Article VI — GENERAL PROVISIONS

Sec. C17-28. - Preventative maintenance.

The owner, person or persons having legal custody and control of a designated landmark or historic resource listed in the heritage resource inventory shall be encouraged to implement preventative maintenance in order to prevent deterioration and decay of such designated landmark or historic resource.

(Ord. No. NS-1100.96, 10-17-06)

Sec. C17-29. - Remedies for noncompliance.

Any person who violates any provision of this chapter without being subject to the following penalties:

A.

Any person or entity which violates the provisions of this chapter may be liable civilly for an amount in the court's discretion.

B.

Any action or development undertaken without the issuance of a landmark alteration permit or in violation of the terms and conditions of a landmark Alteration permit may be subject to a stop work notice issued by the building official. Failure to stop work after issuance of a stop work notice shall constitute a misdemeanor.

C.

A court may order injunctive relief to restrain, enjoin or cause correction or removal of any violation of this chapter.

D.

Remedies under this article are cumulative and do not supersede or limit any and all other remedies, civil or criminal. Judgment or settlement shall include expenses including administrative and attorney's fees in the full amount needed to reimburse the County for any enforcement costs related to the violations.

E.

No further development of a landmark which is the subject of demolition in violation of this chapter may be permitted in excess of the floor area of the landmark itself existing at the time of violation, or the dwelling unit density, for a period of three years from the unlawful demolition.

F.

Civil fines in excess of attorney's fees and administrative costs which are collected for violations of this chapter shall be placed in a county trust fund to be utilized for designated Landmark and historic resource protection and historic preservation education.

(Ord. No. NS-1100.96, 10-17-06)

Sec. C17-30. - Unsafe or dangerous conditions.

None of the provisions of this chapter shall prevent the construction, reconstruction, alteration, restoration, stabilization or demolition of a designated landmark, or any exterior feature thereof, which the Building Official or designee has declared necessary to correct an unsafe or dangerous condition where there is a threat to public health and safety. Only such work as is reasonably necessary to correct the unsafe or dangerous condition may be performed pursuant to this subsection.

(Ord. No. NS-1100.96, 10-17-06)

Sec. C17-31. - Fees.

The Board of Supervisors, by resolution, may adopt fees for the costs of processing applications and appeals pursuant to this chapter.

(Ord. No. NS-1100.96, 10-17-06)

Sec. C17-32. - Severability.

Should any section or other portion of this chapter be determined to be unlawful or unenforceable by a court of competent jurisdiction, the remaining section(s) and portion(s) of this chapter shall be considered severable and shall remain in full force and effect.

(Ord. No. NS-1100.96, 10-17-06)

Sec. C17-33. - Other laws.

There are many other laws, regulations and ordinance that apply to land use, development, and construction activities. The provisions of this Historic Preservation Ordinance are intended to be in addition to and not in conflict with these other laws, regulations and ordinances. If any provision of this Historic Preservation Ordinance conflicts with any duly adopted and valid statutes of the federal or state government of the State of California, the federal and state statutes shall take precedence.

(Ord. No. NS-1100.96, 10-17-06)

Division C18 - WOOD BURNING APPLIANCES CHAPTER I. - IN GENERAL

Sec. C18-1. - Definitions.

(a)

Bay Area Air Quality Management District ("BAAQMD") means the air quality agency for the San Francisco Bay Area established pursuant to California Health and Safety Code § 40200.

(b)

EPA means United States Environmental Protection Agency.

(c)

EPA certified wood heater means any wood heater that meets the standards in Title 40, Part 60, Subpart AAA, Code of Federal Regulations in effect at the time of installation and that is certified and labeled pursuant to those regulations.

(d)

Fireplace means any permanently installed masonry or factory built wood burning appliance, except a pellet-fueled wood heater, designed to be used with an air-to-fuel ratio greater than or equal to 35 to 1.

(e)

Gas fireplace means a fireplace or any other listed gas appliance as defined in the Uniform Mechanical Code designed to burn natural gas in a manner that simulates the appearance of a wood burning fireplace and does not burn anything other than natural gas.

(f)

Paints means all exterior and interior house and trim paints, enamels, varnishes, lacquers, stains, primers, sealers, under coatings, roof coatings, wood preservatives, shellacs, and other paints or paint-like products.

(g)

Paint solvents means all original solvents sold or used to thin paints or to clean up painting equipment.

(h)

Pellet-fueled wood heater means any wood burning appliance that operates exclusively on wood pellets.

(i)

Solid fuel means wood or any other non-gaseous or non-liquid fuel.

(j)

Treated wood means wood of any species that has been chemically impregnated, painted or similarly modified to improve resistance to insects or weathering.

