Zoning 30.50 PLANNING DEPARTMENT APPLICATIONS

ARTICLE L. PLANNING DEPARTMENT APPLICATIONS

30.50.10 Designation.

The planning department shall be responsible for creating, distributing, accepting, processing, and filing applications including, but not limited to, the following:

(a) Variances and minor deviations (see section 30.50.20).

(b) Reasonable accommodation (see section 30.50.23).

(d) Architectural and site approval (see section 30.50.40).

(e) Planned unit development approval (see section 30.50.50).

(f) Residential development approval (see section 30.50.60).

(g) Zoning ordinance and/or zoning map amendments (see Article LII).

All applications shall be accompanied by the materials identified in the application filing requirements and the filing fees established from time to time by resolution of the city council. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.20 Variances and minor deviations.

(a) Variances. The planning commission shall receive, investigate, hear and take action upon every application for a variance from the strict application of any of the provisions of this chapter, excluding land use. It shall approve only such variances as are in harmony with the general purpose and intent of the Zoning Ordinance and in accordance with the specific regulations hereinafter set forth.

(1) A variance shall be approved only when the strict and literal interpretation of the regulations in the particular case would involve practical difficulties or unnecessary hardship, and only to the extent necessary to overcome such difficulties or unnecessary hardship.

(2) The commission shall hold a public hearing on each application for a variance as provided in Article LI.

(3) A variance, in whole or in part, or subject to conditions may be approved by the commission if, from the information presented in the application or at the hearing, the commission finds all of the following:

a. That there are exceptional or extraordinary circumstances applying to the property involved or to the proposed use.

b. That because of such exceptional or extraordinary circumstances, the literal enforcement of specified provisions of this chapter would result in practical difficulty or unnecessary hardship such as to deprive the applicant of a substantial property right possessed by other owners of property in the same class or district.

c. That the allowance of the variance will not, under the circumstances of the particular case, be materially detrimental to the public welfare or materially injurious to persons or property in the vicinity.

d. That the results of allowing the variances as specified will be in harmony with the general intent of the Zoning Ordinance.

e. That the granting of a variance will not constitute the granting of a special privilege greater than that provided for by the standard provisions of this chapter for other properties in the vicinity and in the same zoning district.

(4) In approving a variance, the commission shall specify the character and extent thereof. A variance may be made conditional. One (1) of such conditions may be the requirement of suitable guarantees to secure compliance and to protect the public health, safety, convenience and general welfare. Once any portion of a variance is utilized, all such conditions and specifications shall be immediately operative, and the violation of any of them shall constitute a violation of this chapter.

(b) Minor Deviations. Where an application is being made for a building permit for the construction or installation of a building or structure which is prohibited unless there first be obtained a variance in the setback, yard, parking or building site area requirements applicable to such building or structure, the applicant for such building permit may file with the zoning administrator an application for such variance. The application for the variance shall be made on a form supplied by the zoning administrator and shall be set forth or be accompanied by such information and evidence as the zoning administrator shall require, including the evidence required by subsection (a) of this section, and may include or be accompanied by a written consent to the granting of the variance signed by the owner or owners of each lot or parcel adjoining the site of the proposed building or structure and the owner or owners of land across any street from such site. At the time of filing such application for a minor deviation from this chapter, the applicant shall pay any fee which may be established from time to time by resolution of the city council.

Upon receipt of an application for a variance filed pursuant to this section, and after determining that the requirements of subsection (a) of this section have been met and that the size, shape, topography, or location of said site, or the location of existing buildings, or other conditions cause compliance with the applicable setback, yard or building site area requirements impossible without practical difficulty or hardship, the zoning administrator may without notice or hearing, approve the application for the building permit, and such approval shall constitute the granting of a variance with respect to the building or structure for which the application for the building permit is made; provided, however, the zoning administrator shall not give any such approval which constitutes the granting of a reduction in excess of twenty-five percent (25%) of the applicable setback, yard or building site area requirements or up to four (4) stalls of the parking requirements. The zoning administrator shall give notice of all such approvals of minor deviations to the planning commission.

In the event the zoning administrator declines to grant a minor deviation requested pursuant to this section, the applicant may file with the planning commission an application, with full fees, for a standard variance pursuant to the provisions of subsection (a) of this section. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.23 Reasonable accommodation.

(a) Purpose. This section of the Zoning Ordinance has been established pursuant to the Federal Fair Housing Amendments Act of 1988 (FFHAA) and the California Fair Employment and Housing Act (the Acts), in order to provide people with disabilities reasonable accommodation in the application of rules, policies, practices, and procedures that may be necessary to ensure equal access to housing. The purpose of this section is to provide a process for individuals with disabilities to make requests for reasonable accommodation in regard to relief from the various land use, zoning, and development regulations, policies and procedures.

(b) Applicability. A request for reasonable accommodation may be made by any person with a disability, their representative or any entity, when the application of a zoning law or other land use regulation, policy or practice acts as a barrier to fair housing opportunities. A person with a disability is a person who has a physical or mental impairment that limits or substantially limits one (1) or more major life activities, anyone who is regarded as having such impairment or anyone who has a record of such impairment. This section is intended to apply to those persons who are defined as disabled by the Acts.

A request for reasonable accommodation may include a modification or exception to the rules, standards and practices for the siting, development and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing of his or her choice.

A reasonable accommodation may be granted only to the household that needs the accommodation and does not apply to successors in interest to the property.

(1) Any person who requires reasonable accommodation, because of a disability, in the application of a zoning law that may be acting as a barrier to fair housing opportunities may do so by filing a uniform application with the planning division.

(2) If the project for which the request is being made also requires some other planning permit or approval, then the applicant shall file the request together with the application for such permit or approval.

(3) In addition to the information required by the uniform application form, the request must include the following information:

a. The basis for the claim that the individual is considered disabled under the Acts, including verification of such claim;

b. The City Code section or other regulation, policy or procedure from which reasonable accommodation is being requested; and

c. Why the reasonable accommodation is necessary to make the specific property accessible to the individual.

(4) If the project for which the request for reasonable accommodation is being made requires some other discretionary approval, then the applicant shall file the information required by this subsection for concurrent review with the application for discretionary approval.

(d) Review Authority.

(1) Requests for reasonable accommodation shall be reviewed by the director of community development or his/her designee if no other approval is sought.

(2) Requests for reasonable accommodation submitted for concurrent review with another discretionary land use application shall be reviewed by the authority responsible for reviewing the discretionary land use application, in conjunction with that application.

(e) Notice of Request for Accommodation. Written notice that a request for reasonable accommodation has been filed shall be given as follows:

(1) In the event that there is no approval sought other than the request for reasonable accommodation, notice shall be mailed to the owners of record of all properties which are immediately adjacent to the property which is the subject of the request. Such notice shall be mailed at least ten (10) days prior to a decision on the request. Notice shall include a description of the proposed reasonable accommodation, the location of the subject property, the time limit for submittal of comments and the name and contact information for the community development department.

(2) In the event that the request is being made in conjunction with some other discretionary application, the notice shall be given along with the notice of the other proceeding.

(f) Review Procedure.

(1) The director or his/her designee shall make a written determination within forty-five (45) days of receipt of a complete application and either approve, approve with modifications or deny a request for reasonable accommodation not involving other discretionary applications in accordance with subsections (g) and (h) of this section.

(2) The written determination to approve, approve with modifications or deny the request for reasonable accommodation that is filed in conjunction with a discretionary application shall be made by the authority responsible for reviewing the discretionary land use application in compliance with the applicable review procedure for that application. The written determination to approve, approve with modifications or deny the request for reasonable accommodation shall be made in accordance with subsections (g) and (h) of this section.

(g) Findings.

(1) The written decision to approve or deny a request for reasonable accommodation will be consistent with the Acts and shall be based on consideration of the following factors:

a. Whether the housing which is the subject of the request will be used by an individual disabled under the Acts;

b. Whether the request for reasonable accommodation is necessary to make specific housing available to an individual with a disability under the Acts;

c. Potential impact on surrounding uses;

d. Physical attributes of the property and structures;

e. Alternative accommodations which may provide an equivalent level of benefit;

f. Whether the requested accommodation would impose an undue financial or administrative burden on the city; and

g. Whether the requested accommodation would require a fundamental alteration of a city program including but not limited to land use, zoning and the Uniform Housing, Building and Fire Codes.

(2) In granting a request for reasonable accommodation, the reviewing authority may impose any conditions of approval deemed reasonable and necessary to ensure that the reasonable accommodation would comply with the findings required by this subsection. Conditions may, where appropriate, provide for any or all of the following:

a. Removal of the permitted improvements by the applicant where removal would not constitute an unreasonable financial burden and if the need for which the accommodation was approved no longer exists.

b. Time limits and/or expiration of the approval if the need for which the accommodation was granted no longer exists.

(h) Notice of Community Development Director’s Decision.

(1) Within thirty (30) days after the hearing, the community development director, or his or her designee, shall issue a decision granting the request, including any reasonable conditions, or denying the request.

