Chapter 18.128 — Permit Implementation, Time Limits, and Extensions

Sections

18.128.010 – Purpose 18.128.020 – Conformance to Approved Plans 18.128.030 – Effective Dates of Permits 18.128.040 – Approvals Under the Permit Streamlining Act 18.128.050 – Performance Guarantees 18.128.060 – Expiration 18.128.070 – Time Extensions 18.128.080 – Changes to an Approved Project 18.128.090 – Resubmittals 18.128.100 – Condition Compliance Required

This Chapter provides requirements for the implementation or "exercising" of the permits or approvals required or offered by this Zoning Code, including time limits and procedures for approving extensions of time.

• A. Compliance. All work performed under a Building Permit for which project drawings and plans have received approval by the Director, Planning Commission, or Council shall be in full compliance with the approved drawings and plans, and any conditions of approval imposed by the applicable Review Authority.

• B. Changes. Changes to an approved project shall be submitted and processed in compliance with Section 18.128.080 (Changes to an Approved Project), below.

A. Approvals, Permits, and Variances.

1. Decisions on a Reasonable Accommodation, Temporary Use Permit, and Zoning Clearance shall become effective immediately following its approval/issuance.

2. Decisions on an Architectural Review, Conditional Use Permit, Minor Modifications, Minor Use Permit, or Variance shall become effective on the eighth calendar day following the actual date the decision was rendered by the applicable Review Authority, unless an appeal is filed in compliance with Chapter 18.144 (Appeals) prior to the effective date.

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• B. General Plan and Specific Plan Adoption and Amendments. Council actions to adopt or amend the General Plan or a specific plan by resolution shall become effective on the 31[st] day following adoption of the resolution by the Council.

C. Issued on the Effective Date.

1. Permits, certificates, and/or other approvals shall not be issued until the effective date specified in Subsections A. (Approvals, Permits, and Variances) and B. (General Plan and Specific Plan Adoption and Amendments), above; provided, that no appeal of the Review Authority's decision has been filed, in compliance with Chapter 18.144 (Appeals).

2. Public Resources Code Sections 21167-21167.8, inclusive, specify the applicable time constraints for CEQA compliance. Failure by the applicant to comply with all applicable CEQA time constraints places the burden on the applicant for being responsible for all associated risks.

• A. Applicable Provisions. Any application deemed approved by operation of law in compliance with Government Code Section 65956(b) shall be subject to all applicable provisions of this Zoning Code, which the applicant must fully satisfy before a Building Permit is issued or a land use not requiring a Building Permit is exercised or established.

• B. Public Hearing. The application shall be deemed approved only if the application received proper notice in compliance with Chapter 18.146 (Public Notices and Hearings) and Government Code Section 65956(b).

A. Security.

1. As a condition of approval of an Architectural Review, Conditional Use Permit, Minor Modification, Minor Use Permit, Reasonable Accommodation, Temporary Use Permit, or Variance, upon a finding that the City's health, safety, and welfare warrant, the Review Authority may require the execution of a covenant

• and/or the provision of security in an amount sufficient to ensure the faithful performance of one or more of the conditions of approval of the permit in the event that the obligor fails to perform.

2. The applicant/owner may offer to provide adequate security for the faithful performance of a condition(s) of approval imposed as part of the approval process if the Director, in his or her sole discretion, determines that the condition(s) may be implemented at a later specified date (e.g., inability to install required landscaping due to weather conditions).

3. The security shall be in the form of a letter of credit or a corporate security bond, on a form acceptable to the City Attorney, or cash or a certified or cashier's check.

4. The amount of security shall be sufficient to fully cover the cost of satisfying the condition, as determined by the Director. The Director may require the applicant to submit one or more estimates and similar financial data to establish such cost.

5. The security shall remain in effect until all of the secured conditions have been performed to the satisfaction of the Director, in conjunction with the City Engineer, where applicable.

6. Security required in compliance with this Section shall be payable to the City.

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• B. Release of Security. Upon satisfactory compliance (as determined by the Director) with all applicable provisions of the conditions specified in the approval/permit, the security shall be released.

C. Failure to Comply.

1. Upon failure to perform any secured condition(s), the City may perform the condition, or cause it to be done, and may collect from the obligor all costs incurred, including administrative, engineering, legal, and inspection costs, including any additional costs exceeding the security, and measurable costs for administration.

2. Any unused portion of the security shall be refunded to the obligor after deduction of the cost of the work.

• A. Expiration of Permit or Approval. Unless otherwise specified in the permit or approval, all permits and approvals for projects not subject to the Subdivision Map Act shall comply with the following expiration provisions.