(k)

Waste petroleum product means any petroleum product other than gaseous fuels that has been refined from crude oil, and has been used, and as a result of use, has been contaminated with physical or chemical impurities.

(l)

Wood burning appliance means any fireplace, wood heater, or pellet-fired wood heater or any similar device burning solid fuel used for aesthetic or space-heating purposes. Wood burning appliance does not include stoves used primarily for cooking food for human consumption.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-2. - Residential installations.

Unless otherwise expressly exempted in this division, all wood burning appliances installed in new residential units or wood burning appliances being added to existing residential units must comply with this division.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-3. - Commercial installations.

Unless otherwise expressly exempted in this division, all wood burning appliances installed in new commercial buildings or wood burning appliances being added to existing commercial buildings must comply with this division. Commercial buildings include, but are not limited to, hotels and restaurants.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-4. - Gas fireplaces.

Gas fireplaces are exempt from the provisions of this division. However, the conversion of a gas fireplace to a wood burning appliance constitutes the installation of a wood burning appliance and is subject to the requirements of this division.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-5. - Rural area exemption.

All wood burning fire appliances installed in residential or commercial buildings where there is no existing infrastructure for natural gas service within 150 feet of the property line are exempt from the provisions of this division.

(Ord. No. NS-1100.90, § 1, 4-8-03)

CHAPTER II. - PROHIBITIONS

Sec. C18-6. - Unauthorized appliances prohibited.

No person may install a wood burning appliance that is not one of the following:

(a)

A pellet-fueled wood heater; or

(b)

An EPA certified wood heater; or

(c)

A fireplace certified by EPA or a fireplace certified by an EPA-accredited laboratory as being compliant with the Northern Sonoma County Air Pollution Control District standards for fireplaces, using that district's testing protocol for fireplaces; or

(d)

An outdoor fireplace which is not attached to a structure; or

(e)

A wood burning appliance that is primarily used for the preparation of food.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-7. - Prohibited fuels.

The following fuels are prohibited from use in any wood burning appliance:

(a)

Treated wood, plastic products, rubber products, glossy or colored papers and particle board;

(b)

Any solid, semi-solid and liquid wastes generated from residential, commercial and industrial sources, including trash, refuse, rubbish, industrial wastes, asphaltic products, manure, vegetable or animal solids and semi-solid wastes, or other discarded solid and semi-solid wastes;

(c)

Waste petroleum products;

(d)

Paints or paint solvents;

(e)

Coal; and

(f)

Salt water driftwood.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-8. - Certification.

Any person who plans to install a wood burning appliance must first obtain a building permit and submit documentation to the Building Inspection office demonstrating that the appliance qualifies as one of the wood burning appliances listed in Section C18-6.

(Ord. No. NS-1100.90, § 1, 4-8-03)

CHAPTER III. - ENFORCEMENT

Sec. C18-9. - Public nuisance.

Violations of this division are deemed a public nuisance.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-10. - Enforcement.

Pursuant to California Penal Code § 836.5, the County Building Inspectors are authorized to enforce the provisions of this division and to issue citations for violation thereof. There will be no civil liability on the part of, and no cause of action will rise against, any Building Inspector acting pursuant to this section and within the scope of his or her authority.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-11. - Inspection and right of entry.

Building Inspectors are authorized to make such inspections as may be necessary to enforce this division.

Whenever a Building Inspector has reasonable cause to believe a violation of this division exists, the inspector must ask permission of the occupant, or the owner or custodian thereof if the premises are unoccupied, for permission to inspect the premises. If permission is denied, the Building Inspector may obtain an inspection warrant. Entry will not be secured by a grant of authority beyond that otherwise allowed by law.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Sec. C18-12. - Criminal penalties.

(a)

Any person, entity, organization, firm or corporation who violates or has violated any of the provisions of this division is guilty of a misdemeanor, provided, however, that the Building Official may charge or the District Attorney may prosecute the offense as an infraction where such action would be in the best interest of justice.

(b)

Each and every day, or any part thereof, during which any violation is committed, continued or allowed is a separate offense.

(c)

Each and every violation of this division which is deemed an infraction is subject to the following penalties:

(1)

For a first violation, the violator is punishable by a fine not exceeding $100.00 per day or portion thereof that the violation exists.

(2)

For a second violation, the violator is punishable by a fine not exceeding $200.00 per day or portion thereof that the violation exists.

(3)

For each additional violation, the violator is punishable by a fine not exceeding $550.00 per day or portion thereof that the violation exists.

(d)

Each and every violation of this division which is deemed a misdemeanor is punishable by a fine not exceeding $1,000.00, imprisonment in the County jail not exceeding six months, or both.