(2) The notice of decision shall contain the director’s factual findings, conclusions, and reasons for the decision.

(3) The notice of decision shall be mailed to the owners of record of all properties which are immediately adjacent to the property which is the subject of the request. For requests that are approved, the notice shall include any conditions that may have been placed on the approval. The notice shall also include the time frame and process for appeal of the decision.

(i) Notice of Decisions on Reasonable Accommodation Requests Involving Other Discretionary Approvals. Notice of the determination to approve, approve with conditions or deny a request for reasonable accommodation that is associated with a discretionary application shall be given by the authority responsible for reviewing the discretionary land use application in compliance with the applicable review procedures for the accompanying discretionary application.

(j) Appeals.

(1) Anyone so desiring may appeal the decision of the community development director or planning commission on an application for reasonable accommodation by written request to the city clerk and payment of the appeal fee within twenty (20) days of the determination by the director or commission. Appeal of a decision by the director shall be heard by the planning commission and appeal of a decision by the planning commission shall be heard by the city council.

(2) Notice of an appeal shall be provided in the same means as provided for the action of the authority whose action is being appealed. (Ord. No. 2014-06, § 8, 5-5-14)

30.50.30 Conditional use permits.

(a) Issuance.

(1) The term “conditional use” shall include every use listed in this chapter that requires a conditional use permit. Conditional use permits shall be approved only in accordance with the following regulations. Every such use is declared to possess characteristics such as to require, in pursuit of the general intent of this chapter, special review and appraisal in each instance.

(2) For the purposes of this section, the financial incentive program for the URM mandatory retrofit program (“URM financial incentive program”) shall mean the program adopted by the city to implement the URM Ordinance 2006-19 (“URM program”).

(3) Zoning code review and approval process requiring a conditional use permit specifically for first story office uses for development projects involving the URM financial incentive program shall be suspended as provided for below.

(4) The provisions of this subsection (a), as amended, shall apply to all development projects involving the URM financial incentive program and only for a time period up to five (5) years from the issuance of the building permit for the development project. For the purposes of this section, “development project” shall mean any project that requires granting approval for construction from the city.

(b) Application. The planning commission shall receive, investigate, hear and decide upon every application for a conditional use and, after the hearing, shall approve the issuance of a use permit only if the evidence presented at the hearing establishes:

(1) That the proposed use is properly located in relation to the general plan and to the community as a whole and to other land uses and to transportation and service facilities in the vicinity.

(2) That the proposed use, if it complies with all conditions upon which approval is made contingent, will not adversely affect other property in the vicinity, or cause any damage, hazard, or nuisance to persons or property.

(c) Planning Commission Conditions. The commission may provide that issuance of the use permit shall be contingent upon acceptance and observance of specified conditions, including, but not limited to, the following matters:

(1) Conformity to plans and drawings submitted with the application.

(2) Special yards, open spaces, buffer strips, walls, fences, concealing hedges, landscaping.

(3) Performance characteristics, related to the emission of noise, vibration and other potentially dangerous or objectionable elements.

(4) Limits on time of day for the conduct of specified activities.

(5) Guarantees as to compliance with the terms of the approval.

(d) Reapplication. Applicants wishing to modify or waive any condition imposed by a conditional use permit may reapply for a conditional use permit, subject to all filing requirements and filing fees. The planning commission may modify or waive any conditions if it finds that such modification or waiver is necessary for the preservation of an applicant’s substantial property right or to avoid practical difficulties or unnecessary hardship, and that the modification or waiver would be consistent with the intent of this chapter.

(e) Expiration. Whenever a use for which a conditional use permit has been issued is discontinued for one (1) year, such use shall not be reestablished unless it is authorized under new proceedings.

(f) Downtown Special Use Permits. This section shall apply whenever a downtown special use permit is required for public dancing in large dance venues pursuant to sections 30.19.10(c)(1) and (2) and/or Chapter 8.

(1) Criteria. The community development director or his or her designee shall issue a downtown special use permit for venues meeting the criteria set forth in sections 30.19.10(c)(1) and (2) and/or Chapter 8.

(2) Applications Requirements.

a. Any person desiring downtown special use shall file an application with the planning division of the community development department on standard downtown special use permit application form supplied by the planning division. All applicants shall provide the information and documents required pursuant to subsection (f)(2)(b) of this section.

No downtown special use permit shall become effective until such time as the permit has been issued by the community development director or his or her designee, and a public dance permit has been issued by the chief of police pursuant to Chapter 8.

The applicant/permittee shall have an affirmative and ongoing obligation to update and keep current the information contained in the application. Failure to keep this information current shall be grounds for revocation.

b. All applications for downtown special use permit shall include all of the following information:

1. Name, address and phone number of the venue for which a special downtown use permit is sought;

2. Name of the primary business operating at the proposed venue (which shall be considered the applicant/permittee), and name, signature and phone number of the general manager of the business;

3. Name, signature and phone number of the owner of the venue for which a public dance permit is sought (if different from the applicant/permittee) or the promoter of the public dance if not the owner and/or applicant;

4. Floor plan of the venue identifying all rooms, all entrances and exits, the performance area, and the dance floor area shall be provided;

5. Security, lighting, parking plans; and

6. Operational plan indicating such information as the proposed days and hours, if food service is to be provided, type of entertainment to be provided, anticipated attendance, and other information as may be reasonably required in review of the application.

(3) Applications and Permit Fees. The city council shall set an annual, nonrefundable permit fee for the downtown special use permits, which shall be included in the city’s comprehensive fee schedule established by the resolution of the city council, which may be amended from time to time. The permit fee shall be submitted at the time the permit application is submitted.

(4) Applications Completeness. Within thirty (30) days from the date the application for downtown special use permit is date-stamped received at the planning division, the community development director or his or her designee shall determine if it is complete, and if incomplete, shall notify the applicant in writing of its specific deficiencies. If a written determination is not provided to the applicant within thirty (30) days after it is submitted to the planning division, the application shall be deemed complete.

(5) Application Denial. The community development director or his or her designee shall deny the application for a downtown special use permit for any of the following reasons:

a. The proposed venue or use does not meet the standards set forth in this section, or does not conform to the requirements of the Zoning Ordinance or any provision of the Gilroy City Code.

b. An applicant has failed to provide information required on the application for the issuance of the downtown special use permit or has falsely answered a question or request for information on the application form.

c. The subject premises for which a permit is required has not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance.

d. The granting of the application would violate a city or county, state or federal statute, ordinance, regulations or court order.

e. The applicant has had a downtown special use permit under this section revoked within the preceding twelve (12) months.

(6) Permit Renewal.

a. Any unrevoked downtown special use permit issued pursuant to this section may be renewed upon written application to the community development director or his or her designee made at least thirty (30) calendar days before the expiration date of the current, valid downtown special use permit and upon payment of the then current nonrefundable application renewal fee. A downtown special use permit shall remain valid pending the decision of the community development director or his or her designee if the permittee has timely filed a completed application for renewal with proper fee payment. For good cause, the community development director or his or her designee may extend the time for filing a renewal application for up to ninety (90) days and may extend the prior downtown special use permit pending decision on the renewal application.

b. The application for renewal shall supply current information with respect to each category of information required in the initial application. Within thirty (30) days from the date the renewal application for a downtown special permit is date-stamped and received at the planning division, the community development director or his or her designee shall determine if it is complete, and if incomplete, shall notify the applicant in writing of its specific deficiencies. If a written determination is not provided to the applicant within thirty (30) days after it is submitted to the planning division, the application shall be deemed complete.

c. The community development director or his or her designee shall make a decision on an application for the renewal of a downtown special use permit within three (3) months from the date the application is deemed to be complete in all cases except where a negative declaration or environmental impact report is required pursuant to CEQA such that the processing of the application cannot be completed within the above time limit. In such instances, the application shall be diligently processed, but the timelines set forth in the state law will control.

d. The community development director or his or her designee may renew the downtown special permit without change to the original conditions of approval, with new, amended or deleted conditions, or may deny the renewal.

(7) Permit Expiration. Any unrevoked permit issued pursuant to this section shall, by its own terms, expire no later than one (1) year after its issuance.

(8) Revocation. Any downtown special use permit issued pursuant to the provisions of this section may be revoked in accordance with the procedures set forth below.

a. The planning division manager shall report all facts and information relating to the alleged violation(s) of this section or of the conditions of downtown special use permit to the community development director or his or her designee, who shall set the matter for hearing not less than two (2) weeks nor later than thirty (30) days from the date of the report.

b. Written notice of the hearing on the proposed downtown special use permit revocation, together with written notifications of the specific grounds of complaint against the permittee, shall be personally delivered or sent by certified mail to the address on the permittee’s most recent application for downtown special use permit at least ten (10) days prior to hearing.

c. The community development director or his or her designee shall revoke a downtown special permit if he or she makes one (1) or more of the following findings:

1. The use for which the downtown special permit was granted is being exercised in violation of any of the provisions of this section.

