CHAPTER 5.
CITYWIDE USE AND DEVELOPMENT REGULATIONS

Sections:

Article 1.    General Provisions

9-5.101    Purpose and Applicability

Article 2.    Miscellaneous Use Regulations

9-5.201    Purpose

9-5.202    Animal Care and Sales, Kennel/Animal Care

9-5.203    Condominium Conversions

9-5.204    Drive-In and Drive-Through Facilities

9-5.205    Factory-Built Housing (Manufactured Homes)

9-5.206    Repealed by Ord. 17-001

9-5.207    Repealed by Ord. 17-002

9-5.208    Mobile Food Vendors

9-5.209    Mobile Homes on Individual Lots

9-5.210    Recreation, Gaming.

9-5.211    Residential Care Facility, Limited

9-5.212    Residential Care Facilities for the Elderly

9-5.213    Retail

9-5.214    Supportive Housing and Transitional Housing.

Article 3.    Adult Oriented Businesses

9-5.301    Purpose

9-5.302    Effect

9-5.303    Home Occupations

9-5.304    Districts Where Allowed

9-5.305    Location Requirements

9-5.306    Conditional Use Permit Required

9-5.307    Conditions of Approval

9-5.308    Public Display of Certain Matter Prohibited

9-5.309    Definitions

Article 4.    Affordable Housing Program

9-5.401    Created

9-5.402    General Requirements for New Ownership Residential Projects of Ten (10) or More Dwelling Units

9-5.403    Affordable Unit Requirements for Ownership Residential Projects

9-5.404    Household Eligibility Requirements for Affordable Units

9-5.405    Control of Resale of Ownership Affordable Units

9-5.406    New Rental Residential Projects – Affordable Housing Impact Fees

9-5.407    Rental Affordable Units Permitted if Consistent with Costa-Hawkins Act

9-5.408    Requirements for Rental Affordable Units

9-5.409    New Nonresidential Projects – Affordable Housing Impact Fees

9-5.410    Housing Fund

9-5.411    Availability of Government Subsidies

9-5.412    Density Bonus

9-5.413    Reduction of Amenity and Square Footage

9-5.414    Fees

9-5.415    Technical Assistance

9-5.416    Enforcement

9-5.417    Waiver

9-5.418    Annual Report

9-5.419    Definitions

Article 5.    Density Bonus for Affordable Housing

9-5.501    Purpose

9-5.502    Applicability

9-5.503    Projects Eligible for Density Bonus

9-5.504    Application Requirements

9-5.505    Amount of Density Bonus

9-5.506    Concessions and Incentives

9-5.507    Waiver or Reduction of Development Standards

9-5.508    Vehicular Parking Ratio

9-5.509    Requirements for Participation

9-5.510    Definitions

Article 6.    Firearms and Ammunition Sales

9-5.601    Purpose

9-5.602    Home Occupations

9-5.603    Districts Where Allowed

9-5.604    Location Requirements

9-5.605    Conditional Use Permit Required

9-5.606    Conditions of Approval

9-5.607    Definitions

Article 7.    Hazardous Waste Facilities

9-5.701    Purpose

9-5.702    Applicability

9-5.703    Conditional Use Permit Required

9-5.704    Location

9-5.705    Application Requirements

9-5.706    Noticing Requirements

9-5.707    Local Assessment Committee

9-5.708    Conditions of Approval

9-5.709    Appeals

Article 8.    Home Occupations

9-5.801    Purpose

9-5.802    Business License and Zoning Compliance Review Required

9-5.803    Uses Permitted

9-5.804    Uses Excluded

9-5.805    Regulations

Article 9.    Live/Work

9-5.901    Purpose

9-5.902    Applicability

9-5.903    Conditional Use Permit Required

9-5.904    Occupancy of Live/Work Unit

9-5.905    Location and Activity Requirements

9-5.906    Incompatible Use Types

9-5.907    Live/Work Standards

9-5.908    Residential Zones

9-5.909    Existing Live/Work Buildings

9-5.910    Waiver or Reduction of Standards

9-5.911    Review Criteria

9-5.912    Conditions of Approval

9-5.913    Conversion of Live/Work Buildings

Article 10.    Nonconforming Uses and Structures

9-5.1001    Purpose

9-5.1002    Applicability

9-5.1003    Exceptions

9-5.1004    Nonconforming Uses as Distinguished from Illegal Uses

9-5.1005    Effect of Conditional Use Permit on Nonconforming Uses

9-5.1006    Determination of Legal Nonconforming Uses

9-5.1007    Incompatible Uses

9-5.1008    Nonconforming Lots

9-5.1009    Continuation and Maintenance of Nonconforming Uses and Structures

9-5.1010    Changes and Substitutions of Nonconforming Uses

9-5.1011    Expansion of Nonconforming Structures and/or Uses

9-5.1012    Restoration of Damaged Nonconforming Structures and/or Uses.

9-5.1013    Reestablishment of Abandoned Nonconforming Uses

9-5.1014    Abatement

Article 11.    Performance Standards

9-5.1101    Purpose

9-5.1102    Applicability

9-5.1103    Proof of Compliance

9-5.1104    Measurements

9-5.1105    Air Quality: Noxious Materials

9-5.1106    Air Quality: Noncontaminated Emissions

9-5.1107    Light and Glare

9-5.1108    Liquid or Solid Waste

9-5.1109    Noise

9-5.1110    Odor

9-5.1111    Vibration

Article 12.    Preservation of Structures

9-5.1201    Purpose

9-5.1202    Applicability

9-5.1203    Conditional Use Permit Required

9-5.1204    Application

9-5.1205    Approval Procedure for Demolition

9-5.1206    Findings

9-5.1207    Conditions of Approval

9-5.1208    Appeals

9-5.1209    Effect on Building Permits

9-5.1210    Designation of Significant Structures

9-5.1211    Criteria for Adding or Deleting Significant Structures

9-5.1212    Definitions

Article 13.    Private Property Access from City Parks, Greenways, and Other City Property

9-5.1301    Purpose

9-5.1302    Applicability

9-5.1303    Conditional Use Permit Required

9-5.1304    Allowable Uses

9-5.1305    Alternate Access

9-5.1306    Limitations

9-5.1307    Landscaping and Maintenance of Property Gaining Access

9-5.1308    Access Facilities

9-5.1309    Financial Contribution to Citywide Parks Fund

9-5.1310    Application

9-5.1311    Findings

9-5.1312    Conditions of Approval

Article 14.    Accessory Dwelling Units

9-5.1401    Purpose

9-5.1402    Applicability

9-5.1403    Approval Procedure

9-5.1404    Where Allowed

9-5.1405    Building Intensity and Residential Density

9-5.1406    Size of Unit

9-5.1407    Parking

9-5.1408    Dimensional Requirements

9-5.1409    Design

9-5.1410    Other Requirements

Article 15.    Sidewalk Cafes

9-5.1501    Purpose

9-5.1502    Permit Required

9-5.1503    Where Permitted

9-5.1504    Standards

9-5.1505    Alcoholic Beverages

9-5.1506    Application

9-5.1507    Approval Procedure

9-5.1508    Required Findings

9-5.1509    Renewal

9-5.1510    Revocation

9-5.1511    Appeals

9-5.1512    Restoration of Sidewalk

9-5.1513    Amortization

9-5.1514    Parklets

9-5.1515    Definitions

Article 16.    Signs

9-5.1601    Purpose

9-5.1602    Applicability

9-5.1603    Procedure

9-5.1604    Prohibited Signs

9-5.1605    Exempt Signs

9-5.1606    General Provisions for All Sign Types

9-5.1607    Standards for Specific Sign Types

9-5.1608    Sign Regulations in the RM Medium Density Residential Zone

9-5.1609    Sign Regulations in All Other Zones

9-5.1610    Temporary Commercial Signs

9-5.1611    Design Principles

9-5.1612    Procedures for Individual Establishment Signs

9-5.1613    Master Sign Programs

9-5.1614    Nonconforming Signs

9-5.1615    Definitions

Article 17.    Telecommunications Facilities

9-5.1701    Purpose

9-5.1702    Applicability and Exemptions

9-5.1703    Approval Procedure

9-5.1704    Application Requirements

9-5.1705    Development Requirements and Standards

9-5.1706    Post-Installation Verification and Monitoring

9-5.1707    Discontinuance of Use

9-5.1708    Definitions

Article 18.    Emergency Shelters

9-5.1801    Purpose

9-5.1802    Applicability

9-5.1803    Approval Procedure

9-5.1804    Standards

Article 19.    Development Impact Fees

9-5.1901    Authority and Reference to This Article

9-5.1902    Purpose of Fees

9-5.1903    Use of Fees

9-5.1904    Calculation of Fees by Implementing Resolutions

9-5.1905    Obligation to Pay Fees

9-5.1906    Timing of Payment

9-5.1907    Amount of Payment

9-5.1908    Fee Adjustments by the City

9-5.1909    Exemptions

9-5.1910    Request for Refund

9-5.1911    Application for Potential Credit

9-5.1912    Timing of Application for Potential Credit

9-5.1913    Amount of Potential Credit

9-5.1914    Request for Reimbursement

9-5.1915    Allocation of Reimbursements

9-5.1916    Notice of Protest Rights

9-5.1917    Informal Hearing

9-5.1918    Director’s Determination

9-5.1919    Appeal of Director’s Determination

9-5.1920    Appeal Hearing

9-5.1921    Decision of Independent Hearing Officer; Judicial Review

9-5.1922    Costs of Protest

9-5.1923    Applicant’s Acknowledgment of Adjustment or Waiver

9-5.1924    Definitions

Article 20.    Multi-Unit Residential Developments

9-5.2001    Purpose

9-5.2002    Applicability

9-5.2003    Unit Mix

9-5.2004    Design

9-5.2005    Exceptions

9-5.2006    Affordable Housing

9-5.2007    Ownership Housing

9-5.2008    Transportation Demand Management

Article 21.    Short-Term Rentals

9-5.2101    Purpose

9-5.2102    Permit Required

9-5.2103    Where and How Permitted

9-5.2104    Standards

9-5.2105    Application

9-5.2106    Approval Procedure

9-5.2107    Required Findings

9-5.2108    Renewal

9-5.2109    Revocation

9-5.2110    Appeals

9-5.2111    Enforcement

9-5.2112    Definitions

Article 22.    Cannabis-Related Activities

9-5.2201    Purpose

9-5.2202    Applicability

9-5.2203    Home Occupations

9-5.2204    Districts Where Allowed

9-5.2205    Conditional Use Permit Required

9-5.2206    Conditions of Approval

9-5.2207    Standards

9-5.2208    Definitions

Article 1.    General Provisions

9-5.101 Purpose and Applicability.

The purpose of this chapter is to set forth development regulations that apply throughout the City.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 2.    Miscellaneous Use Regulations

9-5.201 Purpose.

The purpose of this article is to consolidate in one (1) location miscellaneous Citywide use and development regulations that pertain to the various use classifications in Chapter 2 and to other uses and situations, and that are so brief as not to warrant separate articles.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.202 Animal Care and Sales, Kennel/Animal Care.

Screening for any outdoor activities shall be provided in conformance with the requirements of Article 5 of Chapter 4.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.203 Condominium Conversions.

See Article 7 of Chapter 6 for regulations pertaining to the conversion of rental housing to condominiums.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.204 Drive-In and Drive-Through Facilities.

Drive-In and Drive-Through Facilities are prohibited. This prohibition does not apply to drive-in movies, which may be approved as temporary uses only, pursuant to the temporary use permit procedure in Article 6 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.205 Factory-Built Housing (Manufactured Homes).

Factory-built housing shall be treated the same as conventional site-built housing.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.206 Lodging, Bed and Breakfast.

Repealed by Sec. 4 (part), Ord. 17-001, eff. Apr. 20, 2017.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.207 Medical Marijuana Dispensaries.

Repealed by Sec. 6, Ord. 17-002, eff. May 4, 2017.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.208 Mobile Food Vendors.

(a)    On the Public Right-of-Way. Mobile Food Vendors to be located on the public right-of-way are not subject to these planning regulations, but are regulated pursuant to Chapter 27 of Title 5 and Chapter 3 of Title 6.

(b)    On Private Property. Mobile Food Vendors to be located on private property or elsewhere not on the public right-of-way are subject to these planning regulations, and are eligible only for temporary use permits pursuant to Article 6 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.209 Mobile Homes on Individual Lots.

Mobile homes on individual lots shall be treated the same as Single Unit residential uses.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.210 Recreation, Gaming.

Pursuant to Section 5-5.14, card rooms are only allowed on San Pablo Avenue south of Park Avenue.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.211 Residential Care Facility, Limited.

Limited Residential Care Facilities, including group homes and Residential Care Facilities for the Elderly, which provide care for six (6) or fewer persons shall be treated the same as Single Unit residential uses.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.212 Residential Care Facilities for the Elderly.

(a)    Defined. A Residential Care Facility for the Elderly is a Residential Care Facility, as defined in Section 9-2.215, that serves persons sixty (60) years of age and older.

(b)    Building Intensity Bonus. A Residential Care Facility for the Elderly shall receive a bonus of one percent (1%) of building intensity (floor area ratio or FAR) for each one percent (1%) of beds provided to persons eligible for Supplemental Security Income (SSI) as defined by the U.S. Social Security Administration, up to a maximum of twenty-five percent (25%). This bonus is in addition to any bonuses available pursuant to Section 9-4.204.

(c)    Guarantee Required. To be eligible for the bonus provided in subsection (b) of this section, the owner of the Residential Care Facility for the Elderly shall enter into an agreement with the City, in a form acceptable to the City Attorney, to guarantee the availability of such beds for persons eligible for SSI for a minimum of fifty-five (55) years.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.213 Retail.

(a)    Outdoor Sales. Screening for any outdoor sales shall be provided in conformance with the requirements of Article 5 of Chapter 4.

(b)    Tobacco Shops. Pursuant to Section 5-29.10, Tobacco Shops are prohibited from being located within one thousand feet (1,000') of public or private schools and parks, greenways and playgrounds.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.214 Supportive Housing and Transitional Housing.

A Supportive Housing or Transitional Housing development shall be considered a residential use of property subject only to those same restrictions that apply to other residential uses of the same type (e.g., One (1) Unit, Two (2) Unit, or Multi-Unit) in the same zoning district.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 3.    Adult Oriented Businesses

9-5.301 Purpose.

This article establishes the adult entertainment regulations. The purpose of these regulations is to implement policies contained in the General Plan, particularly those relating to the conservation of existing neighborhoods and the compatibility of uses. In adopting this article, it is recognized that certain types of adult entertainment businesses possess certain objectionable operational characteristics which, if such uses are allowed to concentrate, will have adverse effects upon the character of the areas in which they concentrate and adjacent neighborhoods. Special regulation of adult entertainment uses is therefore necessary to ensure that these adverse effects of adult entertainment uses will not contribute to the blighting or downgrading of zoning districts in which they are permitted or of surrounding neighborhoods.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.302 Effect.

This article shall not be interpreted as legalizing or condoning the production, presentation, sale, advertisement, dissemination, or distribution of matter which is obscene as defined and regulated by applicable State and local laws; nor shall this article be interpreted as legalizing or condoning participation in management, production, presentation, or exhibition of obscene live conduct in any public place or any place exposed to the public view as defined and regulated by applicable State and local law; nor shall this article be interpreted as legalizing or condoning any other activity which is otherwise prohibited by State or local law.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.303 Home Occupations.

It is unlawful to establish any adult entertainment business as defined in this article as a Home Occupation as defined in Article 8 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.304 Districts Where Allowed.

It is unlawful to establish any adult entertainment business as defined in this article in any district other than the INH Heavy Industrial zone.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.305 Location Requirements.

Within the INH Heavy Industrial zone, no adult entertainment business shall be established in the following locations:

(a)    Within two hundred feet (200') of any area zoned for residential use;

(b)    Within five hundred feet (500') of any other adult entertainment business;

(c)    Within one thousand feet (1,000') of any public park, religious institution or elementary or secondary school.

The distance between any two (2) adult entertainment businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any adult entertainment business and any residential district, religious institution, school, or public park shall be measured in a straight line, without regard to intervening structures, from the closest property line of the residential zone, religious institution, school, or public park to the closest exterior structural wall of such adult entertainment business.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.306 Conditional Use Permit Required.

It is unlawful to establish an adult entertainment business without first obtaining a conditional use permit as provided in this article. No other use permit shall be required to operate an adult entertainment business. No final action may be taken by the Planning Commission until the Emeryville Police Department has issued an operating permit for the use or a statement that such permit is not required. To grant a conditional use permit for an adult entertainment business, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(a)    That the proposed adult entertainment business meets all of the location requirements of Section 9-5.305.

(b)    That the proposed adult entertainment business will not be open between 2:00 a.m. and 6:00 a.m. daily.

(c)    That the proposed adult entertainment business will not use electronic amplification between midnight and 6:00 a.m. daily.

(d)    That the proposed adult entertainment business will be adequately soundproofed or insulated for noise and operated so that incidental noise shall not be audible beyond the premises.

(e)    That the proposed adult entertainment business will comply with all applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.307 Conditions of Approval.

In approving a conditional use permit for an adult entertainment business, the Planning Commission may designate such conditions as it deems necessary in order to fulfill the purposes of this article, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions shall not be less restrictive than the conditions attached to any operating permit issued by the Emeryville Police Department, and may include, but are not limited to, designating hours of operation more restrictive than those listed in Section 9-5.306(b).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.308 Public Display of Certain Matter Prohibited.

All building openings, entries, and windows of adult entertainment businesses shall be located, covered, or screened in such a manner as to prevent a view into the interior from any public or semipublic area, including public sidewalks, streets, arcades, hallways, or passageways of any material which has as its primary or dominant theme matter depicting, illustrating, describing, or relating to “specified sexual activities” or “specified anatomical areas” as defined in this article. Furthermore, such businesses may not have signs, graphics, or window displays which in any way present, depict, illustrate, or describe such material when such material has as its purpose or effect sexual arousal, gratification, or affront.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.309 Definitions.

(a)    For the purpose of this article “adult entertainment businesses” includes all Adult Oriented Businesses as defined in Section 9-2.303, and more specifically refers to the following establishments:

(1)    “Adult arcade” shall mean an establishment where, for any form of consideration, one (1) or more motion picture projectors, slide projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by an emphasis upon the depiction or description of “specified sexual activities” or “specified anatomical areas.”

(2)    “Adult bookstore” shall mean an establishment in which at least thirty percent (30%) of the business involves the sale, for any form of consideration, of any one (1) or more of the following:

a.    Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by an emphasis upon the depiction or description of “specified sexual activities” or “specified anatomical areas,” or

b.    Instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.” This definition does not include a bona fide pharmacy.

c.    For purposes of this definition, “at least thirty percent (30%) of the business” means at least thirty percent (30%) of the stock-in-trade, or at least thirty percent (30%) of the floor area of that portion of its total premises devoted to the display of its stock-in-trade, or the derivation of at least thirty percent (30%) of the gross income of the establishment.

(3)    “Adult motion picture theater” shall mean an establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are shown to an audience of six (6) or more persons, and in which a substantial portion of the total presentation time is devoted to the showing of material which is characterized by an emphasis upon the depiction or description of “specified sexual activities” or “specified anatomical areas.”

(4)    “Adult theater” shall mean a theater, concert hall, auditorium, or similar establishment which, for any form of consideration, regularly features live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”

(5)    “Bathhouse” shall mean an establishment which provides the services of baths of all kinds, including all forms and methods of hydrotherapy, during which “specified anatomical areas” are displayed or “specified sexual activities” occur. This section shall not apply to hydrotherapy practiced by, or under the supervision of, a medical practitioner, chiropractor, acupuncturist, or physical therapist, or a similar establishment where baths or hydrotherapy are offered as incidental or accessory services.

(b)    For the purposes of this article, “specified sexual activities” shall include the following:

(1)    Human genitals in a state of sexual stimulation or arousal;

(2)    Acts of human masturbation, sexual intercourse, or sodomy; or

(3)    Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.

(c)    For the purposes of this article, “specified anatomical areas” shall include less than completely and opaquely covered: human genitals or pubic region; buttock; or female breast below a point immediately above the top of the areola.

(d)    For the purposes of this article, certain terms and words are defined as follows:

(1)    “Establishment” shall mean the “establishment” of an adult entertainment business and shall mean and include any of the following:

a.    The opening or commencement of any such business as a new business;

b.    The conversion of an existing business, whether or not an adult entertainment business, or any of the adult entertainment businesses defined herein;

c.    The addition of any of the adult entertainment businesses defined herein to any other existing adult entertainment business; or

d.    The relocation of any such business.

(2)    “Person” shall mean any person, firm, partnership, association, corporation, company, or organization of any kind.

(3)    “Public park” shall mean a park, playground, swimming pool, beach, pier, or athletic field within the City which is under the control, operation, or management of the City.

(4)    “Religious institution” shall mean a building which is used primarily for religious worship and related religious activities.

(5)    “School” shall mean an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, junior high school, senior high school, or a special institution of learning under the jurisdiction of the State Department of Education, but it does not include a vocational or professional institution or any institution of higher education, such as a community or junior college, college or university.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 4.    Affordable Housing Program

9-5.401 Created.

To lessen the shortage of housing affordable to moderate, median, low, and very low income households in the City of Emeryville as partial compliance with California Government Code Section 65583(c), there is hereby created an affordable housing program.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.402 General Requirements for New Ownership Residential Projects of Ten (10) or More Dwelling Units.

(a) Developers of new ownership residential projects (both new construction and conversion of nonresidential space to a residential use) of ten (10) or more dwelling units or lots, including but not limited to, single-family dwellings, or condominium developments, either partially or completely in Emeryville, shall be conditioned to provide a designated percentage of the dwelling units in the project as units affordable to moderate income households for a minimum period of forty-five (45) years from date of availability as more fully described below, unless the developer, in agreement with the City Council, elects to commit to a fixed percentage of the affordable units as being affordable to median income households in return for a reduction of the affordability percentage.

(b) Any development permit for new ownership residential projects (both new construction and conversion) of ten (10) or more dwelling units or parcels that provide affordable units pursuant to subsection (a) of this section shall have conditions attached which will assure compliance with the provisions of this article. The conditions shall require a written agreement to indicate the number, type, location, approximate size, and construction scheduling of all dwelling units, the appropriate price levels, provision for income certification and screening of potential occupants of affordable units, a resale control mechanism, a density bonus, if applicable, and such reasonable information as shall be required by the City for the purpose of determining the applicant’s compliance with this article.

(c) All affordable units in a project and phases of a project should be constructed concurrently with or prior to the construction of non-affordable units, unless the City determines that extenuating circumstances exist.

(d) All affordable units shall be occupied by moderate or median income households as certified by the City or its operating agent.

(e) Unless the City finds compelling reasons to the contrary, the affordable units shall be dispersed throughout the development, the mix and type of affordable units shall be proportionate to those of the project as a whole, and the affordable units shall be comparable with the design of the base level market rate units prior to purchaser-funded upgrades in terms of appearance, materials, and quality of finishes. Parking designated for the affordable units shall be provided in an equitable manner as that provided for the market rate units. The written agreement referred to in subsection (b) of this section shall include a breakdown of the types of units provided as affordable, which shall be directly proportionate to the types of units in the project as a whole under the provisions of this subsection (e) of this section.

(f) The applicant shall have the option, with the approval of the City, to transfer credit for affordable units constructed at one (1) location within the City to satisfy the requirements of this article. The affordability requirement may be satisfied with construction of dwelling units up to twelve (12) months prior to the approval of the project.

(g) Upon a finding by the City that the construction of the required affordable units is not feasible or appropriate as part of a larger development project, the applicant shall have the option to construct the affordable units on a site or sites not contiguous with the development, but within the Emeryville City limits.

(h) The applicant shall have the option, with the concurrence of the City, in a home ownership project, of constructing rental affordable units in a number sufficient to meet the requirements of this article if the provision of the affordable units is consistent with Section 9-5.407.

(i) Where the applicant elects to initially rent all of the units in an ownership residential project, the applicant shall have the option of providing rental affordable units if the provision of the units is consistent with Section 9-5.407.

(j) Where units at a separate location are used to meet the affordability requirements under subsections (f), (g), and (h) of this section, the affordability percentage shall be applied to the number of units at the two (2) or more locations combined.

(k) Where the applicant is willing to commit to making a portion of the affordable units affordable to median income households for forty-five (45) years:

(1) The applicant can seek approval by the City under subsection (a) of this section to reduce the number of units required; and

(2) The City may subsidize the cost of traffic impact fees, if any, building permit fees, and other fees and exactions that may be required of some or all of the project units.

(l) Prior to City approval of a lesser percentage of affordable units in return for targeting to median income under subsections (a) and (k) of this section, the City must find that the request provides at least an equivalent contribution toward City goals.

(m) Notwithstanding the other provisions of this section, the owner of any rental residential project or the owner of any ownership residential project that is initially rented, whether constructed prior to or after the original adoption of Article 7 of Chapter 6 of this title, and that contains ten (10) or more dwelling units on lots, shall be required to notify the City at least one hundred twenty (120) days prior to a proposed change to the tenure of the residential project from rental units to for-sale, ownership units, as well as at least one hundred twenty (120) days prior to any proposed transfer or assignment of project, such that the requirements of this chapter that are effective as of the date of said notification to the City will be imposed on the ownership residential project through execution of a written agreement as referred to in Section 9-5.402(b) and any other agreements as required by the City (such as an assignment and assumption agreement).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.403 Affordable Unit Requirements for Ownership Residential Projects.

(a) In new ownership residential projects, twenty percent (20%) of the dwelling units shall be affordable to moderate income households as provided above. The housing unit sales prices corresponding to these income ranges shall be established by the City or its designee. In ownership residential projects located partially in Emeryville, twenty percent (20%) of the units in Emeryville shall be affordable units or ten percent (10%) of all of the units in the project shall be affordable units with all of the affordable units located in Emeryville, whichever is greater. In applying these percentages, any decimal fraction less than or equal to one-half (0.50) may be disregarded and any decimal fraction greater than one-half (0.50) shall be construed as requiring one dwelling unit.

(b) The developer shall offer to sell the affordable units required by this article to eligible purchasers for a period of not less than one hundred twenty (120) days from the date of the City’s issuance of the certificate of occupancy for each particular affordable unit, with the sale being completed within ninety (90) days thereafter. At the end of the one hundred twenty (120) day marketing period, the City, in its sole discretion, may require the developer to extend its sales efforts for an additional sixty (60) day period. The developer shall actively market the units during this period and implement any suggestions provided by the City. Furthermore, if negotiating the agreement with the developer, the City may require that the marketing periods be extended depending on the number of units to be constructed and marketed at that same time.

(c) If the developer is unable to sell some or all of the affordable units at the end of the marketing period described in subsection (b) of this section, the City shall be offered the opportunity to sell the units for a period of no less than sixty (60) days, with sales being completed within ninety (90) days thereafter. During this period, the City or its designee may purchase the units.

(d) If the developer, City, or the City’s operating agent are unable to sell some or all of the affordable units at the end of the marketing periods described in subsections (b) and (c) of this section, and the City or its designee does not purchase the units, then the developer may sell the affordable units at an unrestricted price to a bona fide purchaser for value and pay the City an amount equal to the difference between the sales price and the affordable cost established by the City. After payment of the required amount to the City, all sale and resale restrictions shall be removed from the affordable unit.

(e) The developer shall advertise the initial availability of all affordable units in a project to the Emeryville general public through a marketing program approved by the City. The developer shall seek qualified purchasers through a process involving community outreach and broad marketing efforts, informational workshops, an application, a lottery, and application review and processing. The City or its operating agent shall review the assets and income of prospective purchasers of the ownership affordable units on a project-by-project basis and shall make the final decision about income eligibility. Unless otherwise prohibited by law, preference will be given first to residents of Emeryville and second to people employed in Emeryville, or to other preferences as adopted by the City for a particular ownership residential project subject to this article. As part of its review of the eligibility of prospective purchasers, the City or its operating agent shall advise all prospective purchasers of the resale restrictions applicable to ownership affordable units as specified in this article and shall require all purchasers to participate in City-approved homebuyer education prior to the close on escrow of the purchaser’s affordable unit.

(f) The City shall enter into recorded agreements with developers, and take other appropriate steps necessary to assure that the required moderate and median income ownership units are provided and that the units remain affordable to moderate or median income households for a period of at least forty-five (45) years from the recordation of the purchase agreement.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.404 Household Eligibility Requirements for Affordable Units.

(a) In establishing moderate, median, low or very low household income, the City or its designee shall consider, among other things, the median household income data provided periodically by the California Department of Housing and Community Development, household size and number of dependents, and all sources of household income and assets.

(b) Every purchaser of an affordable unit shall certify by a form acceptable to the City that the dwelling unit is being purchased for the purchaser’s primary place of residence. The City or its operating agent shall verify this certification. Failure, by the purchaser, to maintain eligibility for homeowners’ property tax exemption shall be construed to mean that the affordable unit is not the primary place of residence of the purchaser. Should the purchaser fail to make the unit his/her principal place of residence within six (6) months following notice by the City of the failure to comply with this provision, such failure shall authorize the City to send a subsequent notice that it treats the failure as a sale which triggers a preemptive option for the City to purchase such unit consistent with the procedures set out in Section 9-5.405(b); provided, that no sale is deemed to occur, no option periods are triggered, and no rights of the City are extinguished if it does not send the second written notice deeming the failure of the owner to comply as a sale.

(c) The policies governing the selection of home buyers for certification by the City or its operating agent under the provisions of this article shall be established by the City. These shall include, but not be limited to, maximum income and asset limits, order of preference, and policy on first-time home buyers. The most recently established criteria shall be used by the City or its operating agent in selecting home buyers and in structuring any lottery.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.405 Control of Resale of Ownership Affordable Units.

(a) In order to maintain the availability of the affordable units as may be constructed pursuant to the requirements of this article, the City shall impose the following resale conditions for a minimum period of forty-five (45) years from the recordation of each grant deed, which forty-five (45) year period shall start over with each resale. The price received by the seller of an affordable unit shall be limited to the lesser of a bona fide offer to purchase or the price affordable to a moderate income household. If the affordable unit has been established for a median income household through an agreement with the developer as provided in Section 9-5.402(k), then the price of the unit shall be the lesser of the bona fide offer to purchase or the price affordable to a median income household, as applicable.

(b) Home ownership affordable units shall be sold and resold from the date of the original sale only to moderate and median income households as determined to be eligible for affordable units by the City or its operating agent according to the requirements of this article. When an owner of an affordable unit desires to sell the unit, the owner shall notify the City. The owner shall market the unit to eligible purchasers for a period of not less than ninety (90) days from the date of notification to the City of the desire to sell and of initiation of marketing (unit is available for viewing and designated contact person available to respond to inquiries), with the sale being completed within ninety (90) days thereafter. If the owner is unable to sell the unit to an eligible purchaser, then the City shall be offered the opportunity to sell the unit for a period of no less than sixty (60) days, with sale being completed within ninety (90) days thereafter. During this period, the City or its designee may purchase the units. The seller shall not levy or charge any additional fees nor shall any finder’s fee or other monetary consideration be allowed other than customary real estate commissions and closing costs.

(c) If the owner, City, or the City’s operating agent are unable to sell the unit at the end of the marketing periods described in subsection (b) of this section, and the City or its designee does not purchase the units, then the owner may sell the affordable unit at an unrestricted price to a bona fide purchaser for value and pay the City an amount equal to the difference between the sales price and the affordable cost established by the City. After payment of the required amount to the City, all sale and resale restrictions shall be removed from the affordable unit.

(d) The owners of any affordable unit shall attach and legally reference in the grant deed conveying title of any such affordable ownership unit a declaration of restriction provided by the City or its operating agent stating the restrictions imposed pursuant to this article. The grant deed shall afford the grantor and the City the right to enforce the attached declaration of restrictions. The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions as required by this article. Should the City provide subsidies or financing for any affordable unit, including down payment assistance loans, it will require the filing of a deferred payment subordinate deed of trust in favor of the City, having such terms as the City shall from time to time require, and that subordinate deed of trust shall incorporate and make further enforceable the declaration of restrictions referred to in this subsection.