(Ord. No. NS-1100.90, § 1, 4-8-03)

Division C19 - FIRE PROTECTION MITIGATION FEES[[1]]

Footnotes:

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Editor's note— Ord. No. NS-1104, § 1, adopted September 28, 2004, amended the Code by adding provisions designated as a new Div. C19, §§ C19-1—C19-11, to read as herein set out. See also the Code Comparative Table.

Sec. C19-1. - Title.

This division shall be known and cited as the "Fire Protection Mitigation Fee Ordinance."

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-2. - Purpose of division.

The purpose of this division is to establish and implement a procedure for the adoption of fire protection mitigation fees and for the assessment and collection of these fees at the time of issuance of building permits. The fire mitigation fees are to be allocated to the affected fire district for the acquisition of capital facilities and equipment in order to ensure the provision of the capital facilities and equipment necessary to maintain current levels of fire protection services which are required as the result of new development projects.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-3. - Findings.

The Board of Supervisors of Santa Clara County finds and declares as follows:

(a)

Adequate fire protection facilities and equipment must be available to serve new development projects.

(b)

New development projects require the construction or expansion of fire protection facilities and the acquisition of additional equipment.

(c)

In certain areas of the County, property taxes and fire protection assessments currently collected by the districts providing fire protection services are insufficient to provide funds for expansion or construction of fire facilities and purchase of equipment required by new development projects, resulting in the potential for inadequate fire protection coverage for the new development projects and the additional population.

(d)

The above conditions place Santa Clara County's growing population in a condition where there is risk to its health and safety.

(e)

The impacts of new development on the existing fire protection facilities and equipment cannot be mitigated without County involvement.

(f)

For the above reasons, new methods for financing fire protection facilities and equipment required as a result of new development projects are needed in Santa Clara County.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-4. - Definitions.

(a) "Board" means the Board of Supervisors of the County of Santa Clara.

(b) "Development project" means any construction for which a building permit or other permit is required from the County.

(c) "Fire district" means any fire protection agency or district established in accordance with state law and authorized to provide fire protection services within the unincorporated area of the County.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-5. - Required actions of affected fire districts.

This division shall be applicable to development within the boundaries of a fire district within the unincorporated area of the County when all of the following events occur:

(a)

The governing body of a fire district adopts a resolution making all of the following findings:

(1)

The fire district does not have existing fire protection facilities and equipment that could be used to provide an adequate level of services to new development projects within the district's boundaries;

(2)

The fire district does not have sufficient funds available to construct additional facilities from fund balances, capital facility funds, property tax sources, fire suppression assessments, or any other available sources; and

(3)

The lack of additional fire protection facilities and equipment to serve new development projects would create a situation that is dangerous to the public health and safety if fire mitigation fees are not levied within the fire district.

(b)

The fire district further resolves as follows:

(1)

The fire district requests that the County impose a specified fire mitigation fee on the fire district's behalf on applicants for development projects;

(2)

Fire mitigation fees paid under this division shall only be used to expand the availability of capital facilities and equipment to provide fire services to the new development projects;

(3)

The fire district shall place all funds collected under this division and all interest subsequently accruing on these funds in a separate budget accounting category to be known as the "District Fire Mitigation Fee";

(4)

The fire district shall spend funds from the "District Fire Mitigation Fee" budget accounting category only for those purposes of providing capital improvements and equipment to serve new development projects;

(5)

The fire district shall submit a Fire Mitigation Fee annual report no later than October 31 of each year to the Clerk of the Board. The report shall include, but not be limited to, the balance in the account at the end of the prior fiscal year, the mitigation fee revenue received, the amount and type of expenditures made, and the ending balance in the fund. In addition, the report shall specify the actions the fire district plans to take to mitigate the facility and equipment needs caused by the new development projects in a capital fire facilities and equipment plan adopted at a noticed public hearing. The fire district shall make available, upon request by the Clerk, a copy of its annual audit report;

(6)

The fire district shall make its records that justify the basis for the mitigation fee amount available to the public upon request;

(7)

The fire district shall agree to indemnify, defend and hold harmless the County and its officers, agents and employees from any claim, action or proceeding that arises from or is in any way related to the mitigation fees; and

(8)

For the fifth fiscal year following the first deposit into the fire district's District Fire Mitigation Fee account and every five years thereafter, the fire district shall make all of the following findings with respect to any cash portion of the mitigation fees remaining unexpended or uncommitted in the account: (i) identify the purpose to which the fee is to be put; (ii) demonstrate a reasonable relationship between the fee and the purpose for which it was charged; (iii) identify all sources and amounts of funding anticipated to complete financing all incomplete improvements; and (iv) designate the approximate dates on which complete funding is expected to be deposited into the account. If all of these findings are not made, the fire district shall refund, on a prorated basis, to the current record owner or owners of the development projects for which the fees were paid the unexpended or uncommitted portion of the fees and any interest accrued for which need cannot be demonstrated.