2. The use for which the downtown special use permit was granted is being exercised contrary to the terms or conditions of such permit.

3. The permittee gave fraudulent or misleading information in the materials submitted during the application process that tended to enhance the application’s opportunity for obtaining a downtown special use permit.

4. The permittee failed to provide the city with update application information as required by subsection (f)(2) of this section.

5. The use for which the downtown special use permit was granted is being exercised so as to be detrimental to the public health and safety.

6. The use for which the downtown special use permit was granted is being exercised so as to constitute a nuisance.

7. The use for which the downtown special use permit was granted is being exercised contrary to or in violation of any city or county, state or federal statute, ordinance, regulations, or court order.

d. The community development director or his or her designee shall act to revoke, modify, or not revoke the downtown special use permit not later than ten (10) days following the termination of the public hearing on the revocation, unless this time limit is extended by agreement of the parties having an interest in the proceedings.

(9) Appeals.

a. Within ten (10) calendar days after a decision of the community development director or his or her designee on downtown special use permit, the community development director or his or her designee shall mail a copy of his or her decision, and findings (if any), to the applicant and/or permittee and to any other person who has filed a written request for such notifications.

b. Any person may appeal a decision of the community development director or his or her designee made pursuant to this section to the city council by submitting a written appeal along with the applicable fee and request for hearing to the city clerk within twenty (20) calendar days of the date of the decision by the community development director or his or her designee.

c. Consideration of appeal of the community development director’s or his or her designee’s decision on downtown special use permit shall be by public meeting. Notices shall be mailed pursuant to the provisions of section 30.51.30(b)(2) of this section, and the public meeting shall be held within thirty (30) calendar days of the filing or initiation of such appeal.

d. The city council following the termination of the public meeting shall, within fifteen (15) calendar days after the city council determines whether the downtown special permit is approved or disapproved, notify the applicant by forwarding through the mail a copy of the decision to the address on the application, and to any other person who has filed a written request for such notification.

(10) Judicial Review. After a final decision of the city council on an appeal of the decision by the community development director or his or her designee on downtown special use permit, the applicant or permittee or other person having standing may seek prompt judicial review of such action in any court of competent jurisdiction. The time limit for seeking review of the city’s decision is subject to the Code of Civil Procedure Section 1094.5.

(11) Conduct Review. In addition to other remedies for violation of the Zoning Ordinance, the conduct of any public dancing within the city in violation of any of the terms of this section is hereby found and declared to be a public nuisance. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.35 Downtown use permits.

(a) Downtown Use Permit Criteria. Micro-breweries and wine tasting establishments meeting the following criteria may be allowed through issuance of an administratively issued downtown use permit by the community development director or his/her designee. The downtown use permit shall be subject to the criteria enumerated below, may be subject to additional conditions at the community development director’s discretion, and the director’s decision is final. If the community development director denies a downtown use permit, nothing herein shall preclude the permittee from thereafter filing an application for an appropriate development permit, which may include a conditional use permit.

(1) Compliance with Other Regulatory Requirements. As applicable, the permittee shall comply with all criteria in Chapter 8 and this chapter and shall obtain a bar permit or dance venue permit from the police department. Business owner or permittee shall receive and maintain a valid license from the State Department of Alcoholic Beverage Control for all applicable sales.

(2) Design Criteria. At least fifteen percent (15%) of the tenant’s space shall be dedicated towards publicly accessible drinking establishment uses, unless an alternative floor plan is specifically approved by the community development director or his or her designee, with the intent being to provide an active storefront.

(3) Sales.

a. For micro-breweries, only craft beer brewed on site can be sold at the premises. Off-sale of craft beer brewed on site may be allowed, consistent with State Department of Alcoholic Beverage Control.

b. For wine tasting establishments, sales shall be limited to wine and at least fifty percent (50%) of the wine menu must be dedicated to local wines, defined as wines from the “wineries of Santa Clara Valley.”

c. If beer or wine is to be sold or consumed in any outdoor areas, such areas must be approved by the planning division and licensed by the State Department of Alcoholic Beverage Control.

(4) Odors. Any odors emanating from fermentation or other processes associated with the businesses permitted within this section shall be controlled and mitigated such that they do not have an adverse impact on nearby uses.

(5) Litter. The permittee shall be responsible for keeping the subject property and public areas adjacent to the property, including areas at the rear of the property, free and clear from litter. Cleaning of the public right-of-way adjacent to the subject property shall occur before 8:00 a.m. following each day the use is in operation.

(b) Suspension or Revocation of Downtown Use Permit. Notwithstanding other remedies provided for by the Gilroy City Code, the chief of police or community development director, at their discretion, may immediately suspend the downtown use permit, if violations of the performance criteria of the downtown use permit have occurred, or if use is found to be detrimental to the public health or safety. In the event of such a suspension, the permittee shall be required to correct the violations within ten (10) days. If the violations are not corrected, then the permittee may be subject to further action by the city, which may include, but is not limited to, business license or other permit revocation proceedings. In addition, the permittee may be required to apply for and obtain an appropriate development permit, which may include a conditional use permit.

(c) Conditional Use Permit Requirement. The chief of police or community development director, or his/her designee, may require that a conditional use permit be obtained for the micro-brewery or wine tasting establishment if they determine that, after discussions with the permittee, the use is operating in a manner that is inconsistent with the performance criteria contained in subsection (a) of this section, is inconsistent with any other city permits, creating a public nuisance, or is otherwise detrimental to public health, safety and welfare. In such an event, the permittee may be able to continue its business as a micro-brewery or wine tasting establishment while a conditional use permit application is being processed, so long as (1) the operational concerns creating the need for the conditional use permit are immediately abated, (2) a complete conditional use permit application and payment are received by the planning division within twenty-one (21) days of notification of its need, and (3) any requests for additional information are responded to within fourteen (14) days. (Ord. No. 2016-05, § 2, 3-7-16)

30.50.40 Architectural and site review.

The intent of architectural and site approval is to maintain or improve the character and integrity of a neighborhood or area by promoting excellence in development, preventing undue traffic hazards or congestion, and encouraging the most appropriate development and use of land in harmony with the surrounding environment and in accordance with the general plan. (Ord. No. 2016-03, § 1, 3-7-16)

30.50.41 Review.

(a) Architectural and Site Review Permits. The community development director or designee shall review and decide applications for architectural and site approval, and shall be bound by any uniform standards adopted by the city council or planning commission relating to the intent, scope or review of architectural and site approval requirements. The community development director or designee shall review and may issue architectural and site approval for the following uses:

(1) Construction, installation, or major remodeling of structures in an industrial, commercial, professional office, public facilities or open space zone. Installation includes the location of trailers and mobile units on a site, unless such structures are temporary in nature in compliance with Article XLVII, Temporary Uses. Major remodeling includes building additions, as well as alterations within any twelve (12) month period exceeding fifty percent (50%) of the floor area, facade or value of the existing building. The value shall be determined by the city building department. Major interior remodeling projects may be exempt from review if they are determined by the director of planning not to be significant in terms of potential impacts to surrounding land uses and meet all other minimum city standards.

(2) Residential developments having two (2) or more total units on a parcel, unless otherwise exempted under this chapter.

(3) Relocated or moved buildings.

(4) Changes in historic site or neighborhood combining districts which the planning director determines are not significant, and thereby do not require further review, may receive an administratively approved architectural and site review permit, either through a new architectural and site review permit or through a minor modification process pursuant to subsection (b) of this section. The historic heritage committee shall review and make recommendations to the planning commission on applications for architectural and site approval which involve significant changes, and shall be bound by any uniform standards adopted by the city council or planning commission relating to the intent, scope or review of architectural and site approval requirements. The planning commission shall review and may issue architectural and site approval for the following uses:

a. Remodeling or construction in a historic neighborhood combining district, as defined in section 30.27.40(a), involving significant changes, as determined by the planning director.

b. Remodeling or construction in a historic site combining district, as defined in section 30.27.40(b), involving significant changes, as determined by the planning director.

(5) Development of four (4) or more single-family residential parcels which have been created from the same parcel map, tentative map or final map.

(6) Site improvements in commercial and industrial districts intended to allow for establishment of a new use or expansion of an existing use on property for which prior legal improvements have not been installed. Such new improvements could include, but not be limited to, grading, paving and fencing.

(7) Use of a lot for outdoor uses or storage purposes, except for exterior storage in private residential yards that conforms to other provisions of the municipal code.

(8) Homes and accessory structures requiring building permits within the residential hillside zoning district, except for those accessory structures approved under the minor modification provisions in subsection (b) of this section.

