CHAPTER 7.
ADMINISTRATION AND PERMITS

Sections:

Article 1.    Planning Decision Authority

9-7.101    Purpose

9-7.102    City Council

9-7.103    Planning Commission

9-7.104    City Manager

9-7.105    Community Development Director

9-7.106    City Engineer

9-7.107    Emeryville/Oakland Joint Planning Authority

Article 2.    Common Procedures

9-7.201    Purpose

9-7.202    General Processing Requirements

9-7.203    Applications and Fees

9-7.204    Coordination of Applications

9-7.205    Review for Completeness

9-7.206    Application Processing

9-7.207    Environmental Review

9-7.208    Public Notice

9-7.209    Conduct of Public Hearings

9-7.210    Action

9-7.211    Scope of Approvals

9-7.212    Effective Date

9-7.213    Expiration and Extension

9-7.214    Modifications

9-7.215    Failure to Comply with Conditions

9-7.216    Denied Applications

9-7.217    Legal Considerations

Article 3.    Zoning Compliance Review

9-7.301    Purpose

9-7.302    Applicability

9-7.303    Procedures

9-7.304    Appeals

Article 4.    Design Review

9-7.401    Purpose

9-7.402    Applicability

9-7.403    Exemptions

9-7.404    Minor and Major Design Review

9-7.405    Procedures

9-7.406    Design Review Criteria

9-7.407    Findings

9-7.408    Appeals

Article 5.    Conditional Use Permits

9-7.501    Purpose

9-7.502    Applicability

9-7.503    Major and Minor Conditional Use Permits

9-7.504    Procedures

9-7.505    Findings

9-7.506    Appeals

Article 6.    Temporary Use Permits

9-7.601    Purpose

9-7.602    Applicability

9-7.603    Exemptions

9-7.604    Procedures

9-7.605    Findings

9-7.606    Duration

9-7.607    Conditions of Approval

9-7.608    Revocation

9-7.609    Appeals

Article 7.    Variances

9-7.701    Purpose

9-7.702    Applicability

9-7.703    Procedures

9-7.704    Findings

9-7.705    Appeals

Article 8.    Exceptions to Standards

9-7.801    Purpose

9-7.802    Applicability

9-7.803    Procedures

9-7.804    Findings

9-7.805    Appeals

Article 9.    Reasonable Accommodation

9-7.901    Purpose

9-7.902    Notice to the Public of Availability of Accommodation Process

9-7.903    Requesting Reasonable Accommodation

9-7.904    Review of Requests for Reasonable Accommodation

9-7.905    Factors for Considering Requests for Reasonable Accommodation

9-7.906    Written Decision on the Request for Reasonable Accommodation

9-7.907    Appeals

9-7.908    Definitions

Article 10.    Planned Unit Developments

9-7.1001    Purpose

9-7.1002    Applicability

9-7.1003    Procedures

9-7.1004    Findings

9-7.1005    General Requirements

9-7.1006    Preliminary Development Plan: Application

9-7.1007    Preliminary Development Plan: Planning Commission Action

9-7.1008    Preliminary Development Plan: City Council Action

9-7.1009    Final Development Plan: Application.

9-7.1010    Final Development Plan: Planning and Building Director Review and Recommendation

9-7.1011    Final Development Plan: Planning Commission Action

9-7.1012    Final Development Plan: Appeals

9-7.1013    Concurrent Processing of Preliminary and Final Development Plans

9-7.1014    Adherence to Approved Plan

Article 11.    Development Agreements

9-7.1101    Purpose

9-7.1102    Applicability

9-7.1103    Procedures

9-7.1104    Findings

9-7.1105    Qualifications

9-7.1106    Contents of Development Agreement

9-7.1107    Periodic Review

9-7.1108    Amendment or Cancellation

9-7.1109    Modification or Suspension

Article 12.    General Plan Amendments

9-7.1201    Purpose

9-7.1202    Applicability

9-7.1203    Initiation of Amendments

9-7.1204    Procedures

9-7.1205    Findings

9-7.1206    Planning Commission Action

9-7.1207    City Council Action

Article 13.    Amendments to Planning Regulations and Zoning Maps

9-7.1301    Purpose

9-7.1302    Applicability

9-7.1303    Initiation of Amendments

9-7.1304    Procedures

9-7.1305    Findings

9-7.1306    Planning Commission Action

9-7.1307    City Council Action

Article 14.    Appeals

9-7.1401    Purpose

9-7.1402    Applicability

9-7.1403    Time Limits and Contents

9-7.1404    Appeals of Planning and Building Director Decisions

9-7.1405    Appeals of Planning Commission Decisions

9-7.1406    Calls for Review

9-7.1407    Standards of Review

Article 15.    Enforcement and Revocation

9-7.1501    Purpose

9-7.1502    Penalties

9-7.1503    Enforcement Responsibilities

9-7.1504    Nuisance Declared

9-7.1505    Remedies

9-7.1506    Nuisance Abatement

9-7.1507    Recording a Notice of Violation

9-7.1508    Revocation of Permits

Article 1.    Planning Decision Authority

9-7.101 Purpose.

The purpose of this article is to identify the bodies, officials, and administrators with designated responsibilities under various provisions of these planning regulations. Subsequent articles of this chapter provide detailed information regarding various procedures, applications, and permits, including amendments to these planning regulations, the Zoning Maps, and the General Plan, establishment of fees, and enforcement. When carrying out their assigned duties and responsibilities, all bodies, administrators, and officials of the City shall interpret and apply the provisions of these planning regulations as minimum requirements adopted to implement the General Plan.

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

9-7.102 City Council.

The City Council (the “Council”) has the following powers and duties under these planning regulations:

(a)    General Plan. Make decisions on General Plan amendments pursuant to the provisions of Article 12 of this chapter and applicable provisions of State law.

(b)    Planning Regulations and Zoning Maps. Make decisions on amendments to these planning regulations and the Zoning Maps pursuant to the provisions of Article 13 of this chapter and applicable provisions of State law.

(c)    Planned Unit Developments. Make decisions on the creation of PUD zones and the approval of preliminary development plans pursuant to the provisions of Article 10 of this chapter.

(d)    Development Agreements. Make decisions on development agreements pursuant to the provisions of Article 11 of this chapter.

(e)    Significant and Residential Structures. Make decisions on applications to demolish significant and residential structures pursuant to the provisions of Article 12 of Chapter 5.

(f)    Multi-Unit Residential Uses. Make decisions on applications for exemptions to unit mix and design requirements for multi-unit residential uses pursuant to the provisions of Section 9-5.2005.

(g)    Flexible Community Benefit. Make decisions on applications for development bonus points for flexible community benefits pursuant to the provisions of item (7) of Table 9-4.204(e).

(h)    Revocation of Permits. Make decisions on revocation of permits pursuant to the provisions of Article 15 of this chapter.

(i)    Appeals. Hear and decide appeals from decisions of the Planning Commission on applications for major design review, major conditional use permits, variances, final development plans for planned unit developments, major subdivisions, and any other decisions that can be appealed to the City Council pursuant to the provisions of Article 14 of this chapter.

(j)    Emeryville/Oakland Joint Planning Authority. Participate as members of the Appellate Council of the E/OJPA pursuant to the provisions of Section 9-7.107.

(k)    Environmental Review. Make environmental determinations on any approvals it grants that are subject to environmental review under the California Environmental Quality Act.

(l)    Time Extensions and Modifications. Make decisions on requests for time extensions and modifications to permits originally approved by the City Council.

(m)    Design Guidelines. Adopt design guidelines to facilitate the implementation of the design review requirements in Article 4 of this chapter.

(n)    Fees. Establish and periodically update the Master Fee Schedule listing fees, charges, and deposits for various applications and services provided pursuant to these planning regulations.

(o)    Other Duties. Perform other duties as may be stipulated by these planning regulations or established by State law.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 10 (part), Ord. 15-009, eff. Dec. 3, 2015)

9-7.103 Planning Commission.

The Planning Commission (the “Commission”) is established and organized pursuant to Article 3 of Chapter 3 of Title 2 and the requirements of the California Government Code. The Commission has the following powers and duties under these planning regulations:

(a)    Design Review. Make decisions on major design review applications, including signs, pursuant to the provisions of Article 4 of this chapter.

(b)    Conditional Use Permits. Make decisions on major conditional use permit applications pursuant to the provisions of Article 5 of this chapter.

(c)    Variances. Make decisions on variance applications pursuant to the provisions of Article 7 of this chapter.

(d)    Planned Unit Developments. Make decisions on the approval of final development plans pursuant to the provisions of Article 10 of this chapter.

(e)    Subdivisions. Make decisions on major subdivision applications pursuant to the provisions of Article 2 of Chapter 6.

(f)    Parcel Mergers. Make decisions on parcel mergers if the property owner requests a hearing pursuant to the provisions of Article 5 of Chapter 6.

(g)    Covenants of Easement. Make decisions on the release of covenants of easement pursuant to the provisions of Article 8 of Chapter 6.

(h)    Nuisance Abatement. Make decisions on nuisance abatement pursuant to the provisions of Article 15 of this chapter.

(i)    Recommendations to City Council. Make recommendations to the City Council on General Plan amendments, amendments to these planning regulations and the Zoning Maps, the creation of PUD zones and approval of preliminary development plans, development agreements, demolition of significant and residential structures, and revocation of permits.

(j)    Appeals. Hear and decide appeals from decisions of the Director of Planning and Building on code interpretation, zoning compliance review, and other ministerial decisions; and applications for minor design review, minor conditional use permits, temporary use permits, exceptions to standards, sidewalk cafe permits, minor subdivisions, parcel map waivers, lot line adjustments, parcel mergers if the property owner does not request a hearing, and any other decisions that can be appealed to the Planning Commission pursuant to the provisions of Article 14 of this chapter.

(k)    Emeryville/Oakland Joint Planning Authority. Participate as members of the Planning Council of the E/OJPA pursuant to the provisions of Section 9-7.107.

(l)    Environmental Review. Make environmental determinations on any approvals it grants that are subject to environmental review under the California Environmental Quality Act.

(m)    Time Extensions and Modifications. Make decisions on requests for time extensions and modifications to permits originally approved by the Planning Commission.

(n)    Design Guidelines. Make recommendations to the City Council concerning design guidelines to facilitate the implementation of the design review requirements in Article 4 of this chapter.

(o)    Other Duties. Perform other duties as may be assigned by the City Council or established by State law.

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

9-7.104 City Manager.

The City Manager is appointed by the City Council pursuant to Article 5 of Chapter 7 of Title 2. The City Manager has the following powers and duties under these planning regulations:

(a)    Acceptance of Dedications. Accept, accept subject to improvement, or reject any offer of dedication prior to recordation of a final or parcel map, and certify any acceptance by signing a statement to this effect on the map pursuant to the subdivision regulations in Chapter 6.

(b)    Improvement Agreements. Enter into improvement agreements with subdividers, consider extension requests, and accept completed improvements pursuant to Article 6 of Chapter 6.

(c)    Abandonment of Streets and Easements. Certify abandonment of public streets and public easements on final subdivision maps pursuant to Section 9-6.213(c).

(d)    Covenants of Easement. Accept covenants of easement pursuant to Article 8 of Chapter 6.

(e)    Development Agreements. Enter into development agreements as authorized by the City Council and annually review compliance with such agreements pursuant to Article 11 of this chapter.

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

9-7.105 Community Development Director.

The Community Development Director (“Director”) is appointed by the City Manager pursuant to Article 5 of Chapter 7 of Title 2. The Director has the following powers and duties under these planning regulations, which he or she may delegate to staff of the Planning Division who are supervised by and report to him or her. The Director may refer any administrative decision to the Planning Commission for consideration. In that case the Commission’s decisions may be appealed to the City Council.

(a)    Recommendations to Planning Commission and City Council. Make recommendations to the Planning Commission and City Council on all matters on which they have decision-making authority pursuant to Sections 9-7.103 and 9-7.102, respectively. Convey Planning Commission recommendations to the City Council.

(b)    Code Interpretation. Interpret the content and applicability of these planning regulations pursuant to the provisions of Section 9-1.104.

(c)    Consistency with General Plan. Determine the extent of any inconsistency between these planning regulations and the General Plan and issue a decision to resolve the matter pursuant to the provisions of Section 9-1.105.

(d)    Classification of Uses. Classify uses according to the use classifications described in Chapter 2, pursuant to the provisions of Section 9-2.102(b).

(e)    Nonconforming Uses and Structures. Determine whether a use or structure is nonconforming and whether it was legally established, pursuant to the provisions of Section 9-5.1006.

(f)    Performance Standards. Determine compliance of uses with performance standards pursuant to the provisions of Section 9-5.1103.

(g)    Zoning Compliance. Determine whether new or expanded uses or structures, including home occupations and accessory dwelling units, comply with the applicable requirements of these planning regulations pursuant to the provisions of Article 3 of this chapter.

(h)    Minor Design Review. Make decisions on minor design review applications, including signs, pursuant to the provisions of Article 4 of this chapter.

(i)    Minor Conditional Use Permits. Make decisions on minor conditional use permit applications pursuant to the provisions of Article 5 of this chapter.

(j)    Temporary Use Permits. Make decisions on temporary use permit applications pursuant to the provisions of Article 6 of this chapter.

(k)    Exceptions to Standards. Make decisions on exception to standards applications pursuant to the provisions of Article 8 of this chapter.

(l)    Sidewalk Cafes. Make decisions on sidewalk cafe applications pursuant to the provisions of Article 15 of Chapter 5.

(m)    Subdivisions. Make decisions on minor subdivisions, parcel map waivers, lot line adjustments, and parcel mergers if the property owner does not request a hearing, pursuant to the provisions of Chapter 6.

(n)    Minor Modifications. Make decisions on minor modifications to permits approved by the Planning Commission or City Council, pursuant to the provisions of Section 9-7.214(a).

(o)    Reasonable Accommodation. Make decisions on requests for reasonable accommodation pursuant to Article 9 of this chapter.

(p)    Environmental Review. Determine whether projects require environmental review under the California Environmental Quality Act, and, if so, prepare the required environmental documents for consideration by the appropriate decision-makers.

(q)    Other Duties. Perform other duties as may be assigned by the City Manager.

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

9-7.106 City Engineer.

The City Engineer is appointed by the City Manager pursuant to Article 5 of Chapter 7 of Title 2. The City Engineer has the following powers and duties under these planning regulations, which he or she may delegate to staff of the Public Works Department who are supervised by and report to him or her:

(a)    Certificates of Compliance. Prepare, and file for recording with the Alameda County Recorder, certificates of compliance certifying that real property complies with the provisions of the Subdivision Map Act and the City subdivision regulations pursuant to Section 9-6.106.

(b)    Tentative Maps. Review tentative subdivision maps, including vesting tentative maps, and advise the Director as to whether to recommend Planning Commission approval pursuant to Article 2 of Chapter 6. Approve minor changes to approved tentative maps pursuant to Section 9-6.210(a).

(c)    Final Maps. Sign statements on final maps confirming that they are technically correct, consistent with the approved tentative map, and in compliance with the City subdivision regulations and the Subdivision Map Act pursuant to Article 2 of Chapter 6. Prepare, and file for recording with the Alameda County Recorder, certificates of correction to amend recorded final maps to correct errors and omissions, and certify amending maps for modifications approved by the Planning Commission, pursuant to Section 9-6.218.