(c)

The governing body of the fire district shall adopt a capital fire facility and equipment plan in compliance with Government Code Section 66002 at a noticed public hearing.

(d)

The governing body of the fire district shall send a certified copy of the resolution and the capital fire facilities and equipment plan to the Clerk. The Clerk shall place the resolution and capital fire facilities and equipment plan on the Board's regular meeting for the Board's consideration and approval at a public hearing noticed in the manner required by Government Code Section 66002. At the close of the public hearing, the Board may approve the resolution and capital fire facilities and equipment plan if it finds that the documents meet the requirements of this ordinance and Government Code Section 66000 et seq. The provisions of this division shall apply to any development project within the boundaries of the fire district 30 days after the Board's approval. Each fire district shall notify the County Building Official of the effective date of its mitigation fee. Any judicial action or proceeding to attack, review, set aside, void or annul the Board's approval and adoption of mitigation fees must be commenced within 120 days of the Board's action approving the mitigation fees.

(e)

By March 31 of each year following the year of the original adoption of a resolution and approval by the Board of fire mitigation fees pursuant to this division, the fire district shall submit a copy of a new resolution adopted by the district's governing body making the findings required by Section C19-5(a) and identifying the fire mitigation fees requested by the fire district. If the resolution proposes to increase the fire mitigation fees, the resolution shall only become effective if approved by the Board in the manner set forth in Section C19-5(d) above. A revision of fire mitigation fees shall be effective the following July 1.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-6. - Fee payment.

(a)

Before the issuance of any building permit or other permit for a development project, the applicant shall pay to the fire district the fees prescribed by the fire district resolution as approved by the Board and shall present written evidence that the provisions of this division have otherwise been satisfied with respect to the development project for which permits are sought.

(b)

The amount of fees shall be determined by the fire mitigation fee in effect on the date of the payment of fees for an unexpired plan check.

(c)

When application is made for a new permit for a development project following the expiration of a previously issued permit for the development project for which fees were paid, the fee payment shall not be required.

(d)

In the event that a subsequent development project occurs with respect to property for which fees have been paid, additional fees shall be required only for additional square footage which was not included in computing the prior fee.

(e)

For the purpose of payment of fees to the County, the Board delegates to each fire district the responsibility to collect or accept payment of the fees for each respective fire district.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-7. - Exemptions.

(a)

Permits for the following types of development projects shall be exempt from the requirements of this division:

(1)

Marine construction including piers, boat lifts, docks, pilings and floating platforms;

(2)

Buildings or other structures constructed for governmental uses;

(3)

The replacement of a legally constructed dwelling or building destroyed by fire or other calamity by the owner on the same parcel, provided that: (i) the application for a building permit to replace the destroyed structure is filed with the County Building Official within one year after destruction of the dwelling; (ii) there

is no change in occupancy; and (iii) the square footage is not increased by over 500 feet of living space compared to the destroyed structure.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-8. - Administrative charges.

(a)

The County may include in an adopted fire district mitigation fee a component that reflects the County's reasonable costs of administering the fee and complying with all laws, ordinances and regulations related to the fee.

(b)

The applicable fire district may include in a proposed fire district mitigation fee a component that reflects the district's reasonable costs of administering the fee and complying with all laws, ordinances and regulations related to the fee.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-9. - Use of fees.

With the exception of the administrative cost components in Section C19-8, all fees collected under this division, including any interest accrued, shall be used by the fire district for the purpose of providing for capital facilities and equipment.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-10. - Mitigation fee records and report.

Any fire district receiving fees under this division shall maintain a separate budget accounting category for any fees paid. Such category shall be known as the "Fire District Mitigation Fee" account. By October 31 of each year, each fire district receiving funds under this division shall file a report with the clerk on the balance in the account at the end of the prior fiscal year, the fee revenue received, the amount and type of expenditures made, and the ending balance in the fund. In addition, the report shall specify the actions the fire district plans to take to mitigate the facility and equipment needs caused by new development projects.

(Ord. No. NS-1104, § 1, 9-28-04)

Sec. C19-11. - Termination of fee collection.

Fee collection as to any fire district shall terminate as follows:

(a)

If by March 31 of any year following the year of the original adoption of a resolution pursuant to Section C19-6 which was approved by the Board, the fire district has not submitted a copy of a new resolution under Section C19-6(e), fee collection shall terminate on July 1 of that year.

(b)

If, at any time, the governing body of a fire district submits a copy of a resolution to the Clerk requesting termination of fee collection, fee collection shall terminate 30 days from the date of receipt by the Clerk.