(9) Building demolitions, except for the following:

a. Demolition of a nonhistoric single-family home for which building permits have been issued for a replacement single-family house. For the purposes of this section, a historic home shall be any home in the historic neighborhood combining district, a designated historic site, or any structure meeting the criteria established in section 30.27.30.

b. Demolition or removal of a building which the city building official has determined to be an immediate threat to public health or safety.

c. Demolition or removal of a building that has been ordered to be removed or demolished by the code enforcement appeals hearing board or by a court of law.

d. Demolition or removal of residential accessory structures, except for historic properties (subject to section 30.27.50), and subject to the provision of on-site parking.

e. Demolitions of nonresidential buildings no greater than one thousand (1,000) square feet that are approved through the minor modification process.

f. Demolitions that, due to their size, nature, condition, or other factors, are determined by the community development director or designee to not require an architectural and site permit.

(10) The creation, on or above ground, through installation, construction, or replacement, of two thousand five hundred (2,500) square feet or more of impervious surface, except that single-family detached residences that are not within the residential hillside zoning district, a planned unit development overlay district, or the historic neighborhood combining district are not subject to the architectural and site permit process. For purposes of this section, the calculation of the two thousand five hundred (2,500) square feet of new or replaced impervious surface shall represent the total of all newly created impervious surfaces, whether on structures, pavement, or any other surface.

(11) Changes identified in subsection (b) of this section that are not approved as a minor modification.

Any other remodeling, except as indicated above or as indicated in subsection (b) of this section, shall be exempt from architectural and site or minor modification approval. For changes requiring a minor modification or architectural and site review permit, a building permit shall not be issued until architectural and site or minor modification approval is obtained from the community development director or the planning commission, if appealed.

(b) Minor Modifications. A minor modification may be conducted only where such approval would be consistent and comply with all applicable local laws in effect at the time of issuance, including without limitation the city’s general plan and the provisions of the City Code. The intent of the minor modification process is to facilitate minor changes that maintain or improve the aesthetic, historic, architectural, landscape, or other qualities of properties. Minor modifications consistent with this section may, without limitation, be conducted to implement section 30.26.50(b), 30.50.47(d), or 30.50.50(g). No proposals requiring a new negative declaration, mitigated negative declaration, or environmental impact report as clearance under the California Environmental Quality Act shall be allowed through the minor modification process.

The community development director or designee may, at the director’s sole discretion, approve a minor modification for the following elements, subject to and in accordance with the provisions of this section:

(1) Changes to previously approved development permits but only for minor modification of architectural elements, exterior lighting or landscape details (including but not limited to minor storefront alterations, relocation of doors, equipment screening, minor landscape furniture and structures, benches, small trellises, and planters) which do not affect the use, intensity, general character, architectural style, circulation or other site function of the project.

(2) The creation, on or above ground, through installation, construction, or replacement, of less than two thousand five hundred (2,500) square feet of impervious surface, except that single-family detached residences that are not within the residential hillside zoning district, a planned unit development overlay district, or the historic neighborhood combining district are not subject to the minor modification process. For purposes of this section, the calculation of the maximum square feet of new or replaced impervious surface shall represent the total of all newly created impervious surfaces, whether on structures, pavement, or any other surface.

(3) The replacement, repaving, reconfiguration, or restriping of parking spaces on existing surfaces.

(4) Building additions or accessory structures of less than one thousand (1,000) square feet or less than twenty percent (20%) of the building area prior to the addition in area, whichever is smaller, to nonresidential buildings.

(5) Building additions or accessory structures of two hundred fifty (250) square feet in total area or less, or less than twenty percent (20%) of the total building area prior to the addition, whichever is smaller, to hillside single-family residences, residences in planned unit development overlay zones, a duplex, or a multiple-family building; provided, that current parking regulations are being met and would continue to be met after the completion of any addition and provided that site amenities are not adversely impacted.

(6) Above ground storage tanks of two thousand (2,000) gallons or less in zoning districts other than industrial zoning districts and an above ground storage tank of ten thousand (10,000) gallons or less in an industrial zoning district.

(7) Demolition of nonresidential buildings less than one thousand (1,000) square feet.

(8) For properties designated as a historic site or within a historic neighborhood combining district, minor modifications can be processed and approved for the following:

a. Minor modifications of architectural elements, landscape details (including but not limited to equipment screening, minor landscape furniture and structures, benches, small trellises and planters), or installation of new or additional pavement that do not affect the historic significance, use, intensity, general character, architectural style, circulation or other site function of the property.

b. Accessory structures or building additions that do not exceed two hundred fifty (250) square feet in area and that are consistent with historic compatibility criteria and applicable design guidelines and standards.

(9) Other similar minor items, as determined by the community development director.

The decision to grant, deny or condition a minor modification is an administrative determination and requires no hearing or public notice. The action of the community development director or designee shall be final, and nothing herein shall be deemed or construed to confer on an applicant a right to a minor modification or to require the director to issue a minor modification. If the community development director denies a minor modification, nothing herein shall preclude the applicant from thereafter filing an application for an appropriate development permit.

Where property was developed prior to the requirement of an architecture and site permit, minor modifications for projects as set forth in this subsection (b) may be approved without the necessity of the issuance of a full site architecture and site permit. The minor modification process may, at the community development director’s discretion, also be used to make the above-noted modifications to an approved planned unit development permit. (Ord. No. 2016-03, § 1, 3-7-16; Ord. No. 2019-08, § 28, 10-7-19)

30.50.42 Filing of application.

Applications for architectural and site approval shall be filed with the planning department. The department shall prescribe the form and content of the application. A site development plan and architectural design drawings shall accompany the application. If development is to be carried out in stages, each stage shall be shown on a master plan of development. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.43 Scope of review.

The planning director shall review the application to insure that the development addresses and adequately meets requirements for the following:

(a) Traffic Safety and Efficiency.

(1) Traffic volume and conditions on abutting or access streets.

(2) Street improvements, including lighting.

(3) Circulation patterns within the development, including the locations and dimensions of vehicular and pedestrian entrances, exits, drives, walkways, buildings and other related facilities.

(4) Adequacy of off-street parking.

(5) Surfacing, lighting and landscaping of off-street parking facilities.

(6) Location, quantity, height of materials, and shape of landscaped areas.

(7) Adequacy, location, arrangement and dimensions of truck loading and unloading facilities.

(b) Outdoor Advertising and Signs.

(1) Potential traffic hazards.

(2) Appearance.

(3) Harmony with adjacent development.

(4) Favorable image of the city.

(5) Number, area, bulk, shape, height, location, separation, clearance, projection, illumination, color and landscaping of such signs.

(1) Physical characteristics of the site.

(2) Existing and proposed easements.

(3) Appearance and harmony of buildings with adjacent development, the character of the neighborhood, and existing and projected public improvements.

(4) Location, appearance and orientation of structures, open spaces and activities.

(5) Determination of boundaries, building setbacks and uses intended.

(d) Landscaping.

(1) Harmony with adjacent development.

(2) Concealment of storage areas, utility installations, or other unsightly development.

(3) Quantity, location, height and materials of walls and fences, hedges, screen planting and landscaped areas.

(4) Planting of ground cover or other surfacing to prevent erosion and reduce dust.

(5) Unnecessary destruction of healthy trees.

(6) Facilities and methods of insuring continued maintenance of landscaping.

(e) Drainage and Flood Control and Health Standards.

(1) Effect on flood control and storm and surface water drainage facilities.

(2) Additional flood control and drainage improvements required.

(3) Minimum health standards.

(4) Consistency with the city’s adopted flood plain management ordinance.

(f) Fire Protection.

(1) Additional fire protection improvements required.

(2) Location, number and type of such improvements.

(3) Adequacy of the water supply for fire protection purposes.

(g) Environmental Impacts.

(1) Consistency with the city’s adopted environmental review procedures and process.

(2) Consistency with the California Environmental Quality Act (CEQA).

The planning director may request any information, including maps, impact reports, and/or design criteria, deemed necessary to evaluate the application. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.44 Conditions.

The granting of architectural and site approval may include such conditions as the planning director deems reasonable and necessary under the circumstances to carry out the requirements of the zoning district and the intent of architectural and site approval, and to insure that the development will meet the requirements enumerated in section 30.50.43. The following conditions shall be standard on all architectural and site approvals, where applicable:

(a) Landscaping. Landscaping plans including specifications for an irrigation system shall be approved by the planning director in accordance with Article XXXVIII, prior to issuance of a building permit. The landscaping shall be continuously maintained in an orderly, live, healthy, and relatively weed-free condition, in accordance with the approved specific landscape plan.

(b) Trash Enclosures. All trash enclosures shall consist of visually solid fences and gates, six (6) feet in height, in accordance with the adopted City of Gilroy standard trash enclosure design plan, or a similar design approved by the planning director. All trash enclosures shall be located in accordance with the approved site plan and the Uniform Fire Code. In addition, recycling areas must be provided within the trash enclosures, in accordance with the following regulations:

(1) Areas for recycling shall be adequate in capacity, number, and distribution to serve the development project.

(2) Dimensions of the recycling area shall accommodate receptacles sufficient to meet the recycling needs of the development project.

(3) An adequate number of bins or containers to allow for the collection and loading of recyclable materials generated by the development project should be located within the recycling area.

