner(s) to apply for Ministerial Approval for a housing development project.

C. Application Received. No application for Ministerial Approval shall be deemed received until the following have been provided:

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

2. All documents specified in this Chapter and the application form have been filed.

D. Subdivision Application. Notwithstanding the Subdivision Map Act (Division 2 (commencing with Section 66410)), or any other applicable law authorizing the subdivision of land, the subdivision of a parcel for a housing development project pursuant to Chapter 20.65 that also meets all the requirements of this Chapter for Ministerial Approval, shall be subject to a Ministerial Approval process as set forth above and shall be processed concurrently with the Ministerial Approval for the housing development project.

E. Tree Removal Application. Notwithstanding Chapter 13.32, the removal of tree(s), excluding heritage tree(s) as defined in Section 13.32.140 or palm tree(s) in the Palm Haven Conservation Area, necessitated by the housing development pursuant to Chapter 20.65 that also meet all the requirements of this Chapter for Ministerial Approval, shall be subject to a Ministerial Approval process as set forth above and shall be processed concurrently with the Ministerial Approval for the housing development. The application shall include the following information:

1. Brief description of each Ordinance sized tree, circumference of the tree(s) measured at 4.5 feet above ground, and species of the tree(s).

2. Site Plan identifying the location of the tree(s), and distance of the tree(s) to the nearest building or structure

3. Replacement with either one 15-gallon tree or one 24-inch box tree, in lieu of two 15-gallon trees, shall be provided onsite or through an in-lieu contribution as outlined below:

a. For one-family dwellings, the tree replacement ratio shall be at a minimum 1:1 for each tree that is removed.

b. For multi-family dwellings, the tree replacement shall be at a minimum 4:1 for each tree that is removed.

F. The housing development project must comply with Chapter 5.08, as amended.

(Ord. 31298.)

A. Environmental. The California Environmental Quality Act (CEQA) does not apply to Ministerial Approvals, as they are statutorily exempt pursuant to Government Code Section 15268, as may be amended. Ministerial Approvals complying with the requirements of this Chapter are not subject to CEQA.

B. General. An application for Local Streamlined Ministerial Approval shall be acted upon by the Director.

C. Conditions for Approval. Before approving an application for Local Streamlined Ministerial Approval, the Director must make the following findings based on evidence in the record, as applicable, that:

1. The housing development project is eligible for Ministerial Approval.

2. If the application includes a request for a density bonus, incentive, waiver, or modification under Chapter 20.190, a finding that all the requirements for a density bonus and/or other incentives that are specified in Chapter 20.190 have been or will be met.

D. Conditions for Denial. The Director may deny an application for Local Streamlined Ministerial Approval if:

1. The findings required by Subsection C above, as applicable, cannot be made.

2. Doing so would be contrary to state and federal law, and this finding is made in writing.

3. The development would have a specific, adverse impact upon public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

E. Nothing in this Chapter 20.195 limits the City's right to deny an affordable housing project under Government Code Section 65589.5.

F. Permit Conditions.

1. Term. Local Streamlined Ministerial Approvals shall automatically expire after four (4) years from and after the date of issuance of the Local Streamlined Ministerial Approval if within such four (4)-year period the vertical construction of buildings has not commenced, pursuant to and in accordance with the provisions of the Local Streamlined Ministerial Approval.

a. The Director may issue a one-time, one-year extension of a Local Streamlined Ministerial Approval if a complete building permit application for the project approved under the Local Ministerial Approval has been submitted.

b. The application for an extension must be filed on the form provided by the Director on or before the date that is three (3) business days prior to the expiration of the development permit proposed for extension and accompanied by the fees as set forth in the schedule of fees adopted by resolution of the City Council.

c. The decision to grant, deny, or condition an extension is a ministerial determination.

2. Conditions. Following approval of an application under the Local Streamlined Ministerial Approval Process, but prior to issuance of a building permit for the development, the Director may require one-time changes to the development that are necessary to comply with the objective uniform construction codes (including, without limitation building, plumbing, electrical, fire, and grading codes), to comply with federal or state laws, or to mitigate a specific, adverse impact upon public health or safety and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without modifying the development. A "specific, adverse impact" has the meaning defined in Government Code Section 65589.5(d)(2).

3. Failure to install public improvements. It shall be a violation of this Title for any person who has signed the acceptance of a permit or approval issued pursuant to this Chapter to fail to secure the completion of the public improvements required by the permit or approval within the time period specified. If no time period is specified, the time period for completion of improvements shall be deemed to be one (1) year from the issuance of a building permit unless an extension has been granted in writing by the Director or, if no building permit is required, one (1) year from the issuance of the permit or approval.

4. Construction Clean-up. It shall be a violation of this Title for any person responsible for construction including but not limited to the permit holder and any contractor thereof to fail to keep the public right-of-way free from construction dirt and debris. All on-site construction debris shall be removed at least weekly.

5. Window Glazing. Unless otherwise indicated on an approved plan or in the approved permit, all first-floor, ground floor windows for any commercial use shall consist of transparent glass.

6. Maintenance of Landscape. It shall be a violation of this Title for any property owner or other person in control of any site to fail to install or maintain any landscaping required by a permit or approval issued pursuant to this Chapter or otherwise in a manner that fails to fully comply with the provisions of Chapters 15.10 or 15.11 of Title 15 of this Code. Any vegetation, required by a permit or approval, or otherwise by Chapters 15.10 or 15.11 of Title 15 of this Code, which is dead or dying, shall be replaced within sixty (60) days.

7. Hours of Construction within five hundred (500) feet of a residential unit. No Applicant or agent of an Applicant shall suffer or allow any construction activity on a site located within five hundred (500) feet of a residential unit before 7:00 a.m. or after 7:00 p.m., Monday through Friday, or at any time on weekends. Extension of construction hours are allowed through a Permit Amendment or Permit Adjustment.

8. All projects approved under this Chapter 20.195 shall follow the stormwater management requirements listed in Sections 20.100.470 and 20.100.480, as applicable.

9. Prior to the approval of the Tract or Parcel Map (if applicable) by the Director of Public Works, or the issuance of Building permits, whichever occurs first, all projects approved under this Chapter 20.195 shall satisfy all applicable Public Works clearance and Building Division clearance requirements.

10. All projects approved under this Chapter 20.195 shall, if required by the Zoning Ordinance, satisfy the performance standards of the applicable Zoning Districts.

11. All projects under this ministerial ordinance will be required to conduct Worker Environmental Awareness Program training for construction workers.

12. Any sites located in an archaeologically sensitive area, as mapped by the General Plan, will be required to have archaeological and Tribal monitoring during ground disturbance activities such as tree removal, demolition, and grading, and Tribes that requested consultation shall be notified of any findings made on the project site.

G. Environmental Standard Permit Conditions. Projects subject to a ministerial review process shall be subject to the City's standard environmental permit conditions adopted by City Council.

(Ord. 31298.)