(c)

Each fire district shall notify the County Building Official of the effective date of its termination of fee collection.

(Ord. No. NS-1104, § 1, 9-28-04)

Division C20 - HABITAT CONSERVATION PLAN

Sec. C20-1. - Purpose.

The purpose of this division is to implement the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan ("HCP/NCCP") and the associated Implementing Agreement and Take Permits in order to provide a regulatory framework for promoting the protection and recovery of natural resources, including covered species, while streamlining the permitting process for both publicly funded and privately funded planned development in the unincorporated area of Santa Clara County. The HCP/NCCP was developed by the County of Santa Clara, the cities of Gilroy and Morgan Hill, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority (collectively the "local partners") under the guidance of the U.S. Fish and Wildlife Service and the California Department of Fish and Game, and in consultation with stakeholder groups and the general public.

As a result of the adoption of the HCP/NCCP by the County, the County (among the other local partners) is the recipient of long-term endangered species permits/authorized Take coverage from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the County's own activities. In addition to coverage of its own public projects, the County will be able to extend authorized Take coverage to private project applicants under its jurisdiction.

(among the other local partners) is the recipient of long-term endangered species permits/authorized Take coverage from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the County's own activities. In addition to coverage of its own public projects, the County will be able to extend authorized Take coverage to private project applicants under its jurisdiction.

Rather than separately permitting and mitigating individual projects, the HCP/NCCP evaluates natural resource impacts and mitigation requirements comprehensively in a manner that is more efficient and effective for at-risk species and their essential habitats. This approach allows the County to streamline mitigation requirements into one comprehensive program. The Take coverage authorized by the U.S. Fish and Wildlife Service ("USFWS") and the California Department of Fish and Game ("CDFG") also provides assurances that no further commitments of funds, land, or water will be required to address impacts on covered species beyond that described in the HCP/NCCP to address changed circumstances as long as the HCP/NCCP is properly implemented.

In addition to strengthening local control over land use and species protection, the HCP/NCCP provides a more efficient process for protecting natural resources by creating new habitat reserves that will be larger in scale, more ecologically valuable, and easier to manage than the individual mitigation sites created under the current approach. This more efficient and streamlined approach to obtaining authorized Take coverage for both public and private projects will significantly reduce the time and resources previously required to obtain Take coverage on an individual project-by-project basis. All Covered Activities that occur within the

Local Plan Area will be subject to applicable conditions and fees described in the HCP/NCCP unless the CDFG and USFWS have determined that the activity is not subject to, has already received the necessary take authorizations pursuant to, or has otherwise complied with federal and state endangered species laws, as verified by the Implementing Entity and described in Chapter 6.2 of the HCP/NCCP.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-2. - Adoption of Habitat Conservation Plan/Natural Community Conservation Plan by reference.

The HCP/NCCP is incorporated by reference as though fully set forth herein. Complete copies of the HCP/NCCP are available for inspection at the Office of the Clerk of the Board of Supervisors and the Department of Planning and Development.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-3. - Definitions.

The definitions set forth in this section shall govern the application and interpretation of this division. Words and phrases not defined in this section shall be interpreted so as to give this division its most reasonable application.

(a)

Building permit means a building permit for a building or structure, including a partial permit such as a foundation-only permit, or any other ministerial permit or approval for a project that authorizes a grounddisturbing activity for a Covered Activity.

(b)

Covered Activity means any activity defined in Section 2.3 of Chapter 2 of the HCP/NCCP as a covered activity and not otherwise exempted from the requirements of the HCP/NCCP as provided in the HCP/NCCP.

(c)

Covered Species means the species, listed and non-listed, whose conservation and management are provided for in the HCP/NCCP and for which incidental Take is authorized by the Wildlife Agencies pursuant to the Take Permits. Covered Species are also listed in Exhibit A to the Implementing Agreement.

(d)

Habitat Conservation Plan/Natural Community Conservation Plan or HCP/NCCP means the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan adopted by the Board of Supervisors on October 9, 2012, and any amendments thereto.

(e)

Implementing Agreement means that agreement made and entered into by and among the United States Fish and Wildlife Service ("USFWS") of the United States Department of the Interior, the California Department of Fish and Game ("CDFG") of the State of California Natural Resources Agency, the Santa

Clara Valley Habitat Agency (the "Implementing Entity"), the County of Santa Clara ("County"), the City of San Jose ("San Jose"), the City of Gilroy ("Gilroy"), the City of Morgan Hill ("Morgan Hill"), the Santa Clara Valley Water District ("Water District"), and the Santa Clara Valley Transportation Authority ("VTA") that defines the parties' respective roles and responsibilities and provides a common understanding of actions that will be undertaken to implement the HCP/NCCP.