(e) The City or its operating agent shall be given the responsibility of monitoring the resale of ownership affordable units. Any violation of the resale provisions shall be referred to the City for appropriate action.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.406 New Rental Residential Projects – Affordable Housing Impact Fees.

(a) Rental residential projects shall pay affordable housing impact fees as prescribed by this section to mitigate the project’s impact on the need for affordable housing in the City, unless the applicant elects to provide on-site rental affordable units consistent with Section 9-5.407, or is granted a development bonus for the provision of on-site affordable housing pursuant to Section 9-4.204 or a density bonus for the provision of on-site affordable housing pursuant to Article 5 of this chapter.

(b) Affordable housing impact fees for rental residential projects shall be established by resolution of the City Council and may be amended from time to time as required. Such fees shall not exceed the cost of mitigating the impact of market rate residential projects on the need for affordable housing in the City.

(c) Except as provided in Section 9-5.1906, the affordable housing impact fee shall be paid upon issuance of a building permit for each dwelling unit in the rental residential project. The amount of any affordable housing impact fee payable under this section shall be based upon the fee schedule in effect at the time of issuance of the building permit for the dwelling unit to which the fee relates.

(d)    Affordable housing impact fees established pursuant to this section shall be subject to the applicable provisions of Article 19 of this chapter.

(Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014; Sec. 6 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.407 Rental Affordable Units Permitted if Consistent with Costa-Hawkins Act.

(a) As an alternative to paying the affordable housing impact fees as required by Section 9-5.406, or where an applicant elects to initially rent all of the units in an ownership residential project, an applicant may propose to provide twelve percent (12%) of the dwelling units in the residential project as affordable rental units, of which eight percent (8%) shall be affordable to low income households and four percent (4%) shall be affordable to very low income households. In calculating the number of required rental affordable units, any decimal fraction less than or equal to one-half (0.50) may be disregarded and any decimal fraction greater than one-half (0.50) shall be construed as requiring one dwelling unit.

(b) To ensure compliance with the Costa-Hawkins Act (Chapter 2.7 of Title 5 of Part 4 of Division 3 of the Civil Code), the City may only approve a proposal to provide rental affordable units if the applicant agrees in a recorded agreement with the City to limit rents in consideration for a direct financial contribution or a form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.

(c) Any development permit for a new residential project (both new construction and conversion) that provides rental affordable units pursuant to subsection (a) of this section shall have conditions attached which will assure compliance with the provisions of this article. The conditions shall require an agreement to be recorded prior to occupancy that indicates the number, type, location, approximate size, and construction scheduling of all dwelling units, the appropriate rent levels, provision for income certification and screening of potential occupants of affordable units, a density bonus, if applicable, compliance with the Costa-Hawkins Act, and such reasonable information as shall be required by the City for the purpose of determining the applicant’s compliance with this article. The agreement shall require that the rental affordable units be rented to low income households for a period of at least fifty-five (55) years from the date of recordation of the agreement, unless all of the units in the residential project are offered to the public for purchase. In that event, the applicant shall provide twenty percent (20%) of the dwelling units as ownership affordable units complying with Sections 9-5.402 through 9-5.405. The recorded agreement shall provide relocation benefits for tenants of the rental affordable units in the event of sale.

(Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014; Sec. 6 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.408 Requirements for Rental Affordable Units.

(a) All rental affordable units in a project and phases of a project should be constructed concurrently with or prior to the construction of nonaffordable units, unless the City determines that extenuating circumstances exist.

(b) All rental affordable units shall be occupied by moderate, low, or very low income households.

(c) Unless the City finds compelling reasons to the contrary, the rental affordable units shall be dispersed throughout the development, the mix and type of rental affordable units shall be proportionate to those of the project as a whole, and shall be comparable with the design of the base level market rate units prior to purchaser-funded upgrades in terms of appearance, materials, and quality of finishes. Parking designated for the rental affordable units shall be provided in an equitable manner as that provided for the market rate units. The written agreement referred to in Section 9-5.407(c) shall include a breakdown of the rental affordable units, which shall be directly proportionate to the types of units in the project as a whole under the provisions of this subsection (c).

(d) The developer shall market the rental affordable units as required by this article to eligible renters throughout the duration of the written agreement referred to in Section 9-5.407(c). No less than one hundred twenty (120) days prior to the initial lease up of the affordable units, the developer shall provide the City, for its review and approval, a marketing program for the affordable units, which program shall be in conformance with the City’s affordable unit marketing program procedures promulgated by the City, as may be amended from time to time. During the initial lease up of the affordable units, the developer shall market the affordable units commencing upon approval of the marketing program by the City for a period of time no less than one hundred twenty (120) days after the date of the City’s issuance of the certificate of occupancy for the project. At the end of the one hundred twenty (120) day marketing period, the City, in its sole discretion, may require the developer to extend its marketing efforts for an additional sixty (60) day period increment. The developer shall actively market the units during this period and implement any suggestions provided by the City. Furthermore, in negotiating the written agreement with the developer, the City may require that the marketing periods be extended depending on the number of units to be constructed and marketed at that same time. On an annual basis, in coordination with its obligations to income certify occupants of affordable units, the developer shall review and revise, as necessary and as approved by the City, its marketing program in order to maintain conformance with the City’s procedures or otherwise respond to market conditions.

(e) The developer shall advertise the initial availability of affordable units to the Emeryville general public through a marketing program approved by the City. Upon notification of the availability of rental dwelling units by the developer, the developer shall seek qualified renters through a process involving community outreach and broad marketing efforts, informational workshops, an application submittal, a lottery, and application review and processing.

(f) Unless otherwise prohibited by law, preference will be given first to residents of Emeryville and second to people employed in Emeryville, or to other preferences as adopted by the City for a particular rental residential project subject to this article.

(g) The City or its operating agent shall monitor the affordable rental units. The developer or owner shall retain final discretion in the selection of the eligible households; provided, that the same rental terms and conditions (except rent levels and income) are applied to tenants of affordable units as are applied to all other tenants, except as required to comply with government subsidy programs.

(Formerly 9-5.406. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014; Sec. 6 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.409 New Nonresidential Projects – Affordable Housing Impact Fees.

(a) Nonresidential projects shall pay affordable housing impact fees to mitigate the project’s impact on the need for affordable housing in the City.

(b) Affordable housing impact fees for nonresidential projects shall be established by resolution of the City Council and may be amended from time to time as required. Such fees shall not exceed the cost of mitigating the impact of nonresidential projects on the need for affordable housing in the City. The City Council may from time to time adopt housing impact fees for different categories of nonresidential projects, specify the specific uses within each nonresidential land use category, and establish a list of nonresidential uses exempt from the payment of affordable housing impact fees.

(c) Except as provided in Section 9-5.1906, the affordable housing impact fee shall be paid upon issuance of a building permit for any nonresidential project for which the fee is due. The amount of any affordable housing impact fee payable under this section shall be based upon the fee schedule in effect at the time of issuance of the building permit for the nonresidential project to which the fee relates.

(d) As an alternative to payment of the affordable housing impact fee set forth in this section, an applicant for a nonresidential project may submit a request to mitigate the affordable housing impacts of such development through the construction of affordable units, either on site or off site, through the dedication of land, or through other means. The City Council may approve or conditionally approve such an alternative if the City Council determines, based on substantial evidence, that such alternative compliance will provide as much or more affordable housing at the same or lower income levels as will payment of the affordable housing impact fee, is consistent with the General Plan and Housing Element, and will otherwise provide as great a public benefit as would payment of the affordable housing impact fee. Any affordable units constructed on site or off site shall comply with the provisions contained in Sections 9-5.402 through 9-5.408, as applicable.

(e) Affordable housing impact fees established pursuant to this section shall be subject to the applicable provisions of Article 19 of this chapter.

(Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014; Sec. 6 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.410 Housing Fund.

(a) There is established in the City an affordable housing fund for the purpose of receiving and disbursing certain monies to address the housing needs of extremely low, very low, low, median and moderate income households. Separate accounts within such housing fund may be created from time to time to avoid commingling if required by law or as deemed appropriate to further the purposes of the housing fund.

(b) All affordable housing impact fees shall be deposited into the affordable housing fund.

(c) The fees collected under this article and all earnings from investment of the fees shall be expended exclusively to provide or assure continued provision of affordable housing in the City to meet the housing needs of the City’s workforce through acquisition, construction, development assistance, substantial rehabilitation, financing, rent or other subsidies, or other methods, and for costs of administering programs which serve those ends. The housing shall be of a type, or made affordable at a cost or rent, for which there is a need in the City and which is not adequately supplied in the City by private housing development in the absence of public assistance and to the extent feasible shall be utilized to provide for moderate, median, low, very low, and extremely low income housing.

(Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.411 Availability of Government Subsidies.

It is the intent of this article that the requirements for units affordable by moderate, median, low, and/or very low income families shall not be determined by the availability of government subsidies. This is not to preclude the use of such programs or subsidies.

This article is also not intended to be an undue burden on the developers of residential projects. Therefore, as detailed in succeeding sections of this article, incentives are given to provide affordable units.

(Formerly 9-5.407. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.412 Density Bonus.

To avoid any undue economic burden or cost to the applicant providing affordable units required by the provisions of this article, developers of affordable housing may apply for a density bonus and other incentives, if eligible, pursuant to either Section 9-4.204 or Article 5 of this chapter, but not both.

(Formerly 9-5.408. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014; Sec. 6 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.413 Reduction of Amenity and Square Footage.

Upon a showing of economic hardship and necessity by the applicant:

(a) With City approval, the applicant may reduce the interior amenity level of the affordable units below that of the market-rate units, provided such dwelling units conform to the requirements of applicable building and housing codes; and

(b) With City approval, the applicant may reduce the square footage of the affordable units below that of the market-rate units, provided all dwelling units conform to the requirements of applicable building and housing codes.

(Formerly 9-5.409. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.414 Fees.

In the attempt to avoid any undue burden on developers who are required to provide affordable units under the provisions of this article, the City may subsidize the cost of traffic impact fees, if any, building fees and other City fees applicable to the affordable units of a proposed housing development.

(Formerly 9-5.410. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.415 Technical Assistance.

In order to emphasize the importance of securing moderate, median, low and very low income housing as a part of this program, the City and/or designated consultants shall provide assistance on financial subsidy programs to applicants. During individual project review, consideration shall be given to an economic analysis which will indicate the most suitable methods for the terms of this article to be implemented. This is to be done for the purpose of increasing the feasibility and lowering the cost of dwelling units affordable to moderate, median, low and very low income households.

(Formerly 9-5.411. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.416 Enforcement.

(a) The provisions of this article shall apply to all agents, successors, and assignees of an applicant for development of the site. No building permit or occupancy permit shall be issued, nor any development approval granted, which does not meet the requirements of this article.

(b) In addition to, or in lieu of, the provisions of subsection (a) of this section, the City shall institute injunction, mandamus, or any other appropriate legal actions or proceedings for the enforcement of this article.

(c) Any person, firm, or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this article, shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable for each offense by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the County Jail for a term not exceeding six (6) months, or by both fine and imprisonment. Such person, firm, or corporation shall be deemed to be guilty of a separate offense for each and every day during any portion of which any violation of this article is commenced, continued, or permitted by such person, firm, or corporation, and shall be punishable as provided herein.

(Formerly 9-5.412. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.417 Waiver.

(a) As part of an application for the first approval of a residential project or nonresidential project, an applicant may apply for a reduction, adjustment, or waiver of the requirements of this article based upon a showing that applying the requirements of this article would result in an unconstitutional taking of property or would result in any other unconstitutional result. The applicant shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation, and shall bear the burden of presenting the requisite evidence to demonstrate the alleged unconstitutional result. The City may assume each of the following when applicable:

(1) The applicant will benefit from the incentives set forth in the City Code; and

(2) The applicant will provide the most economical affordable units feasible in terms of financing, construction, design, location and tenure.

(b) The City Council, based upon legal advice provided by or at the behest of the City Attorney, may approve a reduction, adjustment, or waiver if the approval authority determines that applying the requirements of this article would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property. The reduction, adjustment, or waiver shall be approved only to the extent necessary to avoid an unconstitutional result, after adoption of written findings, and based on legal analysis and the evidence. If a reduction, adjustment, or waiver is granted, any change in the residential or nonresidential project shall invalidate the reduction, adjustment, or waiver, and a new application shall be required for a reduction, adjustment, or waiver pursuant to this section.

(Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.418 Annual Report.

The City shall prepare, or cause to be prepared, an annual report to the City Council on the status of the affordable units constructed under the provisions of this article. The report shall include the number, size, type, tenure, and general location of the affordable units as well as the number of resales and rental vacancy rate. This report shall provide a basis for an evaluation of the overall effectiveness of this article.

(Formerly 9-5.414. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

9-5.419 Definitions.

As used in this article:

(a) “Affordable” shall be defined in accordance with California Health and Safety Code Section 50052.5, and in accordance with the following table, for moderate income, median income, low income, and very low income households in accordance with the following table, and in accordance with the project’s being owner occupied or renter occupied:

Income Level

Owner-Occupied Project

Renter-Occupied Project

Moderate Income

35% of 110% of the Area Median Income

30% of 110% of the Area Median Income

Median Income

30% of 90% of the Area Median Income

30% of 80% of the Area Median Income

Low Income

30% of 70% of the Area Median Income

30% of 60% of the Area Median Income

Very Low Income

30% of 50% of the Area Median Income

30% of 50% of the Area Median Income

The City shall publish the annual home-sale price and rents allowable under this program on an annual basis.

(b) “Affordable unit” shall mean an ownership or rental housing unit, as required by this article, which is affordable to a household with moderate, median, low or very low income.

(c) “Applicant” shall mean any person, firm partnership, association, joint venture, corporation, or any entity or combination of entities which seeks City permits and approvals.

(d) “Area median income” or “median income” shall mean the area median income published annually by the California Department of Housing and Community Development for the County of Alameda.

(e) “At one (1) location” shall mean all adjacent land owned or controlled by the applicant, the property lines of which are contiguous at any point, or the property lines of which are separated only by a public or private street, road or other public or private right-of-way, or separated only by other land of the applicant.

(f) “Bedroom(s)” shall mean the number of rooms available predominantly as sleeping quarters. The City has a history of providing live/work space and other unusually structured living arrangements. For that reason, the City retains discretion in determining how many bedrooms a particular dwelling unit will contain so as to determine what price or rent will be required for eligibility as an affordable unit.

(g) “Dwelling unit” shall mean a dwelling designed for occupancy by one (1) household.

(h) “Housing costs” shall be defined in accordance with California Health and Safety Code Section 50052.5 and implementing regulations and shall generally mean the monthly mortgage principal and interest, property taxes and assessments, homeowners insurance, homeowner association fees where applicable, an allowance for utilities and property maintenance and repairs, for ownership dwelling units; and the monthly rent, and allowance for utilities, fees or service charges charged to all tenants, for rental dwelling units.

(i) “Income eligibility” shall mean the gross annual household income, considering the household size and number of dependents, income of all wage earners, elderly or disabled family members and all other sources of household income. For self-employed households, net annual household income shall be used in determining income eligibility.

(j) “Market-rate unit” shall mean an ownership or rental housing dwelling unit which is not an affordable unit.

(k) “Moderate, median, low and very low income households” means those households whose maximum income does not exceed levels published annually by the California Department of Housing and Community Development for the County of Alameda. Generally, “moderate income” is defined as one hundred one percent (101%) to one hundred twenty percent (120%) of median income, “median income” is defined as eighty-one percent (81%) to one hundred percent (100%) of median income, “low income” is defined as fifty-one percent (51%) to eighty percent (80%) of median income and “very low income” is defined as up to fifty percent (50%) of median income.

(l) “Nonresidential project” means any development of nonresidential uses in the City for which a discretionary permit or building permit is required, including an addition to an existing use, the new construction of gross square feet of nonresidential space, the conversion of residential use to a nonresidential use, or the conversion of one nonresidential use to another nonresidential use for which an affordable housing impact fee or larger affordable housing impact fee is required.

(m) “Operating agent of the City” shall mean a nonprofit organization, for-profit corporation, county or City agency chosen by the City to carry out some or all of the administrative provisions of this article.

(n) “Ownership residential project” means any residential project that includes the creation of one (1) or more residential dwelling units that may be sold individually. A residential ownership project includes the conversion of apartments to condominiums and residential rental projects having a recorded condominium plan.

(o) “Project” shall mean a housing development at one (1) location including all dwelling units for which permits have been applied for or approved within a twelve (12) month period.

(p) “Resale controls” shall mean legal restrictions by which the price of affordable units will be controlled to insure that the dwelling unit is affordable to moderate, low, and/or very low income households over time.

(q) “Rental residential project” means any residential project that creates residential dwelling units that cannot be sold individually.

(r) “Residential project” means any development for which a discretionary permit or building permit is required and that includes the creation of one (1) or more additional dwelling units, conversion of nonresidential uses to dwelling units, or a condominium conversion.

(s) “Substantial rehabilitation” means rehabilitation, the value of which constitutes twenty-five percent (25%) of the after rehabilitation value of the dwelling, inclusive of the land value.

(Formerly 9-5.415. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-009, eff. Aug. 14, 2014)

Article 5.    Density Bonus for Affordable Housing

9-5.501 Purpose.

The purpose of this article is to establish procedures for implementing State density bonus requirements, as set forth in California Government Code Sections 65915 through 65918, and to increase the production of affordable housing, consistent with City policies. The bonuses for affordable housing in this article are distinguished from, and are mutually exclusive of, other development bonuses available to projects that provide affordable housing and other community benefits pursuant to Section 9-4.204. Developers may apply for a density bonus and other incentives, if eligible, pursuant to either Section 9-4.204 or this article, but not both.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.502 Applicability.

The provisions of this article shall apply to the following development categories:

(a)    New residential development projects of five (5) or more dwelling units, regardless of the type of dwelling units proposed. Applicant shall demonstrate that at least five (5) residential units can be developed on the project site in compliance with all zoning and development regulations.

(b)    Where permitted or conditionally permitted by the underlying zoning designation of a site, mixed use developments that include at least five (5) dwelling units.

(c)    Rehabilitation of one (1) or more multiple unit residential structures containing at least five (5) units that results in a net increase in the available residential units.

(d)    Development that will change the use of an existing building from nonresidential to residential and that will provide at least five (5) residential units.

(e)    Development that includes the conversion of at least five (5) residential units to ownership housing.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.503 Projects Eligible for Density Bonus.

(a)    The City shall grant one (1) density bonus as described in Section 9-5.505, and incentives or concessions as described in Section 9-5.506, when an applicant for a residential development project agrees to construct at least any one (1) of the following:

(1)    At least ten percent (10%) of the total dwelling units of a residential development project for low income households.

(2)    At least five percent (5%) of the total dwelling units of a residential development project for very low income households.

(3)    A senior citizen housing development or a mobile home park that limits residency based on age requirements for housing older persons pursuant to California Civil Code Section 798.76 or 799.5.

(4)    Ten percent (10%) of the total dwelling units in a common interest development as defined in California Civil Code Section 1351, for persons and families of moderate income; provided, that all units in the development are offered to the public for purchase.

The applicant shall elect whether the density bonus shall be awarded on the basis of subsection (a)(1), (2), (3), or (4) of this section. A density bonus awarded under this section allows a residential development to exceed the maximum residential density as provided by Section 9-4.203. The maximum residential density shall be the base density established in Table 9-4.203(a) and Figure 9-4.203(a). The granting of a density bonus, concession or incentive shall not be interpreted, in and of itself, to require a General Plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of dwelling units that is equal to five percent (5%) or ten percent (10%) of the total dwelling units.

For those projects that are subject to the provisions of the Affordable Housing Program (in Article 4 of this chapter), affordable units provided pursuant to that article may be counted toward the requirements of this section. To the extent that the provisions of this section and the affordable housing provisions are in conflict, the provisions of the Affordable Housing Program prevail. However, if such affordable units are used to fulfill the requirements of Section 9-4.204, the density bonuses of this article are not available.

(b)    In addition, the following projects are eligible for a density bonus as provided in Section 9-5.505:

(1)    Residential developments that include the donation of land.

(2)    Residential developments that include child care facilities.

(3)    Condominium conversions.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.504 Application Requirements.

An applicant shall file a written application in accord with the application procedures under Article 2 of Chapter 7 and any specific application requirements established by the Director for this use.

(a)    Application for density bonus shall be made concurrent with submittals required for the processing of associated discretionary permits. The request for density bonus shall be articulated as part of the description and justification for the development project. The request for the density bonus shall specify the percentage of density bonus sought, per Section 9-5.503, and indicate how the affordable housing obligations will be met.

(b)    The review process for a density bonus project shall be the same as that required for associated discretionary permits. Discretionary actions on density bonus projects shall be subject to the same appeal process applied to associated discretionary permits.

(c)    The application and approval of a density bonus and any associated incentives or concessions shall not require a separate permit or approval process from that otherwise required for the same project without a density bonus request.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.505 Amount of Density Bonus.

The amount of density bonus granted to a qualifying project shall be based on the category and percentage of affordable units proposed, as reflected in the following tables. The maximum bonus shall be thirty-five percent (35%). The applicant may elect to accept a lesser percentage of density bonus. All density calculations resulting in fractional units shall be rounded up to the next whole number. The calculations are in accordance with California Government Code Section 65915 and are subject to any subsequent amendments or revisions thereto.

(a)    Low Income Households. For residential development projects providing at least ten percent (10%) of the total dwelling units for low income households the density bonus shall be calculated as follows:

 

Table 9-5.505(a)

Density Bonus for Low Income Units 

Percentage Low Income Units

Percentage Density Bonus

10

20

11

21.5

12

23

13

24.5

14

26

15

27.5

16

29

17

30.5

18

32

19

33.5

20

35

(b)    Very Low Income Households. For residential development projects providing at least five percent (5%) of the total dwelling units for very low income households the density bonus shall be calculated as follows:

Table 9-5.505(b)
Density Bonus for
Very Low Income Units 

Percentage Very Low Income Units

Percentage Density Bonus

5

20

6

22.5

7

25

8

27.5

9

30

10

32.5

11

35

(c)    Senior Citizen Housing. For a senior citizen housing development or a mobile home park that limits residency based on age requirements for housing older persons pursuant to California Civil Code Section 798.76 or 799.5, the density bonus shall be twenty percent (20%) of the number of senior housing units.

(d)    Moderate Income Common Interest Development. For a residential development that provides at least ten percent (10%) of the total dwelling units in a common interest development as defined in California Civil Code Section 1351, for persons and families of moderate income; provided, that all units in the development are offered to the public for purchase, the density bonus shall be calculated as follows:

Table 9-5.505(d)

Density Bonus for Moderate Income Common Interest Development 

Percentage Low Income Units

Percentage Density Bonus

10

5

11

6

12

7

13

8

14

9

15

10

16

11

17

12

18

13

19

14

20

15

21

16

22

17

23

18

24

19

25

20

26

21

27

22

28

23

29

24

30

25

31

26

32

27

33

28

34

29

35

30

36

31

37

32

38

33

39

34

40

35

(e)    Donation of Land.

(1)    When an applicant for a residential development that provides at least ten percent (10%) of the total dwelling units for very low income households donates land to the City in accordance with this section, the applicant shall be entitled to a minimum fifteen percent (15%) increase above the otherwise maximum allowable residential density for the entire development as follows:

Table 9-5.505(e)

Density Bonus for Donation of Land 

Percentage Very Low Income Units

Percentage Density Bonus

10

15

11

16

12

17

13

18

14

19

15

20

16

21

17

22

18

23

19

24

20

25

21

26

22

27

23

28

24

29

25

30

26

31

27

32

28

33

29

34

30

35

(2)    The density bonus for land dedication shall be in addition to any density bonus allowed under Section 9-5.503(a), up to a maximum combined increase of thirty-five percent (35%) if the applicant seeks an increase under this section. Nothing in this section shall be construed to enlarge or diminish the City’s authority to require a developer to donate land as a condition of development.

(3)    An applicant shall be eligible for the increased density bonus described in this section if all the following criteria are met:

a.    The applicant donates and transfers the land to the City no later than the date of the approval by the City of the final subdivision map, parcel map, or residential development application.

b.    The developable land and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than ten percent (10%) of the residential units of the proposed development.

c.    The transferred land is at least one (1) acre in size or of sufficient size to permit development of at least forty (40) units, has the appropriate General Plan designation, is appropriately zoned with appropriate development standards for development at the density described in California Government Code Section 65583.2, subdivision (c), paragraph 3, and is or will be served by adequate public facilities and infrastructure.

d.    The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the City may subject the proposed development to subsequent design review to the extent authorized by California Government Code Section 65583.2(i), if the design is not reviewed by the City prior to the transfer.

e.    The transferred land and the affordable units shall be subject to a deed restriction, which shall be recorded on the property upon dedication, ensuring continued affordability of the units for at least thirty (30) years.

f.    The land is transferred to the City or to a housing developer approved by the City.

g.    The transferred land is within the proposed development or, if the City agrees, within one-quarter (1/4) mile of the boundary of the proposed development.

h.    A proposed source of funding for the development of very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.

(f)    Child Care Facility.

(1)    When an applicant proposes to construct a residential development that conforms to the requirement of Section 9-5.503(a) and includes a child care facility that will be located on the premises of, as part of, or adjacent to the development, the City shall grant either of the following:

a.    An additional density bonus that is in an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility.

b.    An additional concession or incentive designated by the City that contributes significantly to the economic feasibility of the construction of the child care facility.

(2)    In order to qualify for a density bonus as provided in this subsection the applicant shall submit for review and approval by the Director a financial report (pro forma) for the proposed child care facility that includes sources of operating revenue to ensure that the center remains open and provides the promised services for the life of the project.

(3)    The City shall require, as a condition of approving the development, that:

a.    The child care facility shall remain in operation as long as or longer than that time during which the affordable housing units are required to remain affordable pursuant to this section; and

b.    Of the children who attend the child care facility, the children of very low income households, low income households, or families of moderate income households shall equal a percentage that is equal to or greater than the percentage of dwelling units that are made affordable to very low income households, low income households, or moderate income households.

(4)    Notwithstanding any requirement of this section, the City need not provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that Emeryville has adequate child care facilities.

(g)    Condominium Conversion Developments.

(1)    When a development is the conversion of an existing apartment complex to a condominium complex and the applicant agrees to make at least thirty-three percent (33%) of the total units of the development affordable to moderate income households for thirty (30) years, or fifteen percent (15%) of the total units of the proposed development affordable to low income households for thirty (30) years, and agrees to pay for the administrative costs incurred by the City to process the application and to monitor the continued affordability and habitability of the affordable housing units, the City shall either:

a.    Grant a density bonus of twenty-five percent (25%); or

b.    Provide other incentives of equivalent financial value as determined by the City.

(2)    Nothing in this section shall be construed to require the City to approve a proposal to convert apartments to condominiums.

(3)    An applicant shall be ineligible for a density bonus or other incentives under this section if the apartments proposed for conversion are in a development for which a density bonus or other incentives were previously provided under Section 9-5.503 or 9-5.506.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.506 Concessions and Incentives.

(a)    An applicant for a density bonus provided by this article may request specific incentives or concessions and may request a meeting with the City.

(1)    In addition to the applicable density bonus, qualifying projects shall receive the following number of incentives or concessions:

a.    One (1) incentive or concession for projects that propose at least ten percent (10%) of the total units for lower income households, at least five percent (5%) for very low income households, or at least ten percent (10%) for persons and families of moderate income in a common interest development.

b.    Two (2) incentives or concessions for projects that propose at least twenty percent (20%) of the total units for lower income households, at least ten percent (10%) for very low income households, or at least twenty percent (20%) for persons and families of moderate income in a common interest development.

c.    Three (3) incentives or concessions for projects that propose at least thirty percent (30%) of the total units for lower income households, at least fifteen percent (15%) for very low income households, or at least thirty percent (30%) for persons and families of moderate income in a common interest development.

(2)    Proposals seeking concessions or incentives deemed necessary to exceed the base density allowance would not be subject to the otherwise required conditional use permit.

(3)    For purposes of this section, concessions or incentives shall include, without limitation:

a.    A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in California Health and Safety Code Division 13, Part 2.5 (commencing with Section 18901), including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and actual cost reductions.

b.    Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the areas where the proposed housing project will be located.

c.    A reduction in the ratio of vehicular parking spaces and/or configurations as set forth in California Government Code Section 65915(p).

d.    Other regulatory incentives or concessions proposed by the developer or the City that result in identifiable, financially sufficient, and actual cost reductions.

(4)    This section does not limit or require the City to provide direct financial incentives, including the provision of publicly owned land, or the waiver of fees or dedication requirements. However, the City will consider deferral of application processing fees on a case-by-case basis.

(5)    The City shall grant the concession or incentive requested by the applicant unless the City makes a written finding, based upon substantial evidence, of any of the following:

a.    The concession or incentive is not required in order to provide for affordable housing costs as defined in California Health and Safety Code Section 50052.5, or for rents for targeted units to be set as specified.

b.    The concession or incentive would have a specific adverse impact, as defined in California Government Code Section 65589.5, subdivision (d), paragraph (2), upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, without rendering the development unaffordable to low or moderate income households.

c.    The concession or incentive would be contrary to State or Federal law.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.507 Waiver or Reduction of Development Standards.

(a)    An applicant may submit to the City a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a development at the densities or with the concessions or incentives permitted under this section, and may request a meeting with the City. Nothing in this section shall be interpreted to require the City to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in California Government Code Section 65589.5, subdivision (d), paragraph (2), upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this section shall be interpreted to require a local government to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historic Resources, or to grant any waiver or reduction that would be contrary to State or Federal law.

(b)    A proposal for the waiver or reduction of development standards pursuant to this section shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to Section 9-5.506.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.508 Vehicular Parking Ratio.

(a)    Upon request of the developer, the following maximum parking ratio, inclusive of handicapped and guest parking, shall apply, pursuant to California Government Code Section 65915:

(1)    Zero (0) to one (1) bedroom: one (1) on-site parking space.

(2)    Two (2) to three (3) bedrooms: two (2) on-site parking spaces.

(3)    Four (4) or more bedrooms: two and one-half (2-1/2) parking spaces.

(b)    If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. A development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking. The applicant may also request a concession or an incentive pursuant to Section 9-5.506 to further lower the vehicle parking ratios from those described herein.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.509 Requirements for Participation.

In order for a developer or property owner to be eligible for density bonus the following requirements must be met:

(a)    Any development permit that receives density bonus under this article shall have conditions attached which will assure compliance with the provisions of this article. The conditions shall require a written agreement to indicate the number, type, location, approximate size, and construction scheduling of all dwelling units, the appropriate price levels, provision for income certification and screening of potential purchasers and/or renters of affordable units and senior units, a resale control mechanism, if applicable, and such reasonable information as shall be required by the City for the purpose of determining the applicant’s compliance with this article.

(b)    All affordable units and senior units in a project shall be constructed concurrently with or prior to the construction of any market-rate and nonsenior housing units.

(c)    Unless the City finds compelling reasons to the contrary, the affordable units or senior units shall be dispersed throughout the development and shall be proportionate to the mix and type of units in the project as a whole (with the exception that premium units such as penthouses and top floor view units shall not be required to be available as affordable or senior housing units). Furthermore, the affordable units or senior units shall be comparable with the design of the base level market-rate units prior to purchaser-funded upgrades in terms of appearance, materials, and finished quality.

(d)    The time period of availability as affordable or senior housing shall be for at least thirty (30) years. A longer period may be required for affordable housing units pursuant to Article 4 of this chapter, or as required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.

(e)    The maximum allowable rents for affordable units shall be as defined in California Health and Safety Code Section 50053.

(f)    Owner-occupied units shall be available at affordable housing costs, as defined in California Health and Safety Code Section 50052.5.

(g)    For-sale affordable units may be subject to an equity sharing agreement, in the event that public subsidies are involved in the construction and/or purchase of said units.

(h)    The developer or property owner may not also seek development bonuses pursuant to Section 9-4.204.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.510 Definitions.

As used in this article:

(a)    “Affordable” shall be as defined in Section 9-5.415.

