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* Zoning Ordinance enforcement shall be conducted pursuant to code enforcement procedures located within various Chapters of the Municipal Code.

(Ord. 2008-2 Div. II (part), 2008.)

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The purpose of this Chapter is to identify the bodies, officials, and administrators, with designated responsibilities under various parts and chapters of the El Cerrito Zoning Ordinance. Subsequent chapters of Part V provide detailed information regarding various procedures, applications, and permits including Zoning and General Plan text and map amendments, fees, and enforcement. When carrying out their assigned duties and responsibilities, all bodies, administrators, and officials shall interpret and apply the provisions of this Zoning Ordinance as minimum requirements adopted to implement the policies and achieve the objectives of the General Plan.

(Ord. 2008-2 Div. II (part), 2008.)

The City Council has the following powers and duties under this Zoning Ordinance:

A.

To consider and adopt, reject or modify amendments to the General Plan as recommended by the Planning Commission, pursuant to this code, this title, and of the State, following a public hearing.

B.

To consider and adopt, reject or modify amendments to the Zoning Map or Ordinance as recommended by the Planning Commission, pursuant to the provisions of Chapter 19.40, Amendments to Zoning Map and Text and the State Planning and Zoning Law, following a public hearing.

C.

To hear and decide appeals from decisions of the Planning Commission on Use Permits, Variances, and any other permits that can be appealed pursuant to the provisions of Chapter 19.39, Appeals, and other applicable requirements.

D.

To hear and decide appeals on environmental determinations by the Zoning Administrator or the Planning Commission as provided for in the California Environmental Quality Act.

(Ord. 2008-2 Div. II (part), 2008.)

A.

The Planning Commission has the following powers and duties under this Zoning Ordinance: Initiate, review, and recommend to the City Council amendments to the General Plan, Zoning Ordinance and Zoning Map.

B.

Approve, conditionally approve, amend or deny Use Permits and Variances pursuant to the provisions of Chapters 19.34, Use Permits, 19.36, Variances, and 19.37, Waivers and Exceptions.

C.

Approve, conditionally approve, amend, or deny design review applications when the Planning Commission decides appeals of decisions by the Design Review Board pursuant to Chapter 19.39, Appeals.

D.

Initiate proceedings to revoke Use Permits, Variances, or other zoning permits pursuant to the provisions of Chapter 19.32, and all other enforcement provisions of this title.

E.

Hear and decide appeals from decisions of the Zoning Administrator in the enforcement of this Zoning Ordinance and any other decisions that are subject to appeal pursuant to the procedures in Chapter 19.39, Appeals.

F.

Hold public hearings and make recommendations to the City Council about development agreements, pursuant to the provisions in Chapter 19.41, Development Agreements.

G.

Make environmental determinations on any approvals it grants that are subject to the California Environmental Quality Act and the City of El Cerrito's adopted environmental review guidelines, pursuant to the provisions of Chapter 19.42, Environmental Review.

H.

Determine which incentives the City should grant to development projects that are eligible for such incentives under this Zoning Ordinance, and/or the provisions of State law applicable to affordable housing.

I.

Other duties and powers as assigned by the City Council.

(Ord. 2008-2 Div. II (part), 2008.)

A.

The Design Review Board has the following power and duties under this Zoning Ordinance: Approve, conditionally approve, or deny applications for design review pursuant to Chapter 19.38, Design Review.

B.

Hear and decide appeals from administrative design review decisions of the Zoning Administrator pursuant to the procedures in Chapter 19.32, Common Procedures, and Chapter 19.39, Appeals.

C.

Upon request by the Planning Commission, the City Council, or any other City Board or Commission, make recommendations on matters related to design of projects that are within its purview.

(Ord. 2008-2 Div. II (part), 2008.)

The Community Development Director is a City staff member designated by the City Manager to oversee administration of the Community Development Department. The Community Development Director has the following powers and duties pursuant to this Zoning Ordinance:

A.

Provide professional recommendations to the City Council, Planning Commission, Design Review Board, other appointed officials and City management on matters related to the planning and development of the community.

B.

Act as or appoint a Zoning Administrator pursuant to Section 19.31.060.

C.

Serve as or designate a member of the Planning Department staff to serve as Executive Secretary of the Planning Commission and Design Review Board.

D.

Investigate and make reports on violations of permit terms and conditions when the City has initiated revocation procedures.

(Ord. 2008-2 Div. II (part), 2008.)

The Zoning Administrator is the Community Development Director or a City staff member appointed by the Community Development Director to manage administration of the Planning Department. The Zoning Administrator and/or designee has the following powers and duties:

A.

Interpret the Zoning Ordinance to members of the public and to other City Departments.

B.

Issue written regulations for the administration of this Zoning Ordinance.

C.

Process, review, and make recommendations to the Planning Commission on applications for:

1.

Amendments to the General Plan text or map; or

2.

Amendments to Zoning Ordinance text or map.

D.

Review applications to determine if they are complete and shall be accepted for processing under the requirements of this Zoning Ordinance per approval of the Zoning Administrator.

E.

Subject to appeal as specified in this Zoning Ordinance and State law, administer environmental review requirements pursuant to the California Environmental Quality Act and the City's adopted environmental review guidelines including:

1.

Determine whether applications are exempt from environmental review;

2.

Propose project revisions and conditions to mitigate environmental impacts;

3.

Determine whether applications shall require the preparation of an environmental impact report; and

4.

Approve Negative Declarations and Mitigated Negative Declarations for actions that do not require Planning Commission review pursuant to this Zoning Ordinance.

F.

Review, approve, conditionally approve, or deny applications for Administrative Use Permits.

G.

Approve amendments to Administrative Use Permits, Conditional Use Permits and Design Review approvals and other types of approvals as provided for in Chapter 19.32, Common Procedures.

H.

Review, approve, conditionally approve, or deny applications for signs that do not require action by the Design Review Board or Planning Commission.

I.

Process and make recommendations to the Planning Commission on all applications, appeals and other matters upon which the Commission has the authority and the duty to act under the provisions of this Zoning Ordinance.

J.

Refer to the Planning Commission for action any application for Administrative Use Permit, Administrative Variance, Temporary Use, Waiver, Exception, Zoning Clearance, or amendment pursuant to the provisions of this Part of the Zoning Ordinance.

K.

Make determinations regarding design review and make recommendations on applications for design review.

L.

Perform administrative design review, including the approval of minor amendments to approved plans, pursuant to Chapter 19.38, Design Review of this Zoning Ordinance.

M.

Grant waivers and exceptions from the provisions of this Zoning Ordinance as provided for in Chapter 19.37, Waivers and Exceptions.

N.

Determine whether applications would require a zoning change or amendment to the General Plan.

O.

Make determinations of zoning conformance pursuant to Chapter 19.33, Zoning Conformance Review.

P.

Make written interpretations of the Zoning Ordinance, verifications of zoning regulations, verifications related to previous permits, and other matters related to the application and interpretation of the Zoning Ordinance.

Q.

Make recommendations to the Design Review Board and Planning Commission on guidelines for conducting design review.

R.

Provide public notice as required for Zoning Administrator, Planning Commission and Design Review Board hearings.

S.

Provide public notice of preliminary design plans for single-family construction and require the erection of story poles if deemed appropriate pursuant to Chapter 19.32, Common Procedures.

(Ord. 2008-2 Div. II (part), 2008.)

This section designates the City Building Official as the official responsible for enforcing zoning regulations pertaining to the construction and alteration of buildings and structures.

The City Building Official has the following duties under this Zoning Ordinance:

A.

Enforcing the provisions of the Zoning Ordinance, including conducting inspections and issuing warrants and citations as provided for by State law and the Municipal Code.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter establishes procedures that are common to the application and processing of all permits and approvals provided for in the Zoning Ordinance unless superseded by specific requirements of this Zoning Ordinance or State law.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Applicants. The following persons may file applications:

1.

The owner of the subject property.

2.

An agent representing the owner, duly authorized to do so in writing by the owner.

3.

A lessee in possession of the subject property applying for a Zoning Clearance or Use Permit for a Home Occupation may file without the consent of the owner, provided that in the case of an application for a Use Permit for a Home Occupation, the owner of the property shall be given notice of the application.

B.

Application Forms and Supporting Materials.

1.

The Zoning Administrator or designee shall prepare and issue application forms and lists that specify the information that will be required from applicants for projects subject to the provisions of this Zoning Ordinance.

2.

The Zoning Administrator may require the submission of supporting materials as any part of the application, including but not limited to statements, photographs, plans, drawings, renderings, visual simulations, models, material samples and other items necessary to describe existing conditions and the proposed project. The Zoning Administrator may require sufficient information to permit the City to determine the level of environmental review that shall be required pursuant to the California Environmental Quality Act and the City's adopted environmental review guidelines. Unless otherwise specified, all renderings shall depict the proposed structure, landscaping, other improvements, and surrounding land uses as they would appear three years after project completion.

3.

All material submitted becomes the property of the City and public information.

4.

At any time upon reasonable request, and during normal business hours, any person may examine an application and materials submitted in support of or in opposition to an application in the Planning Department offices. Unless barred by law, copies of such materials shall be made available at a reasonable cost to be established annually through City Council resolution.

(Ord. 2008-2 Div. II (part), 2008.)

Pre-Application review is an optional review process that is intended to provide information and feedback to applicants on relevant policies, regulations, guidelines, and procedures related to projects subject to discretionary approvals pursuant to the Zoning Ordinance. This review is intended for large, complex and/or potentially controversial projects.

A.

No submittal will be accepted for pre-application review without payment of a fee established by resolution of the City Council and submission of materials that the Zoning Administrator has determined necessary to conduct such review.

B.

A potential applicant may request or the Zoning Administrator may recommend pre-application review by the Planning Commission or Design Review Board. Any recommendations that result from such review shall be advisory only and not binding on the applicant or City.

(Ord. 2008-2 Div. II (part), 2008.)

A.

When an application is determined to be complete the Zoning Administrator shall make a record of that date. If an application requires a public hearing, the Zoning Administrator shall schedule it and notify the applicant of the date and time.

B.

The Zoning Administrator may, upon written request by the applicant and for good cause, grant extensions of any time limit for review of applications imposed by this Zoning Ordinance in compliance with State law.

(Ord. 2008-2 Div. II (part), 2008.)

Notification shall be provided in compliance with the requirements of State law and as follows whenever public notice is required by the provisions of this Zoning Ordinance.

A.

Mailed Notice. At least ten calendar days before the date of the public hearing or the date of action when no public hearing is required, the Zoning Administrator, or the City Clerk for hearings before the City Council, shall provide notice by First Class mail to:

1.

All property owners of record within a 300-foot radius of the proposed project, as shown on the County Assessors roll;

2.

All neighborhood and community organizations that have previously requested notice of projects in the area where the site is located in writing; and

3.

Any person or group that has specifically requested notice regarding the application in writing.

B.

Published Notice. When a provision of this Zoning Ordinance requires a public hearing, in addition to providing mailed notice pursuant to subsection (A), the City shall provide notice within ten days of the hearing by publication in at least one newspaper of general circulation within the City.

C.

Alternate Method for Large Mailings. If the number of owners to whom notice would be mailed or delivered is greater than 1,000, instead of mailed notice required in subsection (A), the Zoning Administrator or City Clerk may provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation in the City at least ten days prior to the hearing. This publication may also be used to satisfy the additional hearing notice requirements of subsection (B) above.

D.

