Chapter IV — Development Agreements — San Ramon Zoning Code

Contents:

D6-39 - Purpose

D6-40 - Application Requirements

D6-41 - Pre-Application Process

D6-42 - Department Review and Recommendation

D6-43 - Public Hearing Required

D6-44 - Commission Action

D6-45 - Council Action

D6-46 - Annual Review

D6-47 - Application of Existing Rules, Regulations, and Policies

D6-48- Modification and Termination

D6-49 - Zoning Administrator Responsibilities

D6-39 - Purpose

A. Authorization of development agreements. In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic cost of development, the Legislature of the State of California adopted Government Code Section 65864 et seq., authorizing local governments to enter into development agreements with applicants for development projects.
B. Objective. The objective of an agreement is to provide assurances that, upon approval of the project, the applicant may proceed with the project in compliance with existing policies, rules,

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and regulations, subject to the conditions of approval, thus vesting certain development rights in the subject property.

C. Purpose. The purpose of this Chapter is to establish procedures and requirements for consideration of development agreements by the City consistent with State law.

D6-40 - Application Requirements

A. Compliance with State law required. An applicant may propose that the City consider entering into a development agreement in compliance with Government Code Section 65864 et seq., by filing an application with the Department.
B. Application requirements. An application for a development agreement shall be filed in compliance with Division D6, Chapter I (Permit Application Filling and Processing). The application shall be accompanied by the information identified in the Department handout for development agreement applications. It is the responsibility of the applicant to provide evidence in support of the findings required by Subsection D6-45 E. (Required findings), below.

D6-41 - Pre-Application Process

A. Authorization by the Council following pre-application process. Unless otherwise directed by the Zoning Administrator, City staff shall not begin to negotiate with the applicant until the Council has so authorized staff, following completion of the pre-application process identified below.
B. Review and preparation of Council recommendation. The Zoning Administrator shall review the proposal, consult with all City departments, obtain the additional information from the applicant as may be deemed necessary by the Zoning Administrator, and shall, within 45 calendar days of receipt of the proposal, prepare a report containing the Zoning Administrator’s recommendation to the Council.
C. The written recommendation shall consist of the following:
1. A statement of the potential public benefits accruing to the City if the agreement were entered into, as identified by the Zoning Administrator;

A recommendation whether the City should negotiate further with the applicant, with supporting arguments;
1. A statement of issues for further research and investigation, and issues that should be addressed in the development agreement;
2. A statement of those documents, applications, and other items required by the Zoning Administrator in order to further process the application or negotiate with the applicant.

D. The Council shall either:
1. Direct City staff to continue negotiating with the applicant, and to prepare a proposed development agreement for Commission review; or
2. Determine that no further negotiations are desirable and reject the application.

D6-42 - Department Review and Recommendation

Unless the project is categorically exempt, the Department shall, at the applicant's expense and in compliance with City procedures for implementation of CEQA, undertake environmental review and, upon completion of the review, transmit the application, together with the Zoning Administrator's recommendations to the Commission.

D6-43 - Public Hearing Required

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A. Determination of compliance with the General Plan. Upon receipt of an application, the results of the environmental review, and the recommendations of the Department, the Commission shall schedule a public hearing to determine whether the proposal conforms to the General Plan.
B. Scheduling of Commission hearing. The Commission hearing shall be scheduled within 180 days following Council authorization to staff to negotiate with the applicant, unless the City and the applicant mutually agree to a later date.
C. Compliance with State law. Notice of intention to consider the application shall be given in compliance with State law (Government Code Sections 65090 and 65091) and Chapter D7-IV (Public Hearings).
D. Compliance with notice for companion development project. If the development agreement application is being processed together with the development project, notice of the intention shall be given as required for consideration of the companion development project.

D6-44 - Commission Action

A. Commission’s recommendation. After the public hearing is closed, the Commission shall recommend either approval, modification, or disapproval of the proposed development agreement.
B. Transmittal of recommendation within 30 days. The Commission shall transmit its recommendation to the Council and applicant within 30 calendar days following the Commission’s date of action.