(f)

Implementing entity means the Santa Clara Valley Habitat Agency formed by and among the County of Santa Clara and the Cities of Gilroy, Morgan Hill, and San Jose pursuant to the Joint Powers Act, Gov. Code § 6500 et seq.

(g)

Local Plan area means that portion of the geographic study area defined in the HCP/NCCP that lies within unincorporated area of Santa Clara County.

(h)

Mitigation fees or fees means any Habitat Plan fee(s) that applies to Covered Activities in the Local Plan Area as adopted by the Implementing Entity in accordance with Chapter 9 of the HCP/NCCP and the fee studies in support thereof, and any amendments to those fees, unless otherwise exempted from the fee requirements of the HCP/NCCP by the Implementing Entity.

(i)

Planning permit means any discretionary permit or approval that authorizes a ground-disturbing activity for a Covered Activity including, but not limited to, a tentative subdivision map, parcel map, conditional use permit, architecture and site approval, building site approval, grading permit or any other discretionary permit, excluding general plan amendments, zoning and rezoning, annexation, specific plans, and area development policies.

(j)

Project applicant means any person or entity applying for a Planning Permit or Building Permit for a project authorizing a ground-disturbing activity for a Covered Activity, including any person or entity opting in to the HCP/NCCP pursuant to Chapter 6.2 of the HCP/NCCP.

(k)

Take and Taking have the same meaning provided by the Federal Endangered Species Act ("ESA") (16 U.S.C. §§ 1531-1544) and its implementing regulations with regard to activities subject to the ESA, and also have the same meaning provided in section 86 of the California Fish and Game Code with regard to activities subject to the California Endangered Species Act ("CESA") (Fish & Game Code § 2050 et seq.), and the California Natural Community Conservation Planning Act ("NCCPA") (Fish & Game Code §§ 28002835).

(l)

Take Permits means the federal incidental Take permit issued by USFWS to the Implementing Entity, the County, San Jose, Gilroy, Morgan Hill, the Water District, and VTA (collectively, "Permittees") based on the HCP/NCCP pursuant to Section 10(a)(1)(B) of the ESA, and the state incidental Take permit issued by CDFG to the Permittees based on the HCP/NCCP pursuant to Section 2835 of the California Fish and Game Code.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-4. - Application to Covered Activities.

All Project Applicants for Covered Activities within the Local Plan Area shall comply with the conditions on Covered Activities listed in Chapter 6 of the HCP/NCCP. Each Planning Permit application (or Building Permit application where no Planning Permit is required) for a Covered Activity in the Local Plan Area shall include details of the methods and timing in which the project will comply with the HCP/NCCP in the form and manner required by the Director of the Department of Planning and Development. Applicable conditions on Covered Activities from Chapter 6 of the HCP/NCCP as well as other measures required to implement the conservation strategy of the HCP/NCCP shall be included in each Planning Permit (or Building Permit where no Planning Permit is required) approval for a Covered Activity.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-5. - Mitigation fees.

(a)

As a condition of each Planning Permit (or Building Permit where no Planning Permit is required) for a Covered Activity in the Local Plan Area, the Mitigation Fees shall be paid in full by the private Project Applicant to the County no later than the date of issuance by the County of a Building Permit. The Mitigation Fees shall be paid to the County at the time of issuance of the first Building Permit if more than one Building Permit is required for the project. These mitigation fees are in addition to any fees that may be charged by the County for processing Building Permits and Planning Permits.

(b)

If the Implementing Entity authorizes another manner of compensation in lieu of the Mitigation Fees (such as a land donation in lieu of payment of the Mitigation Fees), the Project Applicant shall provide the County with written documentation from the Implementing Entity of compliance with such alternative manner of payment and the dollar equivalent amount of such alternative manner of compensation.

(c)

In the event the County determines the project subject to the Planning Permit or Building Permit to be exempt from payment of the Mitigation Fees, for reasons specified in section 9.4.1 of the HCP/NCCP, no Mitigation Fees shall be required for the project.

(d)

The County shall transmit the Mitigation Fees to the Implementing Entity pursuant to the scheduled established by the Implementing Entity.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-6. - Authorized Take coverage.

Upon payment in full of the Mitigation Fees and approval of Planning or Building Permits incorporating all applicable HCP/NCCP conditions of approval, the Project Applicant shall receive authorized Take coverage for the Covered Activity in accordance with the terms of the HCP/NCCP, the Implementing Agreement, and the Take Permits.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-7. - Guidelines.

The Director of the Department of Planning and Development may adopt guidelines to assist in the implementation and administration of all aspects of this division with respect to Project Applicants.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-8. - Interpretation.