Additional Hearing Notice. The Zoning Administrator may require additional notification as follows:

1.

Expand the mailed notice of a public hearing to owners of real property that is the subject of the public hearing;

2.

Posting the notice on the property that is a subject of the hearing;

3.

Providing notice of a public hearing to homeowners associations in the neighborhood of a project; and

4.

Providing notice of a public hearing to residents or merchants within the mailing radius.

The Zoning Administrator may also provide any additional notice that he or she determines is necessary or desirable.

E.

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

1.

A general description of the proposed project or action and the property included in the application;

2.

The date, time, location, and purpose of the public hearing;

3.

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

4.

A general description of the environmental review conducted in connection with review of the application and the determination and/or documentation prepared;

5.

The location and times at which the complete application and project file, including environmental documentation, may be viewed by the public;

6.

A statement that any interested person or authorized agent may appear and be heard; and

7.

A statement describing how to submit written comments.

F.

Public Notification of Non-Discretionary Multi-Story Single Family Design Plans.

1.

Notwithstanding the previous requirements in this section, no building permit shall be issued in any RS zoning district for any new construction, addition, or alteration of a single-family dwelling of more than one story until the proposed plans have been available for public review pursuant to the requirements of this section. This includes additions to existing single-family dwellings that would add an additional story or expand any story above the ground floor.

2.

This subsection F shall not apply to any project for which notice is provided to neighbors within 300 feet, including any project for which design review is required.

3.

Preliminary plans shall be submitted to the Zoning Administrator prior to submitting an application for a building permit. Preliminary plans shall include a plot plan drawn to scale, showing dimensions of all setbacks from property lines, and showing locations of all buildings on abutting sites, with an illustration plotting shadows of the proposed building as they would be cast at noon on December 21st of any year. Submittals shall include building floor plans with a series of cross-sections illustrating the height limit and setback planes.

4.

The Zoning Administrator may require the installation of story poles for any project that proposes to increase the height of an existing structure beyond one-story or any new structure proposed to be more than one-story. An applicant may have this requirement waived for any project pursuant to a statement signed by the owners of all adjacent properties as determined by the Zoning Administrator agreeing that story poles are not necessary. If story poles are required, they shall be fully erected, subject to City standards, prior to the start of the 14-day notice period.

5.

The Zoning Administrator shall mail notice to all owners of properties located within 300 feet of the boundaries of the property where such construction is proposed, advising that plans for a single-family dwelling, involving either new construction or an addition, are available for inspection by the public for a period of 14 days from the date of the notice. In the event that such plans are subsequently changed in any way that would change the articulation of the roofline, increase the height or reduce the setback of a structure, the Zoning Administrator shall mail a new notice to said owners and tenants, advising them that revised plans are available for a 14-day review period.

G.

Failure to Notify Individual Properties. The validity of the proceedings shall not be affected by the failure of any property owner, resident or neighborhood or community organization to receive such mailed notice.

(Ord. 2008-2 Div. II (part), 2008.)

A public hearing held pursuant to this Zoning Ordinance shall comply with the following procedures:

A.

Public Hearing Testimony.

1.

Rights of All Persons. Except as otherwise provided in Paragraph 2 below, any person may appear at a public hearing and submit oral or written evidence, either individually or as a representative of a person or an organization. Each person who appears at a public hearing shall be identified, state an address and, if appearing on behalf of a person or organization, state the name and mailing address of the person or organization being represented.

2.

Time Limits. Notwithstanding the foregoing, the Mayor for hearings before the City Council, or the Chair for hearings before any other body, may establish time limits for individual testimony and may require that individuals with shared concerns select one or more spokespersons to present testimony on behalf of those individuals.

B.

Order of Proceedings at Public Hearing. The order of the proceedings at the public hearing shall generally be as follows. This order may be modified by the decision-making body in their rules for conduct of meetings:

1.

Staff Report Presented. Staff shall present a verbal report that includes a recommendation when appropriate, and shall respond to questions from the body.

2.

Public Hearing. The Mayor or Chair shall open the public hearing.

3.

Applicant Presentation. The applicant shall present the project and respond to questions from the body.

4.

Public Testimony. Testimony will be accepted from those requesting to be heard.

5.

Applicant Response. The Mayor or Chair may request the applicant to respond to testimony or evidence presented by the public.

6.

Close of Public Hearing. The Mayor or Chair shall close the public hearing.

7.

Staff Response. Staff may provide information or clarification regarding matters raised during the public testimony.

8.

Deliberation and Action. The Council, Board or Commission shall discuss the request and approve, approve with amendments, deny, or continue consideration of the request.

C.

Continuance of Public Hearing. The body conducting the public hearing may by motion continue the public hearing to a fixed date, time and place or may continue the item to an undetermined date. Provided that in the latter instance the body conducting the public hearing provides notice of the continued hearing in the manner prescribed in this Chapter once a date has been established for the continued hearing.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Discouraging Ex Parte Communications. To ensure that the decision-making process is fair and impartial, all members of the Planning Commission and Design Review Board are discouraged from, directly or indirectly, receiving, participating in, or making, or causing to be made any ex parte communication relevant to the merits of an application pending before that body. Ex parte communications are oral or written, off-the-record communications made to or by members of the Commission or Board with applicants, neighbors, or other interested parties excluding City staff and officials acting in their official capacity. Such contacts include, but are not limited to, one-on-one meetings, discussions, telephone calls, or e-mail messages that occur outside of a public meeting of the body on which the City official serves at which the matter discussed has been publicly noticed.

B.

Exceptions. This policy discouraging ex parte communications shall not apply to communications between Board, Commission, or Staff. This policy is not intended to prevent site visits that are reported in the record, the receipt of expert opinion, and the review of mail and other correspondence relating to the proceedings. This policy also excludes meetings between ad hoc committees that the Planning Commission or Design Review Board may establish to meet with applicants and/or surrounding property owners on a particular application. Such ad hoc committees shall include less than a majority of the total membership of the Commission or Board. All such communications shall be documented and entered into the record of the proceedings as provided for in subsection (C).

C.

Disclosure of Communications. Any official who receives an ex parte communication, or who participates in a site visit shall place the communication in the public record or shall enter into the record a statement describing the time, place, and content of the communication.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Any approval permits only those uses and activities actually proposed in the application, and excludes other uses and activities. Unless otherwise specified therein, the approval of a new use shall terminate all rights and approvals for previous uses no longer occupying the same site or location.

B.

Unless otherwise specified required, or approved by the Zoning Administrator, Planning Commission, Design Review Board, or Council, the site plan, floor plans, building elevations and/or any additional information or representations, whether oral or written, indicating the proposed structure or manner of operation submitted with an application or submitted during the approval process shall be deemed conditions of approval. Any approval may be subject to requirements that the permittee guarantees, warranties or insures that the Permit's plans and/or conditions shall in all respects be complied with.

C.

The approved use and/or construction is subject to, and shall comply with, all applicable City ordinances and laws and regulations of other governmental agencies.

D.

If the construction of a building or structure or the use established is contrary to the description or illustration in the application, so as to either violate any provision of the Zoning Ordinance or require additional permits, then the approval shall be deemed null and void.

E.

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

(Ord. 2008-2 Div. II (part), 2008.)

No building permit or business license shall be issued for any project where a Variance, Use Permit, or other discretionary permit subject to appeal is required by the terms of this Zoning Ordinance until after the 10th day following the date of the approval of the discretionary permit.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Automatic Lapse. Any permit granted under this Zoning Ordinance may be declared lapsed and of no further force and effect if:

1.

The permit is not exercised or extended within two years of its issuance.

2.

The property has been vacant for at least one year and the permit holder or the owner of the property, in the event they are different, has not demonstrated a continuous good faith effort to reoccupy the property with the use specified in the approved permit. In such cases, the permit holder shall have the burden of establishing his/her continuous good faith effort to reestablish the use. The Planning Commission may require the permit holder to produce documentation to substantiate that intent.

B.

Exercise of Use Permit. A permit for the use of a building or a property is exercised when the permitted use has commenced on the property.

C.

Extension. The Zoning Administrator may approve a single one-year extension of any permit or approval granted under this Zoning Ordinance upon receipt of a written application with the required fee prior to expiration of the permit. All other extensions shall require approval by the Planning Commission.

D.

Lapse by Written Notice. Permits may be declared lapsed (null and void) by the Zoning Administrator upon 15 days written notice to the permit holder. Any determination by the Zoning Administrator that a permit has lapsed may be appealed to the Planning Commission in the same manner as an action by the Zoning Administrator on an Administrative Use Permit.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Changes Requiring Amendment. No change in the use or structure for which a permit or other approval has been issued is permitted unless the permit is amended by the Zoning Administrator, Design Review Board, or Planning Commission as provided for in this Zoning Ordinance. Unless specifically authorized in the original approval, changes that require amendment include, but are not limited to, the following:

1.

Expanding the floor or lot coverage devoted to the approved use or uses by more than 10 percent;

2.

Substantially expanding the floor area, or lot coverage devoted to customer service and/or increase in the number of customer seats;

3.

Substantially increasing the number of dwelling units, employees, beds, rooms or entrances; or

4.

Establishing a new product line, service, function or activity so as to change the use as defined in Chapter 19.46, Use Classifications or as defined in the City Building Code.

B.

Minor Amendment by Zoning Administrator. The Zoning Administrator may approve minor amendments to approved plans that are in substantial conformance with plans, findings and conditions approved by the Zoning Administrator, Design Review Board or the Planning Commission, and that would not intensify any potentially detrimental effects of the project.

(Ord. 2008-2 Div. II (part), 2008.)

Any permit granted under this Zoning Ordinance may be revoked if any of the conditions or terms of such permit are violated or if any law or ordinance is violated in connection therewith.

A.

Revocation Procedure. The Planning Commission, by its own action, at the request of the City Council by resolution, or following a recommendation from the Zoning Administrator, may initiate revocation proceedings.

B.

Public Notification. The Zoning Administrator shall give notice of the hearing before the Planning Commission pursuant to the requirements of Section 19.32.050 after providing mailed notice to the current permit holder within the prescribed time period.

C.

Conduct of Public Hearing. The public hearing regarding the revocation of a permit or variance or other approval shall be conducted in the same manner as for Use Permits pursuant to Section 19.32.060.

D.

Required Findings. The Planning Commission may revoke or amend the permit if it makes any of the following findings:

1.

The permit has lapsed as provided for in Section 19.32.100.

2.

The permit holder has failed to comply with one or more of the conditions set forth in the permit.

3.

The use, building, site or structure has been substantially changed in character or substantially expanded beyond what is set forth in the permit or plans.

4.

The property has been vacant for at least one year and the permit holder or the owner of the property, in the event they are different, has not demonstrated a continuous good faith effort to reoccupy the property with the use specified in the approved permit. In such cases, the permit holder shall have the burden of establishing his/her continuous good faith effort to reestablish the use. The Planning Commission may require the permit holder to produce documentation to substantiate that intent.

E.

Notice of Action. Following Planning Commission action to revoke or amend a permit, the Zoning Administrator shall within 15 days issue a Notice of Action describing the Commission's action, with its findings. The Zoning Administrator shall mail notice to the permit holder and to any person who requested the revocation proceeding and shall file a copy of the Notice with the City Clerk. The Clerk shall provide the City Council with a copy of the notice at its next regular meeting.

F.