D6-45 - Council Action

A. Scheduling of Council hearing. Upon receipt of the application, the results of the environmental review, and the recommendations of the Department and the Commission, the Council shall schedule a public hearing on the application.
B. Notice in compliance with State law. Notice of intention to consider the application shall be given in compliance with Subsection D6-43 C. (Compliance with State law), above.
C. Hearing may be held concurrently with companion project. If the application is being processed together with the development project, the public hearing on the application may be held concurrently with the hearing on the companion development project.
D. Council’s action. After the public hearing is closed, the Council shall approve, modify, or disapprove the proposed development agreement.
E. Required findings. An agreement shall not be approved unless the Council makes the following findings:
1. The agreement is consistent with the General Plan and with any applicable specific plan;
2. The agreement is consistent with all provisions of this Zoning Ordinance, the Municipal Code, and the State Subdivision Map Act;
3. The agreement will not be detrimental to the health, safety, and general welfare and will not adversely affect the orderly development of property or the preservation of property values;
4. The Council has considered the effect of the development agreement on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources.
F. Approval by ordinance. Any approval of a proposed agreement shall be made by ordinance, which shall authorize the Mayor and the City Manager to sign the agreement on behalf of the City, and shall become effective after 30 calendar days following the second reading, unless a referendum is filed within that time in compliance with State law.

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G. Signatures of owner and applicant required. The agreement shall not be signed by the Mayor and the City Manager until it has been duly signed by the applicant and owner, if the applicant is not the owner.
H. Failure to sign within 30 days – withdrawal of application. If the applicant has not signed and returned the approved agreement to the Mayor and the City Manager for signing within 30 calendar days of Council approval, the application shall be deemed withdrawn by applicant.
I. Recordation of agreement. Within 10 calendar days after the Mayor and the City Manager sign a development agreement and the ordinance becomes effective, the City Clerk shall cause a copy thereof to be recorded.
J. Modification or suspension in compliance with State law. All agreement provisions are subject to modification or suspension in compliance with State law (Government Code Section 65864 et seq.)

D6-46 - Annual Review

Each development agreement shall be reviewed by the Planning Director at least once every 12 months, unless the agreement provides for more frequent review, in which case the agreement shall prevail.

A. Maximum term of agreement. A development agreement shall be limited in its term to a maximum of 15 years from the effective date of the adopted ordinance.
B. Extension of term of agreement. The City may specify in the agreement options to extend the agreement.
C. Purpose of the review. The purpose of the review shall be to inquire into the good faith compliance of the applicant with the terms and conditions of the agreement and for any other purpose specified in the agreement.
D. Preparation of report. Before each review, the Department shall prepare a report relative to all development that has occurred under the agreement subsequent to the last past review and any other matters the Department wishes to bring to the City Manager's attention.
E. Compliance with all terms and conditions – no further review required. If the Department review determines that all terms and conditions of the agreement have been met, and the Planning Director concurs in writing, no further review shall be required.
F. Recommendation for modification or termination – Commission hearing first required. If the Department report recommends modification or termination of the agreement, or if the Zoning Administrator proposes to make a recommendation to the Council, a public hearing before the Commission shall first be scheduled and conducted.
G. Notice in compliance with State law. Notice of the Commission’s intention to modify or terminate the agreement shall be given in compliance with Subsection D6-43 C. (Compliance with State law), above.
H. Applicant’s responsibility during hearing. At the hearing the applicant shall have the burden of demonstrating good faith compliance with the terms and conditions of the agreement.
I. Commission’s recommendation. After closing the public hearing, the Commission shall determine whether to recommend that the agreement be terminated, modified, or confirmed as is.
J. Scheduling of Council hearing. Upon receipt of the Zoning Administrator's or Commission's recommendation, the Council shall schedule a public hearing.
K. Notice in compliance with State law. Notice of the Council’s intention to modify or terminate the agreement shall be given in compliance with Subsection D6-43 C. (Compliance with State law), above.

