Chapter 18.250
MODIFICATIONS AND INTERPRETATIONS OF ZONING STANDARDS – FINDINGS
Sections:
18.250.020 Application and accompanying material – Proposed use.
18.250.030 Approval authority, action, and findings – Proposed use.
18.250.040 Application and accompanying material – Modifications of zoning standards.
18.250.050 Approval authority – Modifications of zoning standards.
18.250.060 Public notice and hearing.
18.250.070 Action and findings by approval authority – Modifications of zoning standards.
18.250.080 Effective date – Appeals – Modifications of zoning standards.
18.250.090 Time limits, expiration and revocation of modifications of zoning standards.
18.250.100 Amendments – Modifications of zoning standards.
18.250.010 Purpose.
The purposes of this chapter are to:
(a) Provide a procedure for determining whether the characteristics of a proposed use which is not specifically listed as a permitted, zoning administrator, or conditional use in one or more districts are sufficiently similar to a listed use to justify a finding that the use should be deemed a permitted, zoning administrator permitted, or a conditional use in one or more districts.
(b) Provide a procedure for the zoning administrator to make findings to allow increases in building height and floor area ratio beyond those specified in the applicable zoning district; and to make findings to allow reductions in parking and other modifications of zoning standards as may be authorized elsewhere in this title. (Ord. 9-2014 § 35, 3-4-14.)
18.250.020 Application and accompanying material – Proposed use.
An application for a determination that a proposed use which is not specifically listed should be deemed a permitted, zoning administrator permitted, or a conditional use in one or more districts shall be submitted to the zoning administrator on a form prescribed for that purpose by the city. The application shall include all required fees and/or deposits and all information and materials required by the city, including evidence to support the findings required to approve the proposed use. Applications may only be filed by the property owner or by the owner’s agent with the written consent of the property owner. (Ord. 9-2014 § 35, 3-4-14.)
18.250.030 Approval authority, action, and findings – Proposed use.
Notwithstanding any other provision of this title, the zoning administrator shall consider and act upon all requests for a use determination unless the zoning administrator determines that the application warrants consideration by the planning commission. The approval authority may grant the request if it finds that the characteristics of the proposed use, including without limitation its nature, function, and operation, are sufficiently similar to a listed use to determine that the use should be deemed a permitted, a zoning administrator permitted, or a conditional use in one or more districts. Decisions of the zoning administrator and planning commission regarding proposed uses may be appealed pursuant to Chapter 18.300. (Ord. 9-2014 § 35, 3-4-14.)
18.250.040 Application and accompanying material – Modifications of zoning standards.
(a) An application for an increase in building height or floor area ratio, reduction in parking, or other modification of zoning standards subject to the provisions of this title shall be submitted to the zoning administrator on a form prescribed for that purpose by the city. The application shall include all required fees and/or deposits and all information and materials required by the city, including evidence to support the findings required to approve the proposed modification of zoning standards. Applications may only be filed by the property owner or by the owner’s agent with the written consent of the property owner.
(b) An applicant for an increase in building height or floor area ratio may be required to provide documentation showing the shadow and wind effects of any proposed increase in building height on properties within 300 feet of the project site and documentation showing traffic and utility demand increases of any proposed increase in floor area ratio. The city may elect to require additional studies at the applicant’s expense documenting the potential effects of the proposed increase in building height or floor area ratio.
(c) Notwithstanding any other provision of this chapter, the visual safeguards section of the Hill Area Initiative of 2002 limits the overall height of buildings to no more than 35 feet when buildings are located above the toe of the hill line1. (Ord. 9-2014 § 35, 3-4-14.)
18.250.050 Approval authority – Modifications of zoning standards.
(a) Zoning Administrator. Notwithstanding any other provision of this title, the zoning administrator shall consider and act upon all requests for modification of zoning standards authorized pursuant to the procedures in this chapter, except as specified in subsection (b) of this section.
(b) Planning Commission. Where a request for modification of zoning standards is made in conjunction with another permit where the planning commission is the approval authority, the planning commission shall consider and act upon an application for a modification. The zoning administrator may also refer a request for modification of zoning standards to the planning commission for decision when the zoning administrator determines that the application warrants consideration by the planning commission. (Ord. 9-2014 § 35, 3-4-14; Ord. 17-2016 § 41, 9-13-16.)
18.250.060 Public notice and hearing.
The approval authority shall conduct a public hearing on an application for an increase in building height or floor area ratio. At least 10 days prior to the public hearing, notice shall be given of the proposed increases as set forth in Chapter 18.320. (Ord. 9-2014 § 35, 3-4-14.)
18.250.070 Action and findings by approval authority – Modifications of zoning standards.
(a) The approval authority may approve, conditionally approve, or deny an application for modifications of zoning standards. The approval authority shall make any findings required by the provisions of this section. The approval authority may impose any reasonable conditions to ensure that the required findings can be made.
(b) The approval authority shall approve or conditionally approve an increase in building height or floor area ratio, a modification to zoning standards, or a parking reduction only when all of the following findings can be made:
(1) The proposed modification is consistent with the general plan and any applicable community or specific plan; and
(2) Where an increase in building height is proposed:
(A) The increase in building height will not adversely affect the privacy of properties in the vicinity of the project, and where applicable:
(i) The increased building height would allow the project to be designed in a manner that would mitigate its impacts on surrounding properties more effectively than if the project conformed to the district regulations (e.g., designs which reduce shadowing impacts or move a building farther from neighboring residences); or
(ii) Unique requirements have been imposed on a use (e.g., air pollution control facilities at a certain height) that require an increase in the building height over that specified in the district regulations.