(b)    “Child care facility” means a facility installed, operated, and maintained for the nonresidential care of children as defined under applicable State licensing requirements for the facility.

(c)    “Common interest development” as currently defined in California Civil Code Section 1351 and any subsequent amendments or revisions.

(d)    “Concession” or “incentive” shall have the meaning set forth in California Government Code Section 65915(k).

(e)    “Equivalent financial value” concerns a condominium conversion project and refers to the cost to the developer/property owner based on the land cost per dwelling unit. The land cost per dwelling unit is determined by the difference in the value of the land with and without the density bonus.

(f)    “Senior citizen housing development” as currently defined by California Civil Code Sections 51.3 and 51.12 and any subsequent amendments or revisions.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 6.    Firearms and Ammunition Sales

9-5.601 Purpose.

This article establishes regulations governing sales of firearms and ammunition. The purpose of these regulations is to provide criteria for the consideration and approval of businesses engaged in the sale of firearms and ammunition. The City finds it necessary to establish such requirements and criteria to regulate the sale of firearms and ammunition in the interest of the public health, safety and welfare.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.602 Home Occupations.

It is unlawful to engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition as defined in this article as a Home Occupation as such term is defined in Article 8 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.603 Districts Where Allowed.

It is unlawful to engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition as defined in this article in any district other than the INH Heavy Industrial zone.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.604 Location Requirements.

It is unlawful to engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition in the following locations:

(a)    Within two hundred feet (200') of any area zoned for residential use;

(b)    Within five hundred feet (500') of any other business engaged in sale of firearms and ammunition;

(c)    Within one thousand feet (1,000') of any public park, religious institution or elementary or secondary school.

The distance between any two (2) businesses engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any business engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition and any residential district, religious institution, school, or public park shall be measured in a straight line, without regard to intervening structures, from the closest property line of the residential zone, religious institution, school, or public park to the closest exterior structural wall of the business engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.605 Conditional Use Permit Required.

It is unlawful to engage in the business of selling, leasing, or otherwise transferring any firearm or ammunition without first obtaining a conditional use permit as provided in this article. No final action may be taken by the Planning Commission until the Emeryville Police Department has issued a law enforcement permit as required by Chapter 30 of Title 5. To grant a conditional use permit for the business of selling, leasing, or otherwise transferring any firearm or ammunition, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(a)    That the proposed business meets all of the location requirements of Section 9-5.604.

(b)    That the proposed business will not be open between 5:00 p.m. and 9:00 a.m. daily.

(c)    That the proposed business will comply with all applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.606 Conditions of Approval.

In approving a conditional use permit for a business engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition, the Planning Commission may designate such conditions as it deems necessary in order to fulfill the purposes of this article, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions shall not be less restrictive than the conditions attached to the law enforcement permit issued by the Emeryville Police Department, and may include, but are not limited to, designating hours of operation more restrictive than those listed in Section 9-5.605(b).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.607 Definitions.

(a)    “Ammunition” shall mean ammunition or cartridge cases, primers, bullets, or propellant powders designed for use in any firearm, and any component thereof, but shall not include blank cartridges or ammunition that can be used solely in an “antique firearm” as defined in Section 921(a)(16) of Title 18 of the United States Code.

(b)    “To engage in the business of selling, leasing or otherwise transferring any firearm or ammunition” means to conduct a business by the selling, leasing or transferring of any firearm or ammunition, or to hold one’s self out as engaged in the business of selling, leasing or otherwise transferring any firearm or ammunition, or to sell, lease or transfer firearms or ammunition in quantity, in series, or in individual transactions, or in any other manner indicative of trade.

(c)    “Firearm” shall mean any device, designed to be used as a weapon or modified to be used as a weapon, from which is expelled through a barrel a projectile by the force of explosion or other means of combustion; provided, that the term “firearm” shall not include an “antique firearm” as defined in Section 921(a)(16) of Title 18 of the United States Code.

(d)    “Public park” shall mean a park, playground, swimming pool, beach, pier, or athletic field within the City which is under the control, operation, or management of the City.

(e)    “Religious institution” shall mean a building which is used primarily for religious worship and related religious activities.

(f)    “School” shall mean an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, junior high school, senior high school, or a special institution of learning under the jurisdiction of the State Department of Education, but it does not include a vocational or professional institution or any institution of higher education, including a community or junior college, college or university.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 7.    Hazardous Waste Facilities

9-5.701 Purpose.

This article establishes regulations governing off-site Hazardous Waste Facilities. The purpose of these regulations is to provide criteria and procedures for the consideration and approval of off-site Hazardous Waste Facilities which collect, store, transfer, treat or dispose of hazardous wastes and to be consistent with California Health and Safety Code Sections 25199 through 25199.14, applicable portions of the Alameda County Hazardous Waste Management Plan and the City of Emeryville General Plan. The City finds it necessary to establish such requirements and criteria to regulate Hazardous Waste Facilities in the interest of the public health, safety and welfare.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.702 Applicability.

(a)    The requirements of this article are applicable to the siting and development of off-site hazardous waste treatment, storage, and transfer facilities. “Off-site Hazardous Waste Facilities” means those facilities which treat, store, recycle, incinerate or transfer hazardous wastes from at least two (2) producers of hazardous wastes which are not located on the same property of the Hazardous Waste Facility. Consistent with the Alameda County Hazardous Waste Management Plan, off-site Hazardous Waste Facilities only include those facility types as defined by the plan for Small-Scale Transfer and Storage Facilities including hazardous waste collection facilities, and Industrial Transfer, Storage and Treatment Facilities.

(b)    The off-site facility definition does not apply to:

(1)    Transportable treatment units (TTU) which are designed to be moved either intact or in modules and which are intended to be operated at a given location for a limited period of time; or

(2)    Permanent on-site Hazardous Waste Facilities at locations where hazardous waste is produced, and which are owned by, leased to, or under the control of the producer of the waste.

(c)    Facilities for the land disposal of hazardous wastes or treatment residues are prohibited in the City of Emeryville.

(d)    All such facilities (i.e., off-site, on-site, household hazardous waste collection, and TTUs) shall obtain all necessary State licensing to install and operate.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.703 Conditional Use Permit Required.

It is unlawful to establish a Hazardous Waste Facility without first obtaining a conditional use permit as provided in this article pursuant to the procedures and required findings in Article 5 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.704 Location.

Hazardous Waste Facilities shall not be located within the following areas. All distances shall be measured from lot line to lot line.

(a)    All Hazardous Waste Facilities.

(1)    Two hundred feet (200') of an active or recently active seismic fault.

(2)    Three hundred feet (300') of the San Francisco Bay shoreline or a critical habitat unless the applicant has demonstrated by risk assessment that a small buffer zone provides adequate protection for the environment and the public in the event of an accident.

(3)    An area with twenty-five percent (25%) or greater slope or areas subject to liquefaction or subsidence unless the facility incorporates adequate engineered designed features which assure structural stability.

(4)    An area of highly permeable soils or sediment, as defined in Title 23, California Code of Regulations, Chapter 15.

(b)    Small-Scale Hazardous Waste Transfer and Storage Facilities.

(1)    Five hundred feet (500') of any dwelling unit unless the applicant has demonstrated by risk assessment that a smaller buffer zone provides adequate protection for the public in the event of an accident.

(2)    Five hundred feet (500') of an immobile population.

(3)    A one hundred (100) year floodplain or an area subject to flooding by dam failure or tsunami, unless the project is protected by adequate engineered solutions designed to preclude flood failure.

(4)    Recreational or scenic areas unless necessary to handle hazardous wastes generated by visitors, workers, or residents in the area.

(c)    Industrial Hazardous Waste Transfer/Storage/Treatment Facilities.

(1)    A one hundred (100) year floodplain or an area subject to flooding by dam failure or tsunami, unless the project is protected by adequate engineered solutions designed to preclude flood failure.

(2)    Unless the applicant has demonstrated by risk assessment that a smaller buffer zone provides adequate protection for the public in the event of an accident:

a.    Five hundred feet (500') of any dwelling unit or any area designated for residential use in this title; or

b.    Two thousand feet (2,000') of any dwelling unit or any area designated for residential use in this title for facilities that will handle ignitable, explosive, or reactive hazardous wastes.

(3)    Unless the applicant has demonstrated by risk assessment that a smaller buffer zone provides adequate protection for the public in the event of an accident:

a.    Five hundred feet (500') of any immobile population; or

b.    Five thousand feet (5,000') of any immobile population for facilities that will handle ignitable, explosive, or reactive hazardous wastes.

(4)    A recreational or scenic area.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.705 Application Requirements.

In addition to the documents required for a conditional use permit application pursuant to Article 5 of Chapter 7, an application for a conditional use permit for a Hazardous Waste Facility shall be accompanied by the following documents:

(a)    A letter of justification describing the proposed Hazardous Waste Facility and explaining how it will satisfy the findings in Article 5 of Chapter 7.

(b)    A preliminary geological study of the property and surrounding area which includes as deep a soils analysis as there are known aquifers, regardless of the potability of those aquifers.

(c)    Identification of the amounts (tonnage) and types of hazardous wastes to be managed at the Hazardous Waste Facility, the sources of these wastes, the ultimate disposition of the wastes, and the anticipated life of the project. Information shall be provided on the amount, sources, and types of hazardous wastes to be treated based on an actual survey of the businesses to be served.

(d)    Identification of travel routes to be used by generators and the owner/operator of the Hazardous Waste Facility for the transportation of hazardous wastes.

(e)    A plan for public involvement with the proposed project prior to any Planning Commission public hearings. This plan will provide for adequate public testimony on the project in an effort to mitigate all public concerns prior to the Planning Commission’s review and determination.

(f)    A plan that identifies an ongoing monitoring program to ensure no release of any hazardous substance from the project site into the environment. This shall include any ongoing monitoring required by other permitting agencies such as the State Department of Toxic Substances Control, the San Francisco Bay Regional Water Quality Control Board, the Bay Area Air Quality Management District, the Federal Environmental Protection Agency, etc.

(g)    A risk assessment which, at a minimum, studies the potential risks to public health, safety and the environment with attention to the proximity of the proposed site to residential uses, civil uses, environmentally sensitive areas, and groundwater.

(h)    Evidence that all other necessary permits from regional, State and Federal agencies have been applied for or received.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.706 Noticing Requirements.

In addition to the noticing requirements set forth in Chapter 7, hearings and public notices shall be consistent with the applicable requirements of California Health and Safety Code Sections 25199 through 25199.14.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.707 Local Assessment Committee.

No later than thirty (30) days after an application for a Hazardous Waste Facility is accepted as complete, the City Council shall appoint a seven (7) member Local Assessment Committee (LAC) for each Hazardous Waste Facility application.

(a)    Pursuant to California Health and Safety Code Section 25199.7(d), the City Council shall appoint a seven (7) member Local Assessment Committee (LAC). The City Council has discretion to appoint additional members to this committee as they deem appropriate. The membership, responsibilities and duties shall be consistent with the provisions of California Health and Safety Code Section 25199.7. The LAC shall cease to exist after the final administrative action has been taken by the State and local agencies on the permit applications for the project for which the LAC was formed.

(b)    The City shall provide staff resources to assist the LAC in performing its duties as required by California Health and Safety Code Section 25199.7(d)(3).

(c)    If the LAC and the applicant cannot resolve any differences through the meetings specified by State law, the State Office of Permit Assistance may assist in this resolution pursuant to California Health and Safety Code Section 25199.4, as required by California Health and Safety Code Section 25199.7(h).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.708 Conditions of Approval.

In approving a conditional use permit for a Hazardous Waste Facility, the Planning Commission may designate such conditions as it deems necessary in order to fulfill the purposes of this article, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions may include, but are not limited to, the following:

(a)    An increase in the amount of liability insurance required under State law for such facilities whether or not a Hazardous Waste Facility is required to comply with such State law.

(b)    An agreement to indemnify the City of Emeryville in the event of a spill or release of hazardous wastes or any constituents thereof into the environment.

(c)    Installation of containment structures for hazardous waste releases capable of withstanding failure due to geologic, soil or other failures.

(d)    Compliance with all applicable laws, regulations, ordinances and orders of any governmental agency. The owner/operator of the Hazardous Waste Facility shall provide the City with notice within three (3) days of any violation or noncompliance with any applicable law, regulation, ordinance or order.

(e)    Plans and procedures for notifying property owners and occupants within a five-hundred-foot (500') radius of the facility of any accidental releases of hazardous substances into the environment.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.709 Appeals.

The Planning Commission’s decision on a conditional use permit for a Hazardous Waste Facility may be appealed to City Council in accordance with the appeal procedures in Article 14 of Chapter 7. A final decision of the City Council regarding a conditional use permit for a Hazardous Waste Facility may be further appealed to the Governor of the State of California or the Governor’s designee pursuant to California Health and Safety Code Section 25199.9.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 8.    Home Occupations

9-5.801 Purpose.

This article establishes regulations governing Home Occupations. The purpose of the regulations contained in this article is to provide criteria and procedures for the consideration and approval of Home Occupations. The City finds it necessary to establish such requirements and criteria to regulate Home Occupations in the interest of the public health, safety and welfare.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.802 Business License and Zoning Compliance Review Required.

A Home Occupation shall require a business license pursuant to Chapter 1 of Title 3 and a zoning compliance review pursuant to Article 3 of Chapter 7. In approving a zoning compliance review for a Home Occupation, the Director may designate reasonable conditions deemed necessary to comply with the regulations in Section 9-5.805.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.803 Uses Permitted.

Any use, except those listed in Section 9-5.804, may be a Home Occupation if the Director determines that it will comply with all of the regulations set forth in Section 9-5.805.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.804 Uses Excluded.

None of the following uses or activities shall be a Home Occupation:

(a)    Uses of Special Concern. Any use of special concern, as listed in Section 9-2.701, shall not be a Home Occupation.

(b)    Commercial Hauling. A commercial hauling business shall not be a Home Occupation.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.805 Regulations.

A Home Occupation shall comply with all of the following regulations:

(a)    A Home Occupation shall not change the residential character of the dwelling unit or adversely affect other uses.

(b)    A Home Occupation shall take place within the dwelling unit or garage, or accessory building that is incidental to the principal residential use.

(c)    Outdoor storage associated with a Home Occupation is prohibited.

(d)    A Home Occupation shall not exceed forty percent (40%) of the dwelling unit’s square footage and shall not exceed a maximum of four hundred (400) square feet of indoor space.

(e)    Plants and animals may be grown or kept in outdoor areas of the subject premises as part of the Home Occupation.

(f)    Displays and signage advertising the Home Occupation are prohibited.

(g)    A Home Occupation shall not have more than one (1) associated vehicle that shall not exceed twenty feet (20') in length. The associated vehicle shall not have more than four (4) square feet of signage related to the Home Occupation.

(h)    Employees must be residents of the dwelling unit in which the Home Occupation is located, with the exception of one (1) nonresident, full-time equivalent employee.

(i)    A Home Occupation shall not have more than five (5) clients on the premises at any given time, and shall not have more than ten (10) clients at the premises in any given business day.

(j)    Nonresident employees and clients shall only be at the premises between 8:00 a.m. and 9:00 p.m.

(k)    On-site sales shall be limited to those items physically produced or manufactured within the dwelling unit, garage, or accessory buildings that are part of the Home Occupation, except for plants and animals, which may be grown or kept in outdoor areas of the subject premises.

(l)    A Home Occupation that involves hazardous materials or processes shall require Fire Department approval. A Home Occupation shall not create offensive or objectionable noise, vibration, odors, smoke, fumes, heat, dust, dirt, glare or electrical disturbance perceptible by the average person beyond the lot line or party walls of multi-unit buildings of the subject premises.

(m)    A Home Occupation shall comply with all other applicable provisions of these planning regulations, including but not limited to the performance standards in Article 11 of this chapter; all other applicable provisions of the Emeryville Municipal Code; and all other applicable local, State, and Federal laws and regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 9.    Live/Work

9-5.901 Purpose.

This article establishes regulations governing Live/Work Units. The purpose of these regulations is to provide space that allows for a flexible combination of residential and nonresidential uses to meet the changing needs of the Emeryville community. The intent is to encourage small, independent, and creative businesses and artistic endeavors throughout the City.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.902 Applicability.

The provisions of this article apply to any new or existing Live/Work Unit or Live/Work building, including conversions of existing residential and nonresidential buildings to Live/Work buildings, conversions of Live/Work buildings to wholly residential or nonresidential uses, and any change of use or occupancy in a Live/Work building.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.903 Conditional Use Permit Required.

Occupancy of a Live/Work building shall require approval of a conditional use permit pursuant to the procedures and required findings in Article 5 of Chapter 7.

(a)    Eligible Applicants. The following persons shall be eligible to apply for a conditional use permit for a Live/Work building:

(1)    The owner of the Live/Work building or Live/Work Unit.

(2)    An authorized agent of the owner of the Live/Work building or Live/Work Unit.

(3)    The occupant of the Live/Work Unit with the express written permission of the building owner.

(b)    To Whom Granted. The conditional use permit for occupancy of a Live/Work building shall be granted to the owner of the building or Live/Work Unit.

(c)    Notification of Occupants. A copy of the conditional use permit, showing the conditions of approval, shall be provided to all occupants of Live/Work Units in the building prior to their execution of a lease or purchase agreement for such Live/Work Unit.

(d)    Exception: Existing Live/Work Building. If a valid conditional use permit exists for a Live/Work building on the effective date of the adoption of this article, no additional conditional use permit shall be required for that building in order to meet the requirements of this section.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.904 Occupancy of Live/Work Unit.

The owner or occupant of a Live/Work Unit shall receive zoning compliance approval pursuant to Article 3 of Chapter 7. The zoning compliance approval shall identify the occupant(s) and use(s) of the Live/Work Unit and demonstrate compliance with the conditional use permit which was issued for the building.

(a)    Exception: Existing Live/Work Units. If the owner or occupant has received zoning compliance approval for a Live/Work Unit on the effective date of the adoption of this article, no additional zoning compliance approval is required for that unit in order to meet the requirements of this section unless the use or occupancy is subsequently changed.

(b)    Posting of Zoning Compliance Approval. The zoning compliance approval for a Live/Work Unit shall be posted in the work portion of the Live/Work Unit.

(c)    Change of Use or Occupancy. The owner or occupant of a Live/Work Unit shall notify the City of any proposed change in use or occupancy. Any change of use or occupancy shall require a new zoning compliance approval pursuant to Article 3 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.905 Location and Activity Requirements.

(a)    Location.

(1)    Heavy Live/Work Units, as defined in Section 9-2.331(a), are permitted in the INH zone, subject to a conditional use permit pursuant to Article 5 of Chapter 7.

(2)    Light Live/Work Units, as defined in Section 9-2.331(b), are permitted in the RM, RMH, RH, MUR, MURS, MUN, OT, and INL zones, subject to a conditional use permit pursuant to Article 5 of Chapter 7.

(b)    Activity. The work activity associated with a Live/Work Unit must be permitted or conditionally permitted in the zoning district where it will be located as indicated in Chapter 3; provided, however, that if the unit is in a residential zone, the work activity must be allowed by the regulations for the MUR Mixed Use with Residential zone.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.906 Incompatible Use Types.

The following use types are deemed incompatible with Live/Work Units, and shall not be permitted in any Live/Work building; nor shall Live/Work Units be permitted in any building which contains the following use types:

(a)    Uses of Special Concern. Any use of special concern, as listed in Section 9-2.701.

(b)    Commercial and Institutional Use Types.

Animal Care and Sales (all)

Motor Vehicle Sales and Services (all)

Eating and Drinking Establishments

Bars/Nightclubs/Lounges

Emergency Shelters

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.907 Live/Work Standards.

Live/Work buildings shall comply with the following standards, unless specifically waived in accordance with Section 9-5.910. The Planning Commission may increase any requirement, up to what normally would be required for the business activities which may be associated with the proposed Live/Work Units, if determined to be necessary to protect the public health, safety and welfare.

(a)    Building Size. A Live/Work building shall not exceed the floor area ratio as specified in Article 2 of Chapter 4.

(b)    Unit Size and Living Area.

(1)    The floor area of each Live/Work Unit shall be no less than seven hundred fifty (750) square feet and no more than two thousand (2,000) square feet, unless the applicant demonstrates that less or more space is appropriate to the proposed use.

(2)    Not more than fifty percent (50%) of the floor area of each Live/Work Unit shall be devoted to living area except that in residential zones not more than eighty percent (80%) of each Live/Work Unit shall be devoted to living area.

(c)    Parking and Loading. Off-street parking and loading shall be provided as required by Article 4 of Chapter 4.

(d)    Open Space. Open space shall be provided as required by Article 3 of Chapter 4.

(e)    Performance Standards. All Live/Work Units and Live/Work buildings shall comply with the applicable performance standards in Article 11 of this chapter.

(f)    Ventilation. All Live/Work Units shall be provided with at least one (1) operable window. A ventilation system shall be installed subject to the approval of the Chief Building Official and Fire Marshal for any Live/Work activity which requires additional ventilation or which generates hazardous fumes or dust.

(g)    Mixed Occupancies. If a building contains mixed occupancies of Live/Work Units and other uses, occupancies other than Live/Work shall meet all applicable requirements for those uses, and proper occupancy separations shall be provided between the Live/Work Units and other occupancies, as determined by the Chief Building Official.

(h)    Additional Requirements. Live/Work Units and buildings must comply with any additional requirements imposed by the Planning and Building, Fire, Police and Public Works Departments as necessary to protect the public health, safety and welfare.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.908 Residential Zones.

Live/Work Units and buildings located in residential zones are subject to the following additional standards:

(a)    On-Premises Sales. On-premises sales of goods not produced within the Live/Work building by an occupant of a Live/Work Unit are not permitted.

(b)    Work Restricted to Occupants. Work on the premises of a Live/Work Unit shall be limited to persons who live in the Live/Work Unit with the exception of one (1) nonresident, full-time equivalent employee.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.909 Existing Live/Work Buildings.

Any building which contains one (1) or more Live/Work Units on the effective date of the adoption of this article, and has valid permits for such Live/Work Units, need not meet the parking, loading, and open space requirements of Section 9-5.907. The parking, loading, and open space which existed on the effective date of the ordinance codified in this article shall not be reduced to levels below those required by this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.910 Waiver or Reduction of Standards.

In approving a conditional use permit for Live/Work Units, the Director or Planning Commission, as the case may be, may waive or reduce any requirement or portion of a requirement identified in Section 9-5.907 if all of the following findings are made in addition to the findings required by Article 5 of Chapter 7:

(a)    That the Live/Work Units are provided within a building which was in existence on the effective date of the initial adoption of this article.

(b)    That the Live/Work Units are provided within a building which is structurally sound or improved so that it is structurally sound.

(c)    That the Live/Work Units are provided within a building which is consistent with the architectural character of neighboring buildings or which is improved in order to be consistent.

(d)    That the requirements of Section 9-5.907 cannot be met due to site or building constraints.

(e)    That human health, safety and welfare will not be adversely affected due to such waiver.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.911 Review Criteria.

In reviewing an application for a conditional use permit for Live/Work Units, the Planning Commission shall consider and give preference for projects which incorporate the following:

(a)    Compatibility of the Live/Work building with neighboring uses.

(b)    Activities involving artistic endeavors.

(c)    Low-income housing.

(d)    Separation of work activities from living areas, where work activities could present threats to human health and safety.

(e)    Ground floor commercial activity.

(f)    Adequate traffic circulation.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.912 Conditions of Approval.

In approving a conditional use permit for Live/Work Units, the Planning Commission may designate such conditions as it deems necessary to protect the public health, safety and welfare, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions may include, but are not limited to, the following:

(a)    Building Management. A building manager shall be designated for the Live/Work building to serve as a liaison between City personnel and Live/Work occupants, and between Live/Work occupants and commercial or industrial occupants. The building manager shall be provided with a copy of all occupancy permits, and shall notify the City of any changes in use or occupancy. The building manager shall report any infringements of permit conditions. The owner of the Live/Work building shall inform the Director of the name and telephone number of the building manager, and shall notify the Director of any changes thereto.

(b)    Inspections. Live/Work Units shall be subject to periodic inspections by the City’s fire, building, health and safety personnel from 9:00 a.m. to 5:00 p.m. on all days except Saturdays, Sundays, and City holidays.

(c)    Written Notice. For Live/Work buildings located in industrial zones, the owner of the Live/Work building shall provide written notice to all Live/Work Unit occupants that the surrounding area may be subject to levels of noise, dust, fumes or other nuisances at higher levels than would be expected in residential areas. Specific sources of these nuisances may be identified if appropriate and if possible.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.913 Conversion of Live/Work Buildings.

(a)    Nonresidential Zone. In a nonresidential zone, any Live/Work building may be converted to wholly nonresidential uses which are permitted in that zone.

(b)    Residential Zone. In a residential zone, no Live/Work building may be converted to wholly nonresidential uses; however, it may be converted to wholly residential uses.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 10.    Nonconforming Uses and Structures

9-5.1001 Purpose.

This article establishes regulations for nonconforming uses and structures. The purpose of these provisions is to regulate uses of land and structures that were legal before the adoption or amendment of these planning regulations, but which no longer comply. The intent of this article is to permit nonconforming uses to continue until they are removed or required to be terminated, but not to encourage their survival. More specifically, it is the intent of this article to distinguish between incompatible nonconforming uses that are detrimental to public health, safety, and general welfare, and nonconforming uses that are economically productive and compatible with surrounding development despite being inconsistent with the use regulations of these planning regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1002 Applicability.

The provisions of this article apply to uses that have become nonconforming by adoption of these planning regulations, uses that were previously nonconforming and remain nonconforming under these planning regulations, and uses that become nonconforming due to subsequent amendments to these planning regulations, except as provided in Section 9-5.1003.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1003 Exceptions.

The provisions of this article do not apply in the following situations:

(a)    Signs. Nonconforming signs shall be subject to the provisions of Section 9-5.1614.

(b)    Residential Uses. Any residential use, lot, or structure that was legally established prior to the adoption of these planning regulations and that has been continuously maintained in residential use in compliance with the requirements of all applicable codes is deemed to be a conforming use, lot, or structure. However, any enlargement or replacement of such use shall conform to these planning regulations.

(c)    General Manufacturing Uses. Any General Manufacturing use, lot, or structure in the INL Light Industrial zone that was legally established prior to the adoption of these planning regulations and that has been continuously maintained in compliance with the requirements of all applicable codes is deemed to be a conforming use, lot, or structure. However, any enlargement or total replacement of such use shall conform to these planning regulations.

(d)    Public Uses. Provided that there is no change of use, nothing in this article shall require the termination, discontinuance, or removal of a public use or a public utility or to prevent the expansion, modernization, replacement, repair, maintenance, alteration, reconstruction, or rebuilding and continuation of public use or utility buildings, structures, equipment, and facilities.

(e)    Planned Unit Developments. Planned unit developments approved prior to the adoption of these planning regulations, as listed in Section 9-3.310, are subject to the use and development regulations stipulated in the various ordinances establishing the PUDs. If the ordinance for a PUD does not address a particular issue, these planning regulations shall apply to that issue. Any modifications to such PUDs shall be subject to the provisions of these planning regulations.

(f)    Other Planning Entitlements. Any use allowed under a planning entitlement, including but not limited to a conditional use permit, design review permit, or variance, that was approved prior to the adoption of these planning regulations and that has not expired, is deemed to be a conforming use and is subject to any conditions included in its approval. If such a use is not permitted by these planning regulations, it may be expanded pursuant to Section 9-5.1011, except those uses that are deemed incompatible pursuant to Section 9-5.1007. Other modifications to such a use beyond what was originally approved shall be subject to the provisions of these planning regulations.

(g)    Structures under Construction. Nothing contained in this article shall be deemed to require any change in the plans, construction, or designated use of any building or structure for which a building permit has properly been issued prior to the adoption of these planning regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1004 Nonconforming Uses as Distinguished from Illegal Uses.

(a)    Nonconforming Use. A nonconforming use is any use of land, use of structure, lot, or structure that was legally established prior to the adoption of these planning regulations, but which does not conform to the provisions of these planning regulations. Nonconforming uses may be continued, maintained, repaired, altered, substituted for another nonconforming use, expanded, restored or reestablished only in conformance with the requirements of this article.

(1)    Nonconforming uses include:

a.    Uses made nonconforming by the addition of a standard or requirement in these planning regulations that was not previously required for such use; and

b.    Uses that were previously permitted by right and are subject to a discretionary permit under the requirements of these planning regulations.

(2)    A nonconformity may result from any inconsistency with the requirements of these planning regulations, including but not limited to location, density, floor area ratio (FAR), height, setback, usable open space, parking, or performance standards or the lack of a conditional use permit, variance, or other required planning entitlement.

(3)    A use or structure shall not be deemed nonconforming solely because it does not conform with the applicable design standards for parking lots and structures pursuant to Section 9-4.406, allowed projections above the top of buildings pursuant to Section 9-4.202(c), or restrictions on features allowed in required yards pursuant to Section 9-4.301(e), or because of other minor deviations from the requirements of these planning regulations.

(b)    Illegal Use. An illegal use is a use of land, use of structure, lot, or structure that was not legally established under the regulations that were applicable at the time it was established, whether before or after the adoption of these planning regulations. Any such illegal use is hereby declared to be a public nuisance and shall be discontinued or legalized immediately.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1005 Effect of Conditional Use Permit on Nonconforming Uses.

(a)    Use Remains Nonconforming. Any nonconforming use that is substituted, expanded, restored or reestablished pursuant to a conditional use permit as provided in this article shall still be considered a nonconforming use in its entirety and shall be subject to all applicable provisions of this article.

(b)    Conditions of Approval. In approving a conditional use permit to substitute, expand, restore, or reestablish a nonconforming use, conditions of approval may be imposed as deemed necessary to fulfill the purposes of this article, and reasonable guarantees and evidence may be required that such conditions are being, or will be, complied with. Such conditions may include, but are not limited to, requiring additional landscaping, screening, and other site improvements; and establishing a time limit and termination date for the nonconforming use.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1006 Determination of Legal Nonconforming Uses.

The Director shall determine whether a use is nonconforming and whether it was legally established. The Director’s determination may be appealed to the Planning Commission in accordance with the appeal procedures in Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1007 Incompatible Uses.

Uses of special concern, as listed in Section 9-2.701, that are prohibited in the zoning district in which they are located, as indicated in Article 2 of Chapter 3, are hereby declared to be incompatible uses and may be continued but shall not be expanded, substituted for another nonconforming use, or reestablished if abandoned for more than ninety (90) days. An incompatible use may be substituted with a nonconforming use that is not an incompatible use pursuant to the requirements of Section 9-5.1010(d).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1008 Nonconforming Lots.

Any lot that is smaller than the minimum size or width required by Article 7 of Chapter 4 may be developed subject to all other requirements of these planning regulations if it is described in the official records on file in the office of the Alameda County Recorder as a lot of record.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1009 Continuation and Maintenance of Nonconforming Uses and Structures.

(a)    Right to Continue. Any nonconforming use or structure may be continued and maintained indefinitely if it has remained in continuous existence since the adoption of these planning regulations. The right to continue a nonconforming use or structure shall run with the land. Any substitution, expansion, restoration or reestablishment of such nonconforming use or structure shall be subject to the requirements of this article.

(b)    Maintenance and Repairs. Maintenance, repairs, and structural interior alterations to a nonconforming structure are permitted if the changes and improvements do not expand the structure, except as provided in Section 9-5.1011.

(c)    Additions and Alterations to Nonconforming Public Uses. Additions, extensions, and alterations may be made to any nonconforming public use, including but not limited to schools, parks, recreation facilities, police stations, and fire stations, if the addition, extension, or alteration:

(1)    Does not extend beyond the boundaries of the site in existence when the use became nonconforming;

(2)    Does not reduce any off-street parking required by Article 4 of Chapter 4; and

(3)    Complies with the applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1010 Changes and Substitutions of Nonconforming Uses.

A nonconforming use may be changed to a conforming use or substituted with another nonconforming use subject to the requirements of this section. These requirements shall not apply to a change of ownership, tenancy, or management where there is no change in use type and the use is not expanded.