(d)    Parcel Maps. Review parcel maps and advise the Director as to whether they should be approved, and sign statements on parcel maps confirming that they are technically correct and in compliance with the City subdivision regulations and the Subdivision Map Act pursuant to Article 3 of Chapter 6. Prepare, and file for recording with the Alameda County Recorder, certificates of correction to amend recorded parcel maps to correct errors and omissions, and certify amending maps for modifications approved by the Director, pursuant to Section 9-6.311.

(e)    Parcel Map Waivers. Review requests for parcel map waivers and advise the Director as to whether they should be approved pursuant to Section 9-6.312.

(f)    Lot Line Adjustments. Review applications for lot line adjustments and advise the Director as to whether they should be approved pursuant to Article 4 of Chapter 6.

(g)    Parcel Mergers. Review proposed parcel mergers pursuant to Article 5 of Chapter 6; if parcels are to be merged, prepare and file for recording with the Alameda County Recorder a determination of merger/certificate of compliance for the merged parcel; if parcels are not to be merged, prepare and file for recording with the Alameda County Recorder a certificate of compliance for the unmerged parcels.

(h)    Improvements, Dedications, and Reservations. Review all proposed improvements, dedications, and reservations pursuant to Article 6 of Chapter 6.

(i)    Condominium Conversions. Review proposed condominium conversions and advise as to whether any public improvements are necessary pursuant to Article 7 of Chapter 6.

(j)    Planned Unit Developments. Review and advise on public improvements and engineering feasibility studies associated with proposed preliminary and final development plans pursuant to Article 10 of this chapter.

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

9-7.107 Emeryville/Oakland Joint Planning Authority.

(a)    General Provisions.

(1)    There is hereby established a joint planning authority, to be known as the Emeryville/Oakland Joint Planning Authority (“the E/OJPA”), which shall have jurisdiction, subject to the provisions of this section, over the Catellus Development Corporation (“CDC”) project (“project”) on the CDC property (“property”), as both are more specifically described in Ordinance No. 92-07, a copy of which is on file in the office of the Emeryville City Clerk. The E/OJPA planning area lies within the cities of Emeryville and Oakland, and is generally bounded by 40th Street on the north; San Pablo Avenue on the east; West MacArthur Boulevard, Hollis Street, and Mandela Parkway on the south; and Beach Street on the west.

(2)    The E/OJPA shall consist of a Planning Council and an Appellate Council. The Planning Council shall be comprised of six (6) members of the Emeryville Planning Commission and seven (7) members of the Oakland Planning Commission. The Appellate Council shall be comprised of four (4) members of the Emeryville City Council and three (3) members of the Oakland City Council.

(3)    The Planning Council shall have jurisdiction to take final action on behalf of the Joint Planning Authority; provided, however, that if any such action is appealed, the Appellate Council shall render the final decision on any such appeal.

(4)    The Mayor, subject to approval of the City Council, shall designate the members of the Emeryville Planning Commission and the Emeryville City Council who shall serve on the Planning Council and the Appellate Council, respectively. Such members shall continue to serve on the Joint Planning Authority for so long as they continue to hold the position on the Planning Commission or City Council from which they were originally appointed, until their voluntary resignation from the Joint Planning Authority, until replaced by a substitute member appointed by the Mayor or until the Joint Planning Authority shall no longer exist.

(b)    Term of the E/OJPA. The E/OJPA shall exist for an initial term of five (5) years after its establishment, and shall thereafter automatically be renewed for successive five (5) year terms, unless terminated by the unilateral action of the City Council of either Emeryville or Oakland within sixty (60) days prior to the end of any term. Notwithstanding the foregoing, the cities may terminate the Joint Planning Authority at any time after the initial term by their mutual agreement.

(c)    Powers of the E/OJPA.

(1)    Except as hereinafter set forth, the City of Emeryville hereby delegates to the E/OJPA the power to exercise all of Emeryville’s planning and subdivision power and authority under the Emeryville Municipal Code and California State laws in relation to the E/OJPA planning area, including, but not limited to, findings of General Plan and zoning consistency, granting of rezonings, design review, variances, conditional use permits, subdivision of the property and hearing and ruling upon all other land use and related authorizations necessary for the construction of the project.

(2)    In compliance with the California Environmental Quality Act, Emeryville has heretofore been deemed the “lead agency” and Oakland has acted as a “responsible agency” pursuant to California Administrative Code Title 14, Section 15051, in the preparation of the draft environmental impact report and certification of the final environmental impact report for the project. Emeryville shall, therefore, continue to function as the lead agency and Oakland shall continue to function as a responsible agency for any subsequent environmental review that may be required for the property.

(3)    For so long as the Joint Planning Authority shall continue to exist pursuant to subsection (b) of this section, the owner of the property may not divide or subdivide the site or otherwise substantially modify the approvals granted by the Joint Planning Authority, without further approval of the Joint Planning Authority.

(d)    Procedures.

(1)    Meetings of the E/OJPA shall be convened as necessary for the consideration of those matters which are within the jurisdiction of the E/OJPA.

(2)    All meetings of the E/OJPA shall comply with the Ralph M. Brown Act and other State laws regulating the conduct of business by city councils in California. Public notice of meetings of the E/OJPA shall comply with the requirements of the Emeryville Municipal Code and shall, in addition, comply with the Oakland Municipal Code with respect to the owners of land within Oakland in the vicinity of the property.

(3)    The location of meetings of the E/OJPA shall be determined by the Chair of the Planning Council and the Appellate Council, respectively; provided, that reasonable effort shall be made to alternate meetings of each body between locations within Emeryville and Oakland.

(4)    Minutes of all meetings and appropriate legislation of the E/OJPA shall be public documents pursuant to State law and shall be appropriately maintained in the office of the City Clerk of Emeryville.

(5)    The E/OJPA shall adopt and implement all regulations which may be necessary for the performance of its obligations under the terms and conditions of this article and the memorandum of understanding between Emeryville and Oakland regarding the E/OJPA.

(e)    Appeals.

(1)    Any person or entity aggrieved or affected by a determination or decision by the Planning Council may appeal the determination or decision to the Appellate Council. Such appeal shall be taken by filing a written notice of appeal with the Emeryville City Manager within fifteen (15) days after the determination or decision of the E/OJPA. The notice of appeal shall set forth the grounds upon which the appeal is based. The notice of appeal shall also be accompanied by a fee in the amount established by applicable resolutions of the City of Emeryville for appeals to the City Council from the Emeryville Planning Commission.

(2)    The Appellate Council may reverse or affirm, wholly or partly, or may modify the decision or determination appealed from the Planning Council.

(3)    Decisions of the Appellate Council shall be final and shall be subject to the time limits and procedures provided for in California Code of Civil Procedure Sections 1086 and 1094.6 for such actions to which Sections 1086 and 1094.6, respectively, are applicable.

(f)    Remedies. All legislative and quasi-judicial decisions of the Planning Council and Appellate Council shall be subject to all remedies provided by State law including, but not limited to, referendum and writ of mandamus; provided, however, that any writ of mandamus shall be filed within ninety (90) days of the decision unless State law provides for a shorter limitation period.

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

Article 2.    Common Procedures

9-7.201 Purpose.

This article establishes procedures that are common to the application and processing of all permits and approvals provided for in these planning regulations, unless superseded by specific requirement of this title or State law. All applications shall be processed in conformance with the applicable provisions of the State Permit Streamlining Act (California Government Code Section 65920 et seq.).

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

9-7.202 General Processing Requirements.

The general requirements for processing permits and approvals under these planning regulations, including decision and appeal authority, public hearing and noticing requirements, required findings, and combined or concurrent processing, are summarized in Table 9-7.202. Descriptions of types of notice may be found in Section 9-7.208(b). Any staff-level decisions made pursuant to these planning regulations that are not included in Table 9-7.202 may optionally be noticed by notice Types A, B, and F. Any Planning Commission or City Council decisions made pursuant to these planning regulations that are not included in Table 9-7.202 shall be noticed by Types C, D, and E and may optionally be noticed by Types A and F.

Table 9-7.202: Decision-Making, Public Hearing and Notice Requirements 

Permit or Action Type

Reference

Decision Process

Public Hearing Required?

Type of Notice

Required Findings

Combined or Concurrent Processing

Advisory

Decision

Appeal1

Required

Optional

Ministerial Actions

 

 

 

 

 

 

 

 

 

Code Interpretation

Section 9-1.104

N/A

Director

PC2

No

None

N/A

None

N/A

Consistency of Code with General Plan

Section 9-1.105

N/A

Director

PC2

No

None

N/A

None

N/A

Classification of a Use

Section 9-2.102

N/A

Director

PC2

No

None

N/A

None

N/A

Determination of Nonconforming Use

Section 9-5.1006

N/A

Director

PC2

No

None

N/A

None

N/A

Proof of Compliance with Performance Standards

Section 9-5.1103

N/A

Director

PC2

No

None

N/A

None

N/A

Zoning Compliance including Home Occupations and Accessory Dwelling Units

Chapter 7 Article 3

N/A

Director

PC2

No

None

N/A

None

N/A

Minor Changes to an Approved Permit3

Section 9-7.214(a)

N/A

Director

PC2

No

None

N/A

None

N/A

Request for Reasonable Accommodation

Chapter 7 Article 9

N/A

Director

PC2

No

None

N/A

None

N/A

Discretionary Quasi-Judicial Actions

 

 

 

 

 

 

 

 

 

Sidewalk Cafe Permit4

Chapter 5 Article 15

N/A

Director

PC2

No

None

A, B, F

Section 9-5.1508

N/A

Short-Term Rental5

Chapter 5 Article 21

N/A

Director

PC2

No

None

A, B, F

Section 9-5.2107

N/A

Design Review including Signs6

Chapter 7 Article 4

 

 

 

 

 

 

Section 9-7.407

Combined7

Minor8

 

N/A

Director

PC2

No

None

A, B, F

 

 

Major

 

Director

PC

CC2

Yes

A, C, D, E

F

 

 

Conditional Use Permits

Chapter 7 Article 5

 

 

 

 

 

 

Section 9-7.5059

Combined7

Minor8

 

N/A

Director

PC2

No

None

A, B, F

 

 

Major

 

Director

PC

CC2

Yes

A, C, D, E

F

 

 

Flexible Community Benefits

Item (7) of Table 9-4.204(e)

PC

CC2

None2

Yes

A, C, D, E

F

Section 9-4.204(f)(2)

 

Demolition of Significant or Residential Structure

Chapter 5 Article 12

PC

CC2

None2

Yes

A, C, D, E

F

Section 9-5.1206(b)

 

Exceptions to Unit Mix and Design Requirements for Multi-Unit Residential Uses

Section
9-5.2005

PC

CC2

None2

Yes

A, C, D, E

F

Section 9-5.2005(a)

 

Temporary Use Permit

Chapter 7 Article 6

N/A

Director

PC2

No

None

B, F

Section 9-7.605

N/A

Variance

Chapter 7 Article 7

Director

PC

CC2

Yes

A, C, D, E

F

Section 9-7.704

Combined7

Exception to Standards

Chapter 7 Article 8

N/A

Director

PC2

No

None

A, B, F

Section 9-7.804

Combined7

Planned Unit Developments: Final Development Plans

Chapter 7 Article 10

Director

PC

CC2

Yes

A, C, D, E

F

Section 9-7.1004(b)

Concurrent

Subdivisions

 

 

 

 

 

 

 

 

Concurrent

Parcel Map Waiver

Section 9-6.312

N/A

Director

PC2

No

None

A, B, F

Section 9-6.312(d)

 

Minor

Chapter 6 Article 3

N/A

Director

PC2

No

None

A, B, F

Section 9-6.307(b)

 

Major

Chapter 6 Article 2

Director

PC

CC2

Yes

C, D, E

A, F

Section 9-6.208(c)

 

Lot Line Adjustments

Chapter 6 Article 4

N/A

Director

PC2

No

None

A, B, F

Section 9-6.403

 

Parcel Mergers

Chapter 6 Article 5

 

 

 

 

 

 

 

Concurrent

If hearing not requested

 

N/A

Director

PC2

No

None

A, B, F

None

 

If hearing requested

 

Director

PC

CC2

Yes

C, D, E

A, F

None

 

Condominium Conversions

Chapter 6 Article 7

Same as Parcel Map Waiver, Minor Subdivision, or Major Subdivision, whichever applies

Section 9-6.707

Concurrent

Covenant of Easement

Chapter 6 Article 8

 

 

 

 

 

 

 

Concurrent

Created

 

CA

CM

None

No

None

None

None

 

Release

 

Director

PC

CC2

Yes

C, D, E

A, F

Section 9-6.815

 

Nuisance Abatement

Section 9-7.1506

Director

PC

CC2

Yes

C, D, E

A, F

Section 9-7.1504

N/A

Revocation of Permit

Section 9-7.1508

PC

CC2

None2

Yes

C, D, E

A, F

Section 9-7.1508(a)

N/A

Planning and Subdivision Approvals for Emeryville/Oakland JPA Planning Area10

Section 9-7.107

Director

E/O JPA Planning Council

E/O JPA Appellate Council

Yes

A, C, D, E

F

Per these Planning Regulations

Combined/Concurrent

Discretionary Legislative Actions11

 

 

 

 

 

 

 

 

 

Planned Unit Developments: Preliminary Development Plans

Chapter 7 Article 10

PC

CC2 Ordinance

None2

Yes

A, C, D, E

F

Section 9-7.1004(a)

Concurrent

Development Agreements

Chapter 7 Article 11

PC

CC2 Ordinance

None2

Yes

C, D, E

A, F

Section 9-7.1104

Concurrent

General Plan Amendments

Chapter 7 Article 12

PC

CC2 Resolution

None2

Yes

C, D, E

A, F

Section 9-7.1205

Concurrent

Planning Regulations and Zoning Map Amendments

Chapter 7 Article 13

PC

CC2 Ordinance

None2

Yes

C, D, E

A, F

Section 9-7.1305

Concurrent

Key:

Director = Director of Planning and Building

CA = City Attorney

CM = City Manager

PC = Planning Commission

CC = City Council

Notes:

1.    All appeals require a public hearing, with required notice of Types A, C, D, and E and optional notice of Type F.

2.    A final decision of the Planning Commission or City Council is subject to litigation in the Superior Court.

3.    Major modifications to permits shall be processed the same as the original permit, pursuant to Section 9-7.214(b).

4.    In granting a sidewalk cafe permit, the Director shall consult with the Chief Building Official, Public Works Director, Fire Marshal, and Police Chief. The Director may refer the application to the Planning Commission, in which case a public hearing would be required, with required notice of Types A, C, D, and E and optional notice of Type F, and the Commission’s decision would be appealable to the City Council.

5.    In granting a short-term rental permit, the Director shall consult with the Chief Building Official, Fire Marshal, and Police Chief. The Director may refer the application to the Planning Commission, in which case a public hearing would be required, with required notice of Types A, C, D, and E and optional notice of Type F, and the Commission’s decision would be appealable to the City Council.

6.    Approval of signs requires making the applicable findings in Article 16 of Chapter 5 in addition to the findings at Section 9-4.407.

7.    Combined permits shall be considered at the highest level of any of the permits. For example, a combined minor design review application (Director level) and major conditional use permit (Planning Commission level) would be considered by the Planning Commission and would be appealable to the City Council.

8.    Minor design review and minor conditional use permits may be referred by the Director to the Planning Commission for decision, in which case they are processed as major design review and major conditional use permits, respectively.