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L. Council’s action to modify or terminate the agreement. If, after the public hearing is closed, the Council finds and determines on the basis of substantial evidence that the applicant or its successor-in-interest has not complied in good faith with the terms and conditions of the agreement, the Council may modify or terminate the agreement.
M. Compliance with Section D6-48 required. Any modification or termination shall be in compliance with Section D6-48 (Modification and Termination), below.

D6-47 - Application of Existing Rules, Regulations, and Policies

A. Applicable policies, regulations, and rules. Unless otherwise provided by the development agreement, the official policies, regulations, and rules applicable to development of the property subject to a development agreement, shall be those official policies, regulations, and rules in force at the time of execution of the agreement.
B. Vesting only in compliance with agreement. No rights shall be deemed to vest in the applicant, or any other person, under any development agreement, except as expressly identified in the development agreement.

D6-48- Modification and Termination

A. Amendment, cancellation, modification, or termination of agreement. Any development agreement may be amended, or canceled in whole or in part, by mutual consent of the applicant (or its successor-in-interest) and the City, or it may be modified or terminated in compliance with this Section and Section D6-46 (Annual Review), above.
B. Notice of intention to take action.
1. Notice of intention to take any action shall be given in compliance with Subsection D6-43 C. (Compliance with State law), above.
2. The parties may identify an alternative notice procedure in the agreement for processing insubstantial amendments.
C. Compliance with State law required. Any significant amendment shall be subject to the provisions of State law (Government Code Section 65867.5).

D6-49 - Zoning Administrator Responsibilities

The Zoning Administrator shall prepare and adopt application forms, check-lists, and other documents as considered necessary and desirable to implement the procedures and requirements identified in this Chapter.

Division D7 Zoning Ordinance Administration

D7-1 - Purpose

A. Purpose. This Chapter provides regulations for nonconforming uses, structures, and parcels that were lawful before the adoption, or amendment of this Zoning Ordinance, but which would be prohibited, regulated, or restricted differently under the current terms of this Zoning Ordinance, or future amendments.
B. Intent. It is generally the intent of this Chapter to discourage the long-term continuance of nonconformities, providing for their eventual elimination, while allowing them to exist under the limited conditions identified in this Chapter.
C. Detrimental to orderly development. The continuance of a nonconforming use or structure is generally detrimental to the orderly development of the City and the general welfare of its residents and is particularly detrimental to the welfare of persons and property in the vicinity of any nonconformity.
D. Illegal use or structure. Any use or structure which was established or constructed in violation of the applicable zoning regulations in effect at the time of establishment or construction and which is not in conformity with the applicable regulations of this Zoning Ordinance, is not a nonconforming use or structure, and the use or structure is in violation of this Zoning Ordinance.

D7-2- Nonconforming Uses

A. Continued, transferred, or sold. Nonconforming uses may be continued, transferred, or sold, but only in compliance with the provisions of this Chapter.
B. Replacing nonconforming uses with similar uses.
1. A nonconforming use may be changed to another nonconforming use of a similar or more restricted classification or nature; provided, the proposed new nonconforming use would not increase the degree or intensity of the nonconformity.
2. The replacement nonconforming use shall serve as the "new bench mark" in terms of establishing the acceptable level of nonconformity.
3. Where a nonconforming use is changed to another nonconforming use of a more restrictive classification, it shall not thereafter be changed to a use of a less restrictive classification.
C. Enlargement or expansion of use not allowed.
1. Nonconforming use of land. A nonconforming use of land which does not involve any structure, except accessory structures, shall not be enlarged or expanded in size or capacity, or extended to occupy a greater area, or increased in intensity. "Accessory structures," as used in this Subsection, include driveways, fences, parking areas, signs, walls, or minor structures less than 400 square feet in area.
2. Nonconforming use of a structure. Changes to a nonconforming use of a structure by addition, enlargement, extension, reconstruction, or relocation, may be allowed only if the changes comply with all of the regulations of the subject zone and the following provisions:
  - a. A nonconforming use of a structure may only be expanded or enlarged in size or capacity, or extended to occupy a greater area, or increased in intensity through the approval of a Minor Use Permit granted in compliance with Section D6-28.

