San Jose Municipal Code Part 2 Use Permit Procedure

No conversion to a project shall be permitted in any district unless the same is permitted in such district pursuant to the provisions of this title, nor shall any conversion to a project be permitted in any district in which it is permitted pursuant to the provisions of this title unless and until a conditional use permit therefor has been issued under the provisions of this title.

(Ord. 26248.)

A. In addition to the requirements of Section 20.100.190, notice of time, place, and purpose of any public hearing on an application for a conditional use permit for conversion to a project shall be given to each tenant of the proposed project hereinafter identified pursuant to the provisions of this part. Each such notice shall be printed in English and Spanish.

B. The director shall mail, postage prepaid, a copy of the staff report on an application for a conditional use permit for conversion to a project, at least five (5) days before the date set for hearing by the planning commission, to each tenant of the proposed project hereinafter identified pursuant to the provisions of this part.

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

(Ord. 26248.)

Recognizing that the conversion of structures, which have been previously occupied, to a project presents unique problems to present tenants and future buyers, in addition to any requirements relating to applications for conditional use permits, the application for a conditional use permit for a conversion to a project shall include the following information:

1. Satisfactory evidence that, at least sixty (60) days prior to the date of filing such application, each of the tenants of the proposed project received, pursuant to Section 20.170.400 of this chapter, written notification of intention to convert; and that, thereafter, each person applying for rental of a unit in the proposed project, prior to payment of any rent or deposit, received notification of intention to convert.

2. Provision that, after the date of filing such application, each person applying for rental of a unit in the proposed project, prior to payment of any rent or deposit, shall receive, pursuant to Section 20.170.400 of this chapter, written notification of intention to convert.

3. A boundary map showing the location of all existing easements, structures, mature and/or scenic trees, and other improvements upon the property.

4. The proposed organizational documents. In addition to such covenants, conditions, and restrictions that may be required by the department of real estate of the state of California pursuant to Title 6 (Condominiums) of the Civil Code or other state laws or policies, the organization documents shall provide for the following:

a. Conveyance of units;

b. Assignment of parking and management of common areas within the project;

c. A proposed annual operating budget containing a reserve fund to pay major anticipated maintenance, repair, or replacement expenses; and indicating the association fees needed for the operating budget and the reserve fund;

d. FHA regulatory agreement, if any;

e. The most recent balance sheet of the association.

5. A provision that the annual assessments to members of the association shall provide for penalties for late payments and reasonable attorneys' fees and costs in the event of default by said members.

6. Provision to allow the association to terminate the contract of any person or organization engaged by the developer to perform management or maintenance duties after the association assumed control of the project or anytime thereafter.

7. A property report describing the condition and estimating the remaining useful life of each of the following elements of each structure situate within the project proposed for conversion: roofs, foundations, exterior paint, paved surfaces, mechanical systems, electrical systems, plumbing systems, sewage systems, swimming pools, sprinkler systems for landscaping, utility delivery systems, central or community heating and air conditioning systems, fire protection systems including any automatic sprinkler systems, alarm systems, or standpipe systems, and structural elements. For any element whose useful life is less than five (5) years, a replacement cost estimate shall be provided. Such report shall be prepared by an appropriately licensed contractor or registered civil or structural engineer.

8. A structural pest control report. Such report shall be prepared by a licensed structural pest control operator pursuant to Section 8516 of the Business and Professions Code.

9. A building history report including the following:

a. The date of construction of all elements of the project.

b. A statement of the major uses of said project since construction.

c. The date and description of each major repair of any element since the date of construction. For the purposes of this subsection, a "major repair" shall mean any repair for which an expenditure of more than one thousand dollars was made.

d. The date and description of each major renovation of any element since the date of construction. For the purposes of this subsection, a "major renovation" shall mean any renovation for which an expenditure of more than one thousand dollars was made.

e. Statement regarding current ownership of all improvements and underlying land.

f. The name and address of each present tenant of the project.

g. Failure to provide information required by Subsections 9(a) through 9(f), inclusive, shall be accompanied by an affidavit, given under penalty of perjury, setting forth in detail all efforts undertaken to discover such information and all reasons why said information cannot be obtained.

10. A rental history detailing the size in square footage and number of bedrooms, the current or last rental rate, the monthly rental rate for the preceding two years, and the monthly vacancy over the preceding two years of each rental unit proposed to be converted.

11. A true copy of each application to the California Department of Real Estate for issuance of a final public report for the project proposed for conversion including all attachments and exhibits thereto required by the department pursuant to Section 11011 of the Business and Professions Code. A true copy of the statement of compliance (form 643 as amended) pursuant to Title 10, California Administration Code, Section 2792.9, or its successor, relating to operating and maintenance funds during start-up. A statement whether the developer will provide any capital contribution to the association for deferred maintenance of the common areas and, if so, the sum and date on which the association will receive said sum.

12. A true copy of the supplemental questionnaire for apartments converted to condominium projects submitted to the California Department of Real Estate for the project proposed for conversion, including all attachments and exhibits thereto.

(Ord. 26248.)

The information required to be furnished pursuant to Subsections K and L of Section 20.170.220 above shall be subject to the following provisions:

1. To the extent that such information is not available at the time of application, any conditional use permit issued under this chapter shall require the developer to furnish such information to the director within ten (10) days of submission of the same to the department of real estate.

2. The developer shall file with the director a true copy of any amended or revised documents submitted to the department of real estate prior to the public hearing before the planning commission or city council on a conditional use permit for conversion to a project. (The violation of any of the conditions of an approved conditional use permit for conversion to a project is grounds for revocation of such permit.)

3. The developer shall file with the city a true copy of the final public report within ten (10) days of issuance by the department of real estate.

(Ord. 26248.)

To achieve the purposes of this chapter, all projects shall conform to the requirements of this chapter and all other parts of this title applicable thereto, provided that if there is any conflict between the provisions of this chapter and such other parts of this title, the provisions of this chapter shall control. An application for a conditional use permit for a project which does not comply with all of the development standards in Section 20.170.300 may, but shall not under any circumstances be required to be granted and a conditional use permit may be issued therefor if the planning commission or city council finds that:

1. Because of circumstances applicable to the subject property or to the structures situate thereon, including (but not limited to) the size, shape, location or surroundings of the subject property or the buildings situate thereon, but expressly excluding any consideration of the personal circumstances of the developer, the strict application of the development standards set forth in Section 20.170.300 would create an unreasonable economic hardship, and

2. A conditional use permit issued under this chapter not in conformance with such development standards, subject to such conditions as may be imposed thereon:

a. Will provide for substantial compliance with such development standards, and

b. Will incorporate mitigating features into the project which tend to further the purposes of this chapter.

(Ord. 26248.)