9.    In addition to the findings at Section 9-7.505, a conditional use permit may also require special findings, as specified in these planning regulations for the particular conditional use permit.

10.    Pursuant to the memorandum of agreement between the cities of Emeryville and Oakland, all planning and subdivision approvals in the JPA planning area shall be processed under these Emeryville planning regulations, as supplemented by specific provisions of Oakland regulations by mutual agreement.

11.    Legislative actions of the City Council take effect thirty (30) days after final passage and are subject to referendum.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 10 (part), Ord. 15-009, eff. Dec. 3, 2015; Sec. 4 (part), Ord. 17-001, eff. Apr. 20, 2017; Sec. 3 (part), Ord. 17-012, eff. Nov. 2, 2017)

9-7.203 Applications and Fees.

(a)    Applicants. Except as otherwise provided elsewhere in these planning regulations, the following shall be eligible to apply:

(1)    The owner of the subject property or agent with written consent of the property owner.

(2)    A purchaser of the subject property with written consent of the property owner.

(3)    A lessee with written consent of the property owner.

(4)    An entity authorized to exercise the power of eminent domain.

(b)    Application Forms and Materials.

(1)    The Director shall prepare and issue application forms and lists that specify the information that will be required from applicants for projects subject to the provisions of these planning regulations.

(2)    The Director may require the submission of supporting materials as part of the application, including but not limited to narrative statements, photographs, plans, drawings, maps, renderings, models, material samples and other items necessary to describe existing conditions and the proposed project.

(3)    All material submitted becomes the property of the City, may be distributed to the public, and shall be made available for public inspection.

(4)    At any time upon reasonable request, and during normal business hours, any person may examine an application and materials submitted in support of or in opposition to an application in the Planning Division offices. Unless prohibited by law, copies of such materials shall be made available at a reasonable cost as specified in the Master Fee Schedule.

(c)    Application Fees.

(1)    Schedule of Fees. All fees shall be as set forth in the Master Fee Schedule adopted by the City Council pursuant to Section 3-7.05.

(2)    Payment of Fees. Payment of the fee is required in order for an application to be complete.

(3)    Multiple Applications. Fees for multiple applications that are combined or processed concurrently pursuant to Section 9-7.204 shall be the sum of what the individual fees would be for each application if they were submitted separately.

(4)    Refund of Fees. If an application is withdrawn prior to a decision, the applicant may be eligible to receive a refund of a portion of the fee. The Director of Planning shall determine the amount of the refund based on the level of staff review conducted to date. No refund shall be made for any application that has been approved or denied. Refunds shall be processed in accordance with Chapter 5 of Title 3.

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

9-7.204 Coordination of Applications.

When multiple applications are required for a project they may be either combined or processed concurrently as follows:

(a)    Combined Processing. The following types of permits may be combined under one (1) application, with combined notice, public hearing and resolution as required. To approve the combined application, all applicable findings for each permit type must be made.

Design review pursuant to Article 4 of this chapter

Conditional use permits pursuant to Article 5 of this chapter

Variances pursuant to Article 7 of this chapter

Exceptions to standards pursuant to Article 8 of this chapter

(b)    Concurrent Processing. The following types of permits may not be combined under one (1) application, but may be processed concurrently, with combined notice, public hearing and resolution as required. These permit types may also be processed concurrently with a combined permit pursuant to subsection (a) of this section. To approve the concurrent applications, all applicable findings for each permit type must be made.

Planned unit developments pursuant to Article 10 of this chapter

Development agreements pursuant to Article 11 of this chapter

Subdivisions pursuant to Chapter 6

General Plan amendments pursuant to Article 12 of this chapter

Planning regulation and Zoning Map amendments pursuant to Article 13 of this chapter

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

9-7.205 Review for Completeness.

The Director shall determine whether an application is complete within thirty (30) days of the date the application is filed with the required fee. The Director may require additional information pursuant to Section 9-7.203(b)(2).

(a)    Incomplete Application. If an application is incomplete, the Director shall provide written notification to the applicant listing the applications for permit(s), forms, information and any additional fees that are necessary to complete the application.

(b)    Zoning Violations. An application shall not be found complete if conditions exist on the site in violation of these planning regulations or any permit or other approval granted in compliance with these planning regulations or any previous applicable regulations, unless the proposed project includes the correction of the violations.

(c)    Expiration of Application. If an applicant fails to correct any specified deficiencies or provide additional information requested within ninety (90) days of the date of the Director’s notification or other time specified by the Director, the application shall expire and be deemed withdrawn. The Director shall provide written notice to the applicant and shall also notify the applicant of the opportunity for appeal.

(d)    Appeal of Determination. Determinations of incompleteness may be appealed to the Planning Commission pursuant to Article 14 of this chapter, except that there shall be a final written determination on the appeal not later than sixty (60) days after receipt of the appeal.

(e)    Extensions. The Director may, upon written request and for good cause, grant extensions of any time limit for submission of information and review of applications imposed by these planning regulations in compliance with applicable provisions of State law.

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

9-7.206 Application Processing.

When an application is determined to be complete, the Director shall make a record of that date. In consultation with other City staff as appropriate, the Director or his or her designee shall investigate and analyze the application and formulate appropriate conditions of approval. If the application requires a public hearing, the Director shall schedule it and provide notice as required by Section 9-7.208.

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

9-7.207 Environmental Review.

Before approving any application subject to discretionary review under these planning regulations, the requirements of the California Environmental Quality Act (“CEQA”) (California Public Resources Code Section 21000 et seq.) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) shall be met.

(a)    Procedures. The City of Emeryville hereby adopts the State CEQA Guidelines as its environmental review procedures.

(b)    Determination of Exemption. The Director shall determine whether a project is exempt from environmental review under CEQA and, if so, shall make a record of that determination. If the project is not exempt, a negative declaration, mitigated negative declaration, or environmental impact report shall be prepared at the applicant’s expense.

(c)    Exempt Projects. Prior to approving the project, the decision-maker(s) shall first approve the determination of exemption. Following project approval, a notice of exemption need not be filed with the Alameda County Clerk unless the applicant requests it or the City determines that it is necessary. All filing fees for the notice of exemption shall be paid by the applicant.

(d)    Nonexempt Projects. If the Director determines that the project is not exempt from environmental review under CEQA, the applicant shall be notified and shall deposit with the City sufficient funds to pay the anticipated cost of preparation and processing of the required environmental document. Prior to approving the project, the decision-maker(s) shall first approve the negative declaration, mitigated negative declaration, or environmental impact report. Any identified mitigation measures shall be incorporated into the conditions of approval of the project unless a statement of overriding considerations is adopted. Following project approval, a notice of determination shall be filed with the Alameda County Clerk at the applicant’s expense.

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

9-7.208 Public Notice.

Whenever the provisions of this title require public notice, notification shall be provided in compliance with the requirements of State law and as follows. Unless otherwise specified elsewhere in these planning regulations or applicable State law, all notice shall be provided at least ten (10) days prior to the public hearing or date of action. The type of notice to be provided for each permit type is indicated in Table 9-7.202.

(a)    Contents of Notice. The notice shall include the following information:

(1)    The location of the real property, if any, that is the subject of the application;

(2)    A general description of the proposed project or action;

(3)    The date, time, location, and purpose of the public hearing or the date of action when no public hearing is required;

(4)    The identity of the hearing body or officer;

(5)    The names of the applicant and the owner of the property that is the subject of the application;

(6)    The location and times at which the complete application and project file may be viewed by the public;

(7)    If a public hearing is required, a statement that any interested person or authorized agent may appear and be heard; and

(8)    A statement describing how to submit written comments.

(b)    Types of Notice.

(1)    On-Site Poster (Type A). The applicant erects a poster on the site of the proposed project, readily visible to the public, in a format prescribed by the Director. Such poster shall remain in place until the public hearing or date of action, and shall be removed thereafter by the applicant.

(2)    Limited Notice (Type B). Notice is provided to adjacent property owners and other interested parties.

(3)    Posted Notice (Type C). Notices are posted at the three (3) public places designated in Chapter 8 of Title 2.

(4)    Newspaper Notice (Type D). A display advertisement of at least one-eighth (1/8) page is published in a newspaper of general circulation.

(5)    Mailed Notice (Type E). Notice is provided by first class mail delivery to the parties listed below. If the number of owners to whom notice would be mailed or delivered is greater than one thousand (1,000), Type D newspaper notice may be used instead.

a.    The applicant, the owner, and any occupant of the subject property.

b.    All property owners of record within three hundred feet (300') of the subject property as shown on the latest available assessment roll or within a larger area if deemed necessary by the Director in order to provide adequate public notification.

c.    All neighborhood and community organizations that have previously filed a written request for notice of projects in the area where the site is located.

d.    The City of Oakland or the City of Berkeley if the subject property is within three hundred feet (300') of the respective jurisdiction’s boundary.

e.    The Emery Unified School District, East Bay Municipal Utility District, and any other local agency expected to provide water, wastewater treatment, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected.

f.    Any person or group who has filed a written request for notice regarding the specific application and has paid any required fee that the City Council has adopted to provide such service.

(6)    Additional Notice (Type F). Notice may be provided in any other manner deemed necessary or desirable.

(c)    Failure to Receive Notice. The validity of the proceedings shall not be affected by the failure of any person or entity to receive notice given pursuant to this section.

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

9-7.209 Conduct of Public Hearings.

Whenever the provisions of these planning regulations require a public hearing, the hearing shall be conducted in compliance with the requirements of State law and as follows:

(a)    Staff Report. At least five (5) days prior to the hearing the Director shall issue a staff report containing an analysis of the project, recommendation for action, and any recommended conditions of approval deemed necessary to ensure that the project will comply with the General Plan, these planning regulations, and any other applicable City regulations.

(b)    Presentations. At the hearing, the Director or his or her designee shall briefly present his or her analysis of the project and recommendation for action. If the hearing is before the City Council, the Planning Commission’s recommendation shall also be presented. The applicant shall also be provided an opportunity to make a presentation.

(c)    Testimony. Any person may appear at the public hearing and submit oral or written evidence, either individually or as a representative of a person or an organization. Each person who appears at a public hearing shall be identified, state an address and, if appearing on behalf of a person or organization, state the name and mailing address of the person or organization being represented.

(d)    Time Limits. The presiding officer may establish time limits for individual testimony and may request that individuals with shared concerns select one (1) or more spokespersons to present testimony on behalf of those individuals.

(e)    Continuation of Public Hearing. The body conducting the public hearing may continue it to a fixed date, time and place, in which case no additional notification is required, or may continue it to an undetermined date and provide notice of the continued hearing when the date, time and place for the hearing have been determined.

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

9-7.210 Action.

(a)    Decision. After the close of the public hearing, or, if no hearing is required, no sooner than ten (10) days after any notice was provided pursuant to Section 9-7.208, the Director, Planning Commission, or City Council, as the case may be, shall make a decision to approve, approve with conditions, or deny the application.

(b)    Findings. The decision shall be based on the findings required by these planning regulations or State law. The findings shall be based on consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record and, for a Planning Commission or City Council decision, shall be stated in writing in the resolution approving or denying the application.

(c)    Conditions of Approval. In approving an application, the Director, Planning Commission, or City Council may impose conditions it deems necessary to ensure that the project will comply with the General Plan, these planning regulations, and any other applicable City regulations.

(d)    Referral Back to Planning Commission. In approving applications requiring City Council approval upon a recommendation of the Planning Commission, the Council may add, modify or delete any terms of the permit itself or any provisions of the conditions of approval. Such action may, but need not be, referred back to the Planning Commission for its review and recommendation. If the Council proposes any substantial modification to an amendment to the General Plan, planning regulations, or Zoning Maps that was not previously considered by the Planning Commission during its hearings, the proposed modification shall first be referred back to the Planning Commission for its recommendation. The Planning Commission may, but is not required to, conduct a public hearing on the proposed modification.

(e)    Notice of Decision. After the decision is made, the Director shall issue a notice of decision. For a Planning Commission or City Council action, this notice shall consist of the approved resolution or ordinance and any associated conditions of approval. For a decision by the Director, a letter shall be issued to the applicant indicating the decision and any written findings and conditions of approval. A copy of the notice shall also be provided to any other person or entity that has filed a written request of such notification.

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

9-7.211 Scope of Approvals.

(a)    Scope. Any approval allows only those uses, activities, and structures actually proposed in the application, described in the staff report, if any, and/or included in the conditions of approval. Any other uses, activities, or structures shall require a separate application and approval. The approved use and/or construction is subject to, and shall comply with, all applicable City regulations and laws and regulations of other governmental agencies.

(b)    Termination of Previous Uses. Unless otherwise specified, the approval of a new use shall terminate all rights and approvals for previous uses no longer occupying the same site or location, including conforming uses, nonconforming uses, and any previous entitlements granted under these planning regulations or any previous regulations.

(c)    Approved Plans. The approved project shall be constructed in conformance with the approved plans except as modified by the conditions of approval. The approved plans shall be clearly referenced by sheet number/name and date in the conditions of approval.

(d)    Periodic Review. All approvals may be subject to periodic review to determine compliance with the permit and applicable conditions. If a condition specifies that allowed activities or uses are subject to periodic reporting, monitoring or assessments, it shall be the responsibility of the permit holder, the property owner or successor property owners to comply with such conditions.

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

9-7.212 Effective Date.

A final decision on an application for any discretionary approval subject to appeal shall become effective after the expiration of the fifteen (15) day appeal period following the date of action, unless an appeal is filed pursuant to Article 14 of this chapter. No building permit or business license for the structure or use that is the subject of the application shall be issued until after the close of the fifteen (15) day appeal period.

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

9-7.213 Expiration and Extension.

(a)    Unless the Planning Commission or City Council specifies otherwise pursuant to subsection (b) of this section, any design review approval, conditional use permit, variance or exception to standards granted in accordance with the terms of these planning regulations shall automatically expire unless an application for a building permit has been filed and fees have been paid within one (1) year from the date of final approval, or, if a building permit is not required, a good faith effort to commence work upon the use has been made, as determined by the Director in his or her sole discretion. If a building permit is issued but expires with no work being done, then the associated planning permit shall also expire unless extended pursuant to the provisions of this section. Such extension may not exceed three (3) years from the planning permit’s original approval date.

(b)    In approving any design review approval, conditional use permit, variance or exception to standards the Director, Planning Commission, or City Council may grant an initial expiration period of up to two (2) years from the date of final approval upon the applicant’s request. Such lengthened expiration period, and the actual expiration date, shall be specified in the conditions of approval.

(c)    An applicant may request time extensions not exceeding one (1) year by applying to the original decision-maker(s) prior to the expiration date of the permit. In the case of one (1) year approvals, two (2) such extensions may be allowed. In the case of two (2) year approvals, one (1) such extension may be allowed. In no case shall a permit be extended beyond three (3) years from its original approval date. After that time, a new application shall be required.

(d)    The Director shall refer an extension request to the Public Works Director, Fire Chief, and Police Chief for their review and recommendation prior to action being taken on the extension request.

(e)    In order for an extension to be granted pursuant to subsection (c) of this section, all of the following findings must be made:

(1)    The permit holder has clearly documented that it has made a good faith effort to commence work upon the use.

(2)    It is in the best interest of the City to extend the permit.

(3)    There are no substantial changes to the project, no substantial changes to the circumstances under which the project is undertaken, and no new information of substantial importance that would require any further environmental review pursuant to the California Environmental Quality Act.