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  - b. In approving the Minor Use Permit, the Zoning Administrator shall make the following finding, in addition to those identified in Section D6-28: The enlargement, expansion, extension, or increase would not increase the degree or the detrimental effects of the nonconformity.

D. Loss of nonconforming status.
1. If a nonconforming use of land, or a nonconforming use of a conforming structure, is discontinued for a continuous period of at least 180 calendar days, the rights to legal nonconforming status shall terminate.
2. The nonconforming use shall not be resumed once the use has ceased for at least 180 days.
3. A nonconforming use shall be deemed to have ceased when it has been discontinued, either temporarily or permanently, whether or not the discontinuance was with the intent to abandon the use.

The Zoning Administrator shall base a determination of discontinuance on evidence including the removal of equipment, furniture, machinery, structures, or other components of the nonconforming use, disconnected or discontinued utilities, or no business receipts/records to document continued operation.
1. Without further action by the City, any further use of the site shall comply with all of the regulations of the subject zone and all other applicable provisions of this Zoning Ordinance.

D7-3- Nonconforming Structures

A. Continued, transferred, or sold. Nonconforming structures may be continued, transferred, or sold, but only in compliance with the provisions of this Chapter.
B. Nonconforming status. Except as provided by Section D7-5.D (Nonconforming single- and multifamily dwelling units), below, the nonconforming status shall terminate if a nonconforming structure is involuntarily damaged or destroyed by earthquake, explosion, fire, flood, riot, war, wind, or other calamity or act of Nature; provided, the structure may be repaired and reoccupied only in the following manner:
1. When damage equals 50 percent or less. A nonconforming structure involuntarily damaged to 50 percent or less of its current market value (as defined in Subsection B.5.b., below) may be reconstructed, repaired, restored, and used as before; provided, the restoration is initiated (as defined in Subsection B.5.a., below) within 180 days, and is substantially completed within 12 months from the date of application for the required Building Permit.
2. When damage equals greater than 50 percent. A nonconforming structure involuntarily damaged to greater than 50 percent of its current market value (as defined in Subsection B.5.b., below) shall not be reconstructed, repaired, or restored, except in conformity with the applicable requirements of the subject zone.
3. Ordinary repair and maintenance allowed. The ordinary and normal repair and maintenance work that may be required to keep a nonconforming structure in sound condition may be made in compliance with this Subparagraph; provided, no structural alterations or repairs shall be made, except those required by law or may be authorized under Subsection B.1., above. A nonconforming structure may undergo ordinary and normal repair and maintenance only in the following manner:
  - a. Minor. Minor normal repair and maintenance may be made to a nonconforming structure:
    1. Provided, no structural alterations are made (exception: see following Subparagraph a (2)), and the work does not exceed 50 percent of the current market value of the structure during any calendar year period;

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  2. When required structural alteration work is greater than 50 percent of the current market value of the structure, the work shall be subject to Minor Use Permit approval in compliance with Section D6-28; and 

  3. For purpose of this Subparagraph the cost of any required foundation work shall not be counted within the 50 percent limitation.

b. Major. Major repair to a nonconforming structure, when the cost of repairing or replacing the damaged portion of the structure exceeds 50 percent of the current market value of the structure, before damage or destruction, may be made only in compliance with Subparagraphs B.2 and B.3.a(2), above.

Other modifications allowed. The addition, enlargement, extension, reconstruction, or structural alteration of a nonconforming structure may be allowed; provided, the modification is necessary to secure added safety or to reduce the fire hazard and/or to secure aesthetic advantages through the alignment, architecture, or closer conformity to surrounding allowed structures in the immediate neighborhood, and only in compliance with Subparagraphs B.2 and B.3a (2), above.
Definitions.

Restoration is initiated. As used in this Subsection, “restoration is initiated” requires that, at a minimum, a complete Building Permit application has been filed.

Current market value.

As used in this Subsection, “current market value” is the market value of the structure immediately before the occurrence of the damage.
For purposes of administering the provisions of this Subsection, the applicant shall submit an appraisal from a licensed appraiser and the City's Building Official shall verify the appraiser’s determination of the current market value of the damaged structure, which determination shall be final, unless appealed in compliance with Division D7, Chapter II (Appeals and Calls for Review).