  1. Shall Be Exercised.

  - **a.** To ensure continued compliance with the provisions of this Zoning Code, the permit or approval shall be exercised within 24 months following the effective date, unless, by conditions of the permit or approval, a different (either greater or lesser) time is prescribed, or the permit or approval shall be deemed void, unless an extension is approved by the applicable Review Authority, in compliance with Section 18.128.070 (Time Extensions), below. 
  
  - **b.** If after construction commencement, work is discontinued for more than six months, the permit or approval shall expire and be deemed void. 
  

  2. Allowable Phasing.

  - **a.** Where the permit or approval provides for development in two or more phases or units in sequence, the permit shall not be approved until the Review Authority has approved the final phasing plan for the entire project site. 
  
  - **b.** Pre-approved phases. 
  
     - **(1)** If a project is to be built in pre-approved phases, each subsequent phase shall have 24 months from the previous phase's date of construction commencement to the next phase's date of construction commencement to have occurred, unless otherwise specified in the permit or approval.  If the second or later phase does not commence within 24 months, the permit or approval for that phase and all subsequent phases shall expire and be deemed void. 
  
     - **(2)** If the application for the permit or approval also involves the approval of a tentative map, the phasing shall be consistent with the tentative map. 
  

  3. Shall Be Exercised before Expiration. A permit or approval shall be exercised before its expiration. The permit or approval shall not be deemed exercised until the applicant has:

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  - **a.** Obtained a Building Permit and continuous on-site construction activity including pouring of foundations, installation of utilities, or other similar substantial improvement has commenced and diligently pursued toward completion; or 

  - **b.** Obtained a Grading Permit and has completed a significant amount of on-site grading, as determined by the Director, in preparation for the work described in Subsection a., above. 

• B. Effect of Expiration. Where the permit or approval has expired and/or has been deemed void:

  1. No further action is required by the City;

  2. No further reliance may be placed on the previously approved permit or approval;

  3. The applicant shall have no rights previously granted under the permit or approval;

  4. The applicant shall file a new application(s), together with all required fees, and obtain all required approvals before construction can commence or an allowable use may be implemented; and

5. Any security provided by the applicant under the previously approved permit or approval may be used by the City to provide suitable protection from any harm that may result from the terminated development.

A. Director’s Action to Extend.

1. The Director shall have the authority to extend the period specified in Section 18.128.060 (Expiration), above, for up to two additional 12-month periods.

2. The applicant’s written request for an extension of time shall be on file with the Department at least 30 days before expiration of the permit or approval, together with the filing fee required by the Fee Schedule.

3. Public hearing not required.

  - **a.** A public hearing shall not be required for the Director’s decision on an extension of time. 

  - **b.** However, the Director may conduct a public hearing in compliance with Chapter 18.146 (Public Notices and Hearings) if deemed appropriate by the Director. 

• B. Director Denies Extension. In the event the Director denies the request for extension, the applicant may appeal the decision in compliance with Chapter 18.144 (Appeals).

• C. Required Findings. An extension of the permit or approval may be granted only if the Director first makes all the following findings:

  1. There have been no changes in circumstances or law that would preclude the Director from making the findings upon which the original approval was based; and

  2. Appropriate evidence has been provided by the applicant to document that the extension is required due to a hardship that was not the result of personal action(s) undertaken by the applicant.

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• D. Further Extensions. An application for an extension of the permit or approval more than 48 months following the original date of approval (original 24 months plus up to two additional 12month periods) shall be treated as a new application which shall be filed in compliance with Chapter 18.112 (Application Processing Procedures).

• E. Further Extensions – Data Centers. For Data Center Uses, the Director may grant up to five additional 12-month extensions beyond the original 48-month approval period (original 24 months plus up to two additional 12-month periods) if Silicon Valley Power has not guaranteed the availability of power to the site.

• F. Not a Matter of Right. The granting of an extension of a discretionary permit or approval is not a matter of right and the Review Authority may deny the application or grant the application subject to new or different conditions.

• A. Application.

  1. Shall be In Compliance With the Approved Drawings and Plans, A development or new land use allowed through an Architectural Review, Conditional Use Permit, Minor Modification, Minor Use Permit, Reasonable Accommodation, Temporary Use Permit, Variance, or an approved PD zoned project shall be in substantial compliance with the approved drawings and plans, and any conditions of approval imposed by the Review Authority, except where changes to the project are approved in compliance with this Section.