(4)    The permit holder is maintaining the property in compliance with all applicable City regulations.

(f)    In granting an extension pursuant to subsection (c) of this section, the decision-maker(s) may modify the conditions of approval as it deems necessary in order to fulfill the purposes of these planning regulations.

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

9-7.214 Modifications.

(a)    Minor Modifications. The Director may approve minor modifications to approved plans or conditions of approval that are substantially consistent with the original findings and conditions of approval and would not intensify any potentially detrimental effects of the project.

(b)    Major Modifications. Modifications to approved plans or conditions of approval that are not deemed minor by the Director require the approval of the original decision-maker(s). Any person holding a permit granted under these planning regulations may apply for such modification by following the same procedure required for the initial application for the permit. Such modifications may be to the terms of the permit itself or to conditions of approval.

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

9-7.215 Failure to Comply with Conditions.

Failure to comply with any condition of approval is a violation of these planning regulations subject to enforcement action as prescribed by Article 15 of this chapter.

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

9-7.216 Denied Applications.

Whenever an application for any type of permit under these planning regulations has been denied, no application for essentially the same proposal affecting the same property, or any portion thereof, shall be filed within one (1) year after the date of denial. This shall not apply in instances where the applicant can show changed circumstances sufficient to justify a new application. Whether or not a new application is justified shall be determined by the Director, whose decision may be appealed to the Planning Commission pursuant to Article 14 of this chapter.

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

9-7.217 Legal Considerations.

(a)    Indemnification. Applicant, its assignees, and successors-in-interest shall defend, hold harmless, and indemnify the City of Emeryville, the City of Emeryville as successor agency to the redevelopment agency, the Bay Cities Joint Powers Insurance Authority and their respective officials, officers, agents and employees (the indemnified parties) against all claims, demands, and judgments or other forms of legal and or equitable relief, which may or shall result from: (1) any legal challenge or referendum filed and prosecuted to overturn, set aside, stay or otherwise rescind any or all final project or zoning approvals, analysis under the California Environmental Quality Act or granting of any permit issued in accordance with the project; or (2) applicant’s design, construction and/or maintenance of the public improvements set forth in the final building plans. Applicant shall pay for all direct and indirect costs associated with any action herein. Direct and indirect costs as used herein shall mean but not be limited to attorney’s fees, expert witness fees, and court costs including, without limitation, City Attorney time and overhead costs and other City staff overhead costs and normal day-to-day business expenses incurred by the City including, but not limited to, any and all costs which may be incurred by the City in conducting an election as a result of a referendum filed to challenge the project approvals. The indemnified parties shall promptly notify the applicant, its assignees, and successors-in-interest of any claim, demand, or legal actions that may create a claim for indemnification under this section and shall fully cooperate with applicant, its assignees and successors-in-interest.

(b)    Irregularity in Proceedings. No action, inaction or recommendation regarding any application under these planning regulations shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission (“error”) as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation, or any matters of procedure whatever unless, after an examination of the entire case, including the evidence, the court is of the opinion that the error complained of was prejudicial and that by reason of the error the complaining party sustained and suffered substantial injury and that a different result would have been probable if the error had not occurred or existed. There is no presumption that error was prejudicial or that injury was done if error was shown.

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

Article 3.    Zoning Compliance Review

9-7.301 Purpose.

This article establishes procedures for conducting zoning compliance review to ensure that each new or expanded use or structure complies with the applicable requirements of these planning regulations.

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

9-7.302 Applicability.

Zoning compliance review is required for all construction or new uses to determine whether they comply with the applicable provisions of these planning regulations. Before the City may issue any business license, design review permit, or building permit, the Director shall review the application to determine whether the use or construction complies with all provisions of these planning regulations and any planning permit issued pursuant to the requirements of these planning regulations or any previous regulations, and whether all conditions of such permits have been satisfied.

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

9-7.303 Procedures.

An application for zoning compliance review shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures. The Director shall review the application to determine whether the proposed use or construction is allowed by right, requires any type of planning permit, is allowed pursuant to any previously approved planning permit, or is prohibited. If the Director determines that the proposal conforms to the requirements of these planning regulations, a zoning compliance approval shall be issued. If the Director determines that the proposal does not conform to the requirements of these planning regulations, a zoning compliance approval shall not be issued, and the applicant shall be advised as to how the proposal could be brought into compliance.

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

9-7.304 Appeals.

The Director’s determination of compliance or noncompliance may be appealed to the Planning Commission pursuant to Article 14 of this chapter.

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

Article 4.    Design Review

9-7.401 Purpose.

This article establishes objectives, standards, and procedures for conducting design review. The purpose of these provisions is to ensure that development is of a high design quality and complies with the applicable provisions of the General Plan, including but not limited to its urban design goals and policies, the Emeryville Design Guidelines, and any other applicable design guidelines or criteria.

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

9-7.402 Applicability.

Except as specified in Section 9-7.403, design review is required for any exterior changes that alter the appearance of a property and are visible from the public right-of-way or from public open space, whether or not a building permit is required, including all projects that involve construction, reconstruction, rehabilitation, alteration, or improvements to the exterior of a structure; the erection, replacement, or alteration of signs; and changes in landscaping including all retaining walls and fences over six feet (6') tall. Design review shall be required for exterior alterations to a project approved under a previous design review permit, conditional use permit, variance, or planned unit development if such alterations are not authorized by the previous permit. Demolition and grading permits that are not associated with a construction project approved pursuant to a design review permit, conditional use permit, variance, or planned unit development shall also be subject to design review.

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

9-7.403 Exemptions.

The following exterior changes to a property shall be exempt from design review:

(a)    Replacement in kind.

(b)    Any work deemed by the Director to have a negligible visual effect.

(c)    Structures not visible from the public right-of-way or from public open space.

(d)    Landscaping less than one thousand (1,000) square feet.

(e)    Projects consistent with a previous design review, conditional use permit, variance, or planned unit development approval.

(f)    Accessory dwelling units, the design of which shall be reviewed as part of the zoning compliance review, pursuant to Section 9-5.1409.

(g)    Solar panels.

(h)    Exempt signs pursuant to Section 9-5.1605.

(i)    Exterior alterations required by State or Federal law or other public agencies.

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

9-7.404 Minor and Major Design Review.

As provided in Article 1 of this chapter, Planning Decision Authority, the Director, Planning Commission, and City Council have authority to conduct design review. Minor and major design review are established as follows:

(a)    Minor Design Review. The Director conducts minor design review and makes a decision to approve, approve with conditions, or deny the design. The Director, at his or her discretion, may refer any such application for design review to the Planning Commission for a decision, in which case the application shall be reviewed under the major design review procedures. Projects subject to minor design review include the following:

(1)    New construction or alteration of a Single Unit or Two (2) Unit residential use.

(2)    Alterations and additions to existing buildings that do not alter the exterior building envelope, or that do alter the exterior building envelope but do not result in more than five thousand (5,000) square feet of new floor area.

(3)    New construction and alteration of accessory structures and facilities, whether or not a building permit is required.

(4)    Signs that are eligible for minor design review pursuant to Article 16 of Chapter 5.

(5)    Landscaping of more than one thousand (1,000) square feet, including all retaining walls, and fences and gates over six feet (6') tall.

(6)    Collection bins as defined in Section 9-2.702(o).

(7)    Demolition and grading permits that are not associated with a construction project approved pursuant to a design review permit, conditional use permit, variance, or planned unit development and that do not involve demolition of a significant or residential structure.

(8)    Any other design review application that the Director deems unlikely to have a visual or functional impact of substantial consequence because of its location, scale, or type.

(b)    Major Design Review. A project that does not quality for minor design review pursuant to subsection (a) of this section and is not exempt from design review pursuant to Section 9-7.403 shall be subject to major design review. The Planning Commission conducts major design review and makes a decision to approve, approve with conditions, or deny the design. Design review that is combined with another permit application that requires Planning Commission approval shall be conducted by the Planning Commission under the major design review process. Design review that is associated with the demolition of a significant or residential structure, pursuant to Article 12 of Chapter 5, shall be conducted by the City Council under the major design review process.

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

9-7.405 Procedures.

An application for design review shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, including conditions of approval, expiration, extensions, and modifications.

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

9-7.406 Design Review Criteria.

Applications for design review shall be reviewed for conformance with the applicable provisions of the General Plan, including but not limited to its urban design goals and policies, the Emeryville Design Guidelines, and any other applicable design guidelines or criteria. Such design guidelines and criteria include, but are not limited to, the North Hollis Area Urban Design Program, San Pablo Avenue Urban Design Plan, South Bayfront Design Guidelines, Park Avenue District Plan, and Shellmound Design Guidelines. Design review shall be based on an evaluation of the design of the proposed project, including, but not limited to:

(a)    Sidewalks and landscaping.

(b)    Parking and access.

(c)    Site planning.

(d)    Building massing.

(e)    Building form and articulation.

(f)    Architecture and building materials.

(g)    Open space.

(h)    Signs.

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

9-7.407 Findings.

To approve a design review application, all of the following findings must be made:

(a)    The design of the project is consistent with the General Plan, including but not limited to its urban design goals and policies.

(b)    The design of the project conforms to the Emeryville Design Guidelines and any other applicable design guidelines or criteria. If strict compliance with the provisions of such design guidelines or criteria is not achieved, the applicant must convincingly demonstrate that the intent of the guidelines or criteria is met.

(c)    The project is of a high design quality that is compatible with, and will not adversely affect, the surrounding area.

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

9-7.408 Appeals.

The Director’s decision on a minor design review application may be appealed to the Planning Commission, and the Planning Commission’s decision on a major design review application may be appealed to the City Council, pursuant to Article 14 of this chapter.

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

Article 5.    Conditional Use Permits

9-7.501 Purpose.

This article describes the process and general requirements applicable to those uses and situations for which these planning regulations require a minor or major conditional use permit. The conditional use permit process is intended to apply to uses and situations that are generally consistent with the purposes of the district where they are proposed, but require special consideration to ensure that they can be designed, located, and operated in a manner that will not interfere with the use and enjoyment of surrounding properties.

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

9-7.502 Applicability.

A conditional use permit is required to approve certain uses in certain zoning districts as specified in Article 2 of Chapter 3 of this title. A conditional use permit is also required to allow certain other uses and situations as specified in these planning regulations including the following:

(a)    Development on sites of one (1) to five (5) acres in the Mixed Use zones pursuant to Section 9-3.303(b)(2)(b).

(b)    Applying a single zoning district to a lot split by zoning district boundaries pursuant to Section 9-3.104.

(c)    Building intensity, height, and residential density regulations:

(1)    Bonus floor area ratio, height, and/or residential density pursuant to Section 9-4.204.

(2)    Applying a single floor area ratio to a lot split by floor area ratio district boundaries pursuant to Section 9-4.201(c).

(3)    Exceeding limits for allowed projections above the tops of buildings pursuant to Section 9-4.202(c).

(4)    Applying a single height limit to a lot split by height district boundaries pursuant to Section 9-4.202(d).

(5)    Applying a single residential density to a lot split by residential density district boundaries pursuant to Section 9-4.203(c).

(d)    Required yards and open space regulations:

(1)    Modifying features allowed in required yards pursuant to Section 9-4.301(e).

(2)    Allowing required open spaces to be located in certain driveways, loading, and service areas pursuant to Section 9-4.303(a)(2)(b).

(e)    Parking and loading regulations:

(1)    Providing parking more than the allowed maximum pursuant to Section 9-4.404(f).

(2)    New surface parking lots of one-half (1/2) to two (2) acres pursuant to Section 9-4.403(f)(2).

(3)    Alternative parking plans pursuant to Section 9-4.407.

(4)    Off-site common loading areas pursuant to Section 9-4.409(f).

(f)    Certain uses with special regulations:

(1)    Adult entertainment businesses pursuant to Article 3 of Chapter 5.

(2)    Firearms or ammunition businesses pursuant to Article 6 of Chapter 5.

(3)    Hazardous Waste Facilities pursuant to Article 7 of Chapter 5.

(4)    Live/Work buildings pursuant to Article 9 of Chapter 5.

(5)    Wireless Communications Antennas in the RM zone and in the public right-of-way, and wireless communications poles and towers in the INL, INH, and P zones pursuant to Article 17 of Chapter 5.

(g)    Substitution, expansion, or reestablishment of certain nonconforming uses pursuant to Article 10 of Chapter 5.

(h)    Preservation and reuse, or demolition, of a significant or residential structure pursuant to Article 12 of Chapter 5.

(i)    Private property access from a City park, greenway, or other City property pursuant to Article 13 of Chapter 5.

(j)    Exceptions to unit mix and design requirements for multi-unit residential uses pursuant to Section 9-5.2005.

(k)    Any other use or situation indicated as requiring a conditional use permit in these planning regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 10 (part), Ord. 15-009, eff. Dec. 3, 2015; Sec. 3 (Exh. A) (part), Ord. 20-005, eff. May 21, 2020)

9-7.503 Major and Minor Conditional Use Permits.

As provided in Article 1 of this chapter, Planning Decision Authority, the Director, Planning Commission, and City Council have authority to act on applications for conditional use permits. Minor and major conditional use permits are established as follows:

(a)    Minor Conditional Use Permits. The Director considers and makes decisions to approve, approve with conditions, or deny minor conditional use permit applications. The Director, at his or her discretion, may refer any such application for a minor conditional use permit to the Planning Commission for a decision, in which case the application shall be reviewed under the major conditional use permit procedures. Minor conditional use permits include the following:

(1)    Any use in any zoning district indicated as requiring a minor conditional use permit in Article 2 of Chapter 3 of this title.

(2)    A conditionally permitted use in any zoning district other than the RM zone in an existing building where the floor area is not increased by more than ten percent (10%), except uses of special concern as listed in Section 9-2.701.

(3)    Exceeding limits for allowed projections above the tops of buildings pursuant to Section 9-4.202(c).

(4)    Modifying features allowed in required yards pursuant to Section 9-4.301(e).

(5)    Allowing required open spaces to be located in certain driveways, loading, and service areas pursuant to Section 9-4.303(a)(2)(b).

(6)    Allowing off-street parking spaces to be located between the front lot line and the front wall of a building or its projection across the lot pursuant to Section 9-4.406(b)(3).

(7)    Substitution, expansion, or reestablishment of certain nonconforming uses pursuant to Article 10 of Chapter 5 of this title.

(8)    Preservation and reuse of a significant or residential structure pursuant to Article 12 of Chapter 5 of this title.

(9)    Private property access from City parks, greenways, and other City property pursuant to Article 13 of Chapter 5 of this title.

(10)    Any other use or situation indicated as requiring a minor conditional use permit in these planning regulations.

(b)    Major Conditional Use Permits. A use or situation that requires a conditional use permit but does not qualify for a minor conditional use permit pursuant to subsection (a) of this section shall be subject to a major conditional use permit. The Planning Commission considers and makes decisions to approve, approve with conditions, or deny major conditional use permit applications. A conditional use permit application that is combined with another permit application that requires Planning Commission approval shall be considered by the Planning Commission under the major conditional use permit process. A conditional use permit to demolish a significant or residential structure, pursuant to Article 12 of Chapter 5, shall be considered by the City Council under the major conditional use permit process.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013; Sec. 3 (Exh. A) (part), Ord. 20-005, eff. May 21, 2020)

9-7.504 Procedures.

An application for a conditional use permit shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, including conditions of approval, expiration, extensions, and modifications.