D7-4 - Nonconforming Parcels

A. Legal building site. A nonconforming parcel that does not comply with the applicable area or width or depth requirements of this Zoning Ordinance shall be considered a legal building site if it meets at least one of the following criteria, as documented to the satisfaction of the Zoning Administrator by evidence furnished by the applicant.
1. Approved subdivision. The parcel was created by a recorded subdivision;
2. Individual parcel legally created by deed. The parcel is under one ownership and of record, and was legally created by a recorded deed before the effective date of the zoning amendment that made the parcel nonconforming;
3. Variance or lot line adjustment. The parcel was approved through the Variance procedure or resulted from a lot line adjustment;
4. Partial government acquisition. The parcel was created in compliance with the provisions of this Zoning Ordinance, but was made nonconforming when a portion was acquired by a governmental entity so that the parcel size is decreased not more than 20 percent and the yard facing a public right-of-way was decreased not more than 50 percent, or
B. Subdivision or lot line adjustment of a nonconforming parcel. No subdivision or lot line adjustment shall be approved that would increase the nonconformity of an existing parcel or any nonconforming use on the parcel.

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D7-5 - Exemptions

A. Historic structures. Nonconforming structures of historical significance may be altered or enlarged with Minor Use Permit approval granted in compliance with Section D6-28, without conforming to current setback provisions; provided, the historic structure is:
1. Included in a San Ramon Landmark District;
2. Listed as an historic resource;
3. Has been certified to be an historic resource by the City, County, or State, or in the Federal Register of Historic Places; and
4. To be altered or enlarged as an authentic replica of the original structure(s).
B. Height of single-family dwellings. An existing single family dwelling that is nonconforming only because it exceeds the height limit of the applicable zone, shall not be required to comply with the provisions of this Chapter.
C. Single-family residences and detached residential accessory structures. Where a single family residence, or its detached accessory structure(s), is nonconforming only by reason of substandard setbacks, the provisions of this Section shall not apply; provided, any structural alteration of a nonconforming structure shall not increase the degree of nonconformity, and any enlargements shall comply with the setback requirements of the subject zone.
D. Nonconforming single- and multi-family dwelling units.
1. Nonconforming single- and multi-family dwelling units that have been involuntarily damaged or destroyed by earthquake, explosion, fire, flood, riot, war, wind, or other calamity or act of Nature, may be reconstructed or replaced with a new structure using the same development standards applied to the damaged or destroyed structure (e.g., building footprint, building height, density standards, number of dwelling units, setbacks, and square footage); provided:
  - a. The applicant provides documentation, satisfactory to the Zoning Administrator, supporting the claim that the damage or destruction occurred involuntarily;
  - b. No expansion of the gross floor area or number of dwelling units occurs;
  - c. The replacement structure:
    1. Complies with the Building Code; and
    2. Will not be detrimental to the public health, safety, or welfare or materially injurious to the properties or improvements in the immediate vicinity of the replacement structure.
  - d. A Building Permit is issued no later than 12 months after the date of destruction, and construction is diligently pursued to completion.
2. If the preceding requirements are not met, the replacement structure shall comply with all of the regulations of the subject zone in effect on the date of application for the required Building Permit.
E. Seismic retrofitting.
1. Alterations, reconstruction, or repairs otherwise required by law (e.g., City adopted Building, Electrical, Plumbing Codes) shall be allowed.

Reconstruction required to reinforce unreinforced masonry structures or to comply with Building Code requirements shall be allowed without cost limitations; provided, the retrofitting and Code compliance are limited exclusively to compliance with earthquake safety standards and other applicable Building Code requirements.