(a)    Change from Nonconforming to Permitted Use. Any nonconforming use may be changed to a use that is permitted by right in the zoning district in which it is located and that complies with all applicable standards for such use. Any such change in use terminates the right of the previous nonconforming use to continue to exist, and it may not be reestablished.

(b)    Change from Nonconforming to Conditionally Permitted Use. Any nonconforming use may be changed to a use that is conditionally permitted in the zoning district in which it is located, subject to the approval of a conditional use permit pursuant to Article 5 of Chapter 7 and any other applicable findings and standards for the new use. Any such change in use terminates the right of the previous nonconforming use to continue to exist, and it may not be reestablished.

(c)    Absence of Permit. Any use that is nonconforming solely by reason of the absence of a conditional use permit may be changed to a conforming use by obtaining a minor conditional use permit, subject to all applicable findings and requirements for the use.

(d)    Substitution. A nonconforming use may be substituted with another nonconforming use that is not an incompatible use as defined in Section 9-5.1007 upon the approval of a minor conditional use permit. To grant such a conditional use permit the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(1)    The proposed new use will not be detrimental to the public health, safety, or welfare.

(2)    The proposed new use will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

(3)    The proposed new use will be no less compatible with the purposes of the zoning district where it is located than the nonconforming use it replaces.

(4)    The proposed new use will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

(5)    The proposed new use will comply with the applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1011 Expansion of Nonconforming Structures and/or Uses.

A nonconforming structure and/or use that is not an incompatible use as defined in Section 9-5.1007 may be expanded upon the approval of a minor conditional use permit. Any increase in bonus density, floor area ratio, or height shall require a conditional use permit pursuant to Section 9-4.204. To grant a conditional use permit for the expansion of a nonconforming structure and/or use, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(1)    The proposed expansion will not be detrimental to the public health, safety, or welfare.

(2)    The proposed expansion will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

(3)    The proposed expansion will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

(4)    Any proposed expansion of the structure’s floor area shall comply with the parking and loading requirements of Article 4 of Chapter 4 for the new floor area.

(5)    The proposed expansion will comply with the applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1012 Restoration of Damaged Nonconforming Structures and/or Uses.

A nonconforming structure and/or use that is damaged or partially destroyed by fire, explosion, earthquake or other unintentional act may be restored or rebuilt, subject to the following provisions:

(a)    Damage Not More Than Seventy-Five Percent (75%). If the damage does not exceed seventy-five percent (75%) of its replacement cost, not including the foundation, immediately prior to the date that the damage occurred, the structure may be restored and the nonconforming use may be resumed; provided, that an application for a building permit for the restoration work is submitted within six (6) months of the date that the damage occurred and that the restoration work is diligently pursued so that the building permit does not expire. If an application for a building permit is not submitted within six (6) months, or if the building permit expires, the right of the previous nonconforming structure and/or use to continue to exist shall terminate, and they may not be reestablished.

(b)    Damage More Than Seventy-Five Percent (75%). If the damage exceeds seventy-five percent (75%) of its replacement cost, not including the foundation, immediately prior to the date that the damage occurred, the structure may be restored and the nonconforming use may be resumed, except an incompatible use as defined in Section 9-5.1007, upon the approval of a minor conditional use permit. If an application for a conditional use permit is not submitted within six (6) months of the date that the damage occurred, or if an application for a building permit is not submitted within six (6) months of approval of the conditional use permit, or if the building permit expires, the right of the previous nonconforming structure and/or use to continue to exist shall terminate, and they may not be reestablished. To grant a conditional use permit for the restoration of a nonconforming structure and/or use, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(1)    The proposed restoration will not be detrimental to the public health, safety, or welfare.

(2)    The proposed restoration will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

(3)    The proposed restoration will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

(4)    The proposed restoration will comply with the applicable performance standards in Article 11 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1013 Reestablishment of Abandoned Nonconforming Uses.

An abandoned nonconforming use may be reestablished subject to the requirements of this section. A nonconforming use shall be deemed to be abandoned when the site is vacated, the business license lapses, utilities are terminated, or the lease is terminated.

(a)    Replacement by a Conforming Use. If an abandoned nonconforming use is replaced by a conforming use, the right of the previous nonconforming use to continue to exist shall terminate and it may not be reestablished.

(b)    Nonconforming Use Abandoned for Ninety (90) Days or Less. A nonconforming use that is abandoned for ninety (90) days or less, including an incompatible use as defined in Section 9-5.1007, may be reestablished, or may be substituted with another nonconforming use pursuant to the requirements of Section 9-5.1010(d).

(c)    Nonconforming Use Abandoned for More Than Ninety (90) Days but Less Than One (1) Year. A nonconforming use that is abandoned for more than ninety (90) days but less than one (1) year, and that is not an incompatible use as defined in Section 9-5.1007, may be reestablished upon the approval of a minor conditional use permit, or it may be substituted with another nonconforming use pursuant to the requirements of Section 9-5.1010(d). To grant a conditional use permit for the reestablishment of an abandoned nonconforming use the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(1)    The reestablished use will not be detrimental to the public health, safety, or welfare.

(2)    The reestablished use will not impede the redevelopment or use of nearby properties in compliance with the General Plan.

(3)    The reestablished use will not increase the nonconformity with respect to density, floor area ratio (FAR), height, setback, usable open space, or parking.

(4)    The reestablished use will comply with the applicable performance standards in Article 11 of this chapter.

(d)    Nonconforming Use Abandoned for One (1) Year or More. If a nonconforming use is abandoned for one (1) year or more, its right to continue to exist shall terminate and it may not be reestablished or substituted with another nonconforming use.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1014 Abatement.

The provisions of this article shall not apply to a nonconforming use or structure which is, or which becomes, a public nuisance. If a nonconforming structure or use is found to constitute a public nuisance, appropriate abatement action may be taken by the City in compliance with Article 15 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 11.    Performance Standards

9-5.1101 Purpose.

The purpose of these performance standards is to control and limit dangerous or objectionable environmental effects generated by, or inherent to, the use of land or buildings.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1102 Applicability.

(a)    New Uses. These performance standards shall apply to the operation of all new uses established after the effective date of the ordinance codified in these regulations.

(b)    Existing Uses. These performance standards shall generally not apply to the ongoing operations of uses in existence on the effective date of the ordinance codified in these regulations or of a subsequent rezoning or other amendment applying more restrictive performance standards to such uses, with the following stipulations:

(1)    Existing uses shall be subject to any applicable performance standards that were in effect prior to the effective date of the ordinance codified in these regulations.

(2)    The operations of existing uses shall not be so changed as to result in a greater degree of nonconformity with respect to these performance standards.

(3)    Any expansion of an existing use shall be required to conform to these performance standards.

(4)    The establishment of a new use in proximity to an existing use shall not require the existing use to change its operations to comply with these performance standards.

(5)    Any existing use that is a legal conforming use with respect to these regulations, and that ceases operations for a period of one (1) year or more, shall comply with these performance standards upon resuming operations. Any existing use that is nonconforming with respect to these regulations shall be subject to the applicable provisions for nonconforming uses in Article 10 of this chapter and, if allowed to resume operations, shall comply with these performance standards.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1103 Proof of Compliance.

The Director may require the applicant for a building permit or business license to submit such information with respect to proposed equipment, machinery, processes, products, or environmental effects as may be necessary to demonstrate the ability of the proposed use to comply with these performance standards. Such required information may include reports by expert consultants. Any such requirement, and any determination by the Director as to sufficiency of proof, may be appealed to the Planning Commission in accordance with the appeal procedures in Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1104 Measurements.

When measurements are necessary in the enforcement of these performance standards, they shall be made by competent professionals in the applicable field, in accordance with accepted professional practice.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1105 Air Quality: Noxious Materials.

All existing or proposed uses producing dust, dirt, ash, charred paper, soot, grime, carbon or other noxious material which can or may cause damage to the health of any individual, animal or vegetation, damage to property, or the physical soiling or discoloring of the surfaces of any structure or materials located outside the property lines of the parcel of land from which such emission emanates shall have the source of the contaminant muffled or controlled in a manner that will prevent the issuance, continuance or recurrence of any emission that is, or may be, detectable beyond the property line of the premises. All uses shall comply with the requirements of the Bay Area Quality Management District.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1106 Air Quality: Noncontaminated Emissions.

All existing or proposed uses shall have all intakes and exhausts on all air-handling equipment designed, installed, and operated in such a manner so as to prevent any perceptible acceleration of air movement across property lines. Cooling towers and condensers shall be designed, installed, and operated in a manner which will prevent water spray from being carried across property lines.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1107 Light and Glare.

All lighting, reflective surfaces, or any other sources of illumination shall be utilized in a manner which produces no glare on public streets or on any other parcel. Lights shall be shielded so as not to be directly visible from an adjoining residential property, except for low level lighting such as interior lights and porch lights.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1108 Liquid or Solid Waste.

The use, handling, storage and transportation of waste materials, including hazardous wastes, shall comply with Chapter 8 of Title 7, Wastewater Collection System; California Health and Safety Code Section 25100 et seq., Hazardous Waste Control; and any other applicable laws. See also Article 7 of Chapter 5, Hazardous Waste Facilities.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1109 Noise.

(a)    Noise Ordinance. All uses and activities shall be subject to the applicable provisions of the noise regulations in Chapter 13 of Title 5.

(b)    Siting of New Uses. The community noise compatibility standards in Figure 6-11 of the General Plan shall be used as review criteria for new uses. These standards indicate the level of existing ambient noise to which such new uses may be exposed. Noise generated by such uses shall be regulated by subsection (c) of this section.

Table 9-5.1109

Maximum Permitted Noise Level (dBA)

Zone

Daytime

Weekdays 7 a.m. to 9 p.m.

Weekends 8 a.m. to 9 p.m.

Nighttime

Weekdays 9 p.m. to 7 a.m.

Weekends 9 p.m. to 8 a.m.

RM Medium Density Residential Zone

65

55

All Other Zones

Abutting a Lot in the RM Medium Density Residential Zone

65

55

Not Abutting a Lot in the RM Medium Density Residential Zone

70

60

(c)    Noise Generation. Noise generated by uses shall not exceed the maximum permitted noise level as set forth in Table 9-5.1109 at the property lines of the receiving land use, except that:

(1)    The noise levels set forth in Table 9-5.1109 may be exceeded by no more than five (5) dBA for a cumulate period of no more than fifteen (15) minutes per hour.

(2)    The noise levels set forth in Table 9-5.1109 may be exceeded by no more than ten (10) dBA for a cumulate period of no more than five (5) minutes per hour.

(3)    The noise levels set forth in Table 9-5.1109 may be exceeded by no more than fifteen (15) dBA for a cumulate period of no more than one (1) minute per hour.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1110 Odor.

All uses shall be so operated as not to permit matter causing offensive odors which are perceptible to the average person at or beyond any lot line of the lot containing such uses. Adequate buffer distances shall be provided between offensive odor sources and sensitive receptors including schools, hospitals, and community centers. Cooking odors and smoke shall be controlled and prevented from becoming a nuisance to neighboring properties. An odor detected no more than fifteen (15) minutes in any one (1) day is acceptable.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1111 Vibration.

There shall be no activity on any site that causes ground vibration that is perceptible without instruments at the property line of the site. This shall not apply to operations involved in the demolition of structures or caused by motor vehicles or trains.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 12.    Preservation of Structures

9-5.1201 Purpose.

This article establishes regulations for the preservation of significant and residential structures. The purpose of these regulations is to encourage the preservation and reuse of such structures. Significant structures reflect the City’s heritage, contribute positively to the City’s aesthetic character, and provide opportunities for reinvestment. The City’s existing housing stock is an important community resource on which the supply and affordability of shelter and maintenance of the community’s character depend.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1202 Applicability.

This article applies to any project that involves the demolition of a significant or residential structure, the substantial alteration of the exterior appearance of a significant structure, or a change in the number of dwelling units and/or live/work units in a residential structure.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1203 Conditional Use Permit Required.

(a)    Preservation and Reuse. Preservation and reuse of a significant or residential structure shall require approval of a minor conditional use permit pursuant to Article 5 of Chapter 7 and the additional findings specified in Section 9-5.1206(a). This shall be in addition to whatever planning permits are otherwise required for the proposed project (e.g., conditional use permit, design review), which shall be processed concurrently with the conditional use permit for preservation and reuse. Parking credit is available for the preservation and reuse of significant structures with legal nonconforming parking deficiencies pursuant to Section 9-4.404(d).

(b)    Demolition. Demolition of a significant or residential structure shall require approval of a conditional use permit by the City Council, upon a recommendation of the Planning Commission, pursuant to Article 5 of Chapter 7 and the additional findings specified in Section 9-5.1206(b). This shall be in addition to whatever planning permits are otherwise required for the proposed project (e.g., conditional use permit, design review, planned unit development), which shall also require City Council approval and shall be processed concurrently with the conditional use permit for demolition.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1204 Application.

In addition to the documents required for a conditional use permit application pursuant to Article 5 of Chapter 7, an application for a conditional use permit for the preservation and reuse or the demolition of a significant or residential structure shall be accompanied by the following documents:

(a)    Existing Structure. A location map, the address and Assessor’s parcel number of the property, a plan showing the footprint of the structure, and photographs of all sides of the structure.

(b)    Justification. A letter stating why the preservation and reuse or the demolition is needed and how the findings set forth in Section 9-5.1206 could be made.

(c)    Proposed Structure. A description of the proposed preservation and reuse of the existing structure or of any proposed replacement structure, a description of proposed uses, plans, elevations and color and materials board.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1205 Approval Procedure for Demolition.

(a)    Planning Commission Recommendation. After holding a public hearing, noticed as required by Chapter 7, the Planning Commission shall recommend a course of action on the application for a conditional use permit to demolish a significant or residential structure and on any application for a replacement project, including any required approvals such as design review, use permit, variance, rezoning and/or planned unit development. At the conclusion of the public hearing, the Planning Commission, after making the required findings, shall recommend approval, conditional approval, or denial of the conditional use permit for demolition and any replacement project. The Planning Commission shall forward to the City Council the application, the appropriate environmental documents and the Commission’s written report recommending approval, conditional approval, or denial of the conditional use permit for demolition and any replacement project.

(b)    City Council Action. The City Council shall take final action on the application for a conditional use permit to demolish a significant or residential structure and on any application for a replacement project, including any required approvals such as design review, use permit, variance, rezoning and/or planned unit development. Within thirty (30) days following receipt by the City Clerk of the reports forwarded by the Planning Commission, a public hearing, noticed as required by Chapter 7, shall be held by the City Council for action on the conditional use permit for demolition and required approvals for any replacement project. At the conclusion of the public hearing, the City Council, after making the required findings, shall approve, conditionally approve, or deny the conditional use permit for demolition and any replacement project.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1206 Findings.

(a)    Preservation and Reuse. To approve a proposal for the preservation or reuse of a significant or residential structure, one (1) of the following findings must be made, as applicable:

(1)    Significant Structure. That the proposed project will retain and enhance all or most of the features of the structure that make it significant, as described and indicated in Table 9-5.1210.

(2)    Residential Structure. That the applicant will retain and incorporate the existing residential units or will provide at least the same number of residential units as the existing structure, either on site or elsewhere within the City of Emeryville.

(b)    Demolition. The City Council may authorize demolition of a significant or residential structure only if one (1) or more of the following occurs:

(1)    Replacement of Significant Structure. The City Council approves a replacement structure based on all of the following findings:

a.    The elimination of the significant structure would not be materially detrimental to the public interest of the affected neighborhood of the City; and

b.    The replacement structure would feature design quality that is as high as or higher than the structure to be demolished and that it is compatible with the character of the neighborhood; and

c.    The replacement structure will promote a pedestrian orientation of the neighborhood in which it is located; and

d.    The proposed use would be unable to occupy the existing structure, or would be cost prohibitive as an adaptive reuse of the existing structure due to required seismic retrofit or other factors.

(2)    Replacement of Residential Structure. The City Council approves a replacement structure based on all of the following findings:

a.    The applicant will provide at least the same number of dwelling units as the demolished structure, either on site or elsewhere within the City of Emeryville; and

b.    The replacement structure would feature design quality that is as high as or higher than the structure to be demolished and that it is compatible with the character of the neighborhood; and

c.    The elimination of the residential structure would not be materially detrimental to the housing needs or the public interest of the affected neighborhood or the City.

(3)    Significant or Residential Structure, Whether or Not a Replacement Structure is Proposed. The City Council makes one (1) or more of the following findings:

a.    The structure is irrecoverably damaged due to natural disaster; or

b.    The structure or lot is irrecoverably contaminated with one (1) or more toxins, such that the appropriate regulatory agency requires demolition or partial demolition of the structure before soil remediation or renovation and reuse of the structure can occur; or

c.    The structure will be replaced by publicly accessible landscaped open space; or

d.    Demolition of the structure is in the best interest of the public health, welfare, or safety.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1207 Conditions of Approval.

The City Council may apply such conditions in connection with approval of the demolition of a significant or residential structure as it deems necessary in order to fulfill the purposes of this article, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions shall be implemented prior to the Building Official’s issuance of a building permit for the demolition of the structure, and may include but are not limited to the following:

(a)    A good faith effort to relocate the structure to an appropriate site within the City of Emeryville.

(b)    Documentation of the existing structure to Historic American Buildings Survey standards or to standards established by the Director.

(c)    Preserving any significant elements of the structure and/or the structure’s facade, and reusing them in any replacement structure.

(d)    Salvaging of fixtures and architectural features from the existing building and reusing them in any replacement structure or elsewhere within the City of Emeryville.

(e)    Use of building materials in any proposed replacement structure similar to the original structure or those in the immediate area.

(f)    Design modifications to any proposed replacement structure to better fulfill the purposes of this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1208 Appeals.

A decision on a conditional use permit for the preservation and reuse of a significant or residential structure pursuant to Section 9-5.1203(a) may be appealed as provided in Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1209 Effect on Building Permits.

(a)    Replacement Structure. If the City Council approves a replacement structure based upon the findings specified in Section 9-5.1206(b)(1) or (2), and except as specified in subsection (b) of this section, the Building Official shall not issue a building permit to demolish a significant or residential structure unless:

(1)    The Building Official is in a position to concurrently issue a building permit for the replacement structure to be constructed on the site of the structure to be demolished; and

(2)    The Building Official has been provided a fully executed copy of a contract for the construction of the replacement structure.

(b)    Contaminated Site. If the City Council approves a replacement structure based upon the findings specified in Section 9-5.1206(b)(1) or (2), and the site of the replacement structure requires remediation of contaminated soil and/or groundwater, the Building Official may issue a building permit to demolish a significant or residential structure upon submittal of an application for a building permit for the replacement structure, including payment of all required plan review fees.

(c)    Other Circumstances. If the City Council makes any of the findings contained in Section 9-5.1206(b)(3), the Building Official may issue a building permit to demolish a significant or residential structure upon the effective date of the City Council’s action.

(d)    Accessory Buildings. “Accessory buildings,” as defined in Chapter 8, shall be excluded from the provisions of this section.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1210 Designation of Significant Structures.

All structures or parts of structures shown in Table 9-5.1210 and Figures 9-5.1210(a) and 9-5-1210(b) are hereby designated as significant structures.

Figure 9-5.1210(a): Significant Structures

 

Table 9-5.1210: Significant Structures 

Map #

Street Address(es)

Assessor Address

Parcel Number

Name

Significant Features2

1

6702 Hollis, 1320 67th

1320 67th

049-1512-002-02

Prizefighter Bar

roof with varied heights, concrete inlay, brick sills

2

1308 67th

1308 67th

049-1513-007-00

Martin north middle

industrial windows with brick sills

3

1250 67th

1250 67th

049-1513-003-00

Martin northeast

gable, industrial windows with brick sills

4

1255 67th

1255 67th

049-1508-012-00

Martin southeast at Greenway

taller central section with pilasters, industrial windows with brick sills

5

1266 66th

1266 66th

049-1508-002-00

Emery Crossing

stepped roofline, repeating bays

6

6529 Hollis

6529 Hollis

049-1510-003-01

Emery Tech & Clif Bar

repeating bays of brick, glass and sills

7

1265 65th

1265 65th

049-1504-002-00

Baker Metal

gabled clerestory roofline, relief on greenway side

8

6450 Hollis

6450 Hollis

049-1483-005-00

Jellybean Square

symmetric windows around taller articulated entry, rounded corners, industrial windows with sills

9

6221-6251 Hollis, 1400 62nd, 1501-1536 63rd

6261 Hollis

049-1488-001-00

Hollis Complex

taller central piece with poured concrete pilasters and windows centered on door, window pattern on Hollis Street

10

5909 Christie

5909 Christie

049-1494-008-00

behind Christie Ave Common

brick cornice, repeated concrete window frames, decorative shields

11

6005 Shellmound

5959 Shellmound

049-1556-002-00

Public Market west large

articulated brick, pilasters, cornice and parapet

12

6121 Hollis

6121 Hollis

049-1489-013-03

Heritage Square

clerestory roofline, 62nd and Hollis facades, concrete inlays in brick, rhythm of windows

13

6050 Hollis

5900 Hollis

049-1477-001-01

Hollis Street Project Banta northwest

building massing, shape of window area on 61st, gabled roof, symmetric industrial windows, concrete pilasters

14

1301 59th, 5800s Doyle

1301 59th

049-1329-002-00

Monthly building

crane way, recessed entrance, industrial windows

15

1295 59th

1295 59th

049-1330-001-00

Siegel & Strain architects

symmetric stepped roofline, rectangular contrasting brick pattern, concrete inlays

16

5874 Doyle

5874 Doyle

049-1330-011-00

yellow wood house

gabled roof with dormer, double hung windows with sills

17

5862 Doyle

5862 Doyle

049-1330-009-00

Townhouse

restaurant, wood porch and sidewalk, pattern next to door, gabled roof

18

5856 Doyle

5856 Doyle

049-1330-008-01

Ratcliff architects

lighter brick stripes between red bricks, repeated industrial windows

19

1290 Powell

1260 Powell

049-1330-008-02

Design Centro Italia

bicolor diamond design with tiles, tower, yellow brick cornices and sills, rhythm of industrial windows

20

1519 Powell

1519 Powell

049-1320-001-00

Apex building

repeated bays of brick pilasters and industrial windows with sills

21

5751-5755 Horton

5755 Horton

049-1320-003-00

Zentner building

varied roofline, repeated bays of brick pilasters and industrial windows with sills, larger bricks in curtain walls, cornice

22

5749 Horton

5749 Horton

049-1320-004-00

red industrial building north

gable, industrial windows with sills

23

5743 Horton

5749 Horton

049-1320-004-00

Toll Arbitare brick south

set back gable, brick columns with industrial windows and sills

24

1475 Powell

1475 Powell

049-1319-001-15

Haruff Street building

arches over windows and door, ornament over door, pilaster between upper windows, rhythm of industrial windows, massing, Mansard roof, cornices, courtyard, brick-stucco contrast

25

5741-5749 Doyle

5780 Hollis

049-1317-001-01

Parc on Powell east and south

first floor facades: arches over doors, industrial windows, black brow in brick on Doyle Street

26

1255 Powell

1255 Powell

049-1315-001-00

water tower

water tower

27

5703 Hollis

5701 Hollis

049-1318-003-00

lab north brick

brick soldier coursing, industrial windows with sills

28

5701 Hollis

5701 Hollis

049-1318-003-02

lab south turrets

ornate bas relief around central entry on Hollis Street, contrasting columns with pyramid tops, window railings

29

1335 Stanford

1335 Stanford

049-1041-014-00

PRC brick building

industrial windows with brick sills symmetric around gabled recessed entry, cornice

30

5515 Doyle

5515 Doyle

049-1041-054-00

Doyle St Cafe and industrial building

gabled roof on cafe, brick cornices and pilasters, industrial windows, taller central section of offices

31

5500 Doyle

5500 Doyle

049-1313-016-00

Bergtraun architects

hip roof, repeated windows with sills

32

1299 55th

1299 55th

049-1184-013-00

Pickleworks

stepped roofline, yellow brick outlining windows contrasting with red brick, entry with windows and stoop, industrial windows

33

1250 53rd

1250 53rd

049-1041-018-01

Thoroughbred building

contrasting ornamental bas-relief entry feature extending above roof on 53rd Street, window pattern, industrial windows

34

5301 Hollis

5300 Chiron Way

049-1041-071-02

Chiron - Novartis

semicircular openings, collonade with symmetric window pattern above, recess pattern and color on top floor, conical equipment screen on roof

35

4560 Horton1

4560 Horton1

049-1041-050-01

Shell Building - Q Center - Chiron - Grifols

bas-relief shell, pilasters and recessed windows at corner, repeated windows

36

1250-1260 45th

1250 45th

049-1041-023-02

Emeryville Business Center

entire complex except north building; saw tooth roof; gables, large industrial windows; front building alternating brick pattern, glass blocks around door

37

1450 Sherwin

1450 Sherwin

049-1041-026-15

Sherwin-Williams Building

contrasting concrete and brick, three stories, window pattern, windows recessed with concrete sills, north end symmetric concrete and windows around entrance

38

1420 45th

1420 45th

049-1041-056-00

Artist Co-op north

articulated yellow brick, rectangular relief above windows, contrasting entry columns, lintel and shield, rhythm of vertical windows

39

4525 Hollis

4525 Hollis

049-1041-029-02

PG&E North (buildings C & B)

contrasting pilasters, varied heights; Hollis semicircular stoop with arch above, circle windows, contrasting cornice, bas relief sculptures; 45th arched insets symmetric around glass block; west building industrial windows

40

4512-4514 Hollis

4512 Hollis

049-1041-012-02

Bullseye Glass

two-tone yellow brick pattern with relief, pilasters, industrial windows, stepped roofline with taller center

41

1266-1290 45th

1280 45th

049-1041-013-00

Acrylic Arts, Lunt Marymor

curve in roofline, rhythm of industrial windows, contrasting cornice

42

4300 Horton

4300 Horton

049-1033-020-00

Live/Work Lofts

symmetric industrial windows, recessed windows in brick

43

4333 Holden

4250 Horton

049-1033-004-00

Artist Co-op south

gabled roof over contrasting recessed arched door, industrial windows, brick patterns

44

4245 Hollis

4245 Hollis

049-1032-014-00

PG&E south

entry windows above central door, lintel, pilasters and steps; corner taller with arched relief over windows, windows symmetric around door

45

4240 Hollis1

4240 Hollis1

049-1539-002-00

Pixar northwest building

yellow brick detail, alternating colors, cornices, stepped roofline taller in center, symmetric windows

46

1500 Park

1500 Park

049-1035-008-00 – 127-00

Emeryville Warehouse Lofts

arched center of roof on Park Avenue, small gable over door, three stories of poured concrete, industrial windows, cornice

47

1550 Park

1550 Park

049-1036-003-00

Pelco

brick pilasters, industrial windows, cornice; north side symmetric bays around central gabled section

48

1400 Park

1400 Park

049-1033-002-00

Peet’s Coffee & Tea

taller central section, concrete inlay, large windows, articulated brick facade

49

4240 Holden

4221 Hollis

049-1032-003-01

DePuy Orthopaedics

taller central section, industrial windows with brick sills, door with windows around it and awning above it

50

4221 Hollis

4221 Hollis

049-1032-003-01

Mustard building, Trout

horizontal industrial window pattern, cornice, shields, rectangular brick insets, taller central windows on ground floor, sills

51

4224 Holden

4224 Holden

049-1032-012-00

Bischoff

brick patterns, industrial windows, contrasting scuppers, cornice

52

4210 Holden

4210 Holden

049-1032-009-00

Santner

industrial windows with sills, soldier coursing brick pattern

53

1368 Park

1368 Park

049-1032-007-01

Shaolian

glass block beside door, wide industrial windows, cornices, brick relief

54

1394, 1396 Park

1396 Park

049-1032-008-04

Victorian

circular corner, bay windows, decorative parapet, arched windows, contrasting cornice and window frames, windows over doors

55

1545 Park

1545 Park

049-0617-005-06

Editions Limited

larger central section, tall industrial windows on ground floor with second floor windows in same rhythm, cornices contrasting with brick

56

1501 Park

1501 Park

049-0617-005-07

Lux Estate Services

gable, tall industrial windows in two centered sets of three on Park and square on Holden, cornice contrasting with brick, sills

57

1485 Park

1485 Park

049-0617-007-01

Bruck

window patterns, contrasting relief above and below windows, central entrance and symmetric windows

58

4056 Hubbard

4056 Hubbard

049-0617-010-00

Rug Depot

taller central sections; large openings; brick pilasters, cornice, and insets

59

1461 Park

1461 Park

049-0617-008-01

Bash

industrial windows, taller on Park Avenue, contrasting relief over windows, sills

60

1447 Park

1447 Park

049-0617-013-00

Davies Vinther

stepped symmetry of roof, large industrial windows, cornice

61

1421 Park

1421 Park

049-0617-014-01

Silberman

gable, industrial windows with brick sills

62

1401 Park

1401 Park

049-0617-015-01

Icon

articulated center of facade, contrasting concrete inlay, decorative cap and brick relief on pilasters and parapet, pilasters and windows symmetric around central entry

63

4049 Holden

4049 Holden, 1375 Park

049-0617-018-00

Bashland

taller central section, contrasting cornice, industrial windows, recessed larger windows, sills

64

4041 Hollis

4041 Hollis

049-0617-023-00

Granite Expo brick building

taller central section, rhythm of large windows; Park Ave roofline and awning symmetry; 40th windows symmetric around central entry

65

1333 Park

1333 Park

049-0618-001-00

Old Town Hall

contrasting domed section with pilasters and arched entry, bas relief over arch, steps, windows symmetric around central entry, contrasting parapet, eaves, hip roof

66

4062 Hollis

4062 Hollis

049-0618-004-00

Carlavero

contrasting concrete lintel over door and two windows, industrial windows with concrete caps, relief in brickwork

67

1251-1259 Park

1255 Park

049-0618-005-00

ComputerLink Arcadia Milagen Nethawk

taller central section, contrasting cornice, pilasters, large industrial windows, contrasting entry frame, rectangular brick insets

68

4053 Harlan

4053 Harlan

049-0618-058-00 – 108-00

Besler building

gable, symmetric concrete pilasters contrasting with curtain wall, rhythm of industrial windows with sills

69

1219 Park

1219 Park

049-0618-007-01

Folkmanis

arched windows and doors with brick brows, lower window over central door, cornices

70

4060 Harlan

4060 Harlan

049-0618-007-02

Easy Auto

gables

71

4067 Watts, 4026-4050 Harlan

4067 Watts

049-0618-010-00

Turnkey Systems, Seabright

large industrial windows with brick sills, windows centered around rollup door

72

1201 Park

1201 Park

049-0618-008-00

CCD Innovation

arched industrial windows symmetric around central arched doorway; brick cornices, corner pilasters, and sills

73

1175-1195 Park

1175-1195 Park

049-0618-034-00 – 042-00

Park Business Center

symmetrical sections of industrial and arched double-hung windows with brick sills; contrasting columns, pilasters and lintels around doors

74

1155-1165 Park, 4089 Emery

1155-1165 Park, 4089 Emery

049-0618-043-00 – 045-00

NuGenTec

large industrial windows; brick pilasters, cornices, and sills

75

4052-4080 Watts

4052-4080 Watts

049-0618-053-00 – 56-00

Addiction Motors

one- and two-story sections; industrial windows with contrasting concrete above, brick cornice and sills

76

4344-4348 San Pablo

1099 45th

049-1079-001-00

Tom’s Computer, nails 2

symmetric stepped roofline, windows, storefronts and central arched entry with decorative tile above it

77

4336 San Pablo

4332 San Pablo

049-1079-023-00

Punjab Bazar, Touch of Soul

symmetric gable with cornice and decorative tiles, high window, storefronts and lamps, tile wainscoting

78

4332 San Pablo

4332 San Pablo

049-1079-023-00

Emeryville market, nails

cornice, three similar sets of windows with sills, storefronts and lamps symmetric around arched entry

79

4321 Salem

4321 Salem

049-1079-009-00

Veterans Memorial Senior Center

three sets of pilasters with tiles and windows on both sides, contrasting mullions, recessed doors and windows, lamps, steps, interior

80

4000 Adeline

4000 Adeline

049-1022-004-00

City Storage National

patterns of repeated industrial windows with sills

81

3900 San Pablo

3900 San Pablo

049-1024-004-00

Bank Club

classical style, two-story arches, shield, central small gable over door, tile hip roof, contrasting symmetric pilasters, cornices

82

3815-3823 San Pablo

3823 San Pablo

049-1554-001-00

Gravestock Building

symmetric windows, larger on first floor, soldier coursing, cornices contrasting with yellow brick, hip roof, windows higher above central entry

83

3800-3840 San Pablo

3800 San Pablo

049-0952-007-00

Maz building

contrasting ornate double pilasters echoed in roofline, cornices and parapet, glass on three sides

84

3631-3637 San Pablo

3637 San Pablo

049-0480-002-01

Rush

ironwork on windows

85

3617 San Pablo

3617 San Pablo

049-0480-007-00

apartments and vacant retail

central arches in roofline and balcony doors, cornice with decorative supports, symmetric windows with sills, clerestories

Notes:

1 Demolition previously approved by City Council as part of a planning entitlement.

2 “Industrial windows” are large windows with many small panes and metal mullions and frames. “Contrasting” refers to color contrast.