Appeals. The Planning Commission's action shall be subject to appeal to the City Council as provided for in Chapter 19.39, Appeals.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter establishes procedures for conducting Zoning Clearance review to ensure that each new or expanded use or structure complies with the applicable requirements of this Zoning Ordinance. Having made such determination, the City keeps a record of the Zoning Clearance approval that will serve as a record of the initial establishment of a use, or the construction of a structure, which is allowed as a matter of right. For new businesses or substantial changes to existing businesses, the Zoning Clearance will assist the applicant to ensure their business meets all zoning regulations.

(Ord. 2008-2 Div. II (part), 2008.)

Zoning Clearance approval is required for buildings or structures erected, constructed, altered, repaired or moved, the use of vacant land, changes in the character of the use of land or building, or for substantial expansions in the use of land or building, which are allowed as a matter of right by this Zoning Ordinance. The Zoning Clearance form will be completed at the same time as the evaluation of the business license application.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Zoning Administrator. Prior to obtaining any business license, building permit, subdivision approval, or lot line adjustment, the applicant shall request the Zoning Administrator to determine whether the use, building, or change in lot configuration complies with all provisions of this Zoning Ordinance or any Use Permit, Variance, or Design Review approval issued pursuant to the Zoning Ordinance's requirements and that all conditions of such permits and approvals have been satisfied.

B.

Application Forms and Fees. Applications and fees for Zoning Clearance Approval shall be submitted in accordance with the provisions set forth in Section 19.32.020. The Zoning Administrator may request that the application be accompanied by plans and related materials necessary to show that the proposed development, alteration, or use of the property complies with all provisions of this Zoning Ordinance and the requirements and conditions of any applicable Use Permit, Variance, or design review approval.

C.

Applicability. The Zoning Administrator shall determine whether the Zoning Ordinance allows the proposed uses or structures by right. No Zoning Clearance approval shall be required for continuations of previously approved or permitted uses and structures, uses and structures which are not subject to any building or Zoning Ordinance regulations, or other uses or buildings already subject to Use Permits, Variances, or other discretionary approvals in the district in which they are located.

D.

Issuance of Zoning Clearance. A Zoning Clearance shall be issued if the Zoning Administrator determines that the proposed use or building is allowed as a matter of right by the Zoning Ordinance, and conforms to all the applicable development and use standards therein. An approved Zoning Clearance may include attachments of other written or graphic information, including but not limited to, statements, numeric data, site plans, floor plans and building elevations and sections, as a record of the proposal's conformity with the applicable regulations of this Zoning Ordinance.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Request for Determinations. The Zoning Administrator shall have the authority to make zoning determinations for interpretations of the Zoning Ordinance, verifications of zoning regulations, or verifications related to previous permits and other matters related to the application and interpretation of the Zoning Ordinance. Requests for zoning determinations shall be made in writing to the Zoning Administrator. Requests shall be accompanied by the payment of fees established in the City's Master Fee Schedule. The Zoning Administrator shall provide a Zoning Administrator Determination in writing within 30 days of a complete submittal.

(Ord. 2008-2 Div. II (part), 2008.)

A Zoning Clearance or a Zoning Administrator Determination may be appealed to the Planning Commission. The appeal must demonstrate that there is either an error or abuse of discretion by the Zoning Administrator, or that the Zoning Administrator decision is not supported by the evidence in the record. In its review of the appeal, the Planning Commission shall consider the purpose and intent, as well as the letter, of the pertinent provisions, and shall affirm, modify, or reverse the Zoning Administrator determination. The appeal shall be considered pursuant to the provisions of Chapter 19.39, Appeals.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter describes the process and general requirements applicable to those uses for which Parts II and III of this Zoning Ordinance (Base District and Overlay District Regulations) require a Use Permit. These uses require special consideration to ensure that they can be designed, located, and operated in a manner that will be harmonious and compatible and not interfere with the use and enjoyment of surrounding properties. The process for review of Use Permit applications is designed to evaluate possible adverse impacts and to minimize them where possible through the imposition of specific conditions or requirements. Approval of a Use Permit requires careful review of the location, design, configuration, and special impacts of a proposed use to determine, against standards and criteria, the desirability of permitting its establishment on a particular site.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter specifies the requirements for two Use Permit classifications—Administrative Use Permits that can be approved by the Zoning Administrator, and Conditional Use Permits requiring approval by the Planning Commission, as follows:

A.

Administrative Use Permits. Administrative Use Permits are required to approve those uses specifically identified in Parts II and III, Base District and Overlay District Regulations that are generally non-controversial but still require special consideration to ensure that they can be designed, located, and operated in a manner that will not interfere with the use and enjoyment of surrounding properties.

B.

Conditional Use Permits. Conditional Use Permits are required for specifically identified uses requiring special consideration as described in Section 19.34.010 and which may be problematic or controversial due to their size, location, type of operation, or other characteristics that indicate potential for impacts that will affect more than the immediately surrounding properties.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Application Forms and Fees. Written applications for Administrative Use Permits and Conditional Use Permits shall be filed with the Zoning Administrator in accordance with the application procedures in Chapter 19.32, Common Procedures.

B.

Decisions on Administrative Use Permits. All Administrative Use Permit applications shall be decided by the Zoning Administrator. The Zoning Administrator may hold a public hearing to consider the application if the Zoning Administrator determines there is significant public controversy and/or the hearing affords an opportunity to resolve issues of concern. Notification of the public hearing shall be provided in accordance with public notification requirements in Section 19.32.050. Notification of the decision of the Zoning Administrator shall be provided in accordance with public notification requirements in Section 19.32.050. Appeals of an Administrative Use Permit shall be processed in accordance with Chapter 19.39.

C.

Planning Commission Hearings for Administrative Use Permits. The Zoning Administrator may require a public hearing before the Planning Commission for any Administrative Use Permit application that the Administrator determines to have special neighborhood or community significance. In such cases the applicant shall pay the fee for the Planning Commission public hearing specified in the fee schedule adopted by the City Council. The decision shall be made by the Planning Commission, and appeals shall be heard by the City Council.

D.

Conditional Use Permits for Building Envelope Intrusions. In the event of an application for an intrusion into the building envelope required in Figure 19.06.B, the Zoning Administrator may require the installation of story poles as part of the conditional use permit application. If story poles are required, they shall be fully erected, subject to City standards, 14 days prior to the date of the public hearing and shall remain in place until the end of the appeal period as required by Chapter 19.39.

E.

Decisions on Conditional Use Permits. All Conditional Use Permit applications shall require a public hearing before the Planning Commission. Notification shall be provided in compliance with the public notification requirements in Section 19.32.050.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Findings for Approval. A Use Permit shall only be granted if the Zoning Administrator or Planning Commission finds that the proposal as submitted, modified and/or conditioned conforms to all of the following criteria as well as to any other special findings required for approval of Use Permits in specific zoning districts:

1.

The location, size, design, and operating characteristics of the proposed development will be harmonious and compatible with and will not adversely affect the livability or appropriate development of abutting properties and the surrounding neighborhood.

2.

The location and design of the proposal will provide a convenient and functional living, working, shopping, or civic environment that will be an attractive amenity for the City.

3.

The proposal is consistent with the purposes of the district where it is located and conforms in all significant respects with the El Cerrito General Plan and with any other applicable plan adopted by the City Council.

B.

Denial. If the Zoning Administrator or Planning Commission determines that it is not possible to make all of the required findings for approval, the application shall be denied. The specific basis for denial based on the above findings shall be established for the record.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Conditions. In approving a Use Permit, the Zoning Administrator or Planning Commission may impose any conditions deemed necessary to:

1.

Ensure that the proposal conforms with the El Cerrito General Plan, Zoning Ordinance and with any other applicable regulations, plans or policies;

2.

Achieve the findings for a Use Permit listed in Section 19.34.040 of this Chapter; and

3.

Mitigate any potentially significant impacts identified as a result of environmental review.

B.

Types of Conditions. The decision making authority may impose reasonable conditions including but not limited to: requirements for special yards, open spaces, buffers, fences, walls, location and orientation of entrances, roll-up doors, and screening; specific building design elements; requirements for the installation and maintenance of landscape and erosion control measures; regulation of vehicular ingress, egress and traffic circulation; construction of street improvements and dedication of right-of-way; regulation of signs; regulation of parking; preservation of trees; regulation of lighting; regulation of hours of other characteristics of operation; establishment of development schedules or time limits for performance or completion; extension and provision of public utilities and easements; requirements of periodic review by the Zoning Administrator; submission of final plans to ensure compliance with conditions of approval, and such other conditions deemed necessary and reasonable.

(Ord. 2008-2 Div. II (part), 2008.)

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

(Ord. 2008-2 Div. II (part), 2008.)

A.

Zoning Administrator Review. The Zoning Administrator may approve applications for temporary uses if the application meets the findings set forth in Section 19.35.040 of this Chapter.

B.

Exempt Temporary Uses. The following minor and limited duration temporary uses are exempt from the requirement for a temporary use permit. Uses that do not fall within the categories defined below shall comply with Subsection C.

1.

Car Washes. Car washes conducted by a qualifying sponsoring organization on non-residential properties. Sponsorship shall be limited to educational, fraternal, religious, or service organizations directly engaged in civic or charitable efforts, or to tax exempt organizations in compliance with 501(c) of the Federal Internal Revenue Code. Temporary car washes shall not occur on a site more than four times per calendar year and may not operate for a continuous period of more than 12 hours.

2.

Events. Events on nonresidential property including the following:

City-sponsored Events. Any temporary activities sponsored by the city, unless the Zoning Administrator determines a temporary use permit is necessary to effectuate the purposes of this Chapter.

3.

Emergency Facilities. Emergency public health and safety needs/land use activities.

4.

Garage Sales. Garage sales are exempt from the requirement for a temporary use permit; provided, the sales occur no more often than two times per quarter per residence, for a maximum of three consecutive days each.

5.

On-site Construction Yards. On-site contractors' construction yards, including temporary trailers and storage of equipment, in conjunction with an approved construction project on the same site. The construction yard shall be removed immediately upon completion of the construction project, or the expiration of the companion Building Permit authorizing the construction, whichever occurs first.

6.

Temporary Real Estate Sales Office. A temporary real estate sales office within the area of an approved development project, solely for the first sale of homes, approved as part of the overall project.

C.

Temporary Use Permit Required. A temporary use permit shall be required for the following types of temporary uses:

1.

Commercial Filming. The temporary use of an approved site for the filming of commercials, movies, videos, etc. The Zoning Administrator shall make an additional finding to issue a temporary use permit for this use: the approval would not result in a frequency of uses likely to create incompatibility between the temporary filming activity and the surrounding neighborhood.

2.

Events. Events on nonresidential property including the following:

a.

Arts and crafts shows, auctions, civic and community events, fairs, farmers' markets, festivals, flea markets, food events, recreation events, rummage sales, second hand sales, street fairs, and swap meets for up to 12 months.

b.

Outdoor meetings or group activities for seven consecutive days or less, within a 90-day period.

3.

Off-site Construction Yards. Off-site contractors' construction yards, in conjunction with an approved construction project. The permit shall expire and the construction yard shall be removed immediately upon completion of the construction project, or the expiration of the companion Building Permit authorizing the construction project, whichever first occurs.

4.

Onsite real estate sales from a manufactured or mobile unit office for the temporary marketing, sales, or rental of residential, commercial, or industrial development.

5.