(B) Notwithstanding subsection (b)(2)(A) of this section, for properties within the (H-I) hillside combining district and located below the toe of the hill line, the approval authority may approve a building height greater than 30 feet; provided, that the approval authority makes all of the findings listed in Section 18.130.050(d).
(3) Where an increase in floor area ratio is proposed:
(A) The increase in floor area ratio will not cause the project to exceed the capacity of streets and will not adversely affect the privacy of properties in the vicinity of the project;
(B) A deed restriction approved by the city attorney shall be recorded on the property to ensure that the use of the property remains limited to that presented to the approval authority; and
(C) One or more of the following findings can be made:
(i) The proposed project would provide extraordinary benefits to the city;
(ii) The increased floor area ratio would allow the project to be designed in a manner that would mitigate its impacts on surrounding properties more effectively than if the project conformed to the district regulations (e.g., designs which reduce shadowing impacts or move a building farther from neighboring residences); or
(iii) The development potential has been transferred from one parcel to another parcel in the same project, and a deed restriction approved by the city attorney shall be recorded to ensure that the floor area ratio for the entire project will not exceed that specified in the district regulations.
(D) Notwithstanding the provisions in subsections (b)(3)(A) through (C) of this section, the approval authority may approve or conditionally approve an increase in floor area ratio over the maximums established by Section 18.45.020 when the property is located within the Centerville, Irvington, Mission San Jose and Niles Town Centers as shown on the general plan land use diagram, where the approval authority alternatively finds that sufficient parking for the proposed use or development is provided by a proximate parking district or through parking agreements provided in accordance with the requirements of Section 18.183.070 (Parking provided under separate ownership).
(4) Where a parking reduction is proposed for a project other than a multiple-dwelling development:
(A) The reduced parking requirement is commensurate with the use of the property and will not adversely impact surrounding streets and properties; and
(B) A deed restriction approved by the city attorney shall be recorded to ensure that the use of the site shall be limited to that presented to the approval authority, and that should a need for increased parking occur the owner/property users can address this need through one of the following:
(i) Implementation of transportation demand management (TDM) measures;
(ii) Execution of a subsequently city-approved and recorded off-site parking agreement as set forth in Section 18.183.070;
(iii) Construction of additional on-site parking facilities commensurate with the need; or
(iv) Any combination of alternatives set forth above.
(5) Where a parking reduction is proposed for a multiple-dwelling development:
(A) Due to the project’s location within a TOD the project is likely to require a lower level of parking than is required by similar projects not proximate to alternative transportation because residents will have viable transportation alternatives available; or
(B) Due to the project’s proximity to amenities, and/or due to the desire to create a more pedestrian-oriented environment in and around the project site, a reduction in required parking will further the goal of enhancing and strengthening the neighborhood and, furthermore, that residents will have access to amenities such as shopping, entertainment, and employment without necessitating the use of automobiles; or
(C) Due to the anticipated tenancy, including but not limited to affordable units, senior citizen units, single room occupancy (SRO) and efficiency1 units and special needs housing, and based on quantifiable evidence, the proposed tenancy is not likely to require the same levels of parking as standard residential development. This finding shall only be used for projects that have entered into a binding agreement with the city or other public agency guaranteeing the project will serve the identified tenancy type; or
(D) Due to the availability of on-street parking, the guest parking requirement for the project will be lower than a development where adequate on-street parking is not provided. This finding shall only be used to lower the guest parking requirement, and not the resident parking requirement.
(6) Where other modifications are proposed:
(A) The proposed modification meets the criteria as set forth in other sections of this title. (Ord. 9-2014 § 35, 3-4-14; Ord. 04-2016 § 43, 3-1-16; Ord. 17-2016 § 42, 9-13-16; Ord. 23-2018 § 44, 10-2-18.)
18.250.080 Effective date – Appeals – Modifications of zoning standards.
A decision of the approval authority shall be effective on the date following the expiration of any appeal period, as described in Chapter 18.300, unless an appeal is timely filed pursuant to Chapter 18.300. No modifications of zoning standards shall be granted on appeal unless the required findings set forth in Section 18.250.070 are made by the planning commission or city council, as applicable. (Ord. 9-2014 § 35, 3-4-14.)
18.250.090 Time limits, expiration and revocation of modifications of zoning standards.
(a) A modification granted in accordance with this chapter shall be considered to be attached to and running with the land unless the modification has expired or has been revoked or modified.
(b) Time limits, expiration and revocation of approved modifications of zoning standards shall be subject to the procedures described in Chapter 18.330. (Ord. 9-2014 § 35, 3-4-14.)
18.250.100 Amendments – Modifications of zoning standards.
Amendments to approved modifications of zoning standards shall be subject to the same application and review requirements as a new application for modifications of zoning standards. (Ord. 9-2014 § 35, 3-4-14.)
[Notes Applicable to Chapter 18.250]
1 This term is defined in Chapter 18.25.