Figure 9-5.1210(b). Significant Structures Photographs

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1211 Criteria for Adding or Deleting Significant Structures.

When significant structures are added or deleted, the following criteria shall be used as a guide:

(a)    A prominent structure that exhibits exceptional architectural quality, is emblematic of Emeryville, or is important to the history of Emeryville; or

(b)    A structure that has at least five (5) of the following features in its street facade(s):

(1)    Predominantly brick, excepting windows and doors.

(2)    Windows and doors, including roll-up doors, covering at least thirty percent (30%) of a street facade and covering at least thirty percent (30%) of the ground floor street facade.

(3)    Symmetry or repetitive rhythm as defined by window and door openings on most of a street facade.

(4)    Multi-paned windows (at least half of the area of the windows having panes measuring no more than one and one-half feet (1-1/2') by three feet (3')).

(5)    Window sills protruding from walls at least two inches (2").

(6)    Roofline with varied heights or angled or curved shapes at street front.

(7)    Decorative bas relief, concrete inlays, ironwork, stained glass, tiles or other decorative features.

(8)    Walls with columns or curves.

(9)    Walls with complex cornices six inches (6") wide or wider.

(10)    Varied artistic patterns in the predominant cladding material.

(11)    Arch or angle over the major entrance.

(Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

9-5.1212 Definitions.

As used in this article:

(a)    “Demolish” means to remove or destroy all or part of any structure to an extent of more than fifty percent (50%) of the replacement cost of the structure, not including the foundation, immediately prior to destruction, or to remove or destroy features of a significant structure that make it significant, as listed in Table 9-5.1210.

(b)    “Preserve and reuse” means retention of all or part of any structure, involving demolition to an extent of no more than fifty percent (50%) of its replacement cost, not including the foundation, immediately prior to commencing work on the structure, and to renovate the structure for a subsequent use that is the same as or different than its previous use.

(c)    “Residential structure” means a structure that is used for any use classified as a Residential use type at Section 9-2.203, 9-2.205, 9-2.207, 9-2.211 or 9-2.213, or defined as a “Live/Work Unit” at Section 9-2.331. A vacant structure shall be considered a residential structure if its most recent use was any such Residential or live/work use type.

(Formerly 9-5.1211. Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 15-011, eff. Jan. 14, 2016)

Article 13.    Private Property Access from City Parks, Greenways, and Other City Property

9-5.1301 Purpose.

This article establishes regulations for accessing private property from City parks, greenways, and other City property. Such access can help to enliven parks and greenways and may provide the only feasible means of access in some situations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1302 Applicability.

The provisions of this article shall apply whenever a private property owner seeks to gain access to the private property from a City park, greenway, or other City-owned property. Such access may include the entire property or individual dwelling units, Live/Work Units, commercial tenant spaces, or other individual units of the property. Nothing in this article shall restrict access to private property from any public right-of-way, which shall be subject to all other applicable laws and regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1303 Conditional Use Permit Required.

No private property shall be accessed from a City park, greenway, or other City property by pedestrians, bicycles, motor vehicles, or any other means except upon the granting of a minor conditional use permit pursuant to the requirements of this article. Such a conditional use permit approves access from the City park, greenway, or other City property and includes approval of any and all access improvements on the private property, but does not constitute an entitlement for use of the City park, greenway, or other City property in perpetuity.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1304 Allowable Uses.

Except for Eating and Drinking Establishments, no use of special concern, as listed in Section 9-2.701, shall gain access from a City park, greenway, or other City property unless it is the only feasible means of access.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1305 Alternate Access.

To the extent feasible, a second means of access to the private property shall be provided so that access from a City park, greenway, or other City property is not the sole means of access to the private property or any of its individual spaces or units. If access from a City park, greenway, or other City property is the only feasible means of access to the private property, the owner of the private property shall be responsible, in cooperation with the City, for facilitating access to the private property in the event that the City needs to close or restrict access to the park, greenway, or other City property for maintenance, repairs, or other reasons. The owner of the private property shall bear all costs associated with facilitating such access during closure or restriction of the park, greenway, or other City property.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1306 Limitations.

Access to private property from a City park, greenway, or other City property shall be limited to pedestrian and bicycle access, unless it provides the only feasible means of access for motor vehicles.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1307 Landscaping and Maintenance of Property Gaining Access.

Private property gaining access from a City park, greenway, or other City property shall be attractively landscaped in conformance with all requirements of this Code, the Emeryville Design Guidelines, and all other applicable design guidelines such as the North Hollis Urban Design Plan or the Park Avenue District Plan. Such landscaping shall be maintained in a healthy growing condition at all times, and the overall property shall be maintained free of trash, litter, graffiti, weeds, peeling paint, and any other blighting conditions, in conformance with the requirements of Chapters 2 and 11 of Title 6 and all other applicable laws and regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1308 Access Facilities.

The private property owner shall be responsible for providing a suitable all weather pedestrian and/or bicycle path from the pedestrian and/or bicycle path on the City property to the pedestrian and/or bicycle access point on the private property. If motor vehicle access is to be provided, a driveway conforming to the requirements of Article 4 of Chapter 4 shall be provided. The private property owner shall be responsible for bearing all costs of design, construction, operation and ongoing maintenance of such access facilities both on the City property and on the private property. If a door into a building is provided on the private property, it shall not swing over the property line onto the City property; if necessary to prevent this, the door shall be inset into the wall of the private building.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1309 Financial Contribution to Citywide Parks Fund.

As a condition of gaining access from a City park, greenway, or other City property, the owner of the private property shall make a one (1) time lump sum contribution to the Citywide Parks Fund in an amount equal to the value of the access as determined by an appraisal prepared at the applicant’s expense under the direction of the City. This shall be in addition to the application fee and any other fees prescribed by the Master Fee Schedule. This condition may be waived, or the amount of the contribution reduced, if the property owner is required to construct or make improvements to the park, greenway, or City property, other than the proposed access facilities, or if the City Council determines that the benefit of the access to the City outweighs the benefit of the access to the applicant.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1310 Application.

An application for access to private property from a City park, greenway, or other City property shall be submitted to the Planning and Building Department on a form provided by the Director, accompanied by the fee as set forth in the Master Fee Schedule and application materials as determined necessary by the Director, including but not limited to the following:

(a)    A site plan, dimensioned, clearly labeled, and drawn to a standard architectural or engineering scale, showing the entire area where the private property interfaces with the park, greenway, or other City property, including other properties and public rights-of-way within ten feet (10') in all directions. The site plan shall clearly indicate:

(1)    The location of any and all features on the private property and in the park, greenway, or other City property, including but not limited to pedestrian and bicycle paths, trees, tree wells and grates, lights, signs, utility poles, trash containers, kiosks, planters, benches, play equipment, driveways, parking and loading areas, buildings, doorways, and disabled access ramps.

(2)    The proposed access pathways and/or driveways from the park, greenway, or other City property onto the private property, indicating dimensions and materials.

(3)    The relationship of the proposed access pathways and/or driveways to other adjacent properties and public rights-of-way, including any doors and windows.

(4)    The pedestrian, bicycle, and/or motor vehicle circulation routes and disabled access paths of travel if applicable.

(b)    A landscape and grading plan clearly indicating and identifying by species all proposed new trees, shrubs, ground cover, and other plant material, and all trees, shrubs, ground cover, and other plant material proposed to be removed.

(c)    Color photographs showing the existing conditions of all areas of the park, greenway, or other City property and the private property affected by the proposed access.

(d)    A statement in a form acceptable to the City Attorney that the permittee shall defend, indemnify, and hold harmless the City of Emeryville, its agents, officers, and employees from any claim, action, or proceeding (including legal costs and attorney’s fees) against the City of Emeryville, its agents, officers or employees from any loss, liability, damage, or cost sustained by any person or property, arising from the operation, use, or maintenance of the proposed access facilities as provided by this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1311 Findings.

To grant a conditional use permit for access to private property from a City park, greenway, or other City property, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:

(a)    The location, size, and design of the proposed access facilities will be compatible with and will not adversely affect or be materially detrimental to operation and maintenance of the park, greenway, or other City property through which access is to be gained.

(b)    The proposed access facilities conform to the applicable provisions of the Emeryville Design Guidelines, including but not limited to the Area Specific Guidelines pertaining to the area in which the proposed access facilities are to be located, and to all other applicable design guidelines such as the North Hollis Urban Design Plan or the Park Avenue District Plan.

(c)    The proposed access facilities comply with all applicable standards and requirements of this title, the Emeryville Municipal Code, and local, State, and Federal regulations.

(d)    The proposed access facilities conform with the requirements of all applicable City departments, including but not limited to Planning and Building, Public Works, Fire, and Police.

(e)    If motor vehicle access is proposed, there is no other feasible way to provide motor vehicle access to the private property.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1312 Conditions of Approval.

In approving a conditional use permit for access to private property from a City park, greenway, or other City property, such conditions may be designated as deemed necessary to protect the public health, safety and welfare, and reasonable guarantees and evidence may be required that such conditions are being, or will be, complied with. Such conditions may include, but are not limited to, the following:

(a)    Recording of an access easement with the Alameda County Recorder.

(b)    Providing for the ongoing maintenance and repair of the access facilities and landscaping constructed on the City’s property, and their future replacement if necessary.

(c)    Restricting access to certain hours for pedestrians, bicycles, and/or motor vehicles, or allowing access during hours when City parks and greenways are otherwise closed to the public.

(d)    Restricting the uses that may gain access from the City park, greenway, or other City property.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 14.    Accessory Dwelling Units

9-5.1401 Purpose.

This article establishes regulations for accessory dwelling units. Accessory dwelling units provide a valuable housing resource and help to achieve the goals, objectives, and policies of the Housing Element of the General Plan to promote a range of affordability levels. The purpose of these regulations is to encourage the establishment of accessory dwelling units as accessory uses in conjunction with principal single-unit residential uses, and to provide for their ministerial approval in conformance with State law.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1402 Applicability.

The provisions of this article apply to any proposal to establish an accessory dwelling unit, as defined in Section 9-2.702(b), as an accessory use in conjunction with a principal single-unit residential use.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1403 Approval Procedure.

A proposal for an accessory dwelling unit shall be reviewed by the Director, in consultation with the Chief Building Official and Fire Marshal, for conformance with the provisions of this article pursuant to the zoning compliance review procedures in Article 3 of Chapter 7. If the Director determines that the proposal conforms to the requirements of this article, a zoning compliance approval shall be issued within one hundred twenty (120) days after receipt of a complete application. If the Director determines that the proposal does not conform to the requirements of this article, a zoning compliance approval shall not be issued, and the applicant shall be advised as to how the proposal could be brought into compliance. The Director’s determination of compliance or noncompliance may be appealed to the Planning Commission pursuant to Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1404 Where Allowed.

(a)    Districts. Accessory dwelling units are permitted only in the Residential zones, and in the MUR Mixed Use with Residential and MURS Mixed Use with Residential South zones.

(b)    Other Uses. Accessory dwelling units are permitted only on lots containing a legal, conforming single-unit residential use and no other principal use. (A single-unit residential use outside the RM Medium Density Residential zone may be deemed conforming pursuant to Section 9-5.1003(b).) An accessory dwelling unit may be established in conjunction with the establishment of a new principal single-unit residential use; provided, that no other principal use exists, or will exist, on the same lot.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1405 Building Intensity and Residential Density.

Accessory dwelling units are exempt from the building intensity (floor area ratio or FAR) and residential density regulations in Article 2 of Chapter 4.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1406 Size of Unit.

(a)    Floor Area. An accessory dwelling unit may not have a greater floor area than the principal single unit with which it is associated. In addition, the floor area of the accessory dwelling unit shall be limited as follows:

(1)    If the accessory dwelling unit is attached to the principal single unit, the floor area shall be limited as follows:

a.    If the principal single unit is less than one thousand (1,000) square feet, the accessory dwelling unit shall not exceed five hundred (500) square feet.

b.    If the principal single unit is at least one thousand (1,000) square feet but less than two thousand four hundred (2,400) square feet, the accessory dwelling unit shall not exceed fifty percent (50%) of the floor area of the principal single unit.

c.    If the principal single unit is two thousand four hundred (2,400) square feet or more, the accessory dwelling unit shall not exceed one thousand two hundred (1,200) square feet.

(2)    If the accessory dwelling unit is detached from the principal single unit, the floor area shall not be less than three hundred (300) square feet and shall not exceed one thousand two hundred (1,200) square feet.

(b)    Bedrooms. The accessory dwelling unit may not have more bedrooms than the principal single unit with which it is associated.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1407 Parking.

(a)    Parking for Principal Single Unit. An accessory dwelling unit may only be established if off-street parking is provided for the principal single unit as required by Article 4 of Chapter 4. If a garage is converted to an accessory dwelling unit, the replacement parking for the primary single unit must meet the standards in Sections 9-4.406(b)(2) and (3) regarding location of parking, unless there is no other feasible way to provide that required parking.

(b)    Parking for Accessory Dwelling Unit. Parking is not required for the accessory dwelling unit. If provided, parking for the accessory dwelling unit shall comply with the design standards for parking lots and structures in Section 9-4.406, except that parking spaces for the principal single unit and accessory dwelling unit may be in tandem.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1408 Dimensional Requirements.

(a)    Lot. The lot on which an accessory dwelling unit is to be located must comply with the minimum lot size and width requirements of Section 9-4.701.

(b)    Setback. An accessory dwelling unit shall be subject to the same setback requirements as the principal single unit, as set forth in Section 9-4.301, except that the minimum rear setback shall be five feet (5'), and no setback is required for conversion of a garage to an accessory dwelling unit.

(c)    Height. The maximum height limit of an accessory dwelling unit shall be thirty feet (30'), except that it shall step down at an angle from a maximum height of thirty feet (30') at fifteen feet (15') from the rear lot line to a maximum height of fifteen feet (15') at five feet (5') from the rear lot line.

(d)    Separation. An accessory dwelling unit may be either attached to or detached from the principal single unit with which it is associated. If detached, the accessory dwelling unit shall be separated from the principal single unit by no less than six feet (6').

(e)    Useable Open Space. For lots with an accessory dwelling unit attached to or detached from the primary single unit (adding to the building footprint on the lot), a common open space accessible to both the primary single unit and the accessory dwelling unit must be provided. It shall be at least two hundred (200) square feet in area, with a minimum dimension of ten feet (10'). It shall be seventy-five percent (75%) open to the sky (not covered by building elements such as eaves, porches, or balconies), and at least twenty-five percent (25%) planted. It may also include such surfaces as patio paving, sport courts, and decking.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1409 Design.

Any proposal for an accessory dwelling unit shall be subject to the applicable provisions of the Emeryville Design Guidelines, including but not limited to those pertaining to the area of the City in which the proposed accessory dwelling unit is to be located, and to any other applicable design guidelines. An accessory dwelling unit shall be compatible with the principal single unit with which it is associated in terms of form, materials, style, and other relevant design factors. No formal design review approval shall be required, but the design shall be evaluated as part of the zoning compliance review for conformance to the requirements of this section.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-5.1410 Other Requirements.

(a)    Owner Occupancy Required. The owner of the property must occupy either the principal single unit or the accessory dwelling unit.

(b)    One (1) Accessory Dwelling Unit Per Lot. No more than one (1) accessory dwelling unit is permitted on a lot.

(c)    Units May Not Be Sold Separately. An accessory dwelling unit and its associated principal single unit may not be sold separately by conversion to condominiums, division of the lot on which they are located, or by other means.

(d)    Sewer Lateral. A proposal to establish an accessory dwelling unit shall comply with the provisions of Chapter 8 of Title 7 concerning sewer laterals, including the inspection, replacement or upgrading of the sewer lateral if required.

(e)    Other Code Requirements. An accessory dwelling unit shall comply with all other applicable provisions of the Emeryville Municipal Code and State and Federal law, including, but not limited to, building and fire code requirements.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

Article 15.    Sidewalk Cafes

9-5.1501 Purpose.

This article establishes the sidewalk cafe regulations. The purpose of these provisions is:

(a)    To encourage and promote the establishment of sidewalk cafes as visual amenities which in turn intensify pedestrian activity and make the street life more attractive, while protecting the public health, safety, and general welfare;

(b)    To ensure that all persons, including those with disabilities, may reasonably use the public streets, sidewalks, rights-of-way, and other public property without interference or hazard;

(c)    To avoid obstruction of views of traffic signs and pedestrians;

(d)    To ensure that damage to sidewalks is minimized and repaired;

(e)    To maintain the good appearance of public streets, sidewalks, and adjacent private property;

(f)    To allow the healthy growth of street trees and other landscaping;

(g)    To maintain access by emergency vehicles and personnel; and

(h)    To protect ingress and egress to properties adjoining the public right-of-way.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1502 Permit Required.

No person shall establish, operate, or maintain a sidewalk cafe without first obtaining a valid sidewalk cafe permit pursuant to this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1503 Where Permitted.

Sidewalk cafes shall be permitted in any zoning district in which Restaurants are permitted or conditionally permitted. Parklets shall be permitted in any zoning district.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1504 Standards.

All sidewalk cafes shall conform to the following standards:

(a)    The sidewalk cafe shall adjoin and be operated in conjunction with a Restaurant licensed to sell food and beverages for consumption on the premises.

(b)    The permittee shall at all times comply with all Federal, State, and local laws regarding the operation of the sidewalk cafe and the associated Restaurant.

(c)    The sidewalk cafe permit shall be posted in plain view within the Restaurant for which the permit has been issued.

(d)    The hours of operation of the sidewalk cafe shall not exceed the hours of operation of the associated Restaurant.

(e)    There shall be no food preparation or storage in the sidewalk cafe area.

(f)    All furniture and equipment associated with the sidewalk cafe shall be confined at all times to the sidewalk cafe area as shown on the approved site plan, and shall be removed from the sidewalk cafe area at the end of each business day, except for semi-permanent barriers such as railings, fences, or planters, which are not required to be removed.

(g)    At least four feet (4') of clear sidewalk width, or a greater width if deemed appropriate by the City, shall be maintained adjacent to the sidewalk cafe at all times. Such clear sidewalk width shall be free of any and all obstructions, including but not limited to street trees, tree wells and grates, street lights, signs, utility poles, fire hydrants, trash containers, kiosks, planters, benches, and news racks, and shall comply with any and all requirements for disabled access.

(h)    The sidewalk cafe shall be maintained in a clean, sanitary, and attractive condition at all times, free of dirt, grease, trash, and litter. Tables shall be bussed regularly. If disposable plates, cups, and utensils are used, a trash container shall be provided for the use of patrons. A final cleanup shall be conducted at the end of each business day, including litter removal from the sidewalk cafe area, adjacent sidewalk, and roadway gutter within one hundred feet (100') in each direction on the same side of the street. The sidewalk cafe area and adjacent sidewalk shall be swept clean at least daily, and shall be steam cleaned annually if required by the Public Works Director.

(i)    Amplified sound shall be prohibited in the sidewalk cafe.

(j)    Smoking shall be prohibited in the sidewalk cafe and within twenty-five feet (25') of all entrances, windows, and vents of the associated Restaurant.

(k)    No changes to the layout, design, or operation of the sidewalk cafe shall be allowed without prior approval of the Planning Director.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1505 Alcoholic Beverages.

Alcoholic beverages may be served and consumed in a sidewalk cafe; provided, that:

(a)    A valid license from the California Department of Alcoholic Beverage Control has been obtained and all requirements imposed by said Department have been met.

(b)    The permittee shall at all times comply with all Federal, State, and local laws regarding the sale, service, and consumption of alcohol.

(c)    The sidewalk cafe shall be separated from the adjacent sidewalk by a substantial physical barrier, such as a railing, fence, or planter, that is at least thirty inches (30") high and with openings no more than four feet (4') wide.

(d)    Alcoholic beverages shall be consumed only within the sidewalk cafe area and associated Restaurant. The permittee shall not allow patrons to leave the confines of the sidewalk cafe with any alcoholic beverage and shall not allow patrons to give or sell alcoholic beverages to any person outside the sidewalk cafe.

(e)    The sidewalk cafe shall maintain full food service and shall operate as a bona fide eating place at all times that it is in operation. No sidewalk cafe may function as a bar, tavern, or cocktail lounge, and no sidewalk cafe shall be associated with a Bar/Nightclub/Lounge, as defined in Section 9-2.319(a).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1506 Application.

Application for a sidewalk cafe permit shall be submitted to the Planning and Building Department on a form provided by the Director, accompanied by the fee as set forth in the Master Fee Schedule and application materials as determined necessary by the Director, including but not limited to the following:

(a)    A site plan, dimensioned, clearly labeled, and drawn to a standard architectural or engineering scale, showing the entire area between the curb and the building containing the Restaurant, and adjacent properties, sidewalk areas, and public right-of-way within ten feet (10') in all directions. The site plan shall clearly indicate:

(1)    The proposed sidewalk cafe area, including its length, width, and square footage, and the adjacent sidewalk including the curb;

(2)    The number and arrangement of tables and chairs, and any other proposed features including but not limited to umbrellas, heaters, trash containers, railings, planters and fencing;

(3)    The relationship of the proposed sidewalk cafe to the Restaurant and adjacent businesses, including doors and windows;

(4)    The location of any and all other features in the public right-of-way, including but not limited to street trees, tree wells and grates, street lights, signs, utility poles, fire hydrants, trash containers, kiosks, planters, benches, news racks, driveways, disabled access ramps, crosswalks, bus stops and shelters, loading zones, and on-street parking spaces, and indicating the clear sidewalk width required by Section 9-5.1504(g);

(5)    The pedestrian circulation and disabled access path of travel through the proposed sidewalk cafe between the public sidewalk and the Restaurant.

(b)    Specifications for the design of all tables and chairs, and any other proposed features including but not limited to umbrellas, heaters, trash containers, railings, planters and fencing. Such specifications shall provide sufficient information for the Director to be able to ascertain the color, material, design, and general quality of these features, and may include actual color and material samples, manufacturer’s specification sheets, color photographs, catalog entries, or other information as deemed appropriate by the Director.

(c)    Color photographs of the Restaurant, sidewalk area, and adjacent businesses and public right-of-way sufficient to illustrate conditions prior to establishment of the sidewalk cafe.

(d)    Proof of comprehensive liability insurance covering the sidewalk cafe area and the adjacent property on which the Restaurant is located in an amount of not less than one million dollars ($1,000,000.00) as a combined single limit for personal injury (including death) and property damage; an endorsement naming the City of Emeryville as an additional insured; a copy of the declarations or information page(s) for the policy; and a statement by the insurance carrier that thirty (30) days’ notice will be given to the City before any cancellation. The policy of liability insurance shall be kept in force during such time as the sidewalk cafe is maintained under the terms of this article.

(e)    A statement in a form acceptable to the City Attorney that the permittee shall defend, indemnify, and hold harmless the City of Emeryville, its agents, officers, and employees from any claim, action, or proceeding (including legal costs and attorney’s fees) against the City of Emeryville, its agents, officers or employees from any loss, liability, damage, or cost sustained by any person or property, arising from the operation, use, or maintenance of the sidewalk cafe as provided by this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1507 Approval Procedure.

Applications for sidewalk cafe permits shall be considered by the Planning and Building Director, in consultation with the Public Works Director, Chief Building Official, Fire Marshal, and Police Chief. The Director, at his/her discretion, may give such notice as is deemed appropriate to adjacent property owners or other interested parties. However, the Director may, instead, refer any application to the Planning Commission for consideration. If considered by the Commission, the application shall be heard at a public hearing noticed by types C, D, and E and optionally by types A and F, as these notice types are defined in Section 9-7.208(b). The Director or Commission, as the case may be, may approve or disapprove an application or require changes or conditions of approval which, in his/her/its judgment, are necessary to ensure conformity with the provisions of this article. The Director’s decision may be appealed to the Planning Commission pursuant to Article 14 of Chapter 7. If the Director refers the application to the Planning Commission for consideration, the Commission’s decision may be appealed to the City Council pursuant to Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1508 Required Findings.

In order to approve a sidewalk cafe permit, all of the following findings shall be made:

(a)    The location, size, design and operating characteristics of the proposed sidewalk cafe will be compatible with and will not adversely affect or be materially detrimental to neighborhood character, with consideration given to the convenience and safety of pedestrians, property owners, occupants, customers, residents, and tenants of offices, stores, shops, and dwellings in the vicinity; harmony in design with nearby uses, buildings and structures; and the capacity and physical character of surrounding streets and sidewalks.

(b)    The proposed sidewalk cafe conforms to the standards in Section 9-5.1504.

(c)    If alcoholic beverages are to be served, the proposed sidewalk cafe conforms to the provisions of Section 9-5.1505.

(d)    The proposed sidewalk cafe conforms to the applicable provisions of the Emeryville Design Guidelines, including but not limited to the General Guidelines pertaining to sidewalks and landscaping, and the Area Specific Guidelines pertaining to the area in which the proposed sidewalk cafe is to be located; and to all other design guidelines applicable to the area in which the proposed sidewalk cafe is to be located.

(e)    The proposed sidewalk cafe is consistent with the General Plan.

(f)    The proposed sidewalk cafe complies with all applicable standards and requirements of this title, the Emeryville Municipal Code, and local, State, and Federal regulations.

(g)    The proposed sidewalk cafe conforms with the requirements of all applicable City departments, including but not limited to Planning and Building, Public Works, Fire, and Police.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1509 Renewal.

A sidewalk cafe permit shall expire on December 31 of the calendar year in which it was issued or renewed. A valid permit which has not been surrendered, suspended or revoked may be renewed for respective periods of not longer than one (1) year upon the following terms and conditions:

(a)    All annual sidewalk cafe permits issued under this article, except the first permit issued for a newly established sidewalk cafe, shall be considered to be issued on January 1 of each year and shall expire on December 31 of the same year.

(b)    The annual renewal application for an existing sidewalk cafe is hereby declared delinquent if not filed on or before March 1 of each year.

(c)    The City is not required to send a renewal, delinquency or other notice to any person subject to the provisions of this article.

(d)    Every person subject to a sidewalk cafe permit shall, before the renewal application becomes delinquent, file with the Director a renewal application except as provided in subsection (h) of this section.

(e)    Application for renewal of a sidewalk cafe permit shall be submitted to the Planning and Building Department on a form provided by the Director, accompanied by a statement indicating whether any information required by Section 9-5.1506 has changed; and proof of comprehensive liability insurance, as detailed in Section 9-5.1506(d), for the renewal period.

(f)    The Director shall review the renewal application in consultation with the Public Works Director, Chief Building Official, Fire Marshal, and Police Chief, to ensure the sidewalk cafe’s continued compliance with the provisions of this article and any conditions of approval, and to assess any outstanding violations or complaints. The Director may request additional information in order to complete his/her review.

(g)    Upon completion of the review, the Director shall make a determination whether to renew the application, and shall promptly inform the permittee of his/her decision. If the permit is renewed, the Planning Director shall provide the permittee with a new permit for the renewal period, to be posted in the Restaurant as required by Section 9-5.1504(c). In renewing the sidewalk cafe permit, the Director may modify or delete any existing conditions of approval, and impose any new conditions of approval, as he/she deems appropriate. If the permit is not renewed, the Director shall provide a written explanation to the permittee detailing the reasons for the nonrenewal. If the permit is not renewed, the sidewalk cafe shall be removed, and the sidewalk shall be restored as required by Section 9-5.1512, within thirty (30) days of the Director’s decision, unless appealed pursuant to Section 9-5.1511(c).

(h)    In the absence of any action by the City or the permittee to renew a sidewalk cafe permit prior to the delinquency date specified in subsection (b) of this section, the permit shall be deemed to be renewed for one (1) year.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1510 Revocation.

A permit issued pursuant to this article shall be subject to suspension, revocation, or modification for the violation of any provisions of this Code or for any grounds which would warrant the denial of the issuance of such original permit. The Director may issue a notice of violation for any failure to comply with any requirement of this article or any condition of the permit. Such notice shall set forth the action necessary to come into compliance and a time frame for compliance. If the noncompliance is not abated, corrected, or rectified within the time specified by the Director in said notice, the Director may revoke, suspend, or modify the permit, upon thirty (30) days’ notice. If the Director decides to revoke or suspend the permit, the sidewalk cafe shall be removed, and the sidewalk shall be restored as required by Section 9-5.1512, within thirty (30) days of the Director’s decision unless appealed pursuant to Section 9-5.1511(d).

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1511 Appeals.

(a)    A decision of the Director on a new sidewalk cafe permit pursuant to Section 9-5.1507 may be appealed to the Planning Commission as provided in Article 14 of Chapter 7. The decision of the Planning Commission shall be final.

(b)    If the Director refers a new sidewalk cafe permit application to the Planning Commission for consideration pursuant to Section 9-5.1507, the decision of the Planning Commission may be appealed to the City Council as provided in Article 14 of Chapter 7.

(c)    A decision of the Director on the renewal of a sidewalk cafe permit pursuant to Section 9-5.1509 may be appealed to the Planning Commission as provided in Article 14 of Chapter 7. The decision of the Planning Commission shall be final. If the Commission decides not to renew the permit, the sidewalk cafe shall be removed, and the sidewalk shall be restored as required by Section 9-5.1512, within thirty (30) days of the Commission’s decision.

(d)    A decision of the Director to revoke, suspend, or modify a sidewalk cafe permit pursuant to Section 9-5.1510 may be appealed to the Planning Commission as provided in Article 14 of Chapter 7. The decision of the Planning Commission shall be final. If the Commission decides to revoke or suspend the permit, the sidewalk cafe shall be removed, and the sidewalk shall be restored as required by Section 9-5.1512, within thirty (30) days of the Commission’s decision.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1512 Restoration of Sidewalk.

Upon cessation of the operations of a sidewalk cafe, the permittee shall restore the sidewalk to its original condition, including but not limited to the refilling of any holes drilled into the sidewalk. Any damage or alteration to the sidewalk caused by the use of the sidewalk cafe shall be repaired to the satisfaction of the Director of Public Works by the permittee at the permittee’s sole expense.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1513 Amortization.

Any existing sidewalk cafe which does not comply with the provisions of this article shall be removed or otherwise brought into conformance within six (6) months of the effective date of the ordinance codified in this article.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1514 Parklets.

Parklets shall require a sidewalk cafe permit and shall be subject to all of the regulations and procedures set forth in this article for sidewalk cafes except that they are not required to be built and operated in conjunction with a Restaurant. In addition, parklets shall be subject to the following regulations:

(a)    A parklet shall require the approval of the City Council, upon the recommendation of the Transportation Committee, prior to the approval of a sidewalk cafe permit. Any conditions and requirements designated by the City Council in its approval shall become conditions of approval of the sidewalk cafe permit.

(b)    A parklet shall be available for use by the general public and shall not be reserved for the exclusive use of an adjacent Restaurant or other use, even if built and operated in conjunction with that Restaurant or other use, nor for the exclusive use of any other private enterprise.

(c)    Table service shall not be permitted in a parklet.

(d)    Commercial signage and advertising shall not be permitted in a parklet.

(e)    Service and consumption of alcoholic beverages shall not be permitted in a parklet.