Outdoor Display/Sales. The temporary outdoor display/sales of merchandise (e.g., parking lot and sidewalk sales) shall be allowed only if the merchandise displayed is otherwise sold within a building on the same site. These activities shall be located immediately adjacent to the structure, and their duration shall not exceed seven consecutive days within a 90-day period.

6.

Residence. A mobile home as a temporary residence of the property owner when a valid Building Permit for a new single-family dwelling is in force, or for temporary caretaker quarters during the construction of a subdivision, multi-family, or nonresidential project. The permit may be approved for a specified duration, or upon expiration of the Building Permit, whichever first occurs.

7.

Retail uses on the same property with an established commercial business holding a valid city business license where such retail activity is not in conflict with a Use Permit or the requirements of the zoning district where the use is located.

8.

Seasonal sales of pumpkins and Christmas trees for a period not longer than 45 days in a commercial district on a site where such sales have been permitted previously.

9.

Temporary Structure. A temporary classroom, office, or similar portable structure, including a manufactured or mobile unit, may be approved, for a maximum time period of 12 months, as an accessory use or as the first phase of a development project, in the commercial and industrial zones.

10.

Temporary Work Trailer.

a.

A trailer or mobile home may be used as a temporary work site for employees of a business:

i.

During construction of a subdivision or other development project when a valid Building Permit is in force; or

ii.

Upon demonstration by the applicant that the temporary work site is a short-term necessity, while a permanent work site is being obtained.

b.

A permit for temporary work trailers may be granted for up to 12 months.

11.

Temporary uses otherwise regulated by this Code or similar temporary uses. Similar temporary uses which, in the opinion of the Zoning Administrator, are compatible with the zone and surrounding land uses, and are necessary because of unusual or unique circumstances beyond the control of the applicant.

D.

Administrative Use Permit Required in Certain Circumstances. The Zoning Administrator may require an administrative use permit application if the Administrator finds that the temporary use may have substantial and detrimental impacts to surrounding properties, such as noise or traffic impacts that should be considered through an administrative use permit review process. Administrative use permits shall be required for the following uses:

1.

Amusement rides, carnivals, circuses, concerts, live entertainment, outdoor entertainment/sporting events, and tent revivals for 10 consecutive days or less, or five two-day weekends, within a 12-month period.

(Ord. 2008-2 Div. II (part), 2008; Ord. No. 2013-01, §§ I, II, 4-16-2013)

A.

Application. An application for a temporary use permit shall be submitted at least 45 days before the use is intended to begin. The application shall be on a form that the Zoning Administrator issues for that purpose and shall include the written consent of the owner of the property on which the use is to be located.

B.

Decision by the Zoning Administrator. The Zoning Administrator may approve, conditionally approve, or deny an application for a temporary use upon making the findings required by Section 19.35.040 of this Chapter.

C.

Administrative Use Permit. If the Zoning Administrator requires an Administrative Use Permit per Section 19.35.020(B) of this Chapter, the permit shall be reviewed pursuant to the provisions of Chapters 19.34, Use Permits and 19.32, Common Procedures.

(Ord. 2008-2 Div. II (part), 2008.)

The Zoning Administrator may approve a temporary use permit or a temporary Administrative Use Permit upon making all of the following findings:

A.

The proposed use will not unreasonably affect adjacent properties, their owners and occupants, or the surrounding neighborhood, and will not in any other way constitute a nuisance or be detrimental to the public health, safety and welfare.

B.

The proposed use will not unreasonably interfere with pedestrian or vehicular traffic or circulation in the area surrounding the proposed use, and will not create a demand for additional parking that cannot be safely and efficiently accommodated.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Conditions. The Zoning Administrator may impose any conditions deemed necessary to achieve the findings for a temporary use permit listed in Section 19.35.040 of this Chapter. The Zoning Administrator may impose reasonable conditions including but not limited to: regulation of vehicular ingress, egress and traffic circulation; regulation of lighting; regulation of hours and/or other characteristics of operation; submission of final plans to ensure compliance with conditions of approval, and such other conditions as the Zoning Administrator may deem necessary and reasonable.

B.

Minimum Conditions. In approving a temporary use permit or a temporary Administrative Use Permit, the Zoning Administrator shall at a minimum impose the following conditions if applicable:

1.

Any construction or other work shall conform to all applicable Zoning Ordinances.

2.

Fire protection and access for fire vehicles shall be provided as specified by the Fire Chief.

3.

The site shall be completely cleared of all trash, debris, signs, sign supports, temporary structures, and electrical service within three days following the date specified for termination of the temporary use.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Decision Final. A decision by the Zoning Administrator to approve a temporary use without requiring an Administrative Use Permit shall be final, and is not subject to appeal.

B.

Appeals for Administrative Use Permits. Any party aggrieved by the decision of the Zoning Administrator to approve, modify, or deny a temporary Administrative Use Permit may appeal the decision to the Planning Commission, pursuant to the provisions of Chapter 19.39, Appeals.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter is intended to provide relief where strict application of this Zoning Ordinance will deprive the property owner of privileges enjoyed by similar properties because of the subject property's unique and special conditions. Variances may be granted with respect to dimensional and performance standards but Variances from the use regulations of this Zoning Ordinance are not allowed.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Application. Applications for Variances shall be submitted and reviewed in the same manner as required for Use Permits pursuant to Chapter 19.32, Common Procedures. In addition to any other application requirements specified by the Zoning Administrator, the application for a Variance shall include data or other evidence demonstrating that:

1.

Exceptional or extraordinary circumstances or conditions apply to the land, or structures referred to in the application, which circumstances or conditions do not apply generally to uses, land or structures in the same zoning district;

2.

Due to the special circumstances applicable to this property, strict application of the respective zoning regulation would deprive the property owner of substantial property rights enjoyed by other property owners in the same zoning district and the granting of the Variance is necessary for the preservation and enjoyment of the applicant's substantial rights;

3.

Special circumstances applicable to the property were or are not self-imposed by the property owner; and

4.

Authorization of the Variance substantially meets the intent and purpose of the zoning district in which the subject property is located and will not be detrimental to the health, safety, and welfare.

B.

Public Notification. All applications for Variances shall require a public hearing before the Planning Commission pursuant to Chapter 19.32, Common Procedures.

(Ord. 2008-2 Div. II (part), 2008.)

After it has conducted a public hearing, the Planning Commission shall approve, conditionally approve, or deny the Variance application.

A.

Findings for Approval. The Planning Commission may approve or conditionally approve a Variance application only if it makes all of the following findings:

1.

There are special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, whereby the strict application of the Zoning Ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district;

2.

Such special circumstances were not created by the owner or applicants;

3.

The Variance does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located; and

4.

The authorization of the Variance will meet the intent and purpose of the zoning district in which the subject property is located, and will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or the public welfare in general.

5.

California Government Code Section 65906 provides that a variance from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives the property owner of privileges enjoyed by other property in the vicinity and under identical zoning classification.

B.

Denials. The Planning Commission shall deny an application for a Variance if it is unable to make all of the required findings, in which case it shall state the reasons for that determination.

(Ord. 2008-2 Div. II (part), 2008.)

The Planning Commission shall not approve any changes in the uses permitted in any zoning classification or zoning district or approve any amendment of the requirements of this Zoning Ordinance that would have the effect of allowing the establishment of a use not otherwise permitted. This restriction shall not affect the authority to grant Variances pursuant to this Chapter.

(Ord. 2008-2 Div. II (part), 2008.)

In approving a Variance, the Planning Commission may impose conditions necessary to ensure that the Variance shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the subject property is located including conditions to:

A.

Ensure that the proposal conforms with the General Plan, Zoning Ordinance and with any other applicable regulations, plans or policies;

B.

Protect the public health, safety, and welfare;

C.

Ensure operation and maintenance of the use in a manner compatible with existing and potential uses in the surrounding area; and

D.

Mitigate any potentially significant environmental impacts.

E.

Other conditions deemed necessary and reasonable.

(Ord. 2008-2 Div. II (part), 2008.)

The purpose of this Chapter is to establish a process for granting reasonable relief from Zoning Ordinance requirements when it is not possible or practical to approve a Variance. It is the policy of the City to comply with the Federal Fair Housing Act, the Americans with Disabilities Act and the California Fair Employment and Housing Act to provide reasonable accommodation by modifying the application of its zoning and subdivision regulations for persons with disabilities seeking fair access to housing. This Chapter authorizes the Zoning Administrator to grant administrative relief from the Zoning Ordinance's dimensional requirements to achieve these and other objectives and also allows the Planning Commission to grant exceptions and waivers when necessary to accommodate uses protected by State or Federal law.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Application. An application for relief shall be filed with the Zoning Administrator in accordance with the application procedures set forth in Chapter 19.32, Common Procedures. The application shall state in writing the nature of the exception requested and explain how the necessary findings would be satisfied. The applicant shall also submit plans delineating the requested exception. The application shall be accompanied by a fee as established by resolution of the City Council.

B.

Administrative Use Permit Required. The Zoning Administrator may grant relief from the dimensional requirements of this Zoning Ordinance not to exceed 10 percent of the requirement, by approving an Administrative Use Permit, pursuant to the provisions of Chapter 19.34, Use Permits.

C.

Planning Commission Review for Certain Types of Requests. Any relief request to establish a use or structure that would exceed the density or development intensity allowed in a residential district shall be reviewed and decided by the Planning Commission, following the procedures of Chapter 19.34, Use Permits. A public hearing shall be required.

D.

Referral of Applications to Planning Commission. The Zoning Administrator may refer to the Planning Commission any request for a waiver or exception requested to comply with the reasonable accommodation provisions of Federal law based on a determination that there is a compelling public interest requiring compliance with the requirements of this Zoning Ordinance.

E.

Simultaneous Processing. If a request for relief is being submitted in conjunction with an application for another approval, permit, or entitlement under this Zoning Ordinance, it shall be heard and acted upon concurrently with that application.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Standards for Which Exceptions May Be Considered. Up to 10 percent of dimensional requirements, including, but are not limited to:

1.

Front, side, and rear yard setbacks.

2.

The width of any buffer yard required in Chapter 19.25, Landscaping and Buffer Yards.

B.

Standards for Which Exceptions May Not Be Considered. Waiver and Exceptions may not be considered that would require an application for a Variance or Use Permit:

1.

Building Height.

2.

Creek Setbacks.

3.

Exceptions to the main building envelope in the RS district beyond those allowed by the development standards for that district.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Findings for Approval. A decision to grant a waiver or exception shall be based on all of the following findings supported by evidence in the record:

1.

The waiver or exception is necessary due to the physical characteristics of the property, the proposed use or structure, or other circumstances including but not limited to topography, noise exposure, irregular property boundaries, or other unusual circumstances.

2.

There are no alternatives to the requested waiver or exception, including siting at another location that could provide similar benefits to the applicant with less potential detriment to surrounding owners, occupants, and the public.

3.

The granting of the requested waiver or exception would not be detrimental to the health or safety of the public or the occupants of the property, or result in a change in land use or density that would be inconsistent with the requirements of this Zoning Ordinance.

4.

The granting of the waiver or exception will substantially meet or advance the intent and purpose of the zoning district in which the subject property is located.

B.

Additional Finding. If the waiver or exception requested is to provide reasonable accommodation pursuant to Federal or State statute, the following additional finding must be made:

1.

Denial of the requested waiver or exception would impose a substantial burden on religious exercise or conflict with any Federal or State statute requiring reasonable accommodation of persons with disabilities.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Conditions. In approving a waiver or exception, the Zoning Administrator or Planning Commission may impose conditions necessary to achieve the same purposes specified for the imposition of conditions on Variances pursuant to Chapter 19.36, Variances, subject to subsection (B) of this section.