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

9-7.505 Findings.

To approve a conditional use permit application, all of the following findings must be made, in additional to any special findings that may be required by the applicable provisions of these planning regulations for the particular conditional use permit:

(a)    The proposed use is consistent with the General Plan.

(b)    The location, size, coverage, density, design and operating characteristics of the proposed use will be compatible with, and will not adversely affect, the surrounding area, including neighborhood character, street design and capacity, safety, noise, and lighting.

(c)    The proposed use is consistent with the capability of the water supply, wastewater disposal, fire, and police systems to operate adequately and cost effectively.

(d)    The proposed use at its proposed location will provide a service or facility that will contribute to the general well-being of the surrounding neighborhood or community.

(e)    The proposed use complies with all applicable standards and requirements of these planning regulations.

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

9-7.506 Appeals.

The Director’s decision on a minor conditional use permit application may be appealed to the Planning Commission, and the Planning Commission’s decision on a major conditional use permit may be appealed to the City Council, pursuant to Article 14 of this chapter.

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

Article 6.    Temporary Use Permits

9-7.601 Purpose.

This article establishes a process for review and approval of uses that are intended to have a limited duration and will not permanently alter the character or physical facilities of the property where they occur.

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

9-7.602 Applicability.

Except as specified in Section 9-7.603, all temporary uses, as defined in Section 9-2.104(b), require the approval of a temporary use permit, including, but not limited to, carnivals, Halloween pumpkin lots, Christmas tree lots, farmers’ markets on private or public property, Mobile Food Vendors on private or public property, and other vendors, peddlers, solicitors, or events on private or public property.

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

9-7.603 Exemptions.

The following temporary uses shall be exempt from the requirement for a temporary use permit:

(a)    On-site temporary construction offices and on-site contractors’ storage yards, including debris containers.

(b)    On-site offices for real estate sales or rental.

(c)    Garage and yard sales operated by a resident of the premises where such sales operate for a period of less than two (2) days per quarter per year.

(d)    Any use operating on a public street or sidewalk, including, but not limited to, farmers’ markets as regulated by Chapter 35 of Title 5, and Mobile Food Vendors and other vendors, peddlers, and solicitors as regulated by Chapter 27 of Title 5.

(e)    Any other temporary uses otherwise regulated by the Emeryville Municipal Code, including, but not limited to, community events regulated by Chapter 23 of Title 5.

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

9-7.604 Procedures.

An application for a temporary use permit shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures. Applications for temporary use permits shall be considered by the Planning and Building Director, in consultation with the Public Works Director, Chief Building Official, Fire Marshal, Police Chief, and other City staff as deemed appropriate. The application shall be submitted at least fourteen (14) days before the temporary use is intended to begin. It shall include a site plan of the proposed use that shows any electrical or plumbing connections, the relation of the temporary use to existing buildings, parking spaces, landscaping, and other features of the site; a description of operating characteristics, including dates, hours, number of employees, expected visitors, and security if appropriate; and any other information deemed necessary by the Director. The Director, at his or her discretion, may give such notice as is deemed appropriate to adjacent property owners or other interested parties. The Director may approve or disapprove an application or require changes or conditions of approval which, in his or her judgment, are necessary to ensure conformity with the provisions of this article. The Director’s decision may be appealed to the Planning Commission.

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

9-7.605 Findings.

To grant a temporary use permit, all of the following findings must be made:

(a)    The proposed use will not adversely affect adjacent properties, their owners and occupants, or the surrounding neighborhood.

(b)    The proposed use will not interfere with pedestrian or vehicular traffic or circulation in the area surrounding the proposed use.

(c)    The proposed use will not create a demand for additional parking that cannot be safely and efficiently accommodated by existing parking areas.

(d)    The proposed use will not conflict with the intent or requirements of any design review permit, conditional use permit, variance, or planned unit development applicable to the subject property.

(e)    Appropriate controls are in place that will ensure that the premises will be kept clean, sanitary, and free of litter.

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

9-7.606 Duration.

Temporary use permits shall be approved for no longer than the following initial time periods and may be renewed for subsequent time periods of the same duration or less. Each renewal shall require a new application and fee.

(a)    One (1) Time Temporary Uses (as defined in Section 9-2.104(b)(1)):

(1)    Mobile Food Vendors located on private or public property (i.e., not on a public sidewalk or public street): one (1) year.

(2)    All other One (1) Time Temporary Uses: sixty (60) days.

(b)    Recurring Temporary Uses (as defined in Section 9-2.104(b)(2)): one (1) year.

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

9-7.607 Conditions of Approval.

Unless waived by the Director, the following conditions of approval shall apply to all temporary use permits. In approving a temporary use permit, the Director may impose any additional conditions that are deemed necessary to make the findings required by Section 9-7.605.

(a)    Any construction or other work shall conform to all applicable codes.

(b)    Fire protection and access for fire vehicles shall be maintained, as specified by the Fire Marshal.

(c)    All signage shall comply with the sign regulations in Article 16 of Chapter 5.

(d)    The site of the temporary use shall be maintained free of weeds, litter, and debris for the duration of the temporary use.

(e)    The site of the temporary use shall be completely cleaned and all trash, debris, signs, sign supports, and temporary structures and electrical and/or plumbing service shall be removed, within three (3) days following the date specified for termination of the temporary use.

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

9-7.608 Revocation.

A temporary use 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 temporary use shall be removed within thirty (30) days of the Director’s decision unless appealed pursuant to Section 9-7.609.

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

9-7.609 Appeals.

The Director’s decision on a temporary use permit application or revocation may be appealed to the Planning Commission pursuant to Article 14 of this chapter.

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

Article 7.    Variances

9-7.701 Purpose.

This article is intended to provide a mechanism for relief from the strict application of these planning regulations where strict application would deprive the property owner of privileges enjoyed by owners of similar properties because of the property’s unique and special conditions.

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

9-7.702 Applicability.

A variance may be granted with respect to dimensional and performance standards, except that certain minor exceptions to standards may be granted pursuant to Article 8 of this chapter, Exceptions to Standards. A variance may not be granted to authorize a use that is not otherwise authorized by these planning regulations, nor may a variance be granted from any standard that is based on requirements of the General Plan, including, but not limited to, floor area ratio, height, or residential density. A deviation from such a General Plan standard requires a General Plan amendment pursuant to Article 12 of this chapter. Personal, family or financial difficulties, loss of prospective profits, and neighboring violations are not hardships justifying a variance. Further, a previous variance can never have set a precedent because each case must be considered only on its individual merits.

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

9-7.703 Procedures.

An application for a variance shall be considered by the Planning Commission and shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, including conditions of approval, expiration, extensions, and modifications. In addition to any other application requirements, an application for a variance shall include data or other evidence demonstrating that:

(a)    There are special circumstances or conditions applicable to the property, such as size, shape, topography, location, surroundings, or existing structures, which do not apply generally to uses, land or structures in the vicinity and in the same zoning district.

(b)    Due to the special circumstances applicable to this property, strict application of the regulation from which a variance is sought would deprive the property owner of privileges enjoyed by other property owners in the same zoning district.

(c)    Special circumstances applicable to the property were or are not self-imposed by the property owner.

(d)    Authorization of the variance would substantially meet the intent and purpose of the zoning district in which the subject property is located and would not be detrimental to the health, safety, and general welfare of persons living or working in the neighborhood or to the general welfare of the City.

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

9-7.704 Findings.

To grant a variance, all of the following findings must be made:

(a)    The proposal for which the variance is sought is consistent with the General Plan.

(b)    Because of special circumstances applicable to the property, including size, shape, topography, location, or surroundings, the strict application of these planning regulations would deprive the property owner of privileges enjoyed by the owners of other property in the vicinity and in the same zoning district.

(c)    The variance is necessary for the preservation and enjoyment of substantial property rights possessed by other conforming property in the vicinity and in the same zoning district and the variance, if granted, would not constitute a special privilege of the recipient inconsistent with limitations on other properties in the vicinity and in the same zoning district.

(d)    Granting the variance would not be materially detrimental to the public health, safety, or welfare and would not impair an adequate supply of light and air to adjacent property.

(e)    The conditions upon which the requested variance is based would not be applicable, generally, to other property in the same zoning district.

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

9-7.705 Appeals.

The Planning Commission’s decision on a variance may be appealed to the City Council pursuant to Article 14 of this chapter.

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

Article 8.    Exceptions to Standards

9-7.801 Purpose.

This article is intended to provide a means of granting relief from the requirements of these planning regulations for minor deviations from dimensional and design standards when strict application would preclude an effective design solution improving livability, operational efficiency, or appearance, and fulfilling the basic intent of the applicable regulation.

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

9-7.802 Applicability.

Exceptions to standards may be granted for:

(a)    Minimum yards in the residential zones, up to one-third (1/3) of the required setback.

(b)    Maximum height of fences and freestanding walls in the residential zones.

(c)    Minimum landscaping, up to ten percent (10%) of required landscaping for sites or parking lots.

(d)    Parking space dimensions, up to five percent (5%) of length and/or width for no more than ten percent (10%) of spaces.

(e)    Individual establishment sign dimensions up to five percent (5%) of any linear dimension or ten percent (10%) of any area dimension; provided, that the maximum aggregate sign area for the establishment is not exceeded.

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

9-7.803 Procedures.

An application for an exception to standards shall be considered by the Director and shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, including conditions of approval, expiration, extensions, and modifications. An exception to standards application that is combined with another permit application that requires Planning Commission or City Council approval shall be acted upon by the Commission or Council concurrently with the other permit application.

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

9-7.804 Findings.

To grant an exception to standards, all of the following findings must be made:

(a)    The proposal for which the exception is sought is consistent with the General Plan.

(b)    Strict compliance with these planning regulations would preclude an effective design solution improving livability, operational efficiency, or appearance.

(c)    The proposal for which the exception is sought would fulfill the basic intent of the applicable regulation.

(d)    The proposal for which the exception is sought would comply with the applicable design review criteria at Section 9-7.406.

(e)    The proposal for which the exception is sought would be compatible with, and would not adversely affect, the surrounding area, and would not be detrimental to the health or safety of the public or the occupants of the property.

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

9-7.805 Appeals.

The Director’s decision on an exception to standards may be appealed to the Planning Commission pursuant to Article 14 of this chapter. If the initial decision on the exception is made by the Planning Commission, the Commission’s decision may be appealed to the City Council pursuant to Article 14 of this chapter.

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

Article 9.    Reasonable Accommodation

9-7.901 Purpose.

It is the policy of the City of Emeryville to comply with the Federal Fair Housing Amendments Act and the California Fair Employment and Housing Act to provide reasonable accommodation by modifying the application of its zoning and subdivision regulations for persons with disabilities seeking fair access to housing. The City also recognizes the importance of sustaining and enhancing neighborhoods. In determining whether a requested modification of zoning or subdivision regulations is reasonable, the City will consider, among other relevant factors, the extent to which the requested modification might be in conflict with the legitimate purposes of its existing zoning or subdivision regulations. The purpose of these provisions is to provide a process for making requests for reasonable accommodation to zoning and subdivision decisions and procedures regulating the siting, funding, development and use of housing for people with disabilities.

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

9-7.902 Notice to the Public of Availability of Accommodation Process.

A notice shall be displayed at the counter of the Planning and Building Department advising applicants that they may request a reasonable accommodation of existing rules, policies, practices and procedures related to housing. A form for requesting an accommodation shall be available in the Planning and Building Department and from the Americans with Disabilities Act (ADA) Coordinator.

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

9-7.903 Requesting Reasonable Accommodation.

(a)    In order to make specific housing available to an individual with a disability, any person may request a reasonable accommodation in the rules, policies, practices and procedures regulating the siting, funding, development or use of housing by completing the form for requesting an accommodation and filing it with the Department.

(b)    If an individual needs assistance in making the request for reasonable accommodation, the Department/ADA Coordinator shall provide the assistance necessary to ensure that the process is accessible to the applicant.

(c)    A request for reasonable accommodation in rules, policies, practices and/or procedures may be filed at any time that the accommodation may be necessary to ensure equal access to housing. Accordingly, the request may be filed at the outset or during the zoning or subdivision approval process.

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

9-7.904 Review of Requests for Reasonable Accommodation.

(a)    When a request for reasonable accommodation is filed with the Department, it is referred to the ADA Coordinator and Planning and Building Director or his or her designee for review and consideration. The Director shall issue a written decision within forty-five (45) days of the date of the application and may grant the reasonable accommodation request, grant with modifications, or deny the request.

(b)    If necessary to reach a decision on the request for reasonable accommodation, the Director may request further information from the applicant consistent with the Act, specifying in detail what information is required.

(c)    Not more than forty-five (45) days after receiving a written request for reasonable accommodation, the Director shall issue a written decision on the request to the applicant and adjacent owners of the property which is the subject of the request for reasonable accommodation; provided, that in the event that the Director requests further information pursuant to subsection (b) of this section, the running of this period shall be tolled (stopped) until the applicant responds to the request.

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

9-7.905 Factors for Considering Requests for Reasonable Accommodation.

In approving a requested accommodation, the Director shall find:

(a)    That the housing which is the subject of the request for reasonable accommodation will be used by an individual protected under the Act;

(b)    That the request for accommodation is necessary to make specific housing available to an individual protected under the Act;

(c)    That the requested accommodation would not impose an undue financial or administrative burden on the City;

(d)    That the requested accommodation would not require a fundamental alteration in the nature of a program; and

(e)    That there are no alternative reasonable accommodations which may provide an equivalent level of benefit to the applicant.

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

9-7.906 Written Decision on the Request for Reasonable Accommodation.

(a)    The Director’s written decision on the request for reasonable accommodation shall explain in detail the basis of the decision, including the Director’s findings on the criteria set forth in Section 9-7.905. All written decisions shall give notice of the right to appeal and to request reasonable accommodation in the appeals process as set forth below. The Director’s notice of decision shall be sent to the applicant by certified mail.

(b)    If the Director fails to render a written decision on the request for reasonable accommodation within the time period allotted by Section 9-7.904, the request shall be deemed denied.

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

9-7.907 Appeals.

(a)    Any person may appeal the decision of the Director to the Planning Commission as provided in Article 14 of this chapter by filing the appeal of decision of fair housing accommodation request form to be provided by the Department with the written decision.

(b)    An appellant may request reasonable accommodation in the procedure by which an appeal will be conducted. If an appellant needs assistance in filing an appeal, the Department shall provide the assistance that is necessary to ensure that the appeal process is accessible to the applicant.

(c)    All appeals shall contain a statement of the grounds for the appeal.

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

9-7.908 Definitions.

For purposes of this article, the following terms shall have the meaning ascribed to them:

(a)    “Act” means the Federal Fair Housing Amendments Act and the California Fair Employment and Housing Act.

(b)    “Applicant” means the individual making the request for reasonable accommodation pursuant to this article.

(c)    “Disability” means as defined by either the Federal Fair Housing Amendments Act (FHA), 42 U.S.C. Section 3601 et seq., or the California Fair Employment and Housing Act (FEHA), California Government Code Section 12900 et seq.

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

Article 10.    Planned Unit Developments

9-7.1001 Purpose.

This article establishes the planned unit development (PUD) procedures, which allow for the creation of PUD zones to encourage the creative development of large sites so as to permit flexibility in physical design, achieve attractive designs which encourage large-scale site planning, and ensure that the applicable provisions of the General Plan are established early in the formation of such development proposals.

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

9-7.1002 Applicability.