(f)    Design criteria for parklets may be issued administratively by the Director.

(g)    A building permit shall not be required for a parklet, but its design and construction shall comply with all applicable building regulations, including but not limited to disabled access, and any design criteria issued by the Director.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1515 Definitions.

As used in this article:

(a)    “Parklet” shall mean the temporary use of space in the roadway, adjacent to the curb and typically located in a parking space, unused bus stop, or other vehicular zone, with or without a platform to extend the grade of the sidewalk into the roadway. A parklet may feature tables and chairs for public use, benches, planters and landscaping features, bicycle parking, and other public amenities, and may be built and operated in conjunction with an adjacent street-level Restaurant or other use. A parklet may also function as a “bicycle corral” with bicycle racks in the roadway for the on-street parking of bicycles.

(b)    “Person” shall mean and include individual, firm, association, partnership, joint venture or corporation (whether for-profit or nonprofit).

(c)    “Public right-of-way” shall mean the area dedicated to public use for public street purposes including but not limited to roadways, parkways, alleys and sidewalks.

(d)    “Restaurant” shall mean the use type defined in Section 9-2.319(b).

(e)    “Roadway” shall mean that portion of a public right-of-way improved, designed and ordinarily used for vehicular traffic and/or parking, including drainage gutters and curbs.

(f)    “Sidewalk” shall mean either:

(1)    That portion of a public right-of-way provided for the exclusive use of pedestrians, including planting areas or parkways, between the roadway and adjacent property lines; or

(2)    Any other publicly accessible pedestrian area owned or controlled by the City of Emeryville including, but not limited to, greenways and parks.

(g)    “Sidewalk cafe” shall mean an area of the sidewalk used exclusively for eating, drinking, and related pedestrian circulation and located adjacent to, and operated in conjunction with, a street-level Restaurant.

(h)    “Sidewalk cafe permit” shall mean a permit to establish, operate, and maintain a sidewalk cafe or parklet issued pursuant to this article. A sidewalk cafe permit may not be transferred or assigned, does not constitute a deed or grant of an easement by the City, shall be valid for one (1) calendar year, and is revocable at any time.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 16.    Signs

9-5.1601 Purpose.

The purpose of this article is to regulate signs as an information system that expresses the character and environment of Emeryville while recognizing the importance of business activity to the City. Specifically, these regulations are intended to:

(a)    Encourage communications which aid orientation and promote economic vitality.

(b)    Enhance and preserve the aesthetic character of the City.

(c)    Apply basic principles of good design and sensitivity to community appearance.

(d)    Restrict signs that may create a nuisance to nearby properties, violate privacy, or create hazards or unreasonable distractions for pedestrians or drivers.

(e)    Ensure that the constitutionally guaranteed right of free speech is protected.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1602 Applicability.

This article establishes the sign regulations. These regulations shall apply to all signs in the City, except signs on the public sidewalk, which are regulated by Chapter 34 of Title 5; signs for certified farmers’ markets, which are regulated by Section 5-35.06; and signs adjacent to landscaped freeways, which are regulated by Chapter 15 of Title 8. Nothing in this article shall be construed to allow any signs for a Home Occupation except as allowed by Article 8 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 4 (part), Ord. 16-008, eff. Jan. 1, 2017)

9-5.1603 Procedure.

(a)    Review by Director. All sign proposals shall be subject to review by the Director to determine whether they are prohibited, exempt, or require approval of a minor design review permit, major design review permit, or Master Sign Program.

(b)    Prohibited Signs. A prohibited sign, as listed in Section 9-5.1604, is not allowed. Any such sign, other than a nonconforming sign pursuant to Section 9-5.1614, is hereby declared to be a public nuisance and shall be removed immediately.

(c)    Exempt Signs. An exempt sign, as listed in Section 9-5.1605, does not require design review approval and may be installed without further planning review if the Director determines that it meets all the requirements for an exempt sign. Note, however, that such a sign may still require a building permit pursuant to the building regulations in Title 8.

(d)    Individual Establishment Signs. Individual establishment signs that are neither prohibited nor exempt shall require a design review permit from either the Director or the Planning Commission and shall be processed pursuant to Section 9-5.1612.

(e)    Master Sign Programs. A proposal for a Master Sign Program shall require approval by the Planning Commission pursuant to Section 9-5.1613.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1604 Prohibited Signs.

The following types of signs, materials, designs, messages, and locations are prohibited:

(a)    Cabinet Signs. One (1) or two (2) sided internally illuminated signs consisting of a translucent message panel or panels, usually rectangular, mounted on a frame enclosing the illumination fixtures; also known as “panel,” “can,” or “box” signs.

(b)    Electronic Signs. Electronic signs with changeable copy and/or animation; also known as “reader boards.” This prohibition does not include small signs oriented to pedestrians and providing public transportation and other noncommercial information.

(c)    Mobile Billboards. Any sign carried or conveyed by a vehicle for the primary purpose of advertising excluding signs on taxis and buses.

(d)    Outdoor Advertising Signs. Billboards and any other off-premises outdoor advertising signs which convey a commercial message as their primary purpose.

(e)    Signs Creating Traffic Hazards.

(1)    Signs located in such a manner as to constitute a traffic hazard or obstruct the view of traffic, any unauthorized traffic sign or signal device, or any sign that may be confused with any authorized traffic sign, signal, or device; or that makes use of the words “stop,” “look,” “danger,” or any other word, phrase, symbol, or character that interferes with, misleads, or confuses vehicular drivers in their use of roads.

(2)    Signs which may pose a traffic hazard due to glaring or varying illumination.

(3)    Signs within five feet (5') of a fire hydrant, street sign, or traffic signal if such placement could create a safety hazard.

(f)    Signs for Vacated Uses. Signs for activities which have vacated a site or premises for ninety (90) days or more.

(g)    Signs on Public Property. Signs on public property unless posted by public personnel in the performance of their duties.

(h)    Signs That Produce Noise or Emissions. Signs that produce noise or sounds that can be heard at the lot line and signs that emit visible smoke, vapor, particles, or odor.

(i)    Streamers, Pennants or Inflatable Signs. Streamers, pennants, and other signs made of lightweight fabric or similar material, designed to rotate or move with the wind, or inflatable signs or displays.

(j)    Vehicle-Mounted Signs. Vehicle-mounted signs of a commercial nature, except when attached to vehicles being used for bona fide delivery and other vehicular purposes away from a fixed place of business.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1605 Exempt Signs.

The following signs or modifications to signs do not require design review, and, except for business signs, the area of such signs shall not be included in the maximum allowable sign area measurement for the purposes of this article. The owner of an exempt sign is responsible for its safe and attractive erection and maintenance, for obtaining a building permit where applicable, and for complying with applicable provisions of this article or any other requirements of this title.

(a)    A-Frame Signs. Portable freestanding signs in the shape of the letter “A” as viewed from the side, typically with two (2) sides facing opposite directions. Under this exemption, such signs may only be displayed on private property. No more than one (1) sign is permitted per individual establishment. Such sign may not exceed three feet (3') in height with no more than six (6) square feet of sign area on each side. See Chapter 34 of Title 5 for regulations pertaining to the display of such signs on the public sidewalk.

(b)    Address Signs. Address identification signs of no more than two (2) square feet per address.

(c)    Apartment and Condominium Identification Signs. Nonilluminated identification signs on apartment and residential condominium buildings of no more than six (6) square feet per address.

(d)    Business Signs. Business establishment identification signs, restricted to one (1) sign not exceeding six (6) square feet in area for each establishment. Such signs shall be included in the aggregate sign area as specified in Section 9-5-1609(b)(1).

(e)    Business Information Signs. Signs not exceeding six (6) square feet in aggregate area per business establishment containing such information as “open/closed,” “credit cards accepted” or items such as directories and menus.

(f)    Change of Business Signs. A temporary attachment or covering of wood, plastic, or canvas over a permanent sign indicating a change of ownership or activity may be displayed for no longer than forty-five (45) days following the change of ownership or activity for which the sign is intended. The sign shall be no larger than the previously permitted permanent sign.

(g)    Commemorative Signs. Commemorative plaques, memorial signs or tablets, or signs indicating names of buildings and dates of building erection, either attached to or cut into the surfaces of buildings; provided, that no such sign exceeds four (4) square feet in area.

(h)    Construction Signs. A temporary construction sign may be erected on a construction site for the duration of construction activities; provided, that it is immediately removed after issuance of a certificate of occupancy for the project, or abandonment of work. A temporary construction sign may not exceed eight (8) square feet in area and five feet (5') above finished grade to the top of the sign in the RM Medium Density Residential zone or eighteen (18) square feet in area and six feet (6') above finished grade to the top of the sign in other zones.

(i)    Decorative Holiday Displays. Noncommercial decorative holiday displays; provided, that such displays are removed within forty-five (45) days of their installation.

(j)    Directional Signs. Signs to direct on-site traffic circulation, not exceeding six (6) square feet in area, and with an aggregate area not exceeding one-fifth (1/5) of a square foot per linear foot of site frontage, and publicly installed off-site directional signs to facilitate traffic flow to and from high-volume private facilities.

(k)    Flags. Noncommercial flags flown from flagpoles or otherwise displayed. Flagpoles shall be subject to the applicable height limits in Section 9-4.202.

(l)    Information Signs. Noncommercial informational signs not exceeding four (4) square feet in area erected for the safety and convenience of the public, such as signs identifying restrooms or telephones, “no parking” and “no trespassing” signs.

(m)    Interior Signs. Signs located in interior areas of a building or site that are not intended to be visible from public streets, public open space, or adjacent properties.

(n)    Kiosk and Mobile Vendor Signs. Signs fixed to mobile vending carts that identify or advertise the name, product, or service provided by the vendor. Each mobile vending cart is limited to a maximum sign area of eight (8) square feet.

(o)    Official Government Signs. Official notices issued by a court, public body or office; official notices posted by a utility or public agency; signs erected by a governmental body to direct or regulate pedestrian or vehicular traffic; public hearing or meeting notices; or other signs required or authorized by law.

(p)    Public Service and Civic Identity Signs. Signs erected on public or private property to promote City-sponsored activities or other community events. Signs may include district identification banners; temporary signs or banners erected above streets or attached to lamp posts or utility poles; or temporary banners posted to fences at public schools.

Figure 9-5.1605(q)(1): On-Site Real Estate Signs

(q)    Real Estate Signs.

(1)    On-Site Real Estate Signs. On-premises signs conveying information about the sale, rental, or lease of the appurtenant lot, premises, dwelling, or structure; provided, that they comply with the following standards:

a.    No more than one (1) real estate sign per lot in the RM Medium Density Residential zone, or one (1) real estate sign per public street frontage per lot in other zones, may be displayed at any one (1) time.

b.    The sign or signs shall not exceed an aggregate area of six (6) square feet in the RM Medium Density Residential zone or eighteen (18) square feet in all other zones. See Figure 9-5.1605(q)(1).

c.    Wall signs shall not be higher than seven feet (7') above finished grade to the top of the sign in the RM Medium Density Residential zone or fifteen feet (15') in all other zones. Ground signs shall not exceed five feet (5') in height to the top of the sign in the RM Medium Density Residential zone or six feet (6') in height in all other zones. See Figure 9-5.1605(q)(1).

d.    Signs shall not be illuminated.

e.    Signs shall not be placed on rooftops or above parapet or eave lines.

f.    All signs shall be removed within seven (7) days after the sale, lease, or rental of the property has been completed.

(2)    Directional Signs for Open Houses. Off-site signs located on the public sidewalk and directing the public to “open house” events for the viewing of lots, premises, dwellings or structures that are for sale, lease, or rent shall be regulated by the applicable provisions of Chapter 34 of Title 5.

(r)    Small Noncommercial Signs. Noncommercial signs, each no larger than six (6) square feet in area, attached to a freestanding sign structure, a window, or a building wall. All businesses and residences may display up to two (2) such signs, which may include, but are not limited to, freedom of speech signs, political signs, and organization identification signs. Such signs may be located on the ground floor or upper floors of buildings and shall not be located in the public right-of-way.

(s)    Temporary Window Signs. Window signs, subject to the following provisions:

(1)    Temporary window signs not exceeding ten percent (10%) of the area of window and transparent door frontage on any ground floor or second floor building facade in nonresidential use are permitted.

(2)    Temporary window signs may be displayed for no more than ninety (90) consecutive days with at least ninety (90) consecutive days between display periods.

(3)    Temporary window signs shall not be included in the aggregate sign area as specified in Section 9-5-1609(b)(1).

(4)    Any interior sign either hung within two feet (2') of a window or attached to a display located within two feet (2') of a window, and which faces outward, is considered a window sign.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1606 General Provisions for All Sign Types.

(a)    Calculation of Sign Area. The area of an individual sign shall be calculated as follows:

(1)    Single-Faced Signs. Sign area shall include the entire area within a single continuous perimeter composed of squares or rectangles that enclose the extreme limits of all sign elements, including, but not limited to, sign structures or borders, written copy, logos, symbols, illustrations, and color. Supporting structures such as sign bases and columns are not included in sign area; provided, that they contain no lettering or graphics except for addresses. The calculation of sign area for various types of single-faced signs is illustrated in Figure 9-5.1606(a)(1).

Figure 9-5.1606(a)(1): Area of Single-Faced Signs

 

Figure 9-5.1606(a)(2-3): Area of Double-Faced and Multi-Faced Signs

Figure 9-5.1606(a)(4): Area of Three (3) Dimensional Signs

(2)    Double-Faced Signs. Where two (2) faces of a double-faced sign are located two feet (2') or less from one another at all points, or located at an interior angle of forty-five (45) degrees or less from one another, the sign area shall be computed as the area of one (1) face. Where the two (2) faces are not equal in size, the larger sign face shall be used. Where two (2) faces of a double-faced sign are located more than two feet (2') or forty-five (45) degrees from one another, both sign faces shall be counted toward sign area. See Figure 9-5.1606(a)(2-3).

(3)    Multi-Faced Signs. On a three (3) faced sign, where at least one (1) interior angle is forty-five (45) degrees or less, the area of two (2) faces (the largest and smallest face) shall be summed to determine sign area. In all other situations involving a sign with three (3) or more sides, sign area shall be calculated as the sum of all faces. See Figure 9-5.1606(a)(2-3).

(4)    Three (3) Dimensional Signs. Signs that consist of, or have attached to them, one (1) or more three (3) dimensional objects (i.e., balls, cubes, clusters of objects, sculpture, or statue-like trademarks), shall have a sign area of the sum of all areas using the four (4) vertical sides of the smallest cube that will encompass the sign. See Figure 9-5.1606(a)(4).

(b)    Materials. Signs shall be constructed of durable and attractive materials. Paper, cardboard, or other material subject to rapid deterioration shall be limited to temporary interior window signs. Fabric and vinyl signs shall be restricted to public service and civic identity signs, awning signs, banner signs, and temporary signs permitted pursuant to Section 9-5.1610.

(c)    Construction and Maintenance.

(1)    All signs and supporting structures shall be installed in accordance with applicable provisions of the building regulations in Title 8.

(2)    All signs, together with all supporting structures, shall be maintained in the following manner:

a.    Signs shall be kept free of rust, dirt and chipped, cracked or peeling paint.

b.    All hanging, dangling, torn or frayed parts of signs shall be promptly repaired, and graffiti and unauthorized attachments shall be removed.

c.    Burned-out illumination shall be promptly replaced.

d.    Sign areas shall be kept free and clear of all noxious substances, rubbish and weeds.

(3)    If a sign is removed from its supporting structure for longer than ninety (90) days, the supporting structure shall be removed.

(d)    Illumination. The illumination of signs, from either an internal or external source, shall be designed to avoid negative impacts on neighboring rights-of-way and properties. The following standards apply to all illuminated signs:

(1)    Sign lighting shall not be of an intensity or brightness, or generate glare, that will create a public or private nuisance.

(2)    External light sources shall be directed, shielded, and filtered to limit direct illumination of any object other than the sign.

(3)    Illuminated roof signs and high-rise identification signs shall be dimmable, and shall be dimmed if necessary to address complaints of glare from occupants of buildings in a direct line of sight to the sign. Other sign types may also be required to be dimmable as a condition of approval.

(4)    Exterior LED signs shall be subject to major design review pursuant to Section 9-5.1612(c), and shall be evaluated for conformance with the “Recommended Night-Time Brightness Levels for On-Premise Electronic Message Centers (EMC’s)” dated April 2011 prepared by the International Sign Association.

(e)    Changeable Copy Other Than Permitted Marquee Signs. Nonelectronic changeable copy shall cover no more than twenty percent (20%) of an establishment’s total allowed aggregate sign area, except for the following uses which are allowed up to seventy-five percent (75%) of sign area to be changeable copy: all public and civic uses, indoor theaters, other public assembly uses, and fuel price signs.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1607 Standards for Specific Sign Types.

Except as otherwise specified, all permanent signs shall comply with the standards in Table 9-5.1607. Signs erected on a site may be any combination of permitted sign types, subject to the limitations for individual sign types listed in this section, and any other applicable provisions of this article including, but not limited to, aggregate sign area. See Figure 9-5.1607 for illustrations of projecting, shingle, monument, and awning signs.

Table 9-5.1607: Standards for Specific Sign Types 

Sign Type

Maximum Number Permitted

Maximum Area per Individual Sign

Maximum Height to Top of Sign

Location Requirements

Additional Regulations

(a)

Individual Establishment Signs Allowed with Minor Design Review

(1)

Awning Sign

3 per nonresidential tenant or use

10 sq. ft. or 25% of surface area of awning, whichever is less

25' or top of second floor of building, whichever is less

Lowest point must be at least 9' above public sidewalk. Awnings permitted only on first and second floors of building.

May project no more than 4' from building wall and no more than 1/3 width of public sidewalk

(2)

Banner Sign

3 per nonresidential tenant or use per street frontage

15 sq. ft.

25'

No portion may extend above highest point of parapet wall or eave line. Lowest point must be at least 9' above public sidewalk.

May project no more than 4' from building wall and no more than 1/3 width of public sidewalk

(3)

Monument Sign

1 per nonresidential lot per street frontage

60 sq. ft. per face; no more than 2 faces

6'

N/A

Larger sign may be approved as part of Master Sign Program for overall site signage only

(4)

Projecting Sign

1 per nonresidential tenant or use per street frontage

15 sq. ft.

25'

No portion may extend above highest point of parapet wall or eave line. Lowest point must be at least 9' above public sidewalk.

May project no more than 4' from building wall and no more than 1/3 width of public sidewalk

(5)

Shingle Sign

1 per nonresidential tenant or use

4 sq. ft.

N/A

Lowest point must be at least 9' above public sidewalk

Illumination not permitted

(6)

Wall Sign

1 per nonresidential tenant or use per street frontage

50 sq. ft. or 15% of tenant facade area, whichever is less

25'

Width may not exceed 75% of tenant facade width, or 25', whichever is less

Larger signs may be approved as part of Master Sign Program for overall site signage only

(7)

Window Sign

1 per window or transparent door per nonresidential tenant or use

No more than 10% of area of window or transparent door

N/A

Ground floor or second floor only

N/A

(b)

Individual Establishment Signs Allowed with Major Design Review

(1)

Entry Gateway

1 per nonresidential lot per street frontage

To be determined by Planning Commission

N/A

(2)

High-Rise Identification Sign

2 per nonresidential building; 1 on any facade

1% of area of building facade on which sign is located

No portion of sign above top of parapet

Top story of building

Only permitted on buildings over 75' high. Changeable copy not permitted.

(3)

Marquee Sign

1 per nonresidential building

To be determined by Planning Commission

May only contain changeable copy and images related to on-premises events

(4)

Roof Sign

1 per nonresidential building

To be determined by Planning Commission

N/A

(c)

Signs Allowed Only as Part of a Master Sign Program as Part of Overall Site Signage

(1)

Ground Sign

1 per nonresidential lot per street frontage

To be determined by Planning Commission

N/A

(2)

Tower Sign

1 per nonresidential lot per street frontage

To be determined by Planning Commission

N/A

(3)

Wall Sign exceeding maximum dimensions specified in (a)(6) of this table

To be determined by Planning Commission

N/A

(4)

Monument Sign over 6' in height and/or 60 sq. ft. in area

1 per nonresidential lot per street frontage

To be determined by Planning Commission

N/A

Figure 9-5.1607: Illustration of Projecting, Shingle, Monument, and Awning Signs

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1608 Sign Regulations in the RM Medium Density Residential Zone.

(a)    Permitted Signs. In addition to the exempt signs listed in Section 9-5.1605, commercial establishments are allowed one (1) sign of up to ten (10) square feet per establishment, subject to minor design review approval pursuant to Section 9-5.1612.

(b)    Standards for Specific Sign Types. Signs shall conform to the standards listed in Table 9-5.1607 except as modified by subsection (a) of this section.

(c)    Illumination. No sign illumination is permitted except downward facing indirect illumination. No sign shall be internally illuminated.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1609 Sign Regulations in All Other Zones.

(a)    Permitted Signs. In addition to the exempt signs listed in Section 9-5.1605, all sign types listed in Table 9-5.1607 are permitted, subject to the standards in the table. Sign types not listed in Table 9-5.1607, or signs not in conformance with the standards in Table 9-5.1607, may be considered on a case-by-case basis. If the applicant proposes that such signs be included in the aggregate sign area allowed by subsection (b) of this section, they may be considered by the Director under the minor design review procedure at Section 9-5.1612(b). If the applicant proposes that such signs not be included in the aggregate sign area allowed by subsection (b) of this section, they shall be considered by the Planning Commission under the major design review procedure at Section 9-5.1612(c).

(b)    Aggregate Sign Area.

(1)    Individual Establishments.

a.    The maximum aggregate sign area for individual establishments is one (1) square foot of sign area per linear foot of public frontage. “Public frontage” refers to either building frontage on a public street or, if the establishment does not front on a public street, the building facade of the establishment accessible to the public on which the main entrance to the establishment is located. In a multi-tenant property, the frontage is typically measured from lease-line to lease-line.

b.    If an establishment has frontage on more than one (1) public street or more than one (1) publicly accessible facade, all such frontages may be included in the calculation of aggregate sign area, except service roads, alleys, and similar accessways intended primarily for service vehicles.

c.    The following shall not be included in aggregate sign area:

i.    Exempt signs other than business signs.

ii.    Roof signs, high-rise identification signs, marquee signs, and entry gateway signs approved by the Planning Commission pursuant to Section 9-5.1612(c).

iii.    Signs that identify individual establishments but are part of the overall site signage of a Master Sign Program approved pursuant to Section 9-5.1613.

d.    For any individual establishment, the total area of all signs, including exempt business signs but excluding all other signs listed in subsection (b)(1)(c) of this section, shall not exceed the aggregate sign area calculated pursuant to this section.

(2)    Site Signage. The aggregate sign area allowance for sites with multiple individual establishments shall be determined on a case-by-case basis by the Planning Commission as part of the approval of a Master Sign Program. The aggregate sign area for overall site signage shall be no more than is necessary to adequately identify the site and its major tenants, and shall not include the aggregate sign area of individual establishments, as determined pursuant to subsection (b)(1) of this section.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1610 Temporary Commercial Signs.

Temporary commercial signs meeting the requirements of this section may be permitted in all zones other than the RM Medium Density Residential zone upon the approval of a minor design review permit pursuant to Section 9-5.1612(b). This section does not apply to temporary change of business signs, which are exempt from design review pursuant to Section 9-5.1605(f).

(a)    Number. A maximum of two (2) temporary commercial signs may be displayed by any individual establishment at the same time.

(b)    Area. The total area of all such temporary commercial signs shall not exceed thirty-two (32) square feet per individual establishment. This sign area shall not be included in the calculation of aggregate permanent sign area pursuant to Section 9-5.1609(b).

(c)    Materials. Temporary commercial signs shall be constructed of durable and attractive materials. Paper, cardboard, or other material subject to rapid deterioration shall not be used. Fabric and vinyl signs are permitted.

(d)    Location. Temporary commercial signs may be located anywhere on the site of the individual establishment, subject to minor design review approval. If located in windows or transparent doors, no more than twenty percent (20%) of the total area of any window or transparent door shall be covered by any combination of temporary commercial signs, exempt temporary window signs pursuant to Section 9-5.1605(s), and permanent window signs pursuant to (a)(7) in Table 9-5.1607.

(e)    Duration. The time limit for display of a temporary commercial sign shall be forty-five (45) days, which may be renewed for one (1) additional period of forty-five (45) days upon payment of a second application fee. Two (2) consecutive forty-five (45) day periods may be approved at one (1) time upon the payment of two (2) fees, but may not be further extended.

(f)    Illumination. Temporary signs shall not be illuminated.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014)

9-5.1611 Design Principles.

The following design principles shall be used as criteria for review and approval of design review for individual signs and Master Sign Programs.

(a)    Architectural Compatibility. A sign (including its supporting structure, if any) shall be designed as an integral design element of a building’s architecture and shall be architecturally compatible, including color and scale, with any building to which the sign is to be attached and with surrounding structures. A sign that covers a window or that spills over “natural” boundaries or architectural features and obliterates parts of upper floors of buildings is detrimental to visual order and generally is not permitted.

(b)    Legibility. The size and proportion of the elements of the sign’s message, including logos, letters, icons and other graphic images, shall be selected based on the average distance and average travel speed of the viewer. Sign messages oriented towards pedestrians may be smaller than those oriented towards automobile drivers. Colors chosen for the sign text and/or graphics shall have sufficient contrast with the sign background in order to be easily read during both day and night hours.

(c)    Design Guidelines. All signs shall be subject to the applicable provisions of the Emeryville Design Guidelines, including but not limited to those pertaining to signs and to the area of the City in which a proposed sign is to be located, and to any other applicable design guidelines.

(d)    Animated and Moving Signs. Animated, flashing, blinking, reflecting, revolving, or other similar signs, or signs with visibly moving or rotating parts or visible mechanical movement of any kind, are generally discouraged unless they add appropriate visual interest compatible with their surroundings.

(e)    Deviations from Design Principles. The Director may approve signs that do not adhere to the principles established in this section if he or she finds that the sign exhibits exceptional design quality or is of significance to the area where it will be displayed.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1612 Procedures for Individual Establishment Signs.

(a)    Application. Application for a design review permit for individual establishment signs shall be submitted to the Planning and Building Department on a form provided by the Director, accompanied by the fee as set forth in the Master Fee Schedule and application materials as determined necessary by the Director, including but not limited to the following:

(1)    A site plan that is fully dimensioned and drawn to scale showing all sign locations and elevations of buildings and signs.

(2)    A fully dimensioned color drawing of each proposed sign indicating construction details and sign copy.

(3)    Proposed colors, materials and methods of illumination.

(b)    Minor Design Review.

(1)    Types of Signs Eligible. The following types of signs shall be reviewed by the Director pursuant to the minor design review procedures in Article 4 of Chapter 7 and the applicable provisions of this article:

Wall signs.

Projecting signs.

Banner signs.

Shingle signs.

Awning signs.

Window signs.

Monument signs no more than six feet (6') tall and sixty (60) square feet in area.

Temporary commercial signs.

(2)    Findings. To approve a minor design review permit for individual establishment signs as listed in subsection (b)(1) of this section, all of the following findings must be made in addition to the findings required by Article 4 of Chapter 7:

a.    The proposed signs will comply with all the applicable provisions of this article, including but not limited to aggregate sign area, standards for specific sign types, and design principles.

b.    The size, materials, colors, graphic style, illumination and other features of the proposed signs are in keeping with the visual character of the area.

c.    The signs will be readable, taking into account the proportion between different parts of the sign, its visibility from important vantage points, and other relevant design features.

d.    The signs will relate well to the design of the building and be compatible with its architectural features, colors and textures.

Figure 9-5.1612(b): Examples of Individual Establishment Signs Allowed with Minor Design Review.*

* Note: This drawing is for illustrative purposes only; a typical establishment will not have all signs illustrated here. Total area of all signs may not exceed aggregate sign area pursuant to Section 9-5.1609(b).

(c)    Major Design Review.

(1)    Types of Signs Eligible. The following types of signs shall be reviewed by the Planning Commission pursuant to the major design review procedures in Article 4 of Chapter 7 and the applicable provisions of this article:

Roof signs.

High-rise identification signs.

Marquee signs.

Entry gateways.

Exterior LED signs.

(2)    Findings. To approve a major design review permit for individual establishment signs as listed in subsection (c)(1) of this section, all of the following findings must be made in addition to the findings required by Article 4 of Chapter 7:

a.    The proposed sign is necessary because of the nature of the establishment and its location.

b.    The proposed sign is no larger than is necessary to adequately identify the establishment, or the sign is of extraordinary design significance justifying its size.

c.    The proposed sign will comply with all the applicable provisions of this article, including but not limited to design principles.

d.    The size, materials, colors, graphic style, illumination and other features of the proposed sign are in keeping with the visual character of the area.

e.    The sign will be readable, taking into account the proportion between different parts of the sign, its visibility from important vantage points, and other relevant design features.

f.    The sign will relate well to the design of the building and be compatible with its architectural features, colors and textures.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1613 Master Sign Programs.

(a)    General.

(1)    When Required. A Master Sign Program is required for all developments including five (5) or more retail tenant spaces, and is optional for any other multi-tenant nonresidential or mixed use development.

(2)    Types of Signs Eligible. A Master Sign Program may include any type of sign eligible for individual establishment signs as indicated in Section 9-5.1612. In addition, the following types of signs may only be allowed as part of a Master Sign Program, and only as overall site signage for the development:

Ground signs.

Tower signs.

Wall signs exceeding maximum dimensions at (a)(6) in Table 9-5.1607.

Monument signs exceeding six feet (6') in height and/or sixty (60) square feet in area.

(b)    Application. Application for a Master Sign Program shall be submitted to the Planning and Building Department on a form provided by the Director, accompanied by the fee as set forth in the Master Fee Schedule and application materials as determined necessary by the Director, including but not limited to the following:

(1)    Text and drawings, including plans drawn to scale, which identify all signs proposed for the development, establishing their location, size, function and other characteristics needed to evaluate the extent of the signage proposed. Plans and drawings shall include a site plan, typical building elevations, and drawings of proposed overall site signage and generic sign types for individual establishments. Any anticipated recurring temporary signs shall be included.

(2)    Computation of allowable area for all signs for each individual establishment, and of total area of all proposed signage. Maximum allowable aggregate area for individual establishments shall be no more than allowed by Section 9-5.1609(b)(1). Maximum allowable aggregate area for overall site signage shall be in addition to this and shall be shown separately. The maximum area of such overall site signage shall be no more than is necessary to adequately identify the development and its major tenants.

(3)    Design criteria for individual establishment signs dealing with colors, materials, illumination, graphic styles, placement, size, and other pertinent sign features.

(4)    A written program of standards for individual establishment signs to be distributed to future tenants, including color, size, illumination, construction details, sign placement and size.

(c)    Findings. In order to approve a Master Sign Program, the Planning Commission must make all of the following findings in addition to the findings required by Article 4 of Chapter 7:

(1)    The proposed Master Sign Program will promote visual harmony and a cohesive appearance for the development while allowing an appropriate level of individuality for each establishment.

(2)    The proposed Master Sign Program will promote signs that relate well to the design of the buildings in the development in terms of compatibility with architectural features, colors and textures.

(3)    The proposed Master Sign Program will promote signage that is in keeping with the visual character of the surrounding area.

(4)    The total aggregate sign area allowed under the proposed Master Sign Program for each individual establishment does not exceed that allowed by Section 9-5.1609(b)(1).

(5)    The height, size, and total aggregate area of overall site signage allowed under the proposed Master Sign Program is no more than is necessary to adequately identify the development and its major tenants.

(6)    The proposed Master Sign Program will comply with all the applicable provisions of this article, including but not limited to standards for specific sign types and design principles.

(d)    Review of Individual Signs under a Master Sign Program. A proposal for individual signs under a Master Sign Program shall be reviewed by the Director for conformance with the requirements of the Master Sign Program and this article pursuant to the zoning compliance review procedures in Article 3 of Chapter 7. If the Director determines that the proposal conforms to the requirements of the Master Sign Program and this article, a zoning compliance approval shall be issued. If the Director determines that the proposal does not conform to the requirements of the Master Sign Program and this article, a zoning compliance approval shall not be issued, and the applicant shall be advised as to how the proposal could be brought into compliance. The Director’s determination of compliance or noncompliance may be appealed to the Planning Commission pursuant to Article 14 of Chapter 7.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1614 Nonconforming Signs.