B.

Exception. Where the request for waiver or exception is subject to Federal or state statutes requiring reasonable accommodation, the Zoning Administrator or Planning Commission must find that conditions are necessary to further a compelling public interest and represent the least restrictive means of furthering that interest.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Recission. Waivers and exceptions approved based on Federal or State requirements for reasonable accommodation may be conditioned to provide for recission or automatic expiration based on a change of occupancy or other relevant change in circumstance.

(Ord. 2008-2 Div. II (part), 2008.)

These regulations establish objectives, standards, and procedures for conducting design review. The purpose of design review is to preserve and enhance the character of El Cerrito's existing neighborhoods, and ensure that new development, construction and exterior improvements are consistent with the General Plan, this Chapter and any adopted design guidelines. Design review is intended to encourage high-quality design, well-crafted and maintained buildings and landscaping, the use of higher-quality building materials, and attention to the design and execution of building details and amenities in both public and private projects. These regulations shall be carried out in a manner that encourages creative and appropriate solutions while streamlining the approval process whenever possible.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Applicability. Design review is required for all projects for which a building permit is required that involves new construction or development; exterior alterations and installations; the erection, replacement, or alteration of signage; and landscaping associated with such construction and alterations, with the following exceptions:

1.

The construction or alteration of a single-family dwelling or residential accessory structures on pre-existing lots, unless (a) it is a single-family dwelling within a Planned Development (PD) district, or (b) it is a subdivision of five or more lots when design review is required as a condition of subdivision approval or (c) when Planning Commission requires design review as a condition of approval.

2.

Alterations, additions, and repairs that do not change the exterior appearance of a structure, including replacement in kind of existing features. To be considered "replacement in kind," the features must reasonably match the design, profile, material, and general appearance of the originals.

3.

Changes in the color or finish of building exteriors when the original colors or finishes were not subject to approval by the Design Review Board.

B.

Assignment of Design Review Responsibilities. The Zoning Administrator or Design Review Board have responsibility for conducting design review and making decisions to approve, approve with amendments, or deny the design of projects as follows:

1.

Administrative Design Review. The Zoning Administrator will conduct administrative design review and make decisions to approve, approve with amendments, or deny the design of the projects listed below. The Zoning Administrator may refer any such project to the Design Review Board if the Administrator determines it has special significance.

a.

Temporary signs and all other signs as set forth in Section 19.26.090, Procedures for Sign Approval.

b.

Minor projects, including: (1) minor additions and alterations to existing buildings that do not increase existing floor area by more than 20 percent or more than 2,500 square feet; (2) new construction of accessory structures on an existing lot; or (3) other building alterations which do not significantly alter the visual character or function of a building.

c.

Other types of projects for which this Zoning Ordinance explicitly requires Administrative Design Review.

2.

Design Review Board Review. The Design Review Board will conduct design review and make decisions to approve, approve with amendments, or deny the design of the projects listed below:

a.

Temporary signs and all other signs as set forth in Section 19.26.090, Procedures for Sign Approval, for which review by the Design Review Board is required by ordinance or by request of the Zoning Administrator.

b.

Residential projects with two or more dwelling units.

c.

Single family homes when located in a new subdivision that results in the creation of five or more new parcels.

d.

Major nonresidential projects, including: (1) additions and alterations to existing buildings that increase existing floor area by more than 20 percent or more than 2,500 square feet; (2) new construction other than accessory structures; or (3) other building alterations which significantly alter the visual character or function of a building, with particular attention paid to those buildings fronting major public rights-of-way or transit areas.

e.

All other projects which require design review by the Design Review Board as specified in the Base District Regulations of this Zoning Ordinance.

f.

Projects referred by the Planning Commission.

(Ord. 2008-2 Div. II (part), 2008.)

Any and all proposed uses that require Design Review pursuant to Section 19.38.020.B.2 shall first be conceptually reviewed by the Design Review Board for recommendations on the design and other features so as to assist the applicant and the Planning Commission.

During such preliminary conceptual review, the Design Review Board may comment on site plan issues such as height, building orientation, massing and other site issues. Comments and recommendations made by the Design Review Board shall then be considered by the Planning Commission during deliberations on discretionary permits or approvals. Recommendations shall be advisory and no final or binding decision shall be issued by the Design Review Board during such preliminary review. Following Planning Commission approval, projects shall return to the Design Review Board for final review as detailed in the following Sections.

(Ord. 2008-2 Div. II (part), 2008.)

The Zoning Administrator or Design Review Board shall approve, conditionally approve or deny, or make recommendations on applications for final aesthetic architectural review based on consideration of the requirements of this Chapter as they apply to design of the structures, landscaping, lighting and other architectural features of an application including:

A.

Building articulation, facade treatment and architectural details.

B.

Exterior colors and materials.

C.

Character defining features and the relation to existing settings.

D.

Design of fences, walls, and screen plantings, including but not limited to height of those structures, materials, colors, and type.

E.

Location and type of landscaping including selection and size of plant materials and design of hardscape including landscape lighting.

F.

The size, location, design, color, number, lighting, and materials of signs.

G.

Design of the streetscape, including but not limited to landscaping, furniture and materials.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Application Requirements. Written applications for design review shall be filed with the Planning Division in accordance with the application procedures in Chapter 19.32, Common Procedures.

B.

Public Notice. All applications for design review by the Design Review Board shall require public notice pursuant to Chapter 19.32, Common Procedures. Public notice is not required for administrative design review applications or for conceptual design review meetings.

C.

Review Procedures.

1.

A Preliminary Conceptual Design Review session shall be required for any application that requires a public hearing before the Design Review Board. Such Preliminary review shall occur prior to submittal of a formal application for action by the Board or Commission in accordance with Section 19.38.030. Preliminary design review is intended to provide information on preliminary design concepts that will help an applicant identify issues and develop a formal application for action by the Board or Commission. Based on preliminary design review, the Design Review Board may refer the application to the Zoning Administrator for administrative design review. Conceptual design review recommendations by the Design Review Board shall be forwarded to the Planning Commission for their consideration.

2.

Following Preliminary Conceptual Design Review, the Zoning Administrator shall review all applications submitted for Final Design Review within 30 days to determine if they are complete as provided for in Chapter 19.32, Common Procedures. No application for design review shall be deemed complete until the applicant has applied for any Use Permit, Variance, or other zoning or subdivision approval required pursuant to this Code.

3.

After determining that an application for final design review is complete, the Zoning Administrator shall review the application for compliance with the applicable design review requirements. The Zoning Administrator shall prepare a report and recommendation for any application requiring review by the Design Review Board.

4.

Pursuant to Section 19.38.020.B.1., the Zoning Administrator may conduct a public hearing for any application that may be approved by the Zoning Administrator. The Zoning Administrator shall notify the applicant that a hearing will be required within 30 days of the date the application is received.

5.

A public hearing shall be required for all projects that require design review approval by the Design Review Board.

D.

Coordination with Environmental Review. When a project requiring review by the Design Review Board is subject to environmental review, the Zoning Administrator shall submit the proposed Negative Declaration or Environmental Impact Report to the Planning Commission for review and action pursuant to California Environmental Quality Act (CEQA) requirements before the Design Review Board takes action on the final design review application.

E.

Final Site Plan and Building Permit Review. No building or grading permit shall be issued for any project for which design review is required until the applicant submits and the City approves final building permit plans showing any changes required as a condition of design review approval.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Findings for Approval. The Zoning Administrator or Design Review Board may only approve a final design review application if it finds that the application is consistent with the purposes of this Chapter and is consistent with:

1.

The applicable standards and requirements of this Zoning Ordinance;

2.

The design policies of the General Plan and specific plans adopted by City Council;

3.

Any applicable design guidelines adopted by the City Council;

4.

The design review criteria set forth in the following subsection;

5.

Any planning or zoning approvals by the Planning Commission or Zoning Administrator;

6.

Any other relevant policies or regulations of the City.

B.

Design Review Criteria. When conducting design review, the Zoning Administrator and the Design Review Board shall be guided by whether the project satisfies all applicable criteria, the policies of the General Plan's Community Design Element, and by any other policies or guidelines that may be adopted by the City Council for this purpose. Criteria listed below are specific criteria that, if applicable, all projects must satisfy for approval.

1.

The aesthetic design, including its exterior design and landscaping, is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community.

2.

Project details, colors, materials, and landscaping, are fully integrated with one another and used in a manner that is visually consistent with the proposed architectural design.

3.

The project has been designed with consideration of neighboring development.

4.

The project contributes to the creation of an attractive and visually interesting built environment that includes well-articulated structures that present varied building facades, rooflines, and building heights and encourages increased pedestrian activity and transit use.

5.

Street frontages are attractive and interesting for pedestrians, address the street and provide for greater safety by allowing for surveillance of the street by people inside buildings and elsewhere.

6.

The proposed design is compatible with the historical or visual character of any area recognized by the City as having such character.

7.

The aesthetic design preserves significant public views and vistas from public streets and open spaces and enhances them by providing areas for pedestrian activity.

8.

The proposed landscaping plan is suitable for the type of project and will improve the appearance of the community by enhancing the building, minimizing hardscape and softening walls; and the landscape plan incorporates plant materials that are drought-tolerant, will minimize water usage, and are compatible with El Cerrito's climate.

9.

The project has been designed to be energy efficient including, but not limited to, landscape design and green or eco-friendly design and materials.

10.

The project design protects and integrates natural features including creeks, open space, significant vegetation, and geologic features. Projects along the Ohlone Greenway shall enhance the usability and aesthetic appeal of the Greenway by integrating it into the fabric of the City through building designs that include entries, yards, patios, and windows that open onto and face the Ohlone Greenway.

C.

Final Design Review Conditions. In granting final design review approval for a project that meets all of the applicable standards and requirements of this Zoning Ordinance, the Zoning Administrator or Design Review Board may impose final aesthetic architectural design conditions reasonably related to the application and deemed necessary to achieve the purposes of this Chapter. Therefore, such conditions may not overlap with, or impose more restrictive requirements than those provided for under Planning Commission land use authority pursuant to State law, the Municipal Code, Zoning Ordinance, and any other adopted plans, policies, permits or regulations. Notwithstanding the foregoing, this section shall not limit the powers of the Zoning Administrator or Design Review Board established by any other law.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Appeals. Design review decisions are subject to the appeal provisions of Chapter 19.39, Appeals. Appeals of design review approvals shall be based on design issues that are within the scope of this Chapter and the purview of the design review unless the appellant asserts that the decision exceeds the authority of the decision-making body in conducting design review.

B.

Expiration and Extension. Design review approvals are effective and may be extended as provided for in Chapter 19.32, Common Procedures.

C.

Amendments and Enforcement. All future development shall comply with building permit plans approved following design review unless amendments or changes are approved pursuant to the requirements of Section 19.32.120.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter establishes uniform procedures for appeals of final decisions by the Zoning Administrator, Design Review Board, and Planning Commission. The intent of this Chapter is to provide means of granting relief to reduce the potential for litigation and to increase fairness to both property owners and aggrieved members of the public.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Who May File. Appeals may be filed by the applicant, by the owner of property, or by any other person aggrieved by a decision that is subject to appeal under the provisions of this Zoning Ordinance.

B.