The procedures in this article apply to all proposals for planned unit development projects. Before commencing any construction for any development within the scope of this article, preliminary and final development approval for a planned unit development (PUD) as set forth in this article shall first be obtained.

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

9-7.1003 Procedures.

An application for a planned unit development shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, including conditions of approval, expiration, extensions, and modifications. A preliminary development plan (PDP) for the PUD shall be considered by the City Council with a recommendation from the Planning Commission. The PDP may stipulate that the development of the PUD shall be in phases, and may also stipulate the sequence and timing of such phases. Approval of the PDP shall constitute the zoning for the site, shall be by ordinance, and is subject to referendum. One (1) or more subsequent final development plans (FDP), corresponding to the development phases approved in the PDP, shall be considered by the Planning Commission, which must find that each FDP substantially conforms to the PDP. The Commission’s decision on an FDP may be appealed to the City Council. PDPs and FDPs may also be processed concurrently, in which case the Planning Commission’s approval of the FDP is contingent upon City Council approval of the PDP.

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

9-7.1004 Findings.

(a)    PUD Zone and Preliminary Development Plan. The Planning Commission in recommending, and the City Council in approving, the creation of a PUD zone and the adoption of a preliminary development plan must make all of the following findings:

(1)    The proposed planned unit development is consistent with the General Plan and any other applicable plans.

(2)    The proposed planned unit development will provide for a cohesive, integrated, well-planned development that will contribute to the general well-being of the surrounding neighborhood or community.

(3)    The subject property is suitable for the uses permitted in the proposed planned unit development in terms of access, size of parcel, and relationship to similar or related uses.

(4)    The location, size, coverage, density, design and operating characteristics of the proposed planned unit development will be compatible with, and will not adversely affect, the surrounding area, including neighborhood character, street design and capacity, safety, noise, and lighting.

(5)    The subject property will be developed with due regard for aesthetic quality and landscaping so as to reduce, to the extent feasible, significant negative impacts on the environmental quality, value, or stability of the site or the environmental quality or value of improved or unimproved property in the area.

(6)    The proposed planned unit development will be developed to allow originality which does not have significant adverse impacts on the environmental quality or value of improved or unimproved property in the area or prevent appropriate development and use of such areas.

(7)    The proposed planned unit development has been designed to include open space, parking, pedestrian walks, signs, illumination, and landscaping (including irrigation) to enhance the environmental quality of the site.

(b)    Final Development Plan. In approving a final development plan, the Planning Commission must make both of the following findings:

(1)    The final development plan substantially conforms to the preliminary development plan.

(2)    Changes and conditions of approval specified by the City Council in its approval of the preliminary development plan have been met.

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

9-7.1005 General Requirements.

(a)    Area. The minimum area of a proposed planned unit development must be no less than one (1) acre. Pursuant to Section 9-3.303(b)(2), a development in the Mixed Use zones on a site of one (1) to five (5) acres may, at the applicant’s option, be processed as a planned unit development, and on a site of more than five (5) acres, must be processed as a planned unit development.

(b)    Uses. A planned unit development may authorize uses that are not permitted in the base zone in which the site was located prior to adoption of the PUD, but may not authorize uses inconsistent with the General Plan land use designation of the site. A proposed planned unit development on a site that was located in a Mixed Use zone prior to adoption of the PUD must include a mix of uses as specified in Section 9-3.303(b).

(c)    Overlay Zones. The regulations for overlay zones, as specified in Article 4 of Chapter 3, shall apply to new PUDs approved under these planning regulations, but shall not apply to PUDs approved prior to the adoption of these planning regulations.

(d)    Development Standards. A planned unit development may modify any of the standards in Chapter 4, Site Development Regulations, except those that are set by the General Plan, including building intensity (floor area ratio), height, and residential density. A planned unit development must provide public benefits pursuant to Section 9-4.204 to qualify for bonus floor area ratio, height, and/or residential density.

(e)    Subdivision Map. When a planned unit development requires the submission of a subdivision map, the tentative map and all supporting documents shall be prepared and submitted concurrently with the preliminary development plan, and the final map and all supporting documents shall be prepared and submitted concurrently with the final development plan. This requirement does not preclude subsequent submission and approval of an application for a subdivision map.

(f)    Persons Eligible to Apply.

(1)    Preliminary Development Plan. An application for the granting of a preliminary development plan for a PUD may be made by any person having a legal ownership interest, or option to purchase, in the property to be included in the proposed planned unit development, or by any person with the ability to acquire property to be included in the proposed planned unit development pursuant to a disposition and development agreement, participation agreement, exclusive right to negotiate agreement or other such agreement between said person and the City of Emeryville and/or the City of Emeryville as successor agency to the redevelopment agency.

(2)    Final Development Plan. An application for the granting of a final development plan for a planned unit development may be made by any person having a legal ownership interest, or option to purchase, in the property to be included in the proposed final development plan or by any person with the ability to acquire the property to be included in the proposed final development plan pursuant to a disposition and development agreement, participation agreement, exclusive right to negotiate agreement or other such agreement between the applicant and the City of Emeryville and/or the City of Emeryville as successor agency to the redevelopment agency; provided, however, that at the time of final action on the final development plan, the applicant must have concurrence of all owners of the property to be included in the proposed final development plan, or approval of such an agreement set forth herein by the City of Emeryville and/or the City of Emeryville as successor agency to the redevelopment agency respecting property to be included in the proposed final development plan for which the applicant has not secured concurrence of the owner.

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

9-7.1006 Preliminary Development Plan: Application.

In addition to any other application requirements as specified in Article 2 of this chapter, Common Procedures, an application for a preliminary development plan shall include the following:

(a)    Form and Contents. The form and contents of the proposed preliminary development plan shall be as follows:

(1)    Statement of Intent. An overall development scheme which states the development intentions of the applicant respecting his/her property, including but not limited to the following: a general statement of location and intensity of proposed uses and activities, including public and private open spaces; a general physical description of proposed facilities accommodating such uses, including general types of buildings, structures, and landscape and circulation elements; a description of both the location and method for treatment of stormwater on site; a statement of location and general configuration of lands to be dedicated for public open space and other public uses; a general designation of utilities; a general statement of the form of site management proposed in areas of significant natural resources; a general statement detailing the consistency of the proposed development project with major public development programs, including but not limited to transit streets, bicycle boulevards, greenways, parks, trails, open spaces, and the phased schedules of proposed major public facilities; and a statement of proposed general uses planned within the PUD.

(2)    Supporting Graphics. Graphics as are necessary to establish the physical scale and character of the development and demonstrate the relationship among its constituent land uses, buildings and structures, public facilities, and open space. These graphics shall at a minimum indicate: perimeter boundaries of the site; approximate location and dimension of streets, driveways, sidewalks, pedestrian ways, off-street parking and loading areas, buildings and structures; a conceptual lighting plan for the buildings and adjacent parking and pedestrian travel areas, utilization of buildings and structures, including activities and the number of living units; reservations for public uses, including schools, parks, playgrounds, and other open spaces; location, sizing and preliminary design of stormwater treatment measures; and major landscaping proposals. The Director may require graphics presenting additional information as he or she determines is necessary to support the statement of intent.

(3)    Description of Surrounding Area. A set of maps and statements providing information on the character and use of the surrounding area within three hundred feet (300') of the development site.

(4)    Background Report. A background report which includes but is not limited to the following information: a preliminary development schedule including anticipated timing, to the extent known, for commencement and completion of each phase of development; tabulation, to the extent known, of the total number of acres in each separate phase and percentage of such acreage to be devoted to particular uses, and, if applicable, an indication of the proposed number and type of dwelling units by phase of development; a preliminary population schedule, if applicable, including estimated residential population for the entire project at its completion and for each type of dwelling unit for each phase of development; calculation, if applicable, of the average residential density per gross acre and per net residential acre by phase, and estimated nonresidential population for each phase of development; an indication of the retail market area to be served by any nonresidential uses included in the proposal and sufficient economic data to support inclusion of such nonresidential uses; and engineering feasibility studies if determined necessary by the City Engineer.

(b)    Accompanying Data and Reports. The proposed preliminary development plan shall be accompanied by the following data and reports:

(1)    A list of names and addresses of all owners of the property and the extent and nature of their interest in the parcel(s) proposed for the PUD.

(2)    A legal description of the parcel(s) and a statement of their size in acres.

(3)    A title report verifying the description and vestees.

(4)    Project description and other data identifying the development.

(5)    The method whereby the landscaped areas adjacent to building sites and landscaped open areas are to be established and maintained and the method for on-site treatment for stormwater.

(6)    Information as to whether the parcel(s) is (are) intended to remain under the same ownership and control or to be divided into smaller units during or after development, and the manner and method of the division.

(7)    A copy of any proposed deed restrictions and covenants proposed to be recorded.

(8)    A copy of any association description, articles of incorporation, and bylaws, and, should there be none, then a statement of the proposed contents.

(9)    A completed environmental assessment information form.

(10)    Satisfactory evidence of the ability and intention of the applicant to proceed with actual construction work in accordance with the requested PUD within twelve (12) to eighteen (18) months after approval of a final development plan.

(11)    Any other data or reports deemed necessary by the Planning and Building Director.

(c)    Tentative Map. As appropriate, a tentative subdivision map may be submitted concurrently with the preliminary development plan.

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

9-7.1007 Preliminary Development Plan: Planning Commission Action.

The Planning Commission shall recommend a course of action on the preliminary development plan after holding a public hearing, noticed as required by Article 2 of this chapter, Common Procedures. At the conclusion of the hearing, the Planning Commission shall review the preliminary development plan for conformity with the General Plan and any applicable special requirements contained in this article and, after making the findings required by Section 9-7.1004(a), shall recommend approval, conditional approval, or denial of the preliminary development plan and any associated tentative map. The Planning Commission shall forward to the City Council the appropriate environmental documents and a written report of its recommendation.

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

9-7.1008 Preliminary Development Plan: City Council Action.

Within thirty (30) days following the receipt of the recommendation of the Planning Commission, the City Council shall conduct a public hearing, noticed as required by Article 2 of this chapter, Common Procedures, for final action on the preliminary development plan and any associated tentative map. At the conclusion of the hearing, the Council shall review the preliminary development plan for conformity with the General Plan and any applicable special requirements contained in this article and, after making the findings required by Section 9-7.1004(a), shall approve, conditionally approve, or disapprove the preliminary development plan and any associated tentative map.

Approval of a preliminary development plan shall be by ordinance. The ordinance shall include conditions of approval specifying the uses permitted in the planned unit development; any waiver or modification of the development standards of Chapter 4, Site Development Regulations; an amendment to the Zoning Map at Section 9-3.103(a) to indicate the new PUD zone; and an amendment to Section 9-3.310 to list the new PUD.

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

9-7.1009 Final Development Plan: Application.

(a)    Timing. Unless otherwise provided by an approved preliminary development plan or development agreement, within twenty-four (24) months of approval of the preliminary development plan by the City Council, the applicant shall file with the Planning Division a final development plan for the entire development or, when submission in phases has been authorized by the City Council pursuant to its review of the preliminary development plan, for the first phase of development. This time limit may be extended by the City Council pursuant to the procedures in Article 2 of this chapter, Common Procedures.

(b)    Form and Contents. The final development plan shall substantially conform to the approved preliminary development plan. In addition to any other application requirements as specified in Article 2 of this chapter, Common Procedures, an application for a final development plan shall include the following:

(1)    The same elements as required for a preliminary development plan pursuant to Section 9-7.1006(a).

(2)    The location of existing and proposed water, sewerage, and drainage facilities.

(3)    Detailed building and landscaping plans and elevations.

(4)    Character and location of signs, or, if required by Section 9-5.1613(a)(1) or at the applicant’s option, a proposed Master Sign Program.

(5)    Proposed plans for street improvements.

(6)    Proposed grading, site-improvement, traffic-control, drainage, sewer, and lighting plans.

(7)    Application for any permits required by the City of Emeryville, not including demolition, grading, or building permits.

(8)    Legal documents required for the dedication or reservation of group or common open spaces, for the creation of a nonprofit homeowners’ association, or for performance bonds.

(9)    Changes, if any, as required by the City Council as conditions of approval of the preliminary development plan.

(10)    A narrative delineating those aspects of the final development plan that are not in exact conformance with the preliminary development plan, if any.

(11)    Any other data or reports deemed necessary by the Planning and Building Director.

(c)    Final Map. As appropriate, a final subdivision map may be submitted concurrently with the final development plan.

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

9-7.1010 Final Development Plan: Planning and Building Director Review and Recommendation.

Within sixty (60) days after submission of a complete application for a final development plan, the Planning and Building Director shall examine the plan and review it for substantial conformity to the preliminary development plan approved by the City Council and whether changes and conditions of approval specified by the City Council have been met. The Director shall refer the final development plan to the City Engineer for review of its substantial conformity to the preliminary development plan respecting public improvements, including streets, sewers, and drainage, and for review of compliance with applicable conditions of approval, as specified by the City Council. Within thirty (30) days after the Director and City Engineer complete their review of the final development plan, the Director shall forward a written report to the Planning Commission advising approval, conditional approval, or disapproval of the final development plan.

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

9-7.1011 Final Development Plan: Planning Commission Action.

The Planning Commission shall consider the final development plan at a public hearing noticed and conducted as required by Article 2 of this chapter, Common Procedures. At the conclusion of this public hearing, the Commission shall review the final development plan for substantial conformity to the preliminary development plan approved by the City Council and to determine whether changes and conditions of approval specified by the Council have been met, and, after making the findings required by Section 9-7.1004(b), shall approve, conditionally approve, or deny the final development plan. In approving a final development plan, the Planning Commission may designate such additional conditions as it deems necessary for the final development plan to conform to the preliminary development plan, and to fulfill the purposes of these planning regulations, the General Plan, and any other applicable plans. If the final development plan does not include a Master Sign Program, the Commission may include a condition of approval requiring one, if appropriate.

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

9-7.1012 Final Development Plan: Appeals.

The Planning Commission’s decision on a final development plan may be appealed to the City Council pursuant to Article 14 of this chapter.

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

9-7.1013 Concurrent Processing of Preliminary and Final Development Plans.

(a)    Applicants may, at their option, submit and file, at one (1) time, applications for both a preliminary development plan for all of the property, and a final development plan for all or some phases of the development.

(b)    After determining that the applications are complete, the Director shall schedule a hearing before the Planning Commission on both the preliminary and final development plans, pursuant to the applicable provisions of this article. Planning Commission approval of the final development plan shall be contingent upon City Council approval of the preliminary development plan.

(c)    The City Council shall take action on the preliminary development plan pursuant to Section 9-7.1008. A final development plan approved by the Planning Commission shall be final when the ordinance approving the preliminary development plan takes effect.

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

9-7.1014 Adherence to Approved Plan.

The applicant shall agree in writing to be bound, for him or her and his or her successors in interest, by the conditions prescribed for approval of the development. The approved final development plan and phased development schedule shall control the issuance of all building permits and shall restrict the nature, location and design of all uses. Minor changes in an approved final development plan, including a phased development schedule and minor relocation of uses on the site, may be approved by the Planning and Building Director if such changes are consistent with the purposes and general character of the approved final development plan, unless otherwise provided by an owner participation agreement, disposition and development agreement, development agreement, vesting tentative map, or other controlling agreement respecting the site. All other modifications shall be processed in the same manner as the original application and shall be subject to the same procedural requirements.