(a)    Continuance and Maintenance. Nonconforming signs that were legal when first installed, and which have not been modified so as to become illegal, may be continued, and routine maintenance and repairs may be performed.

(b)    Alterations and Additions to Nonconforming Signs. No nonconforming sign shall be moved, altered, or enlarged unless required by law or unless the moving, alteration or enlargement will result in the elimination of the nonconformity.

(c)    Abandonment of Nonconforming Sign. Whenever a nonconforming sign has been abandoned, or the use of the property has been discontinued for a continuous period of ninety (90) days, the nonconforming sign shall be removed.

(d)    Restoration of a Damaged Sign.

(1)    Whenever a nonconforming sign is destroyed by fire or other calamity to the extent of fifty percent (50%) or less of the sign’s replacement value, the sign may be restored and the nonconforming use of the sign may be resumed; provided, that restoration is started within six (6) months of the damage and diligently pursued to completion.

(2)    Whenever a nonconforming sign is destroyed by fire or other calamity to a greater extent than fifty percent (50%) of the sign’s replacement value, or is voluntarily removed or is required by law to be removed, the sign shall not be restored except in full conformity with the requirements of this article.

(e)    Illegal Signs. A sign that was not legally established under the regulations that were applicable at the time it was established, whether before or after the adoption of these planning regulations, is an illegal sign. Any such illegal sign is hereby declared to be a public nuisance and shall be removed or legalized immediately.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-5.1615 Definitions.

(a)    Signs Generally. “Sign” means a structure, fixture, device, or material containing any combination of written copy, graphics, or symbols intended to promote a business, product, commodity, service, idea, or person, or to provide direction, identification, or information. “Sign” may include flags, streamers, pennants, banners, and balloons if their intent is as stated above. Noncommercial works of art, including but not limited to murals, are not signs.

(b)    Sign Types. The following definitions shall apply throughout this article, in addition to definitions contained elsewhere in this article, including, but not limited to, the prohibited signs listed in Section 9-5.1604 and the exempt signs listed in Section 9-5.1605.

(1)    “Animated sign” means a sign which, by method or manner of illumination, flashes on or off, or blinks with varying light intensity, shows motion or creates the illusion of motion, or revolves to create the illusion of being on or off.

(2)    “Awning sign” means a sign affixed permanently to the outside surface of an awning.

(3)    “Banner sign” means a sign made of fabric or any nonrigid material with no enclosing framework, usually supported by horizontal poles protruding from a building wall.

(4)    “Blade sign” means a projecting sign.

(5)    “Business sign” means a sign that directs attention to the principal business, profession or industry located on the premises where the sign is displayed, to products sold, manufactured or assembled, or to services or entertainment offered on such premises.

(6)    “Changeable copy sign” means a sign whose informational content can be changed or altered manually.

(7)    “Channel letters” means three (3) dimensional individual letters or figures, with an open back or front, illuminated or nonilluminated, that are affixed to a building or to a freestanding sign structure.

(8)    “Construction sign” means a temporary sign that describes in words and/or drawings a planned future development project on a property.

(9)    “Entry gateway sign” means a sign permanently affixed to an arch or other structure spanning over an entrance to a property.

(10)    “Freedom of speech sign” means a noncommercial sign expressing an idea.

(11)    “Freeway-oriented sign” means a sign that is oriented primarily to the traveling public using a freeway, and installed for the sole purpose of identifying major business locations in close proximity to the freeway.

(12)    “Ground sign” means a sign that is permanently supported upon the ground by poles or braces and is not attached to any building or other structure. These may include freestanding pole signs.

(13)    “High-rise identification sign” means a sign located on the top story of a building that is over seventy-five feet (75') tall and identifying the name of the building, its owner, a tenant of the building, or any entity associated with the building.

(14)    “Marquee sign” means a sign with a changeable message that advertises events, performances, or services, and that is displayed on a permanent structure made of rigid materials supported by and extending from the facade of a building.

(15)    “Monument sign” means a low-profile freestanding sign erected upon or supported solely by a planter, pedestal base, or similar ground structure approximately the same width as the sign.

(16)    “Moving sign” means a sign or any portion thereof that rotates, moves, or appears to move in some manner by mechanical, electrical, natural, or other means.

(17)    “Noncommercial sign” means a sign that does not promote a business, commodity, service, entertainment, product, or other attraction.

(18)    “Organization sign” means a sign that identifies a nonprofit or other noncommercial organization.

(19)    “Permanent sign” means a sign made of durable materials and intended to be displayed for an indefinite time period.

(20)    “Political sign” means a sign that promotes a political candidate, party, or issue.

(21)    “Projecting sign” means a sign, the surface of which is not parallel to the face of the supporting wall and which is supported wholly by the wall. This definition includes V- or wing-type signs. Also known as a “blade sign.”

(22)    “Roof sign” means a sign located above any portion of any roof of a building, including a canopy or other overhang.

(23)    “Shingle sign” means a sign that hangs from a canopy or awning or from the ceiling of an arcade or passageway.

(24)    “Temporary sign” means a sign that is intended to be displayed for a limited time period.

(25)    “Tower sign” means a sign that is supported by a tall framework or structure, whether or not attached to a building, typically intended to identify a multi-tenant commercial complex and its major tenants.

(26)    “Wall sign” means a sign painted on or affixed to, and wholly supported by, a building or other wall in such a manner that its exposed face is approximately parallel to the plane of such building or wall.

(27)    “Window sign” means a sign painted or installed on a glass window or door and intended to be seen from the exterior of the structure in which the window or door is located, or an interior sign located within two feet (2') of the inside of a window or door in a manner that it can be viewed from the exterior of the structure.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Article 17.    Telecommunications Facilities

9-5.1701 Purpose.

This article provides standards and procedures to regulate the development, siting, installation, and operation of wireless communications facilities, consistent with the applicable requirements of State and Federal law. The regulations are intended to provide for the appropriate development of wireless communications facilities within the City to meet the needs of residents, business owners, and visitors, while protecting public health and safety and preventing visual blight and degradation of the community’s aesthetic character, consistent with the General Plan.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1702 Applicability and Exemptions.

The requirements of this article apply to all wireless communications facilities as defined in Sections 9-2.603 and 9-5.1708.

(a) Exemptions. The following accessory facilities are exempt from this article:

(1)    Licensed amateur (ham) radio, citizen band operations and emergency services radio.

(2)    Handheld, mobile, marine, and portable radio transmitters and/or receivers.

(3)    Radio and television mobile broadcast facilities.

(4)    Communication equipment and storage devices, such as computer servers, in cabinets or rooms completely located inside of permitted structures.

(5)    A single ground- or building-mounted receive-only radio, television or wireless cable antenna not exceeding the maximum height permitted by Article 2 of Chapter 4, including any mast, or a receive-only radio or television satellite dish antenna, subject to the following restrictions in residential districts:

a.    Satellite Dish One (1) Meter or Less. A satellite dish that does not exceed one (1) meter in diameter and is for the sole use of a resident is permitted anywhere on a lot in a residential district so long as it does not exceed the height of the ridgeline of the primary structure on the lot.

b.    Antennas. An antenna that is mounted on any existing building or other structure that does not exceed twenty-five feet (25') in height is permitted. The antenna must be for the sole use of a resident living on the lot on which the antenna is located.

(6)    Any wireless communications facility that is exempt from local regulation pursuant to the rules and regulations of the Federal Communications Commission (FCC) or a permit issued by the California Public Utilities Commission (CPUC). The owner or operator of such facility shall provide the Director with a copy of a current FCC or CPUC permit or a copy of applicable FCC regulations prior to its installation.

(7)    Minor modifications to existing wireless communications facility, including replacement in kind or with smaller or less visible equipment, that meet the standards set forth in this article and will have little or no change in the visual appearance of the facility.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1703 Approval Procedure.

(a)    Zoning Compliance Review. A proposal for a wireless communications facility shall be reviewed by the Community Development Director, in consultation with the Chief Building Official, Fire Marshal and Public Works Director, for conformance with the provisions of this article pursuant to the zoning compliance review procedures in Article 3 of Chapter 7. If, after the receipt of a complete application, the Community Development Director determines that the proposal conforms to the requirements of this article, a zoning compliance approval shall be issued within the time frames set in the applicable Federal and/or State law, less ten (10) calendar days. If the Community Development Director determines that the application does not conform to the requirements of this article, a zoning compliance approval shall not be issued, and the applicant shall be advised as to how the proposal could be brought into compliance. The Community Development Director’s determination of compliance or noncompliance may be appealed to a hearing officer pursuant to subsection (c) of this section.

(b)    Waiver of Regulations. If applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of Federal law, or otherwise violate applicable law, applicant may request a waiver of the applicable provision or requirement it contends would cause such violation. The application must provide all information on which the applicant relies in support of that claim. Applicants are not permitted to supplement this showing if doing so would prevent the City from complying with any time frame for action on an application. The Community Development Director may grant or deny a request for a waiver pursuant to this subsection. The Community Development Director may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of a waiver, the City will be provided all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the permit sought. All waivers granted pursuant to this subsection shall be (1) granted only on a case-by-case basis, and (2) narrowly tailored to minimize deviation from the requirements of this article and other applicable City regulations. The Community Development Director’s granting or denial of a waiver may be appealed to a hearing officer pursuant to subsection (c) of this section.

(c)    Review of Community Development Director’s Determination. The applicant, the owner of the property, or any person aggrieved by the determination may appeal the Community Development Director’s determination made under either subsection (a) or (b) of this section to a hearing officer appointed by the City Manager by filing an appeal with the City Clerk within three (3) days of notice of the Community Development Director’s determination. In the event that the appeal period ends on a Saturday, Sunday or City holiday, the appeal period shall end at the close of business on the next City business day. The timely filing of an appeal shall stay all proceedings in the matter appealed, including, but not limited to, the issuance of building permits and business licenses. The appeal shall identify the determination being appealed, shall clearly and concisely state the reasons for the appeal, and include any relevant evidence or legal argument. When reviewing a determination on appeal, the hearing officer shall use the same standards for decision-making required for the original decision. The hearing officer may re-affirm, modify or reject the original determination. The hearing officer’s decision is final, subject only to judicial review. The hearing officer shall render his or her decision so that the final decision is issued within the time frames set in the applicable Federal and/or State law.

(Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1704 Application Requirements.

An applicant shall file a written application pursuant to the application procedures in Article 2 of Chapter 7 and any specific application requirements established by the Director for this use.

(a)    Co-location. The applicant and owner of any site on which a wireless communications facility is located shall cooperate and exercise good faith in co-locating other wireless communications facilities on the same support structures, and if not feasible, on other existing infrastructure. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and negotiations for erection of a replacement support structure to accommodate co-location. A competitive conflict to co-location, concern regarding return on investment, or financial burden caused by sharing information, or other nontechnical concerns normally will not be considered as an excuse to the duty of good faith.

(1)    All wireless communications facilities shall make available unused space for co-location of other wireless communications facilities, including space for those entities providing similar, competing services.

(2)    All co-located and multiple-user wireless communications facilities shall be designed to promote facility and site sharing. Telecommunications towers and necessary appurtenances, including but not limited to parking areas, access roads, utilities and equipment buildings, shall be shared by site users whenever possible.

(3)    No co-location is required where it can be shown that the shared use would or does result in significant interference in the broadcast or reception capabilities of the existing wireless communications facilities or failure of the existing facilities to meet Federal standards for emissions or cause the host to go offline for a significant period of time.

(4)    Failure to comply with co-location requirements when feasible or cooperate in good faith as provided for in this subsection is grounds for denial of a permit request or revocation of an existing permit.

(b)    If an applicant proposes a wireless communications facility which is not co-located with an existing wireless communications facility, the applicant shall provide an inventory of existing wireless communications facilities within one quarter (1/4) mile of the proposed site, including area which falls in a neighboring jurisdiction, and the applicant shall also provide an explanation as to why the proposed wireless communications facility cannot be co-located with an existing facility.

(c)    In addition to any other requirements, all wireless communications facilities applications shall, at a minimum, include the following information:

(1)    Report on Alternatives. A report explaining why the wireless communications facility is needed at the requested location. Any applicant seeking to construct a new transmission tower shall explain why co-location or location on another kind of support structure is not feasible, including efforts made to develop such an alternative. If the City has requested that the applicant co-locate its wireless communications facility on a site, the applicant shall explain why co-location is not feasible.

(2)    Wireless Communications Facility Plans. Plans shall include a fully dimensioned diagram of the proposed wireless communications facility, including height, shape, size and type of construction. Plans for a transmission tower must include information demonstrating that the structure will be able to accommodate at least one (1) other similar telecommunications provider. A diagram showing the separation between the proposed wireless communications facility and any existing facility or facilities on the same support structure or site is required if co-location is planned.

(3)    Site Plans. A fully dimensioned site/landscaping plan that includes: specific placement of the proposed tower, equipment shelters, and any other wireless telecommunications facility on the site; elevation drawings; setbacks from lot lines; the location of existing structures, trees, and other significant site features; notation of those features proposed to be removed; the type and locations of plant materials proposed to screen the facility; and the proposed materials and colors for the facility.

(4)    Visual Analysis. Photo-simulations showing views of the proposed wireless communications facility from surrounding residential properties and public rights-of-way at varying distances with a map indicating the locations used for the analysis and their distances from the site.

(5)    Documentation of Compliance. Copies of all applicable licenses or other approvals required by the FCC and any other agency with authority to regulate wireless communications facilities, including documentation of compliance with all conditions imposed in conjunction with such licenses or approvals, shall be provided. If these do not include an estimate of the anticipated radio frequency emissions, the applicant shall provide this separately.

(6)    Gap in Coverage. The applicant shall provide evidence to establish that the proposed wireless communications facility is necessary to fill a gap in coverage.

(7)    Owner’s Permission. If the applicant is not the owner of the property, the applicant shall furnish evidence of the property owner’s permission to install, construct and maintain the proposed wireless communications facility. For wireless communications facilities proposed to be located in the public right-of-way or on other City property located in the public right-of-way, the applicant shall submit a copy of the applicable City standard encroachment agreement signed by the applicant.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019. Formerly 9-5.1703)

9-5.1705 Development Requirements and Standards.

All wireless communications facilities shall be located, developed, and operated in compliance with all of the following standards and with applicable standards of the zoning district in which they are located:

(a)    Location and Siting.

(1)    No new transmission tower shall be located within one thousand feet (1,000') of an existing transmission tower, including existing transmission towers which are in other jurisdictions.

(2)    Pursuant to Section 6409 of the Federal Middle Class Tax Relief and Job Creation Act of 2012, any modification of a transmission tower which does not “substantially change” the tower is permitted.

(3)    All wireless communications facilities shall meet the building setback standards of the district in which they are proposed to be located.

(4)    Wireless communications facilities and equipment located in the public right-of-way shall be located, constructed, installed, and maintained in compliance with the applicable requirements of Title 7 and the following standards:

a.    Wireless communications facilities shall only be installed where they will not interfere with existing or future city uses of the right-of-way, the rights of private property owners, other utility fixtures and services, water hydrants or mains, wastewater stations, traffic control systems, or any other service or facility that benefits the City or its residents.

b.    Wireless communications facilities shall be installed within existing underground ducts or conduits whenever such ducts, conduits, manholes or other facilities have volume or capacity that is available or will be available for third-party facilities. Utility boxes, power units, and similar fixtures shall be installed completely underground, unless the Public Works Director finds that undergrounding would result in maintenance and operation problems that would interfere with service.

c.    Overhead components of wireless communications facilities must be installed on existing utility poles, if available, or replacement poles if the new pole has the same or better appearance than the existing pole.

d.    Overhead components of wireless communications facilities shall match the color of the pole or other structure to which they are attached.

e.    Overhead components of wireless communications facilities shall not be installed where a project has been implemented to remove existing overhead facilities.

f.    Pedestals, amplifier units, equipment cabinets, and similar above-ground installations shall, where feasible, be located at least six inches (6") from any sidewalk and two feet (2') from driveway and curb edges. They shall not be placed in front of the primary entrance to a residence or retail business or at any other location where they would unduly interfere with the operation of a business, including blocking views of the entrance or display windows.

g.    Prior to beginning any work in the public right-of-way, the applicant shall obtain an encroachment permit. Prior to issuance of any encroachment permit to install the proposed wireless communications facility, the applicant and the City must execute the applicable, City-standard encroachment agreement. Applicant must have a valid encroachment agreement consistent with Chapter 2 of Title 7 at all times the wireless communications facility is in the public right-of-way.

h.    Applicant shall be deemed responsible for any damage to public improvements that occurs during the construction of the proposed wireless communications facility, and shall repair such damage at its expense and to the satisfaction of the Public Works Director, including, but not limited to, sidewalk repair, street slurry seal or street reconstruction.

(b)    Height Requirements.

(1)    Wireless Communications Antennas on Buildings. See Article 2 of Chapter 4 for requirements regulating building height and projections above the top of buildings.

(2)    Other Wireless Communications Facilities. A freestanding wireless communications facility shall not exceed the height limit of the district in which it is located. When a wireless communications antenna is mounted on a structure which is not a building, it shall not exceed the height of the structure unless camouflaged as part of the structure design, nor shall it exceed the height limit of the district in which the structure is located.

(c)    Design and Screening. Wireless communications facilities shall be located, designed and screened to blend with the existing natural or built surroundings, as well as any existing support structures, so as to reduce visual impacts to the extent feasible. Equipment cabinets shall be located within the building upon which antennas are placed, if technically feasible. Otherwise, equipment cabinets, and associated equipment such as air conditioning units and emergency generators, shall be screened from view by a wall or landscaping, as approved by the Director.

(d)    Performance Standards. Wireless communications facilities shall comply with the performance standards listed in Article 11 of this chapter, including but not limited to noise standards.

(e)    Additional Regulations. The Community Development Director is authorized to adopt regulations to implement the development requirements and standards set forth in this article. Wireless communications facilities shall comply with these additional regulations at all times.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1706 Post-Installation Verification and Monitoring.

Post-installation verification and monitoring by qualified and objective third-party experts shall be required as follows:

(a)    Validation of Proper Operation. Within forty-five (45) days of commencement of operations, the permittee shall provide verification that the radio frequency levels comply with FCC regulations and that all equipment complies with City noise regulations.

(b)    Review Following One (1) Year. The permittee shall report to the City a measurement of radio frequency emissions one (1) year from the date of commencement of operation. Thereafter, such a report shall be available upon request by the City.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1707 Discontinuance of Use.

(a)    Prior to the issuance of a building permit, an applicant for a building permit to erect or install a wireless communications facility shall be required to post a cash or surety bond in a form and amount acceptable to the Director to cover removal costs of the wireless communications facility in the event that its use is abandoned or the approval is otherwise terminated.

(b)    The service provider shall notify the Director of the intent to vacate a site at least thirty (30) days prior to the vacation. The permit for any wireless communications facility that is not operated for a continuous period of twelve (12) months shall be deemed lapsed and the site will be considered abandoned unless:

(1)    The Director has determined that the same operator resumed operation within six (6) months of the notice; or

(2)    The City has received an application to transfer the permit to another service provider.

(c)    No later than ninety (90) days from the date the use is discontinued or the provider has notified the Director of the intent to vacate the site, the owner of the abandoned wireless communications facility or the owner of the property on which the facility is sited shall remove all equipment and improvements associated with the use and shall restore the site to its original condition. The owner may use any bond or other assurances provided by the operator to do so. The owner or his agent shall provide written verification of the removal of the facility within thirty (30) days of the date the removal is completed.

(d)    If the wireless communications facility is not removed within thirty (30) days after the permit has lapsed, the site shall be deemed to be a nuisance, and the Director may cause the facility to be removed at the owner’s expense or by calling any bond or other financial assurance to pay for removal. If there are two (2) or more users of a single transmission tower, then this provision shall apply to the abandoned facility but not become effective for the tower until all users cease using the tower.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

9-5.1708 Definitions.

As used in this article:

(a)    “Co-location” means the location of two (2) or more wireless communications facilities on a single support structure or otherwise sharing a common location. For the purposes of this article, co-location shall also include the location of wireless communications facilities with other facilities such as water tanks, light standards, and other utility facilities and structures.

(b)    “Wireless communications antenna” means the physical device through which electromagnetic, wireless telecommunications signals authorized by the Federal Communications Commission are transmitted or received. It includes antennas and related equipment which may include cable, conduit and connectors, equipment pads, shelters and cabinets, and access ladders. Antennas used by amateur radio operators are excluded from this definition.

(c)    “Wireless communications facility” is a facility containing equipment for the transmitting or receiving of electromagnetic radio frequency waves. It may include wireless communications antennas as defined above and may also include the pole or tower on which equipment is mounted.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 19-001, eff. Jan. 15, 2019; Sec. 3 (part), Ord. 19-002, eff. Mar. 7, 2019)

Article 18.    Emergency Shelters

9-5.1801 Purpose.

This article establishes regulations governing emergency shelters. The City finds it necessary to establish such requirements and criteria in the interest of the public health, safety and welfare.

(Sec. 2 (part), Ord. 14-003, eff. Apr. 17, 2014)

9-5.1802 Applicability.

This article shall apply to the establishment of all emergency shelters.

(Sec. 2 (part), Ord. 14-003, eff. Apr. 17, 2014)

9-5.1803 Approval Procedure.

(a)    Where Permitted by Right. In zoning districts in which emergency shelters are permitted by right, as indicated in Table 9-3.202, a proposal for an emergency shelter shall be reviewed by the Director, in consultation with the Chief Building Official and Fire Marshal, for conformance with the provisions of this article pursuant to the zoning compliance review procedures in Article 3 of Chapter 7. If the Director determines that the proposal conforms to the requirements of this article, a zoning compliance approval shall be issued. If the Director determines that the proposal does not conform to the requirements of this article, a zoning compliance approval shall not be issued, and the applicant shall be advised as to how the proposal could be brought into compliance. The Director’s determination of compliance or noncompliance may be appealed to the Planning Commission pursuant to Article 14 of Chapter 7.

(b)    Where Conditionally Permitted. In zoning districts in which emergency shelters require a conditional use permit, as indicated in Table 9-3.202, a proposal for an emergency shelter shall be considered by the Planning Commission pursuant to the major conditional use permit procedures in Article 5 of Chapter 7. In approving a conditional use permit for an emergency shelter, the Commission may designate reasonable conditions including, but not limited to, those deemed necessary to comply with the standards in Section 9-5.1804. The Commission’s decision may be appealed to the City Council pursuant to Article 14 of Chapter 7.

(Sec. 2 (part), Ord. 14-003, eff. Apr. 17, 2014)

9-5.1804 Standards.

Emergency shelters shall comply with all of the following standards:

(a)    Number of Beds. An emergency shelter may have up to sixty (60) beds.

(b)    Waiting Area. A waiting and intake area containing a minimum of ten (10) square feet per bed shall be provided.

(c)    Outdoor Activities: Outdoor activities, including but not limited to on-site waiting, client intake areas, and charitable food distribution, may only be conducted between the hours of 8:00 a.m. to 6:00 p.m. and shall be screened from public view to the extent feasible.

(d)    Location Requirement. No emergency shelter shall be established within three hundred feet (300') of any other emergency shelter. The distance between any two (2) emergency shelters shall be measured in a straight line, without regard to intervening structures, from the closest property line of each shelter.

(e)    Lighting. Adequate external lighting for security shall be provided.

(f)    Security. Parking and outdoor facilities shall be designed for security for residents, visitors and employees.

(g)    Management Plan. The shelter operator shall have a written management plan including provisions for staff training, neighbor relations, security, screening of residents to ensure compatibility with services provided at the facility, and programs for residents.

(h)    On-Site Staffing. A minimum of one (1) staff member per twenty (20) beds shall be on duty and awake when the facility is in operation.

(i)    Compliance with Federal, State, and Local Regulations. Emergency shelters shall comply with all Federal, State, and local licensing requirements.

(j)    Compliance with Life Safety Regulations. Emergency shelters shall comply with all applicable building, fire, and health and safety codes, including maximum occupancy restrictions.

(Sec. 2 (part), Ord. 14-003, eff. Apr. 17, 2014)

Article 19.    Development Impact Fees

9-5.1901 Authority and Reference to This Article.

This article may be referred to as the “Impact Fee Ordinance,” and is adopted pursuant to the authority of Article XI, Section 7 of the California Constitution, California Government Code Section 66000 et seq. (hereinafter “Mitigation Fee Act”), California Government Code Section 65000 et seq. (the planning and zoning law of the State of California), and in accordance with the findings set forth in the ordinance codified in this article.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1902 Purpose of Fees.

Pursuant to this article, the City has established fees which will be imposed upon projects for the purpose of mitigating the impacts that the projects have upon the City’s ability to provide public facilities.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1903 Use of Fees.

(a) The fees imposed by the City pursuant to this article, including any interest earning thereon, shall be used to pay, in whole or in part, the estimated reasonable cost of providing specified public facilities, as described in implementing resolutions; to reimburse the City for the cost of specified public facilities constructed by the City with funds from other sources; and to make reimbursement payments in accordance with Section 9-5.1915.

(b) As described in each implementing resolution, the specified public facilities will be categorized into separate and distinct sets of public facilities based upon the type of public facility to be provided, or other identifying features. Each separate set of specified public facilities described in an implementing resolution shall be referred to in this chapter as a “public facility category.” Public facility categories include, but are not limited to: transportation and park and recreation facilities.

(c) For each separate public facility category, a separate fee shall be calculated and imposed, and each separately imposed fee shall be collected by the City and deposited in a separate and distinct “fee fund,” subject to the accounting requirements of the Mitigation Fee Act.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1904 Calculation of Fees by Implementing Resolutions.

Pursuant to the Mitigation Fee Act, in any action establishing, increasing, or imposing a fee as a condition of approval of a project, a technical report shall be prepared for each public facility category, subject to City Council approval by implementing resolution.

Each implementing resolution shall include the following:

(a) Identify the purpose of the fee by identifying the estimated types and quantities of projects subject to the fee, and the public facility category to be funded by the fees.

(b) Identify the use of the fee by identifying the specified public facilities to be funded by the fees.

(c) Determine how there is a reasonable relationship between the City’s use of the fee and the types of projects on which the fee is to be imposed by demonstrating how the project will benefit from the specified public facilities to be funded by the fees.

(d) Determine how there is a reasonable relationship between the need for the specified public facilities and the types of projects on which the fee is to be imposed, be demonstrating how the project creates a demand for the construction of the specified public facilities to be funded by the fees.

(e) Determine how there is a reasonable relationship between the amount of the fee and the cost of the specified public facility attributable to the project on which the fee is to be imposed. This shall include two (2) elements: (1) a quantification of the estimated reasonable cost of providing the specified public facility, which may include the estimated costs of land acquisition, design, construction, construction administration, general administration (including establishment and enforcement) of the fee program, and contingencies; and (2) an identification of the method by which the City quantified the proportionate responsibility of each project for the cost of the specified public facilities, which may be satisfied by establishing a formula which reasonably quantifies the proportionate responsibility of various types of projects using standardized units of measurement.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1905 Obligation to Pay Fees.

(a) Each applicant for City approval of a project (including applications for a change of use and remodels) shall pay impact fees to the City, in accordance with the amounts set forth in implementing resolutions, unless the applicant establishes, to the satisfaction of the Director, entitlement to a fee adjustment pursuant to Section 9-5.1908, a fee exemption pursuant to Section 9-5.1909, or approval of a fee credit pursuant to Section 9-5.1913.

(b) The obligation to pay impact fees pursuant to this article shall not replace an applicant’s obligation to mitigate development project impacts in accordance with other requirements of State or local law, or to otherwise comply with applicable City site development standards (Chapter 4 of Title 9 of the Planning Regulations), Citywide use and development regulations (Chapter 5 of Title 9 of the Planning Regulations), or subdivision requirements (Chapter 6 of Title 9 of the Planning Regulations).

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1906 Timing of Payment.

(a) At Permit Issuance. Except as otherwise provided in this section, the fees for each project shall be paid in full prior to the issuance of the permit required for that project.

(b) After Permit Issuance. Upon application by an applicant, and approval by the Director, the fees for a project may be paid as follows:

(1) For projects that include residential dwelling units, if application of this subsection (b)(1) is specifically requested by the applicant, fees shall be paid before: (a) final inspection, or (b) issuance of a certificate of occupancy, whichever occurs first. The amount of the fee to be paid shall be the amount of the fee in effect on the date of permit issuance. Notwithstanding the foregoing, the Director may deny the application to defer payment of fees for a residential project that does not meet the criteria set forth in California Government Code Section 66007(b)(2)(A) pertaining to lower income affordable housing, and thus require the earlier payment of fees only if the criteria set forth in California Government Code Section 66007(b)(1) is satisfied.

(2) For any nonresidential project, fees shall be paid in their entirety on a date before the project receives (a) its final inspection, or (b) its certificate of occupancy, whichever occurs first. However, the amount of the fee to be paid for a project shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the City.

(c) Implementation. The Director shall develop an application form for applicants to request payment of fees after permit issuance pursuant to subsection (b) of this section and shall establish departmental guidelines for approval or denial of such applications.

The Director is authorized to execute and approve an application under this subsection (c).

(d) Compliance. No City official may issue a permit with respect to a project unless the fees required by this article have been paid as required by subsection (a) of this section or an application meeting the criteria set forth in subsection (c) of this section has been approved by the Director in connection with the project. No City official may certify final inspection or issue a certificate of occupancy for a project, or otherwise allow occupancy of a project, until the fees required by this article with respect to such project are paid in accordance with this section.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1907 Amount of Payment.

(a) The amount of any fee to be paid for a project shall be the amount of the fee in effect, pursuant to implementing resolution, on the date of permit issuance. However, for any project besides one covered by Section 9-5.1906(b)(1), if any fee is paid after the date of permit issuance in accordance with an application approved by the Director pursuant to Section 9-5.1906(c), then the amount of the fee shall be the amount in effect, pursuant to implementing resolution, at the time that full payment is made to the City.

(b)    The amount of any fee to be paid in connection with a change of use shall be: (1) the amount of the fee required pursuant to subsection (a) of this section for the proposed use, (2) minus a credit for the amount of the fee for the last legal use of the existing structure pursuant to subsection (a) of this section, whether or not such fee was actually paid. This credit shall not apply to the affordable housing impact fee required by Article 4 of this chapter.

(c) The amount of any fee to be paid in connection with a remodel shall be the amount of the fee required pursuant to subsection (a) of this section for that portion of the remodel which generates impacts greater than the last legal use of the existing structure.

(d) In the event that the land use of a project is not included in the implementing resolution for determination of the amount of the fee, the Director shall determine their fee as set forth in the implementing resolution.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014; Sec. 3, Ord. 17-005, eff. June 15, 2017)

9-5.1908 Fee Adjustments by the City.

The City reserves the right to update and adjust each fee from time to time, in accordance with the Mitigation Fee Act. The fee in effect at the time any applicant has obtained a vested development right shall be subject to adjustment by the City, as incorporated in updated implementing resolutions in effect at the time that full payment of the fee is made, based upon any or all of the following criteria:

(a) Adjustments in the amount of the estimated construction costs of providing the specified public facilities based upon adjustments in accordance with the inflation index.

(b) Adjustments to replace estimated costs with actual costs (including carrying costs) of providing the specified public facilities.

(c) Adjustments to reflect more accurate cost estimates of providing the specified public facilities based upon more detailed analysis or design of the previously identified specified public facilities.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1909 Exemptions.

(a) Residential projects are exempt from impact fees for any remodel, as long as it does not result in a change of use.

(b) A project shall be exempt from the requirements of this impact fee ordinance if the applicant provides documentation, to the satisfaction of the Director, of Federal, State, or local law (including a duly adopted resolution of the City Council) which established entitlement to the exemption.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1910 Request for Refund.