Appeals to a Court of Law. Unless otherwise specified by Federal or State law, an appeal must be brought and a final decision must be rendered by the hearing body, before the matter may be appealed to a court of law.

(Ord. 2008-2 Div. II (part), 2008.)

Unless otherwise specified in State or Federal law, all appeals must be filed in writing within 10 calendar days from the date of action. In the event an appeal period ends on a Saturday, Sunday, or any other day the City is closed, the appeal period shall end at the close of business on the next consecutive business day.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Proceedings Stayed by Appeal. The timely filing of an appeal shall stay all proceedings in the matter appealed including, but not limited to, the issuance of building permits and business licenses.

B.

Appeals of Zoning Administrator Decisions. A decision of the Zoning Administrator on any application other than design review may be appealed to the Planning Commission by filing a written appeal with the Planning Department. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be accompanied by the fee specified in the City's master fee schedule. Appeals of the Zoning Administrator's design review decisions may be appealed to the Design Review Board, in the same manner as specified above.

C.

Appeals of Design Review Board Decisions. Decisions of the Design Review Board may be appealed to the Planning Commission by filing a written appeal with the Zoning Administrator. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be accompanied by the fee specified in the City's master fee schedule.

D.

Appeals of Planning Commission Decisions. Decisions of the Planning Commission may be appealed to the City Council by filing a written appeal with the City Clerk. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be accompanied by the fee specified in the City's master fee schedule.

E.

Transmission of Record. The Zoning Administrator, or in the case of appeals to the City Council, the City Clerk, shall schedule the appeal for consideration by the authorized hearing body within 30 days of the date the appeal was filed. The Zoning Administrator shall forward the appeal and all other documents that constitute the record to the hearing body. The Zoning Administrator shall also prepare a staff report that carries forward the action of the body being appealed, and responds to the issues raised by the appeal and may include a recommendation for action.

F.

Hearing Body Action. The authorized hearing body shall review the appeal, the record, and any written correspondence submitted after the appeal has been filed, and shall take one of the following actions:

1.

Conduct a public hearing; or

2.

Remand the matter to the decision-making body or official to cure a deficiency in the record or the proceedings.

G.

Hearing Body Decision. The hearing body shall render its decision within 30 days of the date the hearing is closed unless State law requires a shorter deadline. An action to grant an appeal shall require a majority vote of the hearing body members. A tie vote shall have the effect of rejecting the appeal.

(Ord. 2008-2 Div. II (part), 2008.)

When reviewing any decision on appeal, the hearing body shall use the same standards for decision-making required for the original decision. The hearing body may adopt the same decision and findings as were originally approved or different ones.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter provides procedures by which changes may be made to the text of this Zoning Ordinance and to the Zoning Map.

(Ord. 2008-2 Div. II (part), 2008.)

The procedures of this Chapter shall apply to all proposals to change the text of the Zoning Ordinance and/or to revise a zoning district classification or zoning district boundary line shown on the zoning map. This amendment process is not intended to relieve particular hardships nor to confer special privileges or rights upon any person, but only to make adjustments necessary in light of changed conditions or changes in public policy.

(Ord. 2008-2 Div. II (part), 2008.)

An amendment may be initiated by the City Council, Planning Commission, City Manager, Community Development Director, or by application of any of the following persons or entities:

A.

One or more property owners affected by the proposed amendment, or their authorized agent.

B.

A person who has entered into an agreement with the El Cerrito Redevelopment Agency for the possible assemblage of the property affected by the proposed amendment.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Application. A written application for amendment shall be filed with the Zoning Administrator on a form specified for that purpose and shall be accompanied by a fee in the amount set by the City Council.

B.

Planning Commission Hearing and Action. The Planning Commission shall provide public notification and conduct a public hearing in compliance with the requirements of Chapter 19.32, Common Procedures and applicable provisions of state law. Within 30 days after concluding the hearing, the Planning Commission shall submit a recommendation on the proposed zoning amendment to the City Council. The recommendation shall include the reasons for the recommendation and information regarding the consistency of the proposed Zoning Ordinance amendment with the General Plan and any applicable specific plan. When the City Council has initiated a proposed zoning change, failure of the Planning Commission to report within 90 days shall be deemed to be a recommendation of approval of the proposed zoning amendment by the Commission.

C.

City Council Hearing and Action.

1.

Except as otherwise provided in this Subsection, after receiving the report from the Planning Commission or upon the expiration of the ninety-day period, the City Council shall set the matter for first reading and a public hearing after providing public notice as required by State law, per Chapter 19.32, Common Procedures. Notwithstanding the foregoing, if the matter under consideration is a proposal to reclassify a property from one zone to another and the Planning Commission has recommended against the adoption of such amendment, the City Council is not required to take any further action unless an interested party files a written request with the City Clerk within ten days after the Planning Commission action.

2.

After the conclusion of the hearing, the City Council may approve, modify or disapprove the recommendation of the Planning Commission.

D.

Findings for Zoning Map or Text Amendments. An amendment to the Zoning Map or Text may be approved only if all the following findings are made, as applicable to the type of amendment:

1.

Findings required for all Zoning Map/Text amendments:

a.

The proposed amendment is consistent with the goals and policies of all elements of the General Plan, and any applicable specific plan;

b.

The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City; and c. The proposed project has been reviewed in compliance with the California Environmental Quality Act (CEQA).

2.

Additional finding for Zoning Text amendments: The proposed amendment is internally consistent with other applicable provisions of this Zoning Code.

3.

Additional finding for Zoning Map amendments: The site is physically suitable (including absence of physical constraints, access, compatibility with adjoining land uses, and provision of utilities) for the requested zoning designations and anticipated land.

(Ord. 2008-2 Div. II (part), 2008.)

This Chapter establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects as provided for in State law. Such development agreements provide a greater degree of certainty by granting assurance that an applicant may proceed with development in accordance with policies, rules, and regulations in effect at the time of approval subject to conditions to promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved. A development agreement shall be a contract that is negotiated and voluntarily entered into by the City and applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.

(Ord. 2008-2 Div. II (part), 2008.)

An applicant for a development project may also apply for a development agreement in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864 through 65869.5 or any successor statute(s). In the event of any conflict between the applicable statutory provisions and this Chapter, the statutory provisions shall control.

A.

Application. An applicant shall submit an application for a development agreement on a form prescribed by the Community Development Director. The Director shall identify submittal requirements for applications for development agreements and may require an applicant to submit such additional information and supporting data as considered necessary to process the application. The applicant shall pay such fees and charges for the filing and processing of development agreements; the administration of approved development agreements, including annual reviews; and the direct costs of adopting these procedures and requirements, in amounts as established by the Master Fee Schedule. An applicant shall have a legal or equitable interest in the real property that is the subject of the proposed development agreement.

B.

Initial Review of Application. The Community Development Director shall review each application to determine whether it is complete. If the application is found to be incomplete, the Community Development Director shall reject the application and, within forty-five days after submittal of the application, shall inform the applicant of the items necessary to properly complete the application. If the application is complete, the Community Development Director shall determine whether an environmental review is required for the project in compliance with applicable State and local requirements.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Negotiations. The Community Development Director shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the Planning Commission and City Council.

B.

Notice of Intent. The Community Development Director shall publish a notice of intent to consider adoption of a development agreement pursuant to Title 7, Division 1, Chapter 4, Article 2.5 of the California Government Code, as may be amended from time to time.

C.

Planning Commission Public Hearing. The Planning Commission shall hold a noticed public hearing on the development agreement. Notice of the public hearing concerning a development agreement shall be provided in combination with any other notice required by law for land use approvals to be considered concurrently with the development agreement. Public Notice shall be provided per Section 19.32.050. The Planning Commission public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

D.

Recommendation by Planning Commission. The Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission's determination and supporting reasoning whether or not the proposed development agreement:

1.

Is consistent with the goals, objectives, policies, and land uses and programs specified in the general plan and any applicable specific plan;

2.

Is compatible with the uses authorized in this Zoning Ordinance, and the zoning district in which the real property is located;

3.

Will provide substantial public benefits;

4.

Will be non-detrimental to the public health, safety and welfare of the Community; and

5.

Has been reviewed in accordance with the provisions of the California Environmental Quality Act.

E.

City Council Public Hearing. The City Council shall hold a noticed public hearing prior to adoption of any development agreement. Notice of the public hearing shall be given in accordance with the requirements of Section 19.32.050 of this Zoning Ordinance in combination with any other notice required by law for land use approvals to be considered concurrently with the development agreement. The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

F.

Decision by City Council.

1.

After the City Council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the Planning Commission; or in the event the Planning Commission has failed to make a recommendation pursuant to subsection (D) of this Section, the City Council shall approve, disapprove or conditionally approve the development agreement. The City Council may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation.

2.

The City Council shall not approve a development agreement unless it finds that its provisions are consistent with the general plan, any applicable specific plan, and zoning. This requirement may be satisfied by a finding that the provisions of the development agreement are consistent with proposed general plan, specific plan, or zoning provisions which are to be adopted concurrently with approval of the development agreement.

(Ord. 2008-2 Div. II (part), 2008.)

A.

A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability to successors in interest.

B.

A development agreement may include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.

C.

A development agreement may also include conditions, terms, restrictions, and requirements for reviewing subsequent discretionary actions but the approval of a development agreement does not eliminate the applicant's responsibility to obtain all required land use approvals.

D.

A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project including any applicable environmental mitigation measures.

E.

A development agreement may provide that the project be constructed in phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.

F.

If the development agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

G.

A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the City harmless against claims arising out of or in any way related to actions of the applicant in connection with the application or the development and environmental process, including all legal fees and costs.

H.

A development agreement may include provisions to guarantee performance of obligations stated in the agreement, such as a penalty clause.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Time For and Initiation of Review.

1.

The Community Development Director shall review each approved development agreement in accordance with the documented review schedule at which time the applicant shall be required to demonstrate compliance with the provisions of the development agreement.

2.

The applicant shall complete the required annual review not more than sixty days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the Community Development Director to demonstrate compliance with the provisions of the development agreement. The applicant shall bear the burden of proving by substantial evidence that it has complied with the provisions of the development agreement.

B.

Finding of Non-compliance. If the Community Development Director finds the applicant has not complied with the provisions of the development agreement, the Director shall specify in writing the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. Alternatively, the Community Development Director may refer the development agreement to the City Council to determine compliance. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or amendment pursuant to this Chapter.

C.

Cancellation or Amendment by Mutual Consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in this Chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the Community Development Director.

D.

Termination or Amendment After Finding of Noncompliance. If an applicant does not comply with the terms of compliance within the prescribed time limits, the Community Development Director may refer the development agreement to the City Council for termination or amendment at a public hearing. After the public hearing, the City Council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance.

E.

Rights of the Parties After Cancellation or Termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the City.

(Ord. 2008-2 Div. II (part), 2008.)

A.

City Rules Apply. Unless otherwise specified in the development agreement, the City's rules, regulations and official policies governing permitted uses of the property, density, design, improvement standards and specifications applicable to development of the property shall apply to the development agreement.

B.

New Rules May Be Applied. A development agreement shall not prevent the City, in subsequent actions applicable to the property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. A development agreement shall not prevent the City from denying or conditionally approving any subsequent land Use Permit or authorization for the project on the basis of such existing or new rules, regulations, and policies. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals.

C.

Rules Affecting Development Agreement. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.

D.

Enforcement of a Development Agreement. The procedures for enforcement, amendment, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 or any successor statute, are non-exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.