In the event of a conflict between any term or requirement of this division, the HCP/NCCP, the Implementing Agreement or the Take Permits, the term or requirement of the Take Permits shall govern.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Sec. C20-9. - Operative date.

This division shall be operative upon adoption by the Implementing Entity of the Mitigation Fees and the issuance of the Take Permits by the U.S. Fish and Wildlife Service and the California Department of Fish and Game.

(Ord. No. NS-1200.334, § 1, 10-23-12)

Division 21 - URBAN AGRICULTURE INCENTIVE ZONES Chapter 1. - Urban Agriculture Incentive Zones Act Contracts

Sec. C21-1. - Purpose and authority.

This chapter sets forth the requirement for county urban agriculture incentive zones and contracts pursuant to the Urban Agriculture Incentive Zones Act ("Act"), Government Code § 51200 et seq. The Act authorizes the County to establish an Urban Agriculture Incentive Zone within its boundaries for the purpose of entering into enforceable contracts with landowners, on a voluntary basis, for the use of vacant,

unimproved, or blighted lands for small-scale agricultural use. In consideration for promoting sustainable urban farm enterprise sectors in unincorporated urban areas, which promotes the public interest, the County may provide certain property tax reductions in accordance with Article 1.5 (commencing with Section 422.7) of Chapter 3 of Part 2 of Division 1 of the California Revenue and Taxation Code.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-2. - Definitions.

The following definitions apply to this chapter:

(a)

All definitions in the Act, including, but not limited to, those in Government Code § 51040.3.

(b)

Contract means an urban agriculture incentive zone contract entered into pursuant to the Act and this chapter.

(c)

Contracted land means real property restricted by an urban agriculture incentive zone contract pursuant to the Act and this chapter.

(d)

Eligible property means a privately owned parcel not exempt from property taxation and (i) located in the established Urban Agriculture Incentive Zone; (ii) is at least 0.10 acres and not more than three acres in size; (iii) does not include any dwellings; and, (iv) includes only structures that are accessory to the agricultural activity, including, but not limited to, toolsheds, greenhouses, produce stands, and instructional space and consistent with the Zoning Ordinance.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-3. - Relationship to other laws.

If there are any irreconcilable conflict between any provision of this chapter and any federal or state law, the federal or state law prevails. Any provision of this chapter that is more stringent than federal or state law is intended to supplement, not conflict with, federal or state law and to apply unless a court of law conclusively determines that the provision is preempted.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-4. - Establishment of Urban Agriculture Incentive Zone.

An Urban Agriculture Incentive Zone is hereby established in accordance with the Act for those areas identified in a resolution adopted by the Board of Supervisors, provided, however, that the areas of the Urban Agriculture Incentive Zone within any portion of the spheres of influence of a city shall not be established without the consent of the city.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-5. - Applications for contracts.

(a)

A landowner of an eligible property may file an application for a contract with the Agricultural Commissioner on a form prepared by the County. An application must be accompanied by all of the following:

(1)

All applicable fees as established by resolution of the Board of Supervisors; and

(2)

A completed contract in a form prepared by County Counsel with notarized signatures of all landowners and all required attachments.

(b)

The County may request additional information from the landowner during the application review process to facilitate a thorough and timely review of the application.

(c)

The deadline to submit an application for a contract shall be November 1 of each calendar year.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-6. - Referral by Agricultural Commissioner.

(a)

Upon receipt of an application for a contract, the Agricultural Commissioner shall transmit a copy of the completed application to the Office of the Assessor and the Planning Office.

(b)

Within 60 days of receiving a complete application, the Agricultural Commissioner will prepare a report. The Office of the Assessor and Planning Office will provide the Agricultural Commissioner with any relevant information to assist with the preparation of the report. The report will contain an analysis of whether the land meets the criteria for a contract in the Act, this chapter, and any other local ordinance and guidelines.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-7. - Criteria for evaluating contract applications and appeal.

(a)

No application for a contract will be approved unless all of the following criteria are met:

(1)

The eligible property proposed for inclusion in the contract is at least 0.10 acres and not more than three acres.

(2)

The eligible property proposed for inclusion in the contract shall be dedicated toward commercial or noncommercial agricultural use, consistent with the intent of the Act.

(3)

There are no existing or permitted uses or development, including any dwelling, on the eligible property that would significantly displace or interfere with the agricultural use of the land.

(b)

Any interested person may appeal the determination of the Agricultural Commissioner made pursuant to this section to the Board of Supervisors. Any such appeal must be filed within 15 days of the decision and be accompanied by payment of a fee in an amount established by resolution of the Board of Supervisors.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-8. - Recording of contracts.