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

Article 11.    Development Agreements

9-7.1101 Purpose.

This article establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects pursuant to California Government Code Section 65864 et seq. The purpose of this article is to facilitate large, phased projects for which there is significant private participation in infrastructure, public facilities, open space and amenities, and other programs of benefit to the City and its residents.

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

9-7.1102 Applicability.

The City of Emeryville, at its sole discretion, may enter into a binding agreement with any qualified applicant for the development of qualified property within the City of Emeryville pursuant to and in accordance with these regulations.

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

9-7.1103 Procedures.

An application for a development agreement shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures. A development agreement shall be considered by the City Council with a recommendation from the Planning Commission. Its approval shall be by ordinance authorizing the City Manager or his or her designee to execute the development agreement, and is subject to referendum. After the ordinance approving the development agreement takes effect, the City Manager shall execute the development agreement on behalf of the City. The effective date of the development agreement shall be the later of the effective date of the ordinance or the date the City Manager executes the development agreement on behalf of the City. Within ten (10) days after the City Manager executes the development agreement on behalf of the City, the City Clerk shall have the development agreement and the ordinance approving it recorded with the County Recorder.

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

9-7.1104 Findings.

The Planning Commission in recommending, and the City Council in approving, a development agreement, must make both of the following findings:

(a)    The development agreement is consistent with the General Plan and any applicable specific plan.

(b)    The development agreement is in the public interest.

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

9-7.1105 Qualifications.

(a)    Applicants. Only a qualified applicant may file an application to enter into a development agreement. A “qualified applicant” is a person who has legal or equitable interest in the real property which is the subject of the development agreement. The City Manager or his or her designee may require an applicant to submit proof of his or her interest in the real property. The City Manager may also require that all persons having a legal or equitable interest in the real property be made parties to the application and signatories to the development agreement, or otherwise assure the City, in form approved by the City Attorney, that they will be legally bound to comply with the terms and conditions of the development agreement; provided, that this requirement shall not apply to owners or claimants of interests in easements, whether of record or otherwise, or other interests not deemed material by the City Manager, unless the City Attorney determines that their agreement or undertaking to be bound by the development agreement is necessary for the development agreement to be effective in achieving the City’s objectives. The burdens of the development agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the development agreement. The qualified applicant and any successors in interest are referred to in this article as “developer,” which shall include the plural in the case of an applicant consisting of more than one (1) party.

(b)    Property. The property to be the subject of the development agreement shall be situated within the City limits and shall represent an appropriate parcel or parcels, as to ownership and parcel configuration, size and location, as determined by the City Manager, to assure the development of the property consistent with the policies, goals, standards and objectives of the General Plan and applicable City ordinances, laws, rules, regulations and policies.

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

9-7.1106 Contents of Development Agreement.

(a)    Every development agreement shall be for a specified initial term. Such terms may be extended, from time to time, as provided in the development agreement.

(b)    The development agreement shall specify (in the development agreement itself or by reference to other project approvals) the permitted uses of the property which is subject to the development agreement, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and dedication of land for public purposes, the location of public improvements, and other applicable terms and conditions.

(c)    The development agreement may contain a requirement that construction be commenced within a specified period of time or that the project or any phase thereof be completed within a specified time. If the development agreement expressly does not specify the timing of the commencement or completion of the project, or any phase thereof, the development agreement may specify that it is deemed nevertheless to have dealt with the issue of timing; provided, however, that specific time requirements of any subsequent special permit, subdivision map or other land use entitlement shall govern.

(d)    The development agreement may contain a hold harmless agreement and an agreement to indemnify the City from suits and actions arising in connection with the development agreement, to the satisfaction of the City Attorney.

(e)    The development agreement may include conditions, terms, restrictions and requirements for subsequent discretionary actions; provided, that such conditions, terms, restrictions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the development agreement.

(f)    A development agreement may provide that it constitutes a financing agreement within the meaning and scope of California Government Code Section 53511.

(g)    The development agreement may contain such other provisions as the City Council deems appropriate.

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

9-7.1107 Periodic Review.

(a)    The City Manager or designee shall, on an annual basis and at any other time that the City Manager determines to be appropriate, review the extent of good faith substantial compliance by the developer with the terms and conditions of the development agreement. Such periodic review shall be limited in scope to compliance with the terms and conditions of the development agreement pursuant to California Government Code Section 65865.1. The costs of notice and related costs incurred by the City for such annual review shall be borne by the developer.

(b)    Unless otherwise specified in a development agreement, the City Manager shall provide thirty (30) days’ prior written notice of such periodic review to the developer. Such notice shall require the developer to demonstrate good faith compliance with the terms and conditions of the development agreement and to provide such other information as may be reasonably requested by the City Manager and deemed by him or her to be required in order to ascertain compliance with the development agreement. Such notice shall also include the statement that any review may result in amendment or termination of the development agreement.

(c)    If, following such review, the City Manager is not satisfied that the developer has demonstrated good faith compliance with all the terms and conditions of the development agreement, or for any other reason, the City Manager may refer the matter along with his or her recommendation to the City Council.

(d)    The City Council shall conduct a hearing on compliance at its first available agenda after referral by the City Manager. The City Council shall hear the matter de novo.

(e)    If the City Council finds and determines, on the basis of substantial evidence, that any developer has not complied in good faith with each and every term and condition of the development agreement, the City Council may terminate or modify the development agreement as to that developer and the property in which that developer holds an interest. Failure of any developer to accept a modification of the development agreement shall result in termination of the development agreement as to that developer and the property in which that developer holds an interest. Termination of the development agreement shall not affect any developer’s obligations to comply with the terms and conditions of any applicable zoning, specific plans, special permit, subdivision map or other land use entitlement approved with respect to the property subject to the development agreement, nor shall it affect other covenants of any developer specified in the development agreement to continue after the termination of the development agreement.

(f)    A finding by the City Manager or the City Council of good faith compliance by a developer with the terms and conditions of the development agreement shall conclusively determine the issue up to and including the date of the review as to such developer.

(g)    Failure of the City to conduct a periodic review shall not constitute a waiver by the City of its rights to enforce the provisions of a development agreement, nor shall a developer have or assert any defense to such enforcement by reason of such failure to conduct a periodic review.

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

9-7.1108 Amendment or Cancellation.

A development agreement may be amended or canceled, in whole or in part, by the mutual consent of the parties to the development agreement or their successors in interest and as otherwise provided in the development agreement. The procedure for a substantive amendment or cancellation shall be the same as the procedures for approval. If the parties to the development agreement or their successors in interest cancel or terminate the development agreement, the City Clerk shall have notice of such action recorded with the County Recorder.

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

9-7.1109 Modification or Suspension.

In the event that State or Federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one (1) or more provisions of the development agreement, such provisions of the development agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. The procedure for modification or suspension of a substantive provision of a development agreement shall be the same as the procedures for approval.

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

Article 12.    General Plan Amendments

9-7.1201 Purpose.

This article establishes a uniform process for the amendment of the General Plan when it is in the public interest to do so.

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

9-7.1202 Applicability.

The procedures in this article apply to all proposals to amend the text or diagrams of the General Plan, including, but not limited to, the land use, building intensity (floor area ratio), height, and residential density maps.

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

9-7.1203 Initiation of Amendments.

An amendment to the General Plan may be initiated by:

(a)    Any qualified applicant as identified in Article 2 of this chapter, Common Procedures; or

(b)    An order of the City Council or Planning Commission, on its own motion or on the recommendation of the Director of Planning and Building.

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

9-7.1204 Procedures.

An application for an amendment to the General Plan shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, and shall be considered by the City Council with a recommendation from the Planning Commission. It shall be processed in conformance with California Government Code Section 65350 et seq., its approval shall be by resolution, and it is subject to referendum.

(a)    Required Information. In addition to any other application requirements, an application for a General Plan amendment shall include a statement, supported by documentation, that describes how the proposed amendment conforms to the General Plan’s guiding principles and the benefit to the public that will result from approving the proposed change or changes to the Plan.

(b)    Director’s Report. The Director shall prepare a report and recommendation to the Planning Commission, which shall include, but is not limited to, a discussion of how the proposed amendment complies with the purposes of this article and the General Plan’s guiding principles, and a determination as to whether the proposed amendment will require amendment to other plans that the City Council has adopted.

(c)    Planning Commission Recommendation. The Commission’s recommendation shall be forwarded to the City Council for action on the proposed amendment except in the situation specified in Section 9-7.1206(a).

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

9-7.1205 Findings.

The Planning Commission in recommending, and the City Council in approving, an amendment to the General Plan, must make all of the following findings:

(a)    The proposed amendment will contribute to the public health, safety, and general welfare or will be of benefit to the public.

(b)    The proposed amendment is consistent with the General Plan’s guiding principles, unless the guiding principles themselves are proposed to be amended.

(c)    The proposed amendment retains the internal consistency of the General Plan and is consistent with other adopted plans, unless concurrent amendment to those plans is also proposed and will result in consistency.

(d)    The proposed amendment has been reviewed in compliance with the requirements of the California Environmental Quality Act.

(e)    The proposed amendment complies with State law for the preparation, adoption, and amendment of general plans at California Government Code Section 65350 et seq.

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

9-7.1206 Planning Commission Action.

The Planning Commission shall hold a public hearing noticed and conducted as required by Article 2 of this chapter, Common Procedures, and shall then vote on its recommendation on the proposed amendment. A recommendation for approval shall be made by the affirmative vote of not less than a majority of the total membership of the Commission.

(a)    Recommendation Against Private Application. If the amendment under consideration was initiated by an applicant pursuant to Section 9-7.1203(a), and the Planning Commission recommends against the adoption of such amendment, the application is denied and the City Council shall not be required to take any further action on the amendment unless the Planning Commission’s decision is appealed pursuant to Article 14 of this chapter.

(b)    All Other Situations. Following the public hearing, the Planning Commission shall submit a recommendation on the proposed amendment and environmental determination to the City Council. The recommendation shall include the reasons for the recommendation; the extent to which the proposed amendment meets the purposes of this article; the consistency of the proposed amendment with the General Plan’s guiding principles, other provisions of the General Plan, and any other adopted plan; and any changes to the amendment that the Commission deems necessary to ensure internal consistency of the General Plan and consistency with other adopted plans, or to reduce environmental impacts.

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

9-7.1207 City Council Action.

After receiving the report from the Planning Commission, the City Council shall hold a public hearing noticed and conducted as required by Article 2 of this chapter, Common Procedures. The notice shall include a summary of the Planning Commission recommendation. After the conclusion of the hearing, the City Council may approve, modify, or disapprove the recommendations of the Planning Commission; provided, that any substantial modification of the proposed amendment by the City Council not previously considered by the Planning Commission during its hearing shall first be referred to the Planning Commission for report and recommendation. The Planning Commission is not required to hold a public hearing on the matter. If the Planning Commission fails to report back to the City Council within sixty (60) days after the referral, the modification shall be deemed to have been recommended for approval. The City Council’s approval of an amendment to the General Plan shall be by resolution, which shall be adopted by the affirmative vote of not less than a majority of the total membership of the Council.

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

Article 13.    Amendments to Planning Regulations and Zoning Maps

9-7.1301 Purpose.

This article establishes a uniform process for the amendment of these planning regulations, including the boundaries of base zones and overlay zones established pursuant to Chapter 3; provided, that such amendment is consistent with the General Plan.

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

9-7.1302 Applicability.

The procedures in this article apply to all proposals to change the text of these planning regulations or to revise a zoning district classification or boundary line shown on the Zoning Maps in Section 9-3.103. These procedures do not apply to amendments to the building intensity (floor area ratio), height, and residential density maps in Article 2 of Chapter 4, which are part of the General Plan and may only be amended pursuant to the General Plan amendment procedures in Article 12 of this chapter.

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

9-7.1303 Initiation of Amendments.

An amendment to these planning regulations or the Zoning Maps may be initiated by:

(a)    Any qualified applicant as identified in Article 2 of this chapter, Common Procedures; or

(b)    An order of the City Council or Planning Commission, on its own motion or on the recommendation of the Director of Planning and Building.

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

9-7.1304 Procedures.

An application for an amendment to these planning regulations and/or the Zoning Maps shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures, and shall be considered by the City Council with a recommendation from the Planning Commission. Its approval shall be by ordinance and is subject to referendum. The Director shall prepare a report and recommendation to the Commission, which shall include, but is not limited to, a discussion of how the proposed amendment meets the findings in Section 9-7.1305. The Commission’s recommendation shall be forwarded to the City Council for action on the proposed amendment except in the situation specified in Section 9-7.1306(a).

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

9-7.1305 Findings.

The Planning Commission in recommending, and the City Council in approving, an amendment to these planning regulations or the Zoning Maps must make all of the following findings:

(a)    The proposed amendment is consistent with the General Plan.

(b)    The proposed amendment is necessary for public health, safety, and general welfare or will be of benefit to the public.

(c)    The proposed amendment has been reviewed in compliance with the requirements of the California Environmental Quality Act.

(d)    For a change to the Zoning Maps, that the subject property is suitable for the uses permitted in the proposed zone in terms of access, size of parcel, relationship to similar or related uses, and other relevant considerations, and that the proposed change of zoning district is not detrimental to the use of adjacent properties.

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

9-7.1306 Planning Commission Action.

The Planning Commission shall hold a public hearing noticed and conducted as required by Article 2 of this chapter, Common Procedures, and shall then vote on its recommendation on the proposed amendment.

(a)    Recommendation Against Amendment to Rezone Property. If the matter under consideration is an amendment to change property from one (1) zone to another, and the Planning Commission recommends against the adoption of such amendment, the application is denied and the City Council shall not be required to take any further action on the amendment unless the Planning Commission’s decision is appealed pursuant to Article 14 of this chapter.

(b)    All Other Situations. Following the public hearing, the Planning Commission shall submit a recommendation on the proposed amendment and environmental determination to the City Council. The recommendation shall include the reasons for the recommendation; the extent to which the proposed amendment meets the purposes of this article; the compatibility of the proposed amendment with the General Plan and any other adopted plan; and any changes to the amendment that the Commission deems necessary to comply with the General Plan and other adopted plans, or to reduce environmental impacts.

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

9-7.1307 City Council Action.

After receiving the report from the Planning Commission, the City Council shall hold a public hearing noticed and conducted as required by Article 2 of this chapter, Common Procedures. The notice shall include a summary of the Planning Commission recommendation. After the conclusion of the hearing, the City Council may approve, modify, or disapprove the recommendations of the Planning Commission; provided, that any substantial modification of the proposed amendment by the City Council not previously considered by the Planning Commission during its hearing shall first be referred to the Planning Commission for report and recommendation. The Planning Commission is not required to hold a public hearing on the matter. If the Planning Commission fails to report back to the City Council within sixty (60) days after the referral, the modification shall be deemed to have been recommended for approval. The City Council’s approval of an amendment to these planning regulations and/or Zoning Maps shall be by ordinance.

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

Article 14.    Appeals

9-7.1401 Purpose.

This article establishes uniform procedures for appeals of interpretations, determinations, and decisions made pursuant to the provisions of these planning regulations.

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

9-7.1402 Applicability.

Interpretations, determinations, and decisions made by the Director of Planning and Building may be appealed to the Planning Commission. Interpretations, determinations, and decisions made by the Planning Commission may be appealed to the City Council. Appeals may be filed by the applicant, by the owner of property, or by any other person aggrieved by a decision that is subject to appeal under the provisions of these planning regulations.