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F. Nonconforming upon annexation. Nonconforming uses or structures, or both, which are lawfully existing at the time the property on which they are located is annexed to the City, and which do not conform to the regulations of the subject zone following annexation, shall be deemed nonconforming uses or structures, or both, and shall, upon annexation, be subject to the provisions of this Chapter.
G. Nonconforming due to a lack of a Minor Use Permit or Use Permit.
1. Conformity of uses requiring Minor Use Permit or Use Permits. A use lawfully existing without a Minor Use Permit or Use Permit that would be required by this Zoning Ordinance to have Minor Use Permit or Use Permit approval, in compliance with Section D6-28, shall be deemed conforming, but only to the extent that it previously existed (e.g., maintain the same site area boundaries, hours of operation, etc.)
2. Previous Minor Use Permits or Use Permits in effect. A use that was authorized by a Minor Use Permit or Use Permit but is not allowed by this Zoning Ordinance in its current location may continue, but only in compliance with the original Minor Use Permit or Use Permit (e.g., if the original Minor Use Permit or Use Permit specified a termination date, then the use shall terminate in compliance with the requirements of the Minor Use Permit or Use Permit.)
H. Previous permits.
1. A use or structure which does not conform to the current regulations of the subject zone, but for which a Building Permit, or a permit or entitlement approved in compliance with this Zoning Ordinance, was issued and exercised before the applicability of this Zoning Ordinance, may be completed; provided, the work is diligently pursued to completion.
2. Upon completion, these uses or structures, or parts thereof, shall be deemed to be nonconforming and shall thereafter be subject to the provisions of this Chapter.
3. For the purposes of this Subsection, the provisions of Section D-6-34 (Time Limits and Extensions) shall govern the determination of whether the permit or entitlement has been exercised in a timely manner.
I. Public utilities. The provisions of this Chapter, concerning the required removal of nonconforming uses and structures, and the reconstruction of nonconforming structures partially destroyed, shall not apply to public utility structures when the structures pertain directly to the rendering of the service of distribution of a utility (e.g., electric distribution and transmission substations, gas storage, metering, and valve control stations, steam electric generating stations, water wells and pumps, etc.); nor shall any provision of this Chapter be construed to prevent the expansion, modernization, or replacement of the public utility structures, equipment, and features, that are used directly for the delivery of or distribution of the service.
J. Public acquisition.
1. Nonconforming due to public acquisition. Whenever any structure or parcel is rendered nonconforming within the meaning of this Chapter by reason of a reduction in a required parcel area, reduction of off-street parking facilities, or setbacks occurring solely by reason of dedication to, or purchase by, the City for any public purpose, or eminent domain proceedings, which result in the acquisition by the City or any agency authorized for the eminent domain proceedings of a portion of the property, the same shall not be deemed nonconforming within the meaning of this Chapter.
2. Required reconstruction, remodeling, or repair. Any required reconstruction, remodeling, or repair shall be limited to that necessary to render the structure reasonably safe for continued use; provided, all reconstruction, remodeling, or repair work shall be substantially completed within 12 months from the date of application for the required Building Permit.

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D7-6 - Unlawful Uses and Structures

A. Unlawful uses and structures are in violation. Uses and structures which did not comply with the applicable provisions of this Zoning Ordinance or prior planning and zoning regulations when established are violations of this Zoning Ordinance and are subject to the regulations of the Municipal Code.
B. No right to continue occupancy. This Chapter does not grant any right to continue occupancy of property containing an illegal use or structure.
C. Can’t continue without required permits. The activity shall not be lawfully allowed to continue unless/until permits or entitlements required by this Zoning Ordinance and the Municipal Code are first obtained.

D7-7 - Nuisance Abatement

A. Not applicable to public nuisances. The provisions of this Chapter shall not apply to a use or a structure which is, or which becomes, a public nuisance.
B. Continuance of public nuisances prohibited. The provisions of this Chapter do not allow, and shall not be interpreted to allow, the continuation of a use or structure which is deemed a public nuisance or which is prohibited or otherwise made unlawful, in whole or in part, by the Municipal Code (including the Building Code, Fire Code, Zoning Ordinance, etc.) or by laws enacted by the State or Federal government which are applicable to this City.
C. Enforcement actions. In the event that a nonconforming use or structure is found to constitute a public nuisance, appropriate action shall be taken by the City, in compliance with the Municipal Code. A violation of the Zoning Ordinance can be deemed to be evidence of a public nuisance.