(c) Exterior Lighting. No unobstructed beam of exterior lighting shall be directed outward from the site toward any residential use or public right-of-way. Lighting shall be constructed or located so that only the intended area is illuminated and off-site glare is fully controlled.

(d) Mechanical Equipment. Mechanical equipment to be located on the roof of a building shall be screened by an architectural feature of the building such that it cannot be seen from ground level at the far side of the adjacent public right-of-way.

(e) Outdoor Storage. All outdoor storage and loading areas must be screened from public view with a combination of landscaping, solid fencing, and building design and orientation.

(f) All backflow devices shall be painted an earth tone color, so that they blend with their surroundings, and shall be heavily landscaped.

Other conditions may include, but are not limited to, conditions regarding site planning, architecture, engineering, landscaping, street dedication, flood control and drainage, street drainage and flood control improvements, building setbacks, off-street parking, off-street loading, outdoor advertising, street lighting, survey of property, fire protection, excavation, grading, sewage disposal, water supply, geological engineering, and environmental concerns.

Such conditions may also include the execution of a land development agreement with the city to fulfill the conditions of architectural and site approval within a specified period of time. Said agreement may be secured by a good and sufficient improvement security. A liability insurance policy in amounts and form may be required. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2019-08, §§ 29, 30, 10-7-19)

30.50.45 Inspection prior to use and occupancy.

The conditions of an architectural and site approval may prohibit a building, structure or land use to be occupied until an inspection has been made and it is found that the building, structure or land use complies with all the conditions required to be completed prior to occupancy. If a building permit is issued for a building or structure which is subject to an architectural and site approval, the building inspector shall not approve a final inspection of such building or structure until the planning director or an authorized representative has inspected the building or structure and approved the use and occupancy. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.46 Notification of approval.

Upon the grant of an architectural and site approval, the planning department shall prepare and deliver a letter of approval with any conditions attached thereto to the applicant. The planning director shall report to the planning commission all approvals and disapprovals. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.47 Terms of approval.

(a) Time Limits. If any development for which architectural and site approval has been granted has not obtained building permits within one (1) year from the date of notification of approval, the approval shall be deemed automatically revoked. Upon application, an extension of time may be granted by the planning director.

(b) Transfer. Architectural and site approval shall be deemed revoked if the use for which the approval is granted is changed unless, upon application to the planning director, the approval is transferred. The planning director shall transfer the approval to the new use if the previous approval meets the requirements of this section for the changed use. If the planning director does not reissue the approval, a new application must be filed.

(c) Conformance to Approval. Development for which architectural and site approval has been granted shall conform to the approval and any conditions attached thereto.

(d) Modification. Upon request of the applicant, modifications of the approved plan, which meet the requirements of this chapter, may be approved by the planning director.

(e) Appeal. Anyone so desiring may appeal the decision of the planning director by written request to the planning commission and payment of the appeal fee within twenty (20) days of the planning director’s determination. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.50 Planned unit development approval.

(a) Development Approval Required. If a parcel is located in a planned unit development (PUD) combining district as provided in Article XXVI, a building permit shall not be issued for any development, or part thereof, until the planning commission and city council have approved such development as herein provided. A planned unit development shall be defined as:

(1) Land which is planned and developed as a whole.

(2) A single development operation or a definitively programmed series of development operations, including all lands and buildings.

(3) Including principal and accessory structures and uses substantially related to the character of the surrounding district.

(4) A program of comprehensive and detailed plans which will include all site and architectural design plans.

(5) A program that should include the operation and maintenance of such areas and facilities that will be for common use and benefit by some or all of the occupants of the development, but in most cases not to be provided, operated or maintained at the general expense of the City of Gilroy.

(b) Application Procedures. Any applications for approval of a planned unit development design shall be on a form prescribed for this purpose by the City of Gilroy, and shall be accompanied by a development plan showing the use or uses, dimensions and locations of proposed structures, vehicular and pedestrian circulation, parking, public uses, and landscaping and open space. Architectural drawings and sketches illustrating the character of the proposed design shall also be included. Such other pertinent information shall be included as may be required by the application filing requirements.

A planned unit development (PUD) design may be processed concurrently with or subsequent to establishment of a PUD overlay on a property. In either instance, the PUD design shall be processed as a zone change according to the provisions of Article LII.

(c) Planned Unit Development Approval. The planning commission shall review each planned unit development (PUD) application upon receipt of the design review report from the planning director. The commission may deny the application or recommend to the city council that approval be granted as submitted or granted subject to various conditions. Within thirty (30) days of the receipt of the recommendation for approval from the planning commission, or appeal of a denial by the planning commission, the city council shall review the application. The city council shall consider the report of the planning commission, but shall not be bound thereby. Upon the close of the hearing, the city council may deny, grant approval as submitted, or grant approval subject to such conditions as it deems necessary (in addition to or other than those recommended by the planning commission). Any planned unit development shall be subject to all conditions of approval, and shall be excepted from regulations of the base zone designation only to the extent specified in the approved plans.

(d) Necessary Findings. In order to grant planned unit development (PUD) approval, the council must make the following findings that the proposed planned unit development shall:

(1) Conform to the Gilroy general plan in terms of general location and standards of development.

(2) Provide the type of development which will fill a specific need of the surrounding area.

(3) Not require urban services beyond those which are currently available.

(4) Provide a harmonious, integrated plan which justifies exceptions, if such are required, to the normal requirements of this chapter.

(5) Reflect an economical and efficient pattern of land uses.

(6) Include greater provisions for landscaping and open space than would generally be required.

(7) Utilize creative, aesthetic design principles to create attractive buildings, open space and site design to blend with the character of surrounding areas.

(8) Not create traffic congestion, noise, odor, or other adverse effects on surrounding areas.

(9) Provide adequate access, parking, landscaping, trash areas and storage, as necessary.

(e) Time Limits. If any development for which a planned unit development approval has been granted has not obtained building permits within one (1) year from the date of notification of approval, the approval shall be deemed automatically revoked. Upon application, an extension of time may be granted by the city council.

(f) Violations and Revocation of Approval. Planned unit development (PUD) approval may be revoked in any case where any of the conditions of approval have not been complied with. In such cases, the chief building official shall require all work to cease. Within thirty (30) days after said order to cease work, the planning director shall forward a copy of the findings of such violation to the planning commission for hearing. The applicant shall also be sent notice at least ten (10) days prior to the date of such hearing. If the planning commission finds that a violation has occurred, the planning commission shall require abatement or removal of the violation. The services of any qualified experts, employed by the city to advise in establishing a violation, and all costs of abatement or removal including reasonable attorney fees, shall be paid by the violator if said violation is established. If the violation is not established, the city shall pay said costs.

(g) Revisions. Proposed modifications to the approved planned unit development (PUD) shall be referred to the planning director, who may approve the proposed modifications only if they are in substantial conformance with the conditions of approval and conform to the requirements of the underlying zoning district. If found to be significantly out of conformance, no revisions of the original terms of approval shall occur unless the applicant reapplies for approval of the modified planned unit development to the planning commission and such approval is granted by the city council. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13)

30.50.60 Residential development.

(a) Statement of Intent.

(1) Encourage a rate of growth which will not exceed the city’s ability to provide adequate and efficient public services (including sewer, water, police, fire, streets, parks, general administration, etc.) or the ability of the Gilroy unified school district to provide adequate schools, or the ability of the local economy to support such growth.

(2) Maintain and improve the quality of the environment considering the city’s natural setting, including hillsides, water courses, viable agricultural/open lands, recreational, historic and scenic areas.

(3) Create a process that fosters a strong relationship between jobs and housing in order to encourage and promote a balanced community with adequate housing to meet the needs of local employment and residents.

(4) Encourage and promote the construction of an appropriate share of the regional need for housing.

(5) Encourage and promote housing programs and activities to enable the city to meet the needs of all economic segments of the community.

(6) Provide and maintain a sound economic base for the city.

(7) Promote the development and implementation of specific plans and master plans within the City of Gilroy.

(b) Application of Section.

(1) The provisions of this section shall apply to all residential development projects proposed to be constructed within the City of Gilroy, except for those residential development projects specifically listed as exempt in subsection (b)(2) of this section.

(2) The following types of residential projects are exempted from the provisions of this section, except that projects specifically exempted under subsections (b)(2)(a), (c), (d) and (e) of this section shall be tabulated in housing goals as described in subsection (c)(1) of this section. A project may not qualify for more than one (1) of the following exemptions.

a. A small project exemption may be granted to projects proposing twelve (12) or fewer dwelling units which meet the following criteria:

1. The water system, sewer system, and street system must be adjacent to the property boundary;

2. No project that requires more than twelve (12) units to completely build out the property is eligible for this exemption. It is specifically the intention of this requirement to eliminate the possibility of further development on the property through further subdivision or the construction of more than twelve (12) units;

3. Existing parcels of land that are larger than the square footage required to develop under this exemption and which are divided into smaller parcels after October 4, 2001, shall not be allocated units under this exemption even if the new parcels otherwise meet the criteria. This requirement is intended to preclude the possibility of a large parcel being divided to qualify for the small project exemption;

4. The project will not extend infrastructure beyond the boundaries of the project site; and

5. The proposed lot sizes are consistent with the size of the lots surrounding the site.

All projects submitted under this small project exemption category shall require city council review and approval. Tentative maps submitted with an application for this exemption shall be accompanied by an architectural and site approval application, except that projects proposing to create single-family lots for custom-designed and built homes are exempt from simultaneously submitting an architectural and site approval application.