E.

Severability Clause. Should any provision of this Chapter or a subsequent development agreement approved pursuant to this Chapter be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Chapter and the development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in the development agreement.

F.

Judicial Review—Time Limitation. Any judicial review of an Ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Codeof Civil Procedure or any successor statute; and judicial review of any City action taken by the City pursuant to this Chapter, other than initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure or any successor statute. Any action or proceeding to attack, review, set aside, void or annul any decision of the City taken pursuant to this Chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety days after the effective date of the decision.

G.

Notice Requirements. The failure of any person to receive notice required by law or this Chapter does not affect the authority of the City to enter into a development agreement.

H.

Irregularity in Proceedings. No action, inaction, or recommendation regarding a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained was prejudicial and that by reason of the error, the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is not a presumption that an error is prejudicial or that injury was done if an error is shown.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Purpose. This Chapter establishes City procedures for conducting environmental review to meet requirements of the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), and other relevant and applicable federal, state, and local environmental laws and regulations for projects subject to the provisions of this Zoning Ordinance. These provisions are intended to insure that responsible decision-makers and the public are informed about the potentially significant environmental effects of proposed activities and that environmental review is integrated with the discretionary review provisions that this Zoning Ordinance establishes.

B.

Applicability. These procedures shall apply to all projects sponsored or assisted by the City and to all private projects requiring any discretionary approvals from the City including private projects involving funding or any other form of participation by a federal agency, if the federal agency requires the City to conduct environmental review in compliance with NEPA. In the event of a conflict between these environmental review regulations and applicable federal or state regulations or guidelines, the applicable federal or state regulations shall prevail. These provisions are not intended to replace the environmental review guidelines that the City Council adopted in compliance with CEQA and the State CEQA Guidelines.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Preliminary Review. Within 30 days after receiving an application subject to the requirements of this Zoning Ordinance, the Zoning Administrator shall conduct review in accordance with the requirements of Section 19.32.040 to determine if the application is complete pursuant to State law and applicable City regulations. As part of this review, the Administrator will identify issues to help decide if the application proposes a project that is subject to environmental review and may require the Applicant to submit additional information needed to support this determination. An application subject to environmental review pursuant to CEQA and the City's environmental guidelines shall not be considered complete until all studies that may be required are submitted. If the Zoning Administrator determines that an application is not subject to environmental review under CEQA, the Administrator shall proceed to process the application in accordance with this Zoning Ordinance.

B.

Review for Exemption. If the Zoning Administrator determines that the application is a project subject to CEQA, within 30 days after determining that the application is complete, he or she shall determine if the project is exempt from environmental review pursuant to State law, the State CEQA Guidelines and any environmental guidelines that the City has adopted in compliance with CEQA.

1.

If the Zoning Administrator has determined that a project is exempt from environmental review under CEQA, such determination shall be announced in any required public notice. The notice shall include a citation of the State Guidelines section or statute under which it is found to be exempt.

2.

Following approval of a project that is exempt from CEQA review, the Zoning Administrator or the Applicant may file a Notice of Exemption with the Contra Costa County Clerk as provided for in CEQA and the applicable State and City guidelines. The Applicant for a private project shall be responsible for any fees required to file such notice.

3.

A determination of exemption by any decision-making authority other than the City Council may be appealed to the City Council in the same manner provided for other appeals in Chapter 19.39, Appeals.

C.

Environmental Review Application. If the proposed project is not exempt from environmental review, the Applicant shall submit an application for environmental review accompanied by a fee set by the Master Fee Schedule. The Administrator may require the submission of additional information and supporting documentation with the application for environmental review. After receiving an environmental review application, the Zoning Administrator shall determine whether to require preparation of an Environmental Impact Report (EIR) or Negative or Mitigated Negative Declaration. In order to make this determination, the Zoning Administrator shall prepare an Environmental Initial Study.

D.

Environmental Initial Study. The Initial Study shall consider all phases of project planning, implementation, and operation and may rely upon expert opinion supported by facts, including documentation submitted by the applicant, technical studies, peer reviews or other substantial evidence to document its findings regarding the project's potential impacts. An Initial Study is not required to include the same level of detail as an EIR.

1.

If the Zoning Administrator determines, after preliminary review, that the project, due to its design, size, nature, or location, will clearly have a significant impact on the environment and requires preparation of an EIR, an Initial Study is not required but may be prepared to assist identification of environmental issues.

2.

An Initial Study shall include:

a.

A brief description of the project including its specific location;

b.

A brief description of the environmental setting;

c.

A checklist, matrix, or other listing of the project's environmental effects with discussion and documentation to support the entries;

d.

Discussion of ways to mitigate any potential significant effects;

e.

Information on the project's consistency with the General Plan, zoning, and other applicable regulations;

f.

List of resources cited and consulted.

3.

Following completion of the Initial Study, the Zoning Administrator shall notify the applicant in writing of changes to the project that Staff has deemed necessary to reduce or avoid the significant effects identified in the Initial Study. Within 30 days following the date of the letter, the Applicant shall provide written notification to the Administrator indicating that the proposed amendments are acceptable or shall propose alternative measures that will achieve the same result. If the Applicant does not agree to revise the project an Environmental Impact Report shall be prepared.

E.

Determination of Environmental Significance. Based on the Initial Study, the Zoning Administrator will make one of the following findings:

1.

There is no substantial evidence that the project will have a significant impact on the environment, and a Negative Declaration will be prepared;

2.

The project has been modified to avoid potential environmental impacts or to mitigate such impacts to a level of insignificance and a Mitigated Negative Declaration will be prepared; or

3.

The proposed project will have, or may have, significant impact(s) on the environment and an Environmental Impact Report will be required.

F.

Public Notice of Environmental Determination. If the Zoning Administrator has determined that that proposed project will not have a significant effect on the environment, he or she shall prepare a Negative Declaration for public review in conformance with the requirements of CEQA and applicable State and City environmental review guidelines. If the Applicant has agreed to incorporate mitigation measures in order to reduce environmental impacts to a point of insignificance, the Zoning Administrator shall prepare a Mitigated Negative Declaration for public review. The Administrator shall provide public notice of the proposed environmental determination at the same time and in the same manner required for the underlying permit in accordance with Chapter 19.32, Common Procedures.

G.

Public Notice of Environmental Determination. The Zoning Administrator shall provide public notice of the proposed environmental determination for a period of at least 20 days in the same manner as the project application subject to environmental review.

H.

Preparation of a Draft EIR. If it is determined that an Environmental Impact Report (EIR) is required, the Zoning Administrator shall prepare, distribute, and post a Notice of Intent to Prepare an EIR in the same manner required for the underlying permit unless otherwise specified in applicable State or Federal requirements. The purpose of this notice is to inform interested parties that an EIR is being prepared, and to seek guidance about significant environmental issues and mitigation measures that should be explored. The Applicant or any aggrieved party who believes that a Negative Declaration, rather than an EIR, should be prepared for the proposed project may appeal to the City Council within 10 days after the notice has been posted. The City Council's decision shall be final. The City will prepare the draft EIR with its own staff or by contract with a consultant chosen by the City in conformance with the requirements of CEQA and applicable State and City environmental review guidelines. The Applicant shall pay the cost of preparing an EIR and reasonable costs for administering the work of outside consultants in accord with the adopted fee schedule.

I.

Public Review of Draft EIR. Following completion of a Draft EIR, the Zoning Administrator shall prepare and post a Notice of Completion initiating a minimum 30-day public review period or 45 days if the project is subject to review by a State Agency. The Administrator shall mail a notice of the availability of a Draft EIR to those requesting such notice in writing, to local and regional agencies, and interested federal agencies. The City shall make copies of the Draft EIR available for public review at the Planning Department during regular office hours and at the El Cerrito Public Library. The City may impose a charge for copies of the Draft EIR in accordance with the adopted fee schedule.

J.

Final EIR. After the public review period has expired, the City or its consultant will prepare a Final EIR for certification by the decision-making bodies responsible for action on the project. The Final EIR will consist of the Draft EIR, all of the comments received, a list of persons, organizations and public agencies commenting on the Draft EIR, and a response from the City on significant environmental issues raised in the draft EIR and comments.

K.

Responsibility for Action on Environmental Document. Any City official or body responsible for taking action on a project for which a Negative or Mitigated Negative Declaration, or EIR has been prepared shall use the environmental assessment to make its decision on the development proposal. If the project is approved, the decision-making body shall impose conditions to mitigate any adverse environmental impacts. The highest decision-making entity responsible for action on an application for a development permit shall approve the Negative Declaration or Mitigated Negative Declaration or certify the Final EIR prior to the time the project is considered for approval. The decision-making entity may decline to approve or certify the environmental document and request further review or analysis if, in its judgment, approval of the Negative Declaration (ND) or Mitigated Negative Declaration (MND) or certification of the Final EIR would not comply with the requirements of applicable State and local environmental review requirements. Approval of a Negative Declaration or Mitigated Negative Declaration or certification of a Final EIR shall be deemed to be a finding that the document has been prepared in compliance with CEQA and State and local CEQA guidelines and not an approval of a project. Certification of a Final EIR or approval of an ND or MND does not imply that the City endorses the proposed project nor that the City will approve the necessary permit applications.

L.

Timing of Environmental Review. When a development project is subject to environmental review, all decision-making officials and entities shall take action on all applications for the project that have been submitted and deemed complete in compliance with the following time limits unless State or Federal law mandate a shorter deadline. Notwithstanding these deadlines, the Applicant may request in writing and the City may approve a single extension for a period not to exceed 90 days unless State law authorizes a longer extension. These deadlines do not apply to any action that has been appealed to the City Council in accordance with Chapter 19.39, Appeals.

1.

Within 60 days of the date the City has determined the project exempt from environmental review;

2.

Within 60 days of the date the Negative Declaration or Mitigated Negative Declaration has been completed and adopted for project approval;

3.

Within 180 days from the date the decision-making entity certifies the Final EIR.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Program Contents. The City shall approve a mitigation monitoring and reporting program for all projects that it approves via a Mitigated Negative Declaration or a Final EIR. The purpose of the mitigation monitoring program is to ensure that the project applicant complies with all of the provisions or changes identified as mitigation measures during implementation of the project. The Mitigation Monitoring and Reporting Program (MMRP) shall consist of the following:

1.

Mitigation Implementation Plan. A plan which outlines in detail the manner in which mitigation measures will be implemented during preconstruction, construction and post-construction phases of the project;

2.

Compliance Schedule. A schedule indicating the phase of the project (preconstruction, construction or post-construction) in which mitigation measures will be implemented;

3.

Compliance Reports. Reports specifying how and when each mitigation measure was implemented; and

4.

Verification Report(s). Report(s) made by the city pursuant to an inspection of the project to determine if the applicant has properly and timely implemented mitigation measures identified in the environmental document for the project as set forth in the mitigation implementation plan and compliance schedule.

B.

Submittal and Approval. The MMPR shall be prepared and considered as part of an MND or EIR. The Applicant shall pay fees to the City in an amount not exceeding the reasonable cost for monitoring compliance with the Mitigation Plan.

C.

Enforcement. Failure to comply with the conditions and requirements of an approved mitigation monitoring and reporting program shall be considered a violation of the conditions of approval of a project. Such violations shall be subject to enforcement in accordance with the provisions of this Code.

D.