An applicant may request a refund of a fee previously paid in accordance with this article, and the Director may approve said refund, only if the applicant provides written documentation to the satisfaction of the Director that: (a) the permit (including and planning permit or City approval on which the fee was imposed) is canceled or voided, and (b) work has not progressed on the permit which would allow commencement of a new use or change of use, and (c) the City has not already committed the fees to the construction of public facilities. Any refund made pursuant to this subsection shall include a deduction to cover the City’s administrative costs of processing the refund.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1911 Application for Potential Credit.

An applicant may be eligible for a credit against impact fees otherwise owed, in return for providing a specified public facility to the City, only if the applicant submits a written application to the Director which establishes compliance with all of the following requirements to the satisfaction of the City Council:

(a) Describe the specified public facilities (or portion thereof) proposed to be provided by the applicant, with a cross-reference to the description of the specified public facilities in the relevant implementing resolution.

(b) Identify the estimated cost of providing the specified public facilities (including construction, design, and/or land acquisition) for which the applicant is requesting credit.

(c) Describe the project or projects to which the fee credit is requested to apply. The description shall be limited to all or a portion of the project for which specified public facilities are a condition of approval.

(d) Document that either: (1) the applicant is required, as a condition of approval for the project, to construct the specified public facilities; or (2) the applicant requests to build one or more specified public facilities which benefit the project, and the City Council determines by resolution prior to the commencement of construction that it is in the City’s best interests for the specified public facilities to be built by the applicant.

(e) To the extent that credit for land acquisition costs are requested, document that: (1) the location of the land is advantageous to the public facility needs of the City; and (2) the amount of credit for the land acquisition is equal to a reasonable estimate of the fair market value of the land based upon either: (a) documentation provided by the applicant to the City, or (b) in the event that the City determines that the documentation provided by the applicant does not provide a reasonable basis for determining the fair market value of the land, the applicant shall pay for the costs of a property appraisal by an expert selected by the City which is qualified to express an opinion as to the value of the property (pursuant to California Civil Procedure Code Section 1255.010).

(f) Notwithstanding the foregoing, no credit shall be provided against impact fees otherwise owed if an applicant has received a development bonus in accordance with Section 9-4.204 of these planning regulations for providing the specified public facility.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1912 Timing of Application for Potential Credit.

The application for credit shall be submitted by the applicant to the Director in accordance with the following timing requirements: (a) to the extent that the applicant requests credit for design or construction, the application shall be submitted concurrently with the submittal of improvement plans; (b) to the extent that the applicant requests credit for land dedication, the application shall be submitted prior to the recordation of a final map or parcel map for the project. The applicant may submit a late application only if the applicant establishes, to the satisfaction of the City, that, in light of new or changed circumstances, it is in the City’s best interests to allow the late application.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1913 Amount of Potential Credit.

In the event that the City determines that the applicant has submitted a timely application in compliance with Section 9-5.1912, and it is in the City’s best interest to allow the applicant to provide the proposed specified public facility, the applicant shall be entitled to credit against fees otherwise owed in accordance with this article; provided, that the applicant enters into a public improvement agreement with the City approved by resolution of the City Council which includes the following essential terms:

(a) The design of the specified public facility is approved by the City.

(b) The applicant agrees to provide the specified public facilities in return for the credit to be allocated in accordance with the terms of the public improvement agreement and this article.

(c) The amount of credit available to the applicant shall not exceed the lesser of: (1) the applicant’s actual cost of providing the specified public facility, to be evidenced by the submittal of written documentation to the satisfaction of the City, and (2) the estimated cost of providing the specified public facility, as identified in the implementing resolution.

(d) The amount of credit available to the applicant for land dedication shall be equal to the amount identified in Section 9-5.1911(e).

(e) The land to be dedicated to the City shall not contain hazardous substances, waste or materials, as defined by State or Federal law, including petroleum, crude oil or and fraction thereof, or shall otherwise be remediated in accordance with a cleanup plat approved by the City and applicable State or Federal regulatory agencies to a level suitable for the intended use. Further, the applicant shall agree to thereafter defend, indemnify, and hold the City harmless from all demands, claims, orders, costs, expenses, fees, penalties, and causes of action related to hazardous substances, waste or materials, as defined by State or Federal law, including petroleum, crude oil or and fraction thereof, located on or emanating from the property.

(f) The applicant provides improvement security in a form and amount acceptable to the City.

(g) The applicant agrees to pay prevailing wages for all public works as defined in the California Labor Code related to the specified public facility. The requirement for payment of prevailing wages shall be limited to the construction of the specified public facility for which a fee credit is granted, unless an exception to prevailing wage requirements applies under the California Labor Code, in which case the requirement for prevailing wages shall not apply.

(h) The applicant identifies the project to which the credit will be applied.

(i) The credit may only be applied to fees which would otherwise be owed for the public facility category relevant to the specified public facility.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1914 Request for Reimbursement.

To the extent that the applicant has a balance of credit available, the applicant may be entitled to potential reimbursement from the City only if the applicant submits a written request to the Director which establishes the following:

(a) The request shall be made no later than one hundred eighty (180) days after the later to occur of: (1) issuance of the last permit within the project for which the application for credit was made, or (2) the date of the City’s acceptance of the specified public facilities as complete.

(b) The request shall identify the specific dollar amount of the credit balance for which the applicant requests reimbursement, along with documentation in support thereof. This documentation shall include a calculation of the total credit available (pursuant to Section 9-5.1913(c)) less amount of credit previously allocated to offset fees pursuant to Section 9-5.1913(h).

(c) The request must include a designation of the name and address of the legal entity to which reimbursement payments are to be made.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1915 Allocation of Reimbursements.

(a) In the event the Director determines that the applicant has properly submitted a request for reimbursement pursuant to Section 9-5.1914, the Director shall prepare a written determination to be approved by resolution of the City Council which will identify the dollar amount of the reimbursement. The dollar amount of the reimbursement shall be based upon the amount specified in the applicant’s request, not to exceed the actual credit available to the applicant, less the total of all credit allocations to offset fees pursuant to Section 9-5.1913, as determined by the City.

(b) The City shall make reimbursement payments to the applicant or the entity identified by the applicant pursuant to Section 9-5.1914(c). The right to receive reimbursement payments, if any, shall not run with the land.

(c) The City shall make reimbursement payments pursuant to a schedule approved by resolution of the City Council, and consistent with the approved capital improvement program. No interest shall accrue on the amount subject to reimbursement. The City shall not make and shall have no obligation to make reimbursement payments to an applicant from any source other than the relevant fee fund, nor shall any reimbursement be made in excess of the amount of fees deposited in the relevant fee fund.

(d) No reimbursement payment shall be made to an applicant until after the completion of construction by the applicant and acceptance of improvements by the City.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1916 Notice of Protest Rights.

(a) Each applicant is hereby notified that, in order to protest the imposition of any impact fee required by this article, the protest must be filed in accordance with the requirements of this article and the Mitigation Fee Act. Failure of any person to comply with the protest requirements of this article or the Mitigation Fee Act shall bar that person from any action or proceeding or any defense of invalidity or unreasonableness of the imposition. Notwithstanding language to the contrary, the provisions of Article 14 of Chapter 7 of Title 9 of these Planning Regulations and Chapter 4 of Title 1 of the Emeryville Municipal Code shall not apply to a protest of the imposition of any impact fee required by this article.

(b) On or before the date on which payment of the fee is due, the applicant shall pay the full amount required by the City and serve a written notice to the Director with all of the following information: (1) a statement that the required payment is tendered, or will be tendered when due, under protest; and (2) a statement informing the City of the factual elements of the dispute and the legal theory forming the basis for the protest.

(c) After receipt of the notice from the applicant, and prior to the informal hearing to be scheduled in accordance with Section 9-5.1917, the Director shall investigate the factual and legal adequacy of the applicant’s protest. At the request of the Director, the applicant shall provide additional information or documentation in substantiation of the protest.

(d) The applicant shall bear the burden of proving, to the satisfaction of the Director, entitlement to a fee adjustment. The evidence (information and documentation) to be submitted by the applicant in support of the protest shall include, but not be limited to, an identification of the amount of the fee which the applicant alleges should be imposed upon the project, and all factual and legal bases for the allegation. The applicant shall identify each portion of this impact fee ordinance and any implementing resolution which the applicant claims supports the allegation. The applicant shall identify each portion of this impact fee ordinance (in particular the elements summarized in Section 9-5.1904) and each portion of any implementing resolution (in particular the technical reports incorporated therein) which the applicant claims fails to support the City’s imposition of the fee upon the project.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1917 Informal Hearing.

(a) The Director shall schedule an informal hearing regarding the protest, to be held no later than sixty (60) days after the imposition of the impact fees upon the project, and with at least ten (10) days’ prior notice to the applicant (unless either dates are otherwise agreed by the Director and the applicant).

(b) During the informal hearing, the Director shall consider the applicant’s protest, relevant evidence assembled as a result of the protest, and any additional relevant evidence provided during the informal hearing by the applicant and the City. The Director shall provide an opportunity for the applicant to present additional evidence at the hearing in support of the protest. However, in weighing relevant evidence, the Director may consider the extent to which the applicant provided requested substantiating evidence prior to the hearing.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1918 Director’s determination.

When the Director determines that sufficient evidence has been submitted to decide the protest, the Director shall close the informal hearing and issue a written determination regarding the protest. The Director may continue the informal hearing in order to assemble additional relevant evidence. The Director’s determination shall support the fee imposed upon the project unless the applicant establishes, to the satisfaction of the Director, entitlement to an adjustment to the fee.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1919 Appeal of Director’s Determination.

Any applicant who desires to appeal a determination issued by the Director pursuant to Section 9-5.1918 shall submit a written appeal to the Director and the City Manager. A complete written appeal shall include a complete description of the factual elements of the dispute and the legal theory forming the basis for the appeal of the Director’s determination. An appeal received by the City Manager more than ten (10) calendar days after the Director’s determination may be rejected as late. Upon receipt of a complete and timely appeal, the City Manager shall appoint an independent hearing officer to consider and rule on the appeal.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1920 Appeal Hearing.

The independent hearing officer shall, in coordination with the applicant and the Director, set the time and place for the appeal hearing, and provide written notice thereof. The independent hearing officer may issue directives related to the conduct of the hearing in an effort to facilitate resolution of the dispute or narrow the issues in dispute, including prehearing or post-hearing briefs pursuant to a briefing schedule, and scheduling presentation of evidence during the hearing. The independent hearing officer shall consider relevant evidence, provide an opportunity for the applicant and the City to present additional noncumulative evidence at the hearing, and preserve the complete administrative record of the proceeding.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1921 Decision of Independent Hearing Officer; Judicial Review.

(a) Within thirty (30) days after the independent hearing officer closes the hearing and receives post-hearing briefs (if any), the independent hearing officer shall issue a written decision on the appeal hearing which shall include a statement of findings of fact in support of the decision and notice that the time within which judicial review must be sought is governed by this section. The written decision shall be mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the applicant. The independent hearing officer’s discretion shall be limited to a determination that either supports the Director’s determination or orders the City to refund all or a portion of the impact fees to the applicant. The applicant shall bear the burden of proving entitlement to a fee adjustment. The decision of the hearing officer is final and conclusive, and is subject to judicial review only in accordance with subsection (b) of this section.

(b) Judicial review of any decision of the hearing officer may be had pursuant to California Civil Procedure Code Section 1094.5 only if the petition for writ of mandate is filed no later than the ninetieth (90th) calendar day following the date the decision of the hearing office is provided to the applicant as provided in subsection (a) of this section.

(c) If the applicant files a request for the record, as specified in subsection (d) of this section, within ten (10) calendar days after the date the decision of the hearing officer is provided to the applicant as provided in subsection (a) of this section, the time within which a petition pursuant to California Civil Procedure Code Section 1094.5 may be filed shall be extended to not later than the thirtieth (30th) calendar day following the date on which the record is either personally delivered or mailed to the applicant or his or her designee.

(d) The complete record of the proceedings shall be prepared by the City Clerk and shall be delivered to the applicant within ninety (90) calendar days after a written request therefor has been filed by the applicant with the City Clerk. The City may recover from the applicant its actual costs for transcribing or otherwise preparing the record. Such record shall include the transcript of the proceedings, all pleadings, all notices and orders, any proposed or tentative decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the City or hearing officer, all written evidence, and any other papers in the case.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1922 Costs of Protest.

The applicant shall pay all City costs related to any protest or appeal pursuant to this article, in accordance with the fee schedule adopted by the City. At the time of the applicant’s protest, and at the time of the applicant’s appeal, the applicant shall pay a deposit in an amount established by the City to cover the estimated reasonable cost of processing the protest and appeal. If the deposit is not adequate to cover all City costs, the applicant shall pay the difference within twenty (20) days after receipt of written notice from the Director.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1923 Applicant’s Acknowledgment of Adjustment or Waiver.

As a condition of any adjustment or waiver made for a fee imposed upon a particular project, the applicant may be required by the Director or the independent hearing officer to provide an acknowledgment and waiver, in a form acceptable to the Director, of any further right to protest or appeal the City’s imposition of fees for that project.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

9-5.1924 Definitions.

As used in this article, all words, phrases, and terms shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise defined herein.

(a) “Applicant” means any person, or other legal entity, which applies to the City for approval of a development project.

(b) “Change of use” means any proposed use of an existing structure (or a previously existing structure) on a parcel which: (1) requires a building permit, planning permit, or other permit or City approval, and (2) the proposed use is included in a different property use category (as defined in implementing resolutions) than the last legal use of the existing structure, and (3) the proposed use results in impacts greater than the last legal use of the existing structure.

(c) “Fee” means, for the purpose of this article, a development impact fee imposed by the City in accordance with this article.

(d) “Fee fund” means each of the separate and distinct funds into which fees for each public facility category are deposited.

(e) “Impact fee ordinance” means this article.

(f) “Implementing resolution” means a resolution of the City Council of the City of Emeryville, including any technical report incorporated by reference, in which the findings specified in Section 9-5.1904 are made for each public facility category.

(g) “Inflation index” means a recognized standard index (such as the Consumer Price

Index), as determined by the City Council to be a reasonable method of calculating the impact of inflation upon cost estimates set forth in implementing resolutions.

(h) “Mitigation Fee Act” means California Government Code Section 66000 et seq.

(i) “Permit” means the City building permit required for a project, or, if the project consists of a change of use for which no building permit is required, a zoning compliance review or any other permit or City approval required for the change of use.

(j) “Project” means any project as defined in Section 9-8.216(qq), and shall specifically include any building permit, planning permit, or any other permit or City approval required for a change of use. Project shall specifically include any change of use or remodel.

(k) “Public facility” means any public improvements, public services, or community amenities, as defined by the Mitigation Fee Act, including, but not limited to: transportation improvements, park and recreation facility improvements, and any similar public improvement for which the City has adopted an implementing resolution pursuant to this article.

(l) “Public facility category” means a separate and distinct set of public facilities as described in Section 9-5.1903(b).

(m) “Remodel” means any proposed improvement or reconstruction of an existing structure (or a previously existing structure) on a parcel which: (1) requires a building permit, planning permit, or other permit or City approval, and (2) results in impacts greater than the last legal use of the existing structure.

(n) “Specified public facility” means those public facilities described in each implementing resolution, the total program costs of which are used as the basis for the calculation of a fee, as described in Section 9-5.1904.

(o) “Vested development rights” means an applicant’s right to proceed with development of a development project in substantial compliance with the local ordinances, policies, and standards in effect at the time that the rights vest, as the term is defined in the vesting tentative map statutes (California Government Code Sections 66498.1 through 66498.9), development agreement statutes (California Government Code Sections 65864 through 65869.5), and State law.

(Sec. 3 (part), Ord. 14-008, eff. Aug. 14, 2014)

Article 20.    Multi-Unit Residential Developments

9-5.2001 Purpose.

This article establishes regulations for multi-unit residential developments. The purpose of these regulations is to help achieve the goals, objectives, and policies of the Housing Element of the General Plan to promote family-friendly, affordable housing by establishing minimum standards for unit mix and design, and providing incentives for affordable and ownership housing.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2002 Applicability.

Except as otherwise stipulated, the provisions of this article apply to any proposal to develop a multi-unit residential use, as defined in Section 9-2.207.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2003 Unit Mix.

Multi-unit residential developments of ten (10) units or more shall comply with the following requirements:

(a)    No fewer than fifty percent (50%) of all units in the development shall have two (2) or more bedrooms, including units with three (3) or more bedrooms as required by subsection (b) of this section.

(b)    No fewer than fifteen percent (15%) of all units in the development shall have three (3) or more bedrooms.

(c)    No more than ten percent (10%) of all units in the development shall be studio units.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2004 Design.

(a)    All multi-unit residential developments shall be subject to the applicable provisions of the Emeryville Design Guidelines, including but not limited to those pertaining to residential use types, as required by Article 4 of Chapter 7.

(b)    In addition to the requirements of subsection (a) of this section, all multi-unit residential developments of ten (10) units or more shall comply with the applicable provisions of the Emeryville Design Guidelines pertaining to family-friendly residential site and building design, and all units required by Section 9-5.2003 shall comply with the applicable provisions of the Emeryville Design Guidelines pertaining to family-friendly residential unit design.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2005 Exceptions.

Exceptions to the unit mix and design requirements of Sections 9-5.2003 and 9-5.2004, respectively, may be approved upon the granting of a conditional use permit by the City Council upon a recommendation of the Planning Commission. Examples include, but are not limited to, senior housing, special needs housing, and multi-generational housing. To grant such a conditional use permit, the following finding must be made in addition to the findings required by Article 5 of Chapter 7:

(a)    There is a demonstrated need for a housing type or types that deviate from the unit mix and/or design requirements of this article. The importance of meeting this need outweighs the importance of compliance with these requirements.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2006 Affordable Housing.

(a)    Projects Not Seeking Development Bonuses. Multi-unit residential projects not seeking development bonuses, either pursuant to Section 9-4.204 or Article 5 of Chapter 5, shall pay the affordable housing impact fee pursuant to the requirements of Section 9-5.406, or may propose to provide affordable units in the project pursuant to the requirements of Section 9-5.407.

(b)    Projects Seeking Development Bonuses. Multi-unit residential projects seeking development bonuses, either pursuant to Section 9-4.204 or Article 5 of Chapter 5, shall be exempt from the affordable housing impact fee requirements of Section 9-5.406, but shall provide affordable units in the project pursuant to the applicable provisions of Section 9-4.204 or Article 5 of Chapter 5.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2007 Ownership Housing.

Multi-unit residential projects seeking development bonuses pursuant to Section 9-4.204 shall be subject to the following requirements for ownership housing:

(a)    Condominium Map Required. A subdivision map for the purposes of creating condominium units shall be submitted and considered for approval concurrently with applications of other planning permits required for the project. The final subdivision map creating the condominium units shall be recorded prior to issuance of a certificate of occupancy for the project.

(b)    Project May Be Operated as Rental. Notwithstanding the requirements of subsection (a) of this section, the developer may retain ownership of all units and operate the project as a rental project. In this case, the requirements of Section 9-4.204 and Article 4 of Chapter 5 for rental residential projects shall apply.

(c)    Requirements for Ownership Projects. If the developer elects to sell the individual units and operate the project as an ownership project, the following requirements shall apply:

(1)    The requirements of Section 9-4.204 and Article 4 of Chapter 5 for ownership residential projects shall apply.

(2)    Covenants, conditions and restrictions shall be recorded that include the current basic eligibility requirements of the Federal Housing Administration (FHA) for condominium project approval, including, but not limited to, requirements for owner occupancy and limitations on investor ownership and commercial space.

(d)    Conversion to Ownership Project. Pursuant to the applicability provisions of Section 9-6.702, if a project that had been operated as a rental project pursuant to subsection (b) of this section is later converted to an ownership project through the sale of units, the residential condominium conversion requirements in Article 7 of Chapter 6 shall apply.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-5.2008 Transportation Demand Management.

Multi-unit residential developments of ten (10) units or more shall comply with the following transportation demand management (TDM) requirements.

(a)    TDM Plan. As part of the development application, the developer shall submit a TDM plan for approval by the Planning Commission or City Council, as the case may be, in conjunction with approval of the development. Compliance with the approved TDM plan shall be a condition of approval of the development. The TDM plan shall be implemented for a minimum of forty (40) years following issuance of a certificate of occupancy. The primary goal of the TDM plan shall be to ensure that the average vehicle miles traveled (VMT) by residents of the development is less than the average citywide VMT. Such plan may include, but is not limited to, free transit passes for residents, free car sharing memberships for residents, free bike sharing memberships for residents, transportation information displays, and transportation information packets for residents. The plan shall include an annual survey of residents of the development to measure the plan’s success at achieving its primary goal; such annual surveys shall be made available to the Community Development Director upon request. The Community Development Director may require modifications to the plan if it does not appear to be meeting its primary goal based on the annual survey.

(b)    GreenTRIP Certification. Residential developments that obtain GreenTRIP certification from TransForm, or other equivalent certification, prior to issuance of a certificate of occupancy shall be deemed to have met the requirement for a TDM plan in subsection (a) of this section.

(Sec. 8 (part), Ord. 15-009, eff. Dec. 3, 2015)

Article 21.    Short-Term Rentals

9-5.2101 Purpose.

The purpose of this article is to establish criteria and procedures for rental of all or part of a dwelling unit for fewer than thirty (30) days. The City finds it necessary to establish such requirements to regulate short-term rentals in the interest of the public health, safety, and welfare.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2102 Permit Required.

No person shall establish, operate, or maintain a short-term rental without first obtaining a valid short-term rental permit pursuant to this article.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2103 Where and How Permitted.

Short-term rentals are permitted only in single-unit detached houses, and only as an accessory use. All other short-term rental of dwellings and parts of dwellings is prohibited. This article is not to be construed to prohibit weekly rentals in Group Residential uses. By issuing a short-term rental permit, the City is not conferring a vested right.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2104 Standards.

All short-term rentals shall conform to the following standards:

(a)    Nonhosted short-term rental of an entire single-unit detached house is limited to a total of ninety (90) calendar days per permit term. Portions of calendar days shall count as full days.

(b)    Short-term rental of part of a single-unit detached house must be hosted; the primary, permanent resident shall continue to occupy the single-unit detached house in his/her usual manner, while operating the short-term rental of a room or other space that is a portion of the dwelling.

(c)    The house that includes the short-term rental must be the permittee’s primary, permanent residence.

(d)    If the permittee is not the owner, the permittee must have the owner’s written permission to operate a short-term rental on the property.

(e)    The dwelling must have a smoke detector, a fire extinguisher, a carbon monoxide detector, and adequate egress, as determined by the Chief Building Official.

(f)    The permittee shall post a diagram of exits, fire extinguisher locations, Fire and Police Department phone numbers, the operator’s contact information, and the City noise ordinance hours.

(g)    The permittee must obtain and maintain a current business tax certificate and pay transient occupancy tax as may be required by the Emeryville Municipal Code.

(h)    The operator must inform and update the City regarding what advertising platforms are used to advertise the unit or room for short-term rental.

(i)    The short-term rental shall not result in a nuisance.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2105 Application.

Application for a short-term rental permit shall be submitted to the Planning Division on a form provided by the Director, accompanied by a fee as set forth in the master fee schedule and application materials as determined necessary by the Director, including but not limited to the following, all including the applicant’s name and the address of the dwelling where the short-term rental would occur:

(a)    Driver’s license or State identification card;

(b)    If the operator/permanent primary occupant is not the owner, written permission from the owner to operate short-term rentals, with owner contact information;

(c)    Photos of smoke detector, carbon monoxide detector, and fire extinguisher in the area of the dwelling to be rented, and egress from the rental space to the exterior of the building;

(d)    One (1) of the following documents to prove that the applicant/permittee is the primary, permanent resident of the property where the short-term rental is proposed to occur:

(1)    Proof of homeowner’s tax exemption,

(2)    Voter registration card or certificate,

(3)    Proof of vehicle registration,

(4)    Original proof of car insurance,

(5)    One (1) original utility bill from EBMUD, Waste Management, or PG&E,

(6)    Lease;

(e)    Statement of what advertising platforms will be used to advertise the space to be rented;

(f)    Current business tax certificate.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2106 Approval Procedure.

The Director shall consider applications for short-term rentals in consultation with the Chief Building Official, Fire Marshal, and Police Chief. The Director, at his/her discretion, may give such notice as is deemed appropriate to adjacent property owners or other interested parties. However, the Director may, instead, refer any application to the Planning Commission for consideration. If considered by the Commission, the application shall be heard at a public hearing noticed by Types C, D, and E and optionally by Types A and F, as these notice types are defined in Section 9-7.208(b). The Director or Commission, as the case may be, may approve or disapprove an application or impose conditions of approval which, in his/her/its judgment, are necessary to ensure conformity with the provisions of this article. The decision may be appealed as set forth in Section 9-5.2110.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2107 Required Findings.

In order to approve a short-term rental permit, the Director or the Planning Commission shall find that the proposed short-term rental conforms to the standards in Section 9-5.2104.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2108 Renewal.

A short-term rental permit shall expire on December 31 of the calendar year in which it was issued or renewed. A valid permit which has not been surrendered, suspended, or revoked may be renewed for subsequent periods of no longer than one (1) year upon the following terms and conditions:

(a)    All annual short-term rental permits issued under this article, except the first permit issued for a newly established short-term rental, shall be considered to be issued on January 1 of each year and shall expire on December 31 of the same year.

(b)    An application for renewal of a short-term rental permit shall be filed with the Planning Division before the short-term rental permit expires, on a form provided by the Director, accompanied by a statement indicating whether any information required by Section 9-5.2105 has changed for the renewal period.

(c)    The Director shall review the renewal application in consultation with the Chief Building Official, Fire Marshal, and Police Chief to ensure the short-term rental’s continued compliance with the provisions of this article and any conditions of approval, and to assess any outstanding violations or complaints. The Director may request additional information in order to complete his/her review. To renew a short-term rental permit, the Director must make the same findings as for approval of an initial permit.

(d)    Upon completion of the review, the Director shall determine whether to renew the application, and shall promptly inform the renewal applicant of his/her decision. If the permit is renewed, the Director shall provide a new permit for the renewal period. In renewing the short-term rental permit, the Director may modify or delete any existing conditions of approval, and impose any new conditions of approval, as he/she deems appropriate. If the permit is not renewed, the Director shall provide a written explanation to the renewal applicant detailing the reasons for the nonrenewal. If the permit is not renewed, the renewal applicant shall immediately cease operating the short-term rental.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2109 Revocation.

A permit issued pursuant to this article shall be subject to suspension, revocation, or modification for the violation of any provisions of this Code or for any grounds which would warrant the denial of the issuance of such original permit. The Director may issue a notice of violation for any failure to comply with any requirement of this article or any condition of the permit. Such notice shall set forth the action necessary to come into compliance and a time frame for compliance. If the noncompliance is not abated, corrected, or rectified within the time specified by the Director in said notice, the Director may revoke, suspend, or modify the permit, upon thirty (30) days’ notice. If the Director decides to revoke or suspend the permit, the operator shall cease operation of the short-term rental immediately.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2110 Appeals.

(a)    A decision of the Director on a new short-term rental permit pursuant to Section 9-5.2106 may be appealed to the Planning Commission as provided in Article 14 of Chapter 7 of this title. The decision of the Planning Commission shall be final.

(b)    If the Director refers a new short-term rental permit application to the Planning Commission for consideration pursuant to Section 9-5.2106, the decision of the Planning Commission may be appealed to the City Council as provided in Article 14 of Chapter 7 of this title.

(c)    A decision by the Director to revoke, suspend, or modify a short-term rental permit pursuant to Section 9-5.2109 may be appealed to the Planning Commission as provided in Article 14 of Chapter 7 of this title. The decision of the Planning Commission shall be final. If the Commission decides to revoke or suspend the permit, the operator shall cease operation of the short-term rental immediately.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017).

9-5.2111 Enforcement.

The City Attorney shall have authority to initiate a civil action to enforce the provisions of this article without prior City Council approval. In making such determination, the City Attorney shall consult with the Code Enforcement Officer.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

9-5.2112 Definitions.

As used in this article:

(a)    “Hosted” means that the primary occupant of the dwelling within which the rental takes place occupies the dwelling during the entire rental period.

(b)    “Nonhosted” means that the primary occupant of the dwelling within which the rental takes place is absent from the dwelling for some or all of the rental period.

(c)    “Single-unit detached house” means a dwelling that is a structure not attached to another structure, but which may be on the same lot as another dwelling.

(Sec. 3 (part), Ord. 17-001, eff. Apr. 20, 2017)

Article 22.    Cannabis-Related Activities

9-5.2201 Purpose.

This article establishes regulations governing personal cultivation, manufacturing and sales of cannabis and cannabis products. The purpose of these regulations is to provide criteria for the consideration and approval of personal cultivation and businesses engaged in the manufacturing and sales of cannabis and cannabis products. The City finds it necessary to establish such requirements and criteria in the interest of the public health, safety and welfare to regulate all cannabis-related activities.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2202 Applicability.

This article shall apply to the establishment of all land uses related to cannabis and cannabis products.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2203 Home Occupations.

It is unlawful to engage in commercial cannabis activity as defined in Section 5-28.03(f) as a home occupation as defined in Article 8 of this chapter.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2204 Districts Where Allowed.

(a)    Personal Cultivation. Pursuant to State law, cultivation of no more than six (6) cannabis plants is permitted as an accessory use in all zoning districts subject to the standards in Section 9-5.2207(a).

(b)    Cannabis Sales and Cannabis Manufacturing. Cannabis sales and cannabis manufacturing are conditionally permitted in zoning districts as indicated in Table 9-3.202.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2205 Conditional Use Permit Required.

It is unlawful to engage in cannabis sales or cannabis manufacturing, as such use classifications are described in Chapter 2 of this title, without first obtaining a major conditional use permit from the Planning Commission pursuant to the procedures in Article 5 of Chapter 7 of this title.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2206 Conditions of Approval.

In approving a conditional use permit for cannabis sales or cannabis manufacturing, the Planning Commission may designate such conditions as it deems necessary to fulfill the purposes of this article, including, but not limited to, those deemed necessary to comply with the standards in Section 9-5.2207, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2207 Standards.

(a)    Personal cultivation of cannabis plants shall comply with all of the following standards:

(1)    Growing, processing, or transporting of cannabis plants for personal use must be in full compliance with all the applicable provisions of California law.

(2)    Cannabis plants shall be grown, possessed, and processed within the residence of the person growing, possessing and processing the cannabis plants for personal use. No more than six (6) plants may be cultivated in a private residence, as defined in Health and Safety Code Section 11362.2(b)(5).

(3)    Cannabis plants shall not be grown or processed in the common areas of a multi-unit residential development nor in common areas of any commercial or industrial building.

(4)    Cannabis growth shall meet the requirements of all applicable building and life/safety codes, including requirements concerning electrical systems and ventilation systems.

(5)    Any use of a compressed flammable gas as a solvent or other volatile solvent in the extraction of THC or other cannabinoids for personal use is prohibited.

(b)    Cannabis manufacturing shall comply with all applicable performance standards in Article 11 of this chapter and with all applicable general conditions in Chapter 28 of Title 5.

(c)    Cannabis sales shall not be located within two hundred fifty feet (250') of any school, day care facilities, religious institution or public park, and shall comply with all applicable performance standards in Article 11 of this chapter and with all applicable general conditions in Chapter 28 of Title 5.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)

9-5.2208 Definitions.

(a)    Cannabis. See Section 5-28.03(b).

(b)    Cannabis Product. See Section 5-28.03(e).

(c)    Commercial Cannabis Activity. See Section 5-28.03(f).

(d)    Cultivation. See Section 5-28.03(g).

(e)    “Public park” means a park, playground, swimming pool, beach, pier, or athletic field within the City which is under the control, operation, or management of the City or a site that is planned for a public park in the City’s general plan.

(f)    “Religious institution” means a building which is used primarily for religious worship and related religious activities.

(g)    “School” means an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, junior high school, senior high school, or a special institution of learning under the jurisdiction of the State Department of Education, or a site that is planned for such school uses in the City’s general plan, but it does not include a vocational or professional institution or any institution of higher education, including a community or junior college, college or university.

(Sec. 2 (part), Ord. 17-002, eff. May 4, 2017)