Projects proposing more than twelve (12) dwelling units submitted for a small project exemption may be considered by the city council and granted the exemption if the city council determines that the project has all of the following special circumstances:

1. The project meets the intent of the RDO small project exemption;

2. The project needs only a few more than twelve (12) units to completely build out; and

3. The project will not create any remainder lots.

b. Replacement dwellings are exempt; provided, that the number of exempted new dwelling units shall not exceed the number of replaced dwelling units by more than four (4). Relocation of dwelling units existing within Gilroy to another site shall be exempt.

c. A residential development project sponsored by a nonprofit organization funded by federal, state, or local government is exempt, so long as such organization is one (1) of the following: (1) an organization that receives annual operating grants in excess of one hundred thousand dollars ($100,000) from government sources, including government chartered intermediaries; or (2) an organization that qualifies as a community housing development organization (CHDO), as defined by the California Department of Housing and Community Development. Development projects receiving this exemption shall consist of no more than seventy-five (75) units, unless the development project: (1) is submitted pursuant to a master plan or specific plan; and (2) is consistent with the ND neighborhood district regulations set forth in Article X. Projects requesting residential dwelling unit allocations under this exemption must be specifically approved for the exemption by the city council, with such approval or disapproval at the sole discretion of the council. Such projects shall not be immediately adjacent to another project exempted under subsection (b)(2)(c) or (d) of this section within the previous three (3) years except where the city council approves a specific exemption.

The city council shall grant an exemption under this subsection only if the city council determines the project would substantially benefit the city, and would not create significant negative impacts to public facilities or to providers of public services in the community or to the Gilroy unified school district. The city council shall also consider the following elements in determining whether to grant this exemption:

1. The number of exempt units which have already been granted during the current RDO cycle, and the number of years left in the cycle;

2. The affordability of the project;

3. The need for the types of units which are proposed;

4. The number of affordable housing projects constructed or proposed within the project vicinity;

5. The diversity of unit type and architectural styles which are proposed in the entire development; and

6. The site design and proposed building elevations.

All requests for an exemption under this subsection shall be processed through an RDO affordable housing exemption application. Public hearings before the planning commission and city council shall be held to consider this application.

d. A project which meets the standards established by the “RDO Affordable Housing Exemption Procedure” is exempt if the project consists of seventy-five (75) units or less and the project is specifically approved for exemption by the city council. Such projects may not be immediately adjacent to another project exempted under subsection (b)(2)(c) or (d) of this section within the previous three (3) years except where the city council approves a specific exemption.

1. The number of exempt units which have already been granted during the current RDO cycle, and the number of years left in the cycle;

2. The affordability of the project;

3. The need for the types of units which are proposed;

4. The number of affordable housing projects constructed or proposed within the project vicinity;

5. The diversity of unit type and architectural styles which are proposed in the entire development; and

6. The site design and proposed building elevations.

e. Large residential projects, which have received an approved residential development allocation of at least one hundred (100) units, may receive an allocation credit when specific portions of their project have been sold to a secondary builder or contractor. This one-for-one residential unit allocation credit shall be limited to a maximum of four (4) units per year, per project.

This allocation credit shall only be granted to the primary project when four (4) or fewer units are transferred to a secondary party. A secondary builder or contractor constructing four (4) or fewer residential units under this provision shall not be subject to the residential development performance agreement covering the primary development.

f. An infill exemption may be granted to projects proposing four (4) or fewer dwelling units that meet the following criteria:

1. All street improvements must be in place, including water, sewer, and storm drains;

2. The project must be surrounded by developed property, except that the project may be adjacent to an undeveloped or underdeveloped property which itself would otherwise qualify under this exemption; and

3. The project shall not be located on the edge of a developed area of the city, so that it, if built, would create or extend development in any way into a previously undeveloped area of the city.

g. A project proposing a single dwelling unit shall be granted a nondiscretionary single unit exemption if it meets the following criteria:

1. No discretionary approval from the city is required;

2. The project is located in either the R1 or A1 zoning district; and

3. No other dwelling units exist on the property.

h. A project proposing a single dwelling unit may qualify for a discretionary single unit exemption if it meets the following criteria:

1. A discretionary approval from the city is required; and

2. No infrastructure is required as a prerequisite to the development of the property.

i. Transitional housing units that meet the standards established by the city’s adopted transitional housing policy are exempt if specifically approved for exemption by the city council. A project that receives an exemption for its transitional housing component under this subsection (b)(2)(i) may also be eligible to receive exemptions for other residential components of its development pursuant to this subsection (b).

j. Projects located within the city’s downtown commercial area as defined in the general plan if specifically approved for exemption by the city council. Exemptions in this category will not be tabulated in the ten (10) year housing goal.

k. RDO Interim Exemption for Projects on Properties with Previously Awarded Allocations.

1. The project must be located within city limits by the effective date of the ordinance codified in this chapter.

2. All necessary discretionary planning applications for the project, including a request for performance agreement approval, must be submitted and deemed complete for processing no later than April 3, 2016.

3. All discretionary planning approvals for the project, including performance agreement approval, must be obtained within one (1) year of the determination that the project is complete for processing. This deadline may be extended at the discretion of the city council upon written request by the project applicant prior to the deadline and upon a finding by the city council that the failure to obtain planning approvals was due to circumstances beyond the applicant’s control.

4. The performance agreement shall be on a form provided by the city and shall include, but not be limited to, the following:

(A) For a project that requires a final map, the project applicant shall be required to obtain final map approval within one (1) year of the last discretionary planning approval; issuance of phase one (1) building permits within six (6) months of final map approval; and final occupancy of all homes within thirty (30) months of final map approval.

(B) For a project that does not require a final map, the project applicant shall be required to obtain issuance of phase one (1) building permits within six (6) months of approval of the last discretionary planning application and final occupancy of all homes within thirty (30) months of approval of the last discretionary planning application.

These performance agreement requirements shall also be conditions of the discretionary project approvals.

5. An applicant shall make separate application to the city council for an RDO interim exemption. Approval of the exemption by the city council shall be required prior to a determination that the project is complete for processing.

6. The proposed project must be of a quality that is equivalent to or greater than the project for which the current allocation was approved. For the purpose of this criterion, quality is defined to include site design, building design and project amenities.

7. All discretionary approvals for the project must be reviewed by the planning commission and approved by the city council. Public hearings are required pursuant to section 30.51.30.

l. RDO Interim Exemption for Projects on Properties without Previously Awarded Allocations. No RDO allocation shall be required for a project that meets all of the following criteria:

1. The project must be located within city limits and zoned for residential use by the effective date of the ordinance codified in this chapter.

2. Properties that have a residential zoning other than R4 high density residential shall meet the following criteria:

(A) Repealed by Res. 2019-37.

(B) All discretionary planning approvals for the project, including performance agreement approval, must be obtained within one (1) year of the determination that the project is complete for processing. This deadline may be extended at the discretion of the city council upon written request by the project applicant prior to the deadline and upon a finding by the city council that the failure to obtain planning approvals was due to circumstances beyond the applicant’s control.

(C) The performance agreement shall be on a form provided by the city and shall include, but not be limited to, the following:

i. For a project that requires a final map, the project applicant shall be required to obtain final map approval within one (1) year of the last discretionary planning approval; issuance of phase one (1) building permits within six (6) months of final map approval; and final occupancy of all homes within thirty (30) months of final map approval.

ii. For a project that does not require a final map, the project applicant shall be required to obtain issuance of phase one (1) building permits within six (6) months of approval of the last discretionary planning application and final occupancy of all homes within thirty (30) months of approval of the last discretionary planning application.

These performance agreement requirements shall also be conditions of the discretionary project approvals.

(D) All discretionary approvals for the project must be reviewed by the planning commission and approved by the city council. Public hearings are required pursuant to section 30.51.30.

3. Properties that have a residential zoning of R4 high density residential shall meet the following criteria:

(A) All discretionary approvals for the project must be reviewed by the planning commission and approved by the city council. Public hearings are required pursuant to section 30.51.30.

(1) Criteria and Procedure for Setting Long-range Housing Goals. The city council, after considering economic, public service, environmental, housing and other information it may deem relevant to the residential development program, and the city’s regional share of housing as established by the State of California, shall determine the maximum total number of dwelling units (including projects exempted by subsections (b)(2)(a), (c), (d) and (e) of this section) that should be built during a subsequent ten (10) year goal period, consistent with the purpose and intent of subsection (a) of this section. Any ten (10) year goal may be revised only at five (5) year intervals within the ten (10) year goal period, at which time another goal may be set for a ten (10) year period starting the following calendar year. Whenever the council sets a ten (10) year goal, it shall also set a five (5) year goal, which shall not exceed sixty percent (60%) of the ten (10) year goal that encompasses it.