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

9-7.1403 Time Limits and Contents.

Unless otherwise specified in State or Federal law, all appeals shall be filed in writing within fifteen (15) days of the date of the interpretation, determination, or decision from which the appeal is taken. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal.

(a)    In the event that an 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.

(b)    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.

(c)    If a basis of the appeal is that the Director’s or the Commission’s action constituted a taking of the subject property or any part thereof under the California or United States Constitutions, that ground and all evidence (including specific financial data and analyses, if any) and argument in support thereof shall be clearly stated as a separate ground of the appeal, or it shall be waived. If specific evidence is not presented as part of the appeal, the appellant shall be deemed to have waived any claim to sworn testimony and cross-examination.

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

9-7.1404 Appeals of Planning and Building Director Decisions.

Appeals to the Planning Commission of interpretations, determinations, and decisions made by the Director of Planning and Building shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures.

(a)    Transmission of Record. The Director shall forward the appeal, decision letter or other documentation of the decision, and all other documents that constitute the record, to the Planning Commission. The Director shall also prepare a staff report that responds to the issues raised by the appeal and that may include a recommendation for action, and shall set the matter for consideration at the next available Planning Commission meeting.

(b)    Planning Commission Action. The Planning Commission shall review the appeal, the record, and any written correspondence submitted after the appeal has been filed, and shall either:

(1)    Affirm the decision of the Director and dismiss the appeal based on a determination that the facts ascertainable from the record do not warrant further hearing;

(2)    Set a date for a public hearing on the appeal; or

(3)    Remand the matter to the Director to cure a deficiency in the record or the proceedings.

(c)    Public Notice. If the Commission votes to conduct a public hearing, notice shall be provided in the same manner as required for the action that was the subject of the appeal pursuant to the provisions of Article 2 of this chapter, Common Procedures. Notice shall also be provided to all persons who spoke on the matter at any prior hearings or submitted written comments only if they provided their names and addresses at the time they spoke at the prior hearing.

(d)    Planning Commission Action on Appeal. Within thirty (30) days after closing the public hearing, the Commission shall either:

(1)    Continue the hearing and request a supplemental report from the Director, in which event the Commission may extend the time for rendering the decision an additional thirty (30) days;

(2)    Approve the Director’s action upon finding that all applicable findings have been correctly made and all provisions of this title have been complied with;

(3)    Approve the Director’s action but impose additional conditions and/or guarantees as it deems necessary to fulfill the purposes of this title; or

(4)    Disapprove the Director’s action upon finding that all applicable findings have not been made or all provisions of this title have not been complied with.

(e)    Majority Vote Required. An action to grant an appeal shall require a majority vote of Planning Commission members present and voting. A tie vote shall have the effect of rejecting the appeal.

(f)    Commission’s Decision Is Final. The decision of the Planning Commission is final and may not be appealed to the City Council.

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

9-7.1405 Appeals of Planning Commission Decisions.

Appeals to the City Council of interpretations, determinations, and decisions made by the Planning Commission shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures.

(a)    Transmission of Record. The Director shall forward the appeal, decision letter or other documentation of the decision, and all other documents that constitute the record, to the City Clerk for forwarding to the City Council. The Director shall also prepare a staff report that responds to the issues raised by the appeal and that may include a recommendation for action. The City Clerk shall set the matter for consideration at the next available City Council meeting.

(b)    City Council Action on Appeal. The Council shall review the appeal, the record, and any written correspondence submitted after the appeal has been filed, and shall either:

(1)    Affirm the decision of the Commission and dismiss the appeal based on a determination that the facts ascertainable from the record do not warrant further hearing;

(2)    Set a date for a public hearing on the appeal; or

(3)    Remand the matter to the Commission to reconsider the application, identifying the issues that the Commission is directed to consider and specifying whether or not the Commission shall hold a new public hearing.

(c)    Public Notice. If the Council votes to conduct a public hearing, notice shall be provided in the same manner as required for the action that was the subject of the appeal pursuant to the provisions of Article 2 of this chapter, Common Procedures. Notice shall also be provided to all persons who spoke on the matter at any prior hearings or submitted written comments only if they provided their names and addresses at the time they spoke at the prior hearing. In addition, the Planning Commission may be represented at the hearing.

(d)    City Council Action on Appeal. Within sixty (60) days after closing the public hearing, the City Council shall either:

(1)    Continue the hearing and request a supplemental report from the Planning Commission, in which event the Council may extend the time for rendering the decision an additional thirty (30) days;

(2)    Approve the Commission’s action upon finding that all applicable findings have been correctly made and all provisions of this title have been complied with;

(3)    Approve the Commission’s action but impose additional conditions and/or guarantees as it deems necessary to fulfill the purposes of this title; or

(4)    Disapprove the Commission’s action upon finding that all applicable findings have not been made or all provisions of this title have not been complied with.

(e)    Majority Vote Required. An action to grant an appeal shall require a majority vote of City Council members present and voting. A tie vote shall have the effect of rejecting the appeal.

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

9-7.1406 Calls for Review.

A majority of the City Council may call for review of a decision of the Planning Commission within the fifteen (15) day appeal period. The call for review shall be processed in the same manner as an appeal by any other person. Such action by the Council shall stay all proceedings in the same manner as the filing of an appeal. Such action shall not require any statement of reasons and shall not represent opposition to or support of an application or appeal.

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

9-7.1407 Standards of Review.

When reviewing a decision on appeal, the hearing body shall use the same standards for decision-making required for the original decision. The hearing body may adopt the same decision and findings as were used for the original decision.

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

Article 15.    Enforcement and Revocation

9-7.1501 Purpose.

This article establishes enforcement and revocation procedures. The purpose of these provisions is to provide uniform enforcement procedures for the requirements of this title, and to provide a process for the revocation or modification for cause of any permit, including a variance, granted under this title, except a sidewalk cafe permit, which shall be subject to the revocation procedure at Section 9-5.1510.

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

9-7.1502 Penalties.

It shall be unlawful for any person to violate any provision or to fail to comply with any requirement of this title. Any person violating any provision of this title shall be punishable as set forth in Chapter 2 of Title 1.

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

9-7.1503 Enforcement Responsibilities.

(a)    The Director of Planning and Building or his or her designee is responsible for enforcing the provisions of this title, and shall investigate all violations and suspected violations and ascertain the nature of the violation and its location, the names of the parties to the violation, and the number of the section of this title that has been violated.

(b)    All departments, officials, and public employees of the City vested with the duty or authority to issue permits or licenses shall conform to the provisions of this title and shall issue no permit or license for uses, buildings or purposes in conflict with the provisions of this title. Any such permit or license issued in conflict with the provisions of this title shall be null and void.

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

9-7.1504 Nuisance Declared.

Any structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this title; any use of any land, structure or premises established, conducted, operated or maintained contrary to the provisions of this title; and failure to comply with any of the conditions of a permit or variance granted under this title is hereby declared unlawful and a public nuisance. Public nuisance is as defined in California Civil Code Section 3480, and private nuisance is as defined in California Civil Code Section 3481.

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

9-7.1505 Remedies.

The remedies provided for in this section shall be cumulative and not exclusive. Upon a finding of nuisance pursuant to this article, and after giving the property owner an opportunity to cure the nuisance and determining that the nuisance still exists, the Planning Commission or City Council may impose any remedy available at law or in equity, which shall include, but is not limited to, any of the following or combination thereof:

(a)    Ordering the cessation of the use in whole or in part.

(b)    Imposing reasonable conditions upon any continued operation of the use, including those uses that constitute existing nonconforming uses.

(c)    Requiring continued compliance with any conditions so imposed.

(d)    Requiring the user to guarantee that such conditions shall in all respects be complied with.

(e)    Imposing additional conditions or ordering the cessation of the use in whole or in part upon a failure of the user to comply with any conditions so imposed.

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

9-7.1506 Nuisance Abatement.

(a)    Initiation. Proceedings under this section to terminate, modify or condition (hereinafter abate or, if context requires, abatement) any use, structure or building may be initiated by resolution of the Planning Commission or the City Council on its own motion or following recommendation by the Director of Planning and Building. The resolution shall identify the use, building, or structure being considered, identify the property involved, set forth the reason or reasons for the proposed abatement, and fix a time and place for a public hearing on the proposed abatement. In the case of proceedings initiated by the Council, the resolution shall refer the matter for a public hearing before the Commission. A resolution initiating abatement proceedings may be adopted without a public hearing.

(b)    Notice. Upon initiation of abatement proceedings, the Director shall give notice of a public hearing before the Commission as required by Article 2 of this chapter, Common Procedures.

(c)    Public Hearing. The Planning Commission shall hold a public hearing conducted as required by Article 2 of this chapter, Common Procedures, and shall provide for testimony by City staff and the owner of the use, structure, or property that is the subject of the proceeding. Any other interested person shall also be given an opportunity to provide testimony.

(d)    Action. The Planning Commission shall consider the staff report and the evidence, testimony, and facts presented at the hearing before taking action. If the Commission finds that the use, building, or structure constitutes a nuisance, it may impose any remedy as provided for in this title.

(e)    Decision and Notice. After the Commission takes abatement action, the Director shall issue a notice of action describing the Commission’s action, with its findings. The Director shall mail the notice to the permit holder and to any person who has requested such notification by filing a written request with the Director, and shall file a copy of the notice of action with the City Clerk. The Clerk shall present the notice of action to the Council at its next regular meeting. A decision to abate a nuisance shall become effective at the end of the appeal period unless appealed.

(f)    Appeals. A decision to abate a nuisance may be appealed to the City Council pursuant to Article 14 of this chapter. Upon receiving an appeal, the City Clerk shall schedule and notice a hearing before the Council as required by Article 2 of this chapter, Common Procedures. Following the hearing the Council shall decide whether the use, structure or building constitutes a nuisance as defined by this article. If the Council finds, based on the testimony, that the use, structure or building constitutes a nuisance, it may impose any remedy provided for in this title. If the Council finds that the use, structure or building is not a nuisance, it shall reverse the decision of the Commission.

(g)    City Attorney Action. The City Attorney shall, upon order of the City Council, or on his or her own initiative, immediately commence action or proceedings for the abatement and removal and enjoinment of said public nuisance in the manner prescribed by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm, or corporation from setting up, erecting, building, maintaining, or using any such building contrary to the provisions of this chapter.

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

9-7.1507 Recording a Notice of Violation.

(a)    If there is not compliance with an order to correct violations of this title within the time specified in the order, the City Manager may file for recording in the office of the Alameda County Recorder a notice of violation describing the property and certifying that:

(1)    The property and/or structure is in violation of this title; and

(2)    The owner has been so notified. The notice shall specifically describe the violations and a proof of service shall also be recorded with the notice of violation.

(b)    Whenever the ordered corrections have been completed, the City Manager shall file for recording in the office of the Alameda County Recorder a new statement certifying that all required corrections have been made so that the property and/or structure is no longer in violation of this title.

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

9-7.1508 Revocation of Permits.

(a)    Grounds for Revocation or Modification. A permit may be revoked or modified pursuant to the provisions of this article upon a finding of any one (1) or more of the following grounds:

(1)    The permit was obtained or extended by fraud;

(2)    The permit holder has failed to comply with one (1) or more of the conditions upon which the permit was granted;

(3)    The use, building, or structure has been substantially expanded beyond what is set forth in the permit or substantially changed in character; or

(4)    The use or facility for which the permit was granted is being conducted or maintained as to be detrimental to the public health or safety, or as to be a nuisance.

(b)    Initiation of Action. An action to revoke or modify a permit may be initiated by order of the City Council or Planning Commission, whichever granted or modified the permit, on its own motion or on the request of any City officer; provided, however, that the City Council may initiate an action to revoke or modify any permit granted or modified by the Planning Commission. An action to revoke or modify a permit granted or modified by the Director of Planning and Building may be initiated by order of the City Council or Planning Commission on its own motion or on the request of any City officer. The order shall set forth grounds for revocation or modification.

(c)    Revocation Procedure. The Planning Commission shall hold an evidentiary hearing, in accordance with the provisions of Article 2 of this chapter, Common Procedures, regarding the order proposing the revocation or modification of a permit. The Commission shall conduct the hearing according to the following procedure:

(1)    The Planning Commission shall hear and consider all relevant evidence, including but not limited to applicable staff reports, objections or protests relative to the existence of violations of required conditions, and recommendations proposed by staff. The Commission may by motion continue the public hearing to a fixed date, time and place or may continue the item to an undetermined date and provide notice of the continued hearing.

(2)    The hearing shall be conducted in accordance with the following rules:

a.    The hearing need not be conducted according to the technical rules of evidence.

b.    Oral evidence shall be taken only on oath or affirmation.

c.    Hearsay evidence may be used for the purpose of supplementing or explaining direct evidence, but hearsay evidence shall not be sufficient in itself to support a finding.

d.    Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.

e.    Irrelevant or unduly repetitious evidence shall be excluded.

(3)    The permit holder and staff members shall have the following rights among others as parties to the proceeding:

a.    To call and question witnesses on any matter relevant to the hearing.

b.    To introduce documentary and physical evidence.

c.    To question opposing witnesses on any matter relevant to the hearing.

d.    To impeach any witness, regardless of which party first called such witness to testify.

e.    To rebut the evidence against such parties.

f.    To represent himself or herself or to be represented by anyone of his or her choice who is lawfully permitted to do so.

(4)    In reaching a decision, official notice may be taken, before or after submission of the case for decision, of any fact, which may be noticed by the courts of this State, or official records of the City Council, City departments, City ordinance, and other rules and regulations adopted by the City Council.

(5)    Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority. The Commission may determine the manner of refutation.

(d)    Planning Commission Recommendation. At the conclusion of the public hearing, the Planning Commission may, on the basis of the evidence presented at the hearing, make a finding on any one (1) or more of the grounds listed in subsection (a) of this section and make a recommendation to the City Council to revoke or modify the permit.

(e)    City Council Action.

(1)    Upon receipt of the transcript of the evidentiary hearing conducted by the Planning Commission, the Director shall transmit the recommendation to the City Council at its next regular meeting with a recommendation that the Council schedule a hearing on the matter. The hearing shall be scheduled within thirty (30) days of the date of the Council’s receipt of the recommendation of the Planning Commission. A copy of the transcript of the evidentiary hearing shall accompany the staff report.

(2)    At the regular meeting at which the City Council is scheduled to act on the recommendation of the Planning Commission, the Council shall hear brief arguments by the permittee and City staff and take action based upon the record of proceedings and the recommendation contained in the hearing transcript, the findings contained in the staff report, and the arguments presented to the Council and revoke, modify, or let stand the permit in question. A decision by the City Council to revoke or modify a permit shall be accompanied by a directive to the City Clerk to prepare a minute order setting forth that action.

(f)    Related Permits. In addition to the remedies provided above, any person violating a provision of this title or failing to comply with the mandatory requirements of this title shall be subject to having any other related permits and/or any related business license revoked by the issuing authority for said violation.

(g)    Automatic Revocation of Permit. If a permit is granted or modified subject to one (1) or more conditions, such permit shall cease to be valid, and all rights or privileges granted thereby shall lapse, notwithstanding any other provisions of this title to the contrary, whenever there becomes final any judgment of a court of competent jurisdiction declaring one (1) or more of such conditions to be void or ineffective, or enjoining or otherwise prohibiting the enforcement or operation of one (1) or more of such conditions.

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