  2. Request Desired Changes In Writing. An applicant shall request desired changes in writing, and shall also furnish appropriate supporting materials and an explanation of the reason(s) for the change(s).

  3. Type of Changes Allowed. Requested changes may involve changes to one or more conditions imposed by the Review Authority or actual changes to the operation, use, or physical characteristics of the project (e.g., hours of operation, expansion of a use) as originally proposed by the applicant or approved by the Review Authority.

  4. Shall First be Approved by Review Authority. Changes shall not be implemented until first approved by the applicable Review Authority in compliance with this Section, and may be requested either before or after construction or establishment and operation of the approved use.

B. Notice and Hearing, If Required.

1. If the original matter required a noticed public hearing, the Review Authority shall hold a public hearing, except for the minor changes outlined below (See Subsection C. - Minor Changes by Director), and shall give notice, in compliance with Chapter 18.146 (Public Notices and Hearings).

2. If the original matter did not require a noticed public hearing, the Review Authority shall not be required to hold a public hearing.

• C. Minor Changes by Director. The Director may authorize minor changes to an approved permit’s site plan, architecture, or the nature of the approved use only if the changes:

  1. Are consistent with the applicable General Plan land use designation and all applicable provisions of this Zoning Code and the spirit and intent of the original approval.

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2. Do not involve a feature of the project that was:

• a. A basis for findings in a Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report for the project;

• b. A basis for conditions of approval for the project; or

• c. A specific consideration by the Review Authority (e.g., the Director, Planning Commission, or Council) in granting the permit or approval.

3. Do not involve any expansion or intensification of the use in terms of residential density, Floor Area Ratio, or reduction of required commercial Floor Area Ratio in the case of mixed use projects.

4.

  - Would not result in a significant effect on the environment.

5. Would not be materially detrimental to other properties or land uses in the area.

• D. Major Changes. All other changes would be considered major changes and would include changes to the project involving features specifically described in Subsections C. 2. through 5. (Minor Changes by Director), above, and shall only be approved by the original Review Authority through a new application, processed in compliance with this Zoning Code.

• E. An Approved PD Zoned Project. Changes to an approved PD zoned project that meets the requirements for a minor change shall be processed in compliance with Subsection C., while a project that meets the requirements for a major change shall be processed in compliance with Subsection D (Major Changes).

• A. Resubmittal after Denial with Prejudice. Except as otherwise provided in Subsection B., below, the following shall apply to resubmittals after a denial with prejudice:

  1. The Director may reject an application for a discretionary planning permit, or amendment, on the grounds that one or more similar applications for the same site have been denied in the past two years (denial with prejudice), or that another cause exists for limiting the refiling of the application.

  2. For a period of 12 months following the actual date of denial with prejudice by the Director, Planning Commission, or Council, or, if appealed, the actual date of denial by the applicable Review Authority considering the appeal, of a discretionary planning permit or amendment, no application for the same or substantially similar planning permit or amendment shall be filed for the same site, or any portion thereof.

• B. Changed Conditions; New Evidence; Mistake. Notwithstanding Subsection A., above, the Director may allow a resubmittal based on one or more of the following findings:

  1. New evidence material to a revised decision will be presented that was unavailable or unknown to the applicant at the previous hearing(s) and that could not have been discovered in the exercise of reasonable diligence by the applicant.

  2. The surrounding area has been rezoned or a major change in the area has taken place since the previous hearing(s), which materially affects the applicant's real property.

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3. A mistake was made at the previous hearing(s) that was a material factor in the denial of the previous application.

• C. Resubmittal after Denial without Prejudice. There shall be no limitation on subsequent applications for a site where a project was denied without prejudice.

D.

Director's Determination, Appeal.

1. The Director shall determine whether a new application is for a planning permit or amendment that is the same or substantially similar to a previously approved or denied permit or amendment, and shall either process or reject the application in compliance with this Section.

2. The Director's determination may be appealed to the Planning Commission, in compliance with Chapter 18.144 (Appeals).

• A. Full Understanding and Acceptance. The applicant, upon receipt of the approved copy of the permit with attached conditions, shall execute an Acknowledgment and Acceptance of Conditions agreement with the City, certifying full understanding and acceptance of the final conditions of approval.

• B. Signed and Dated. The applicant shall return the Acknowledgment and Acceptance of Conditions agreement to the Department, properly signed and dated, within 30 days following the date of the Acknowledgement.

• C. Appeal. If the applicant wishes to appeal any or all the final conditions of approval, the applicant shall file an appeal in compliance with Chapter 18.144 (Appeals).

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