(2) Criteria and Procedure for Setting Numerical Limits. Each year of a ten (10) year goal period, the city council shall hold a public hearing, which may be continued from time to time, and shall adopt a resolution reaffirming, readjusting, and resetting the numerical limits for each of the subsequent calendar years remaining in the ten (10) year goal period. In setting the numerical limits, the city council shall consider the adopted five (5) and ten (10) year housing goals, the number of units previously issued permits under assigned build-out schedules, units for which build-out schedules have been assigned, and units previously determined to be exempt from this chapter under subsection (b)(2) of this section. The numerical limit for a given calendar year shall be expressed as the total number of dwelling units, for projects not exempted by subsection (b)(2) of this section, for which building permits may be issued in that calendar year. The numerical limit for any one (1) year may not exceed one hundred thirty percent (130%) of the average of the numerical limits for the remaining years in the ten (10) year goal period, or thirteen percent (13%) of the ten (10) year goal, whichever is less.

(3) Special Exceptions. At any time during the year, the city council may permit a special exception to the assigned build-out schedule or to the numerical limit for that calendar year only, provided, however, such special exception shall not adversely affect the city’s ability to provide services, and the city council finds and determines:

a. That a major industry has a firm commitment to locate within the City of Gilroy and that this major industry would not be able to locate in Gilroy because the current limit on residential dwellings would be clearly insufficient for its employees’ housing needs; or

b. That an approved specific plan or master plan necessitates additional dwelling unit allocations in a specified year to accomplish the goals and vision of the general plan; or

c. That the allocation will be issued to a property owned by the Gilroy unified school district. The allocation shall be issued only if all of the following requirements are met:

1. The current general plan designation of the property is “educational facility”;

2. The facility on the subject property has been used as a school facility within the last two (2) years;

3. The district has a demonstrated need to expand educational services to accommodate Gilroy residents;

4. The applicant is the Gilroy unified school district; and

5. The allocation requested is for fewer than one hundred (100) dwelling units.

The applicant shall agree that any and all benefits conferred upon it as a result of the issuance of dwelling unit allocations shall be used to continue the operations of the existing community facility. Should some or all of the dwelling unit allocations not be necessary to ensure the facility’s continued operation or not be used solely for that purpose, those allocations shall be immediately deemed null and void.

(d) Residential Development Application Procedures.

(1) All applications for residential development allocations under this chapter shall be submitted to the City of Gilroy, department of planning, in accordance with schedules established from time to time by resolution of the city council. The department of planning shall not accept applications for residential development of land that is not within the Gilroy urban service area or is not immediately contiguous to the urban service area.

(2) Each request for residential development allocations shall contain all information and fees requested on the residential development application forms. Only applications deemed complete by the planning director shall be considered.

(3) Application fees for residential development allocations shall be established from time to time by resolution of the city council.

(4) Applicants may withdraw their application for residential development allocations at any time during the process. Application fees will not be refunded, unless the application is withdrawn within ten (10) days after the filing deadline.

(5) Tentative maps for residential subdivisions and residential planned unit development (PUD) applications will not be accepted by the department of planning concurrently with the residential development application unless the developer signs a valid waiver acceptable to the city attorney of all processing time limits established by the Subdivision Map Act and any other state or local law. No tentative maps can be approved until a project has been assigned a build-out schedule by the city council.

(e) Project Rating Scale. The city council shall adopt from time to time by resolution a project rating scale for use by the planning commission in its competitive evaluation and ranking of projects hereunder.

(f) Competitive Evaluation and Assignment of Build-Out Schedules.

(1) The planning commission shall hold a public hearing and shall assign a point score in accordance with the project rating scale to each residential development project for which the application has been deemed complete by the director of planning.

(2) The planning commission shall also competitively evaluate each residential development project and establish a ranking for each residential project based upon its assigned point score.

(3) The planning commission shall recommend to the city council a build-out schedule only for those projects that the planning commission determines can be issued building permits within the applicable numerical limits. If the planning commission finds that, due to environmental or other reasons, a given project is detrimental to the public health, safety, and general welfare, the commission may recommend to the city council that the project not be granted a build-out schedule regardless of its score on the project rating scale or whether or not the applicable numerical limits are fully allocated.

(4) The city council shall hold a public hearing and shall review the point scores, rankings and build-out schedules recommended by the planning commission and may affirm or modify the recommendation of the planning commission, in whole or in part. In making its decision, the council shall give priority to accommodating subsequent phasing and build-out of previously approved projects for which substantial public infrastructure improvements (beyond oversizing of sewer and water utility lines) have been constructed to serve such future phases. The council shall also give priority to projects which have developed in conformance with their original residential development submittal under this section.

(5) The maximum numerical limit for any year need not be fully allocated.

(6) No individual project shall be assigned more than twenty-five percent (25%) of the ten (10) year housing goal, or fifty percent (50%) of the numerical limit for any year of the build-out schedule as established at the time the build-out schedule is assigned. The city council may, however, grant an exception from this limitation, in whole or in part, to an approved specific plan or master plan development.

(7) Build-out schedules may, on occasion, extend up to five (5) years beyond the expiration of the ten (10) year goal period; provided, that no single residential development project may be given a build-out schedule extending more than ten (10) years. No individual project shall be assigned a build-out schedule in any year beyond the ten (10) year goal period greater than fifty percent (50%) of the average of the numerical limits for the years in the existing ten (10) year goal period. The total number of dwelling units for all projects scheduled beyond the ten (10) year goal period may not represent more than twenty-five percent (25%) of the ten (10) year goal. The city council may, however, grant an exception to this limitation on build-out schedules, in whole or in part, to an approved specific plan or master plan development.

(8) No building permits may be issued for a residential development project pursuant to a build-out schedule granted under the residential development ordinance unless the project is to be built on the same physical site as was originally evaluated. Build-out schedules shall not be transferable independently of the project for which they were assigned.

(9) When a building permit is requested for any residential development assigned a build-out schedule hereunder, the planning director shall review such project for conformance with the project as it was proposed when assigned a build-out schedule by the council. If the planning director determines that there have been significant modifications to the project (including, without limitation, modifications that would have significantly affected its point rating or competitive evaluation hereunder), then no building permits for the project shall be issued unless approved by the city council following review by the planning commission. To approve the issuance of such permits, the city council must find that the proposed modifications result in a substantial improvement over the project for which a build-out schedule had been assigned. If the planning director finds that the modifications to the project are not significant, he shall forward such finding as a recommendation to the city council. The city council may instead determine that said modifications are significant and shall be reviewed by the planning commission and city council pursuant to this subsection prior to issuance of building permits.

(g) Applicant’s Agreement to Perform. The applicant, or successor in interest, for any residential development project that receives a build-out schedule from the city council shall agree in writing (on a performance agreement form provided by the city administrator), within sixty (60) days from city council allotment, to a set of performance and project standards.

These standards shall include, without limitation, a specific date (as early as is reasonable) for submittal of a complete tentative map application for each phase of the project, or if a complete tentative map application has been made for a phase at the time the performance agreement is entered into, then as to such phase, the performance agreement shall set forth a specific date (as early as reasonable) for submittal of a complete application for the next approval to be obtained for such phase following execution of the performance agreement by the city and the applicant. The standards shall also include, without limitation, a date-specific schedule for obtaining final map approval for each phase of the project.

Said agreement shall require applicant to pay a nonrefundable deposit for the project, the amount of which shall be established from time to time by resolution of the city council. Unless otherwise established by the city council, the deposit due for the project shall be paid at the time a tentative map is approved for the first phase of the project, or if such tentative map approval has been obtained prior to the time the performance agreement is entered into, then the deposit shall be due upon execution of the performance agreement by the applicant. The deposit will be fully credited to subsequent development fees for the project if the applicant complies fully with the terms of the agreement.

If the applicant fails to so enter into the performance agreement within the above-established time limit or fails to pay the required deposit by the specified date, the build-out schedules for all phases of the project shall immediately, without further action, become null and void. If the applicant fails to file a complete tentative map or other approval application for a project phase by the date specified in the performance agreement, or fails to obtain final map approval for a phase by the date specified in the performance agreement, or if a tentative map for any phase of the project expires, the build-out schedule for the affected phase shall immediately, without further action, become null and void. The applicant may appeal to the city council to reinstate the build-out schedule. In order to reinstate a build-out schedule, the city council must find that the applicant’s failure to perform was due solely to circumstances beyond the applicant’s control.