The Agricultural Commissioner shall execute the contract on behalf of the County. The Agricultural Commissioner must record any executed contract with the Clerk-Recorder within 20 days after the County executes the contract and no later than December 31 of the calendar year in which it was executed.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-9. - Site Inspection.

(a)

Within 90 days of contract approval, the Agricultural Commissioner shall conduct a site inspection to verify the property owner's conformance to the terms of the contract.

(b)

During each subsequent year of the contract, the Agricultural Commissioner shall conduct an annual site inspection to verify the property owner's conformance to the terms of the contract. The Agricultural Commissioner shall give the landowner at least 48 hours' written notice of the inspection date, approximate time, the person(s) who will be participating in the inspection, and the reason for the inspection. When scheduling an inspection, the Agricultural Commissioner shall make a reasonable attempt to accommodate the landowner's schedule. Any such inspection shall occur during normal business hours (Monday through Friday, 8:00 a.m. to 5:00 p.m.).

(c)

The Agricultural Commissioner's determination of conformance with the contract shall be based on a demonstration of:

(1)

Conformance with the definition of urban agriculture pursuant to California Government Code section 51040.3(c);

(2)

Entire property dedicated to agricultural use;

(3)

Evidence of plants being cultivated as demonstrated by: active soil management, weeding, pruning, and other active farming and gardening techniques; and/or evidence of animal husbandry demonstrated by active bee hives, chicken coops, or other animal husbandry practices; and

(4)

Any specific requirements of the contract.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-10. - Contract cancellation.

(a)

If the County finds that a landowner is in material breach of the terms of the contract, the County shall notify the landowner of his or her intent to cancel the contract. The landowner may file a written appeal of this determination with the Agricultural Commissioner within 15 days of notification. If the appeal is timely filed, the Clerk of the Board of Supervisors shall calendar the appeal for hearing before the Board of Supervisors within 45 days of its filing.

(b)

The cancellation shall become final within 15 days of notification if no appeal is filed or, if an appeal is filed, on the date the Board of Supervisors upholds the cancellation. Once the appeal is final, the Agricultural Commissioner shall submit written notice of the cancellation of the contract to the landowner and shall record a notice of cancellation of the contract with the Clerk-Recorder.

(c)

A landowner may cancel the contract at any time by submitting written notice to the Agricultural Commissioner and upon payment of any required fee pursuant to subsection (d). The landowner shall record a notice of cancellation with the Clerk-Recorder.

(d)

Upon cancellation of any contract prior to the expiration of its term, the landowner shall pay to the Tax Collector a cancellation fee equal to the cumulative value of the tax benefit received during the duration of the contract upon landowner for cancellation of any contract prior to the expiration of the contract. This fee shall include the cumulative tax owed, including interest. The landowner may appeal payment of this fee to the Board of Supervisors either: (1) as part of any appeal of the cancellation if the cancellation is initiated by the County; or (2) through a separate appeal of the fee if the cancellation is initiated by the property owner. Any separate appeal of the fee shall be filed with the Clerk of the Board of Supervisors within 10 days of the landowner's submittal of written notification of cancellation under subsection (c) and if the appeal is timely filed, the Clerk of the Board of Supervisors shall calendar the appeal for hearing within 45 days of filing. The Board of Supervisors may waive payment of the fee, or any portion thereof, if it determines that

the cancellation was caused by extenuating circumstances despite the good faith effort by the landowner to comply with the provisions of the contract.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-11. - Contract extension.

(a)

Each year, but no later than October 15, the Agricultural Commissioner or designee shall send each landowner with a contract a request for confirmation that the landowner intends to continue complying with the contract; documentation of any major modification to the original application; and payment for any annual fees for the administration of the contract.

(b)

This request shall also include a form for the landowner to apply for an extension of the contract for an additional term of up to five years, subject to the limitations provided in Section C21-12. Any such extension shall be subject to the same requirements as an initial application.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-12. - Sunset provision.

Pursuant to the Act, the County shall not enter into a new contract or extend an existing contract after January 1, 2019, unless the Act is amended to permit contracts after that date. Notwithstanding the foregoing, any contract entered into pursuant to the Act and this Division 21, Chapter 1 on or before January 1, 2019, shall be valid and enforceable for the duration of the contract.

(Ord. No. NS-1203.123, § 1, 9-29-15)

Sec. C21-13. - Fees.

The Board of Supervisors may adopt by resolution any fees necessary to ensure that the County recovers its costs associated with administering and enforcing the Act and contracts executed thereunder. Such fees shall not exceed the amount reasonably necessary to recover the cost of providing the product or service or the cost of enforcing any law or ordinance for which the fee is levied. The fee may reflect the average cost of providing any product or service or enforcing any law or ordinance.

(Ord. No. NS-1203.123, § 1, 9-29-15)