(h) No Vested Rights. No action taken hereunder with respect to any residential development project by the planning commission, city council, or any city official (including, without limitation, the rating of a residential development project, the setting of any numerical limits and the granting of any build-out schedule), and no action taken by any applicant or developer hereunder (including, without limitation, the payment of fees or deposits) shall result in the creation or vesting of any rights whatever by any applicant or developer with respect to said project to receive any necessary city approvals or permits or to construct any dwelling units or other improvements. (Ord. No. 2013-08, § 2 (Exh. A), 8-5-13; Ord. No. 2014-12, § 1, 9-22-14; Res. No. 2015-06, §§ 1, 2, 3-16-15; Res. No. 2019-37, § 1, 6-17-19)

30.50.70 Right to downtown operations.

(a) Purpose.

(1) Notify property owners, tenants and users of property within the downtown specific plan area of the vibrant, active downtown environment, the revitalization efforts and public improvements occurring downtown, the special events and community and business activities that are part of the vitality of the downtown, and the expectations and responsibilities associated with owning, purchasing, renting or making other use of property within a vibrant, active downtown environment;

(2) Protect all permitted uses from potential conflicts with one another due to the inherent impacts and inconveniences associated with permitted operations in the downtown specific plan area;

(3) Promote a good neighbor policy between uses operating in the downtown specific plan area by advising purchasers, tenants and users of property of the potential impacts associated with such purchase, occupation, operation or use including, but not limited to, sounds, odors, traffic, light and glare, pedestrian activity, music, festivals, street construction and closures, traffic rerouting, railroad operations, outdoor sales, trash and recycling collection activities, 24-hour activity and other permitted uses that may occur within the downtown specific plan area, so that such purchasers, tenants and users will understand, acknowledge, and be prepared to accept such impacts;

(4) Encourage the use of dispute resolution, rather than expensive court proceedings, to amicably resolve any complaints about downtown operations; and

(5) Promote ongoing communication between all property owners, tenants and users of property within the downtown specific plan area.

(b) Definitions.

(1) “Downtown operations” means any activity, use, facility or operation associated with a permitted temporary or permanent use occurring within the boundaries of the downtown specific plan, as well as any lawful public uses. Downtown operations and their associated impacts include, but are not limited to, the following:

a. Music, dancing, singing, and voices associated with permitted uses and downtown activities;

b. Odors associated with operation of restaurants and other businesses;

c. High levels of traffic and traffic congestion;

d. Increased vehicular traffic from special events and other activities;

e. Street construction, closures and traffic rerouting, including exclusion of vehicle access during certain times due to festivals, parades or other special events;

f. Railroad operations, including increased rail activity associated with passenger rail operations;

g. Outdoor sales of merchandise and outdoor restaurant seating;

h. Festivals, parades and/or cultural events which may result in gatherings of large groups of people, street closures, parking impacts, noise, odors and other impacts;

i. Increased levels of pedestrian activity;

j. Operation of delivery trucks and vans, trash and recycling collection trucks, and other such vehicles;

k. Impacts associated with artists’ studios and spaces, including noise, odors, and vibration;

l. General increases in activity levels occurring on a 24-hour basis, including increases in noise and other impacts during late night and early morning hours;

m. High levels of nighttime lighting and illumination;

n. Trash collection, including trash collection before 6:00 a.m.

(2) “Downtown” or “downtown specific plan area” means the land within the boundaries identified by the Gilroy downtown specific plan, as the same may be amended from time to time.

(3) “Notice of right to downtown operations” means that notice required pursuant to subsection (e) of this section.

(4) “Person” means any person, firm, association, organization, partnership, business trust, corporation or company.

(5) “Property” means any real property located within the downtown specific plan area limits, including property intended for residential, commercial, business, public purposes and other uses.

(6) “Tenant” means any person holding a written or an oral lease of, or who occupies the whole or a part of, such building or land, either alone or with others.

(7) “Transfer” means the sale, lease, trade, exchange, rental or gift of property.

(8) “Transferee” means any buyer or tenant of property or person who receives property pursuant to a transfer.

(9) “Transferor” means the owner and/or transferor of title of real property or seller’s authorized selling agent as defined in Business and Professions Code Section 10130 et seq., or Health and Safety Code Section 18006, or a landlord/sublessor leasing or renting real property to a tenant.

(c) Deed Notification Requirements. As a condition of approval of any discretionary development permit, including, but not limited to, tentative subdivision and parcel maps, and conditional use permits relating to property located within the downtown specific plan area, every property owner shall record the deed notification provided in the notice of right to downtown operations on the property for which the discretionary development permit is issued. This section does not apply to the approval of a temporary use license. The notice of right to downtown operations shall be included in all subsequent deeds and leases for this property until such time as the property is no longer located within the downtown specific plan area.

(d) Notification to Transferees. Every transferor of property, as transferor is defined herein, subject to the requirements of subsection (c) of this section, shall upon transfer also provide to any transferee, including without limitation tenants of the property, the notice of right to downtown operations. The notice of right to downtown operations may be contained in any form of agreement or contract; however, the notice need be given only once in any transaction. The transferor and transferee shall provide each other with written acknowledgment of delivery and receipt of the notice.

(e) Notice of Right to Downtown Operations. The notice provided in this subsection is intended to advise property owners, tenants and users of property within the downtown specific plan area of the inherent impacts and inconveniences associated with purchase, tenancy or use of property in the downtown specific plan area; and the content of the notice herein may from time to time be changed by city council resolution. Failure to give the notice required by this subsection shall not invalidate any transfer. The notice shall be provided as required by subsections (c) and (d) of this section, and shall read as follows:

NOTICE OF RIGHT TO DOWNTOWN OPERATIONS

The City of Gilroy permits the operation of a variety of residential, business, cultural, civic and other activities within the Downtown Specific Plan area.

You are hereby notified that the property you own, are renting, leasing, using, occupying or acquiring an interest in is located within the Downtown Specific Plan area. You may be subject to impacts, including inconvenience and discomfort, from lawful activities occurring within the Downtown Specific Plan area. Impacts may include, but are not limited to: Noise from music, dancing and voices associated with permitted Downtown uses and activities, odors associated with restaurants, business operations and special events, traffic congestion, street closures and traffic rerouting, exclusion of vehicle access to certain areas during special events, increased pedestrian activity, trash and recycling collection, including trash and recycling collection before 6 a.m., railroad operations, including rail activity associated with passenger rail operations, outdoor sales of merchandise and outdoor restaurant seating, festivals, parades and other civic and cultural activities, generally high activity levels occurring on a 24-hour basis, including impacts during late night and early morning hours, high levels of lighting and illumination, and noise and other impacts associated with the operation of any permitted use located in the Downtown Specific Plan area.

One or more of the inconveniences described above may occur as a result of Downtown operations and activities which are in compliance with existing laws and regulations and accepted customs and standards. If you own, lease, rent or otherwise utilize property within the Downtown Specific Plan area, you should be prepared to accept such inconveniences or discomfort as a normal and necessary aspect of owning, living in, operating a business in, or otherwise utilizing an area with a vibrant downtown character.

The City of Gilroy’s Right to Downtown Operations Ordinance does not exempt Downtown businesses or other participants in Downtown activities from compliance with the law. Should any business or person not comply with appropriate State, Federal or local laws, legal recourse may be possible by, among other ways, contacting the appropriate agency. This notification is given in compliance with Section 30.50.70 of the Gilroy City Code.

(f) Compliance with All Applicable Laws. Downtown operations shall comply with all state, federal and local laws and regulations applicable to the operations, including applicable noise and other operational standards contained in the city’s general plan and/or downtown specific plan. Downtown operations that so comply shall not be deemed a nuisance under any applicable law or regulation.

(g) Resolution of Disputes. Any dispute or controversy that arises regarding inconveniences or discomforts occasioned by downtown activities, operations, facilities, or uses should be settled by direct negotiation of the parties involved. Any such dispute or controversy that cannot be settled by direct negotiation of the parties involved should be submitted to a private mediator, a community mediation service, or another agency which provides dispute resolution services prior to the filing of any court action. Any costs associated with negotiation, mediation or dispute resolution pursuant to this section shall be borne by the parties.

(h) Designated Contact. Every developer or owner of commercial, residential, or other property within the downtown specific plan area, consisting of two (2) or more residence, business or tenant spaces, shall, as a condition of approval of any discretionary development permit (including, but not limited to, tentative subdivision and parcel maps, and conditional use permits) relating to property located within the downtown specific plan area, designate an information contact representative. The representative shall be available to disperse information distributed by the city, or other public or quasi-public organizations, to tenants or property owners within the development. This role may be undertaken by the property owner, or a representative from a homeowner’s association, a property management company or other similar organization.

(i) Violation Penalty. Whenever an enforcement officer charged with the enforcement of this Code determines that a violation of this section has occurred, the enforcement officer shall have authority to issue an administrative citation to any person responsible for the violation, pursuant to Chapter 6A, and in accordance with the notice requirements and hearing procedure contained herein. The administrative citation shall impose a penalty in an amount set forth in the schedule of penalties established by resolution of the city council. (Ord. No. 2019-07, § 1, 5-20-19)