Amendment of Mitigation Program Not Permitted Following Adoption. Unless specifically authorized or required by the conditions of project approval, neither CEQA nor this Zoning Ordinance authorize the City to modify or add mitigation measures if the monitoring program shows that the mitigation measures have not achieved the desired result.

(Ord. 2008-2 Div. II (part), 2008.)

Notwithstanding other provisions of this Zoning Ordinance, the Applicant or any aggrieved person may appeal the following environmental determinations directly to City Council by filing a written appeal with the City Clerk within 10 days of the date of action or notice of determination.

A.

Determination that a project is or is not subject to environmental review.

B.

Determination that a project is exempt from environmental review.

C.

Approval of a Negative Declaration or Mitigated Negative Declaration.

D.

Certification of a Final Environmental Impact Report.

(Ord. 2008-2 Div. II (part), 2008.)

The purpose of this chapter is to establish the development and design standards, procedures and required findings for the construction of condominiums, stock cooperatives, community apartments, or any other subdivision of community owned property. More specifically, the purposes of this chapter are to:

A.

Ensure that new condominiums meet sound construction criteria required under state and local regulations and that the density, bulk, height, mass, and character of condominium projects are in character with nearby structures;

B.

Provide a reasonable balance of rental and ownership housing in El Cerrito and meet the variety of housing needs for all income groups in the City; and

C.

Protect the interest of condominium homeowners under the special conditions created by condominiums.

(Ord. 2008-2 Div. II (part), 2008.)

This chapter applies to the construction of all new condominium, stock cooperatives, community apartments, or any other subdivision of community owned multi-family housing in the City (collectively called "condominiums").

(Ord. 2008-2 Div. II (part), 2008.)

A.

Required Maps and Plans. All new condominium projects shall submit applicable parcel maps or tentative and final maps pursuant to Title 18, together with a filing fee in accordance with the current fee schedule established by the City. Exceptions may be permitted as provided in Title 18. The developer of a proposed condominium project shall submit two copies of the condominium development plan to the Planning Division, together with the required filing fee. The Department may require the submittal of additional copies of the plan as necessary to evaluate the project. The condominium development plan shall include:

1.

Property Description. A complete legal description of the property, and a boundary map showing the existing topography of the site and the location of all existing easements, structures, other improvements, trees and shrubs;

2.

Development Plans. Schematic development plans with dimensions, consisting of at least a site plan, parking plan, typical floor plan, building elevations showing natural and proposed grades, transverse and longitudinal sections showing natural and proposed grades, and a conceptual landscaping plan for the project;

3.

Department of Real Estate Application. A copy of the project application submitted to the State of California's Department of Real Estate for a subdivision public report; and

4.

Additional Information. Any other information the Planning Commission and/or Planning Director find necessary to evaluate the project.

B.

Covenants, Conditions and Restrictions (CC&Rs). A declaration of CC&Rs which would be applied on behalf of any and all owners of condominium units within the project. The declaration shall include, but not be limited to: the conveyance of units; the assignment of parking; an agreement for common area maintenance, including facilities and landscaping, together with an estimate of any initial assessment fees anticipated for such maintenance; description of a provision for maintenance of all vehicular access areas within the project; an indication of appropriate responsibilities for maintenance of all utility lines and services for each unit; a plan for equitable sharing of communal water metering.

C.

Review and Approval. All parcel maps or tentative and final maps required for new condominiums shall be reviewed and approved pursuant to the requirements of the Title 18 of the Municipal Code.

(Ord. 2008-2 Div. II (part), 2008.)

All condominium projects shall conform to the requirements of the City's building code and the zoning regulations of the zoning district in which the project is located. In addition, proposed condominium projects are subject to the following standards:

A.

Ground Fault Circuit Interrupters. Each bathroom in each living unit shall be provided with ground fault circuit interrupters in compliance with the Building Code.

B.

Fire Prevention. All fire hydrants, fire alarm systems, portable fire extinguishers, and other fire protective appliances shall be retained in an operable condition at all times.

C.

Sound Transmission Standards. The following standards shall apply to condominium projects to limit noise transmissions:

1.

Shock Mounting of Mechanical Equipment. All permanent mechanical equipment, such as motors, compressors, pumps, and compactors, which are determined by the building official to be a source of structural vibration or structure-borne noise, shall be shock-mounted in inertia blocks or bases and/or vibration isolators in a manner approved by the building official.

2.

Noise Resistance. Common walls and floors between dwelling units shall comply with the City's building code provisions governing noise resistance for newly constructed common walls and floors.

D.

Crime Prevention Standards. All condominium projects shall comply with the requirements of the Security Ordinance in Chapter 16.14 of the El Cerrito Municipal Code. The developer shall comply with all conditions of the city's police department in respect to building security. In addition, prior to the approval of the final map, all locks in the project shall be changed so that no master key or other keys previously used will allow entry into any unit of the project after conversion.

E.

Utility Metering. Each dwelling unit shall be separately metered for gas and electricity. A plan for equitable sharing of communal or individual water metering shall be developed prior to final map approval or parcel map approval if no final map is required and included in the Covenants, Conditions and Restrictions. In such cases where the applicant can demonstrate that this standard cannot or should not reasonably be met, this standard may be waived by the Planning Commission.

F.

Provision of Private Open Space for Each Unit. Each unit within the project shall have an appurtenant private patio, deck, balcony, atrium or solarium in accordance with Section 19.06.030.R and Section 19.07.030.N of the Municipal Code. Such space shall be designed for the sole enjoyment of the unit owner, shall have at least two weatherproofed electrical convenience outlets and such space shall be at the same level as, and immediately accessible from a room within the unit. The planning commission may allow variations from the dimensional standards of Sections 19.06.030.R and 19.07.030.N if the commission makes a finding, based upon substantial evidence in the record, that the proposed private open space meets the stated purposes of this chapter.

G.

Provision of Common Open Space. Common usable open space shall be provided in accordance with Section 19.06.030.R or Section 19.07.030.N.

H.

Provision of Storage Space for Each Unit.

1.

In addition to guest, linen, food pantry and clothes closets customarily provided, each unit within the project shall meet minimum FHA storage standards. All exterior storage spaces shall be weatherproof, lockable and meet fire department requirements. Such space shall be for the sole use of the unit owner.

2.

Such space may be provided in any location approved by the Planning Commission, but shall not be divided into more than two locations within a reasonable distance of the unit.

3.

If such space is located within a common area within the project, the association shall be responsible for the care and maintenance of the exterior surface of the space in order to assure that that surface is maintained in a manner compatible with the architectural treatment of the project.

4.

Regardless of the location, the precise architectural treatment of such space shall be approved by the planning commission to ensure that such areas are safe, convenient and unobtrusive to the functional and aesthetic qualities of the project.

I.

Provision of Laundry Facilities. Laundry facilities shall be provided in each unit, or if common laundry areas are provided, such facilities shall consist of not less than one automatic washer and dryer for each five units or fraction thereof. In such cases where the applicant can demonstrate that this standard cannot or should not be reasonably met, this standard may be modified by the Planning Commission.

J.

Condition of Paved Areas. Prior to close of escrow of conversion units, the developer shall make any repairs necessary to all paved surfaces to meet current city standards.

(Ord. 2008-2 Div. II (part), 2008.)

An application for a new condominium project shall not be approved unless the Department finds that the application sufficiently demonstrates all of the following:

A.

All provisions of this Chapter are met.

B.

The proposed project is consistent with the General Plan, and any applicable specific plans.

C.

The proposed project will conform to the El Cerrito Municipal Code in effect at the time of tentative or parcel map approval.

D.

The site is physically suitable for the type of development and the proposed density of the development.

E.

All parcels created have adequate and safe access from a public street for both vehicles and pedestrians.

F.

The proposed subdivision, together with the provisions for its design and improvement, are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, unless an EIR was prepared and a finding was made that specific economic, social, or other considerations make the mitigation measures or project alternatives infeasible, pursuant to Section 21081(a)(3) of the Public Resources Code.

(Ord. 2008-2 Div. II (part), 2008.)

The purpose of this chapter is to establish criteria for the conversion of existing multiple family rental housing to condominiums and to reduce the impact of such conversions on residents in rental housing who may be required to relocate due to the conversion.

(Ord. 2008-2 Div. II (part), 2008.)

The regulations set forth in this chapter shall apply to the conversion of existing multiple family rental housing to condominiums. This chapter shall not apply to a "limited-equity housing cooperative" as defined in Section 11003.4 of the California Business and Professional Code.

(Ord. 2008-2 Div. II (part), 2008.)

A condominium conversion project shall require the approval of a use permit, parcel maps or tentative and final maps pursuant to Chapter 19.34 and Title 18 of the El Cerrito Municipal Code, together with a filing fee in accordance with the current fee schedule established by the City. In addition to required use permit and map submittals, the developer shall submit the following:

A.

Physical Elements Report. A report prepared by a registered engineer or architect or licensed qualified contractor describing the physical elements of all structures and facilities shall be submitted with the tentative map or parcel map. The report shall include, but not be limited to, the following:

1.

Structural Condition of Elements. A report detailing the structural condition of all elements of the property including foundations, electrical, plumbing, utilities, walls, roofs, ceilings, windows, recreational facilities, sound transmission of each building, mechanical equipment, parking facilities and appliances. The report shall state, to the best knowledge or estimate of the applicant, when such element was built; the condition of each element; when said element was replaced; the approximate date upon which said element will require replacement; the cost of replacing said element; and any variation of the physical condition of said element from the current zoning and from the City Housing Code and City Building Code in effect on the date that the last building permit was issued for the subject structure. The report shall identify any defective or unsafe elements and set forth the proposed corrective measures to be employed.

2.

Pest Control. A report from a licensed structural pest control operator, approved by the City, on each structure and each unit within the structure.

3.

Soil Conditions. A report on soil and geological conditions regarding soil deposits, rock formations, faults, groundwater, and landslides in the vicinity of the project and a statement regarding any known evidence of soils problems relating to the structures. Reference shall be made to any previous soils reports for the site and a copy submitted with said report.

4.

Repairs and Improvements. A statement of repairs and improvements to be made by the applicant necessary to refurbish and restore the project to achieve a high degree of appearance and safety.

B.

Covenants, Conditions and Restrictions (CC&Rs). A declaration of CC&Rs which would be applied on behalf of any and all owners of condominium units within the project. The declaration shall include, but not be limited to: the conveyance of units including private open space and private storage areas; the assignment of parking; an agreement for common area maintenance, including facilities and landscaping, together with an estimate of any initial assessment fees anticipated for such maintenance; description of a provision for maintenance of all vehicular access areas within the project; an indication of appropriate responsibilities for maintenance of all utility lines and services for each unit; utility easements over private streets and other areas; a plan for equitable sharing of communal water metering. The developer shall also file a petition by a majority of the owners, requesting that the provisions of the California Vehicle Code be enforced on privately owned and maintained roads as provided in Section 21107.7 of the California Vehicle Code.

C.

Plot Plan. A plot plan of project showing: location and size of structures, parking layout, pedestrian access, sewer and storm drain locations.

D.

Characteristics. Specific information concerning the demographic characteristics of the project, including but not limited to the following:

1.

Square footage and number of rooms in each unit.

2.

Proposed sale price of units.

3.

Names and addresses of all tenants.

E.

Notice of Intent to Convert. Signed copies from each tenant of Notice of Intent to Convert, as specified in Section 19.45.070. The applicant shall submit evidence that a letter of notification to convert was sent to each tenant 60 days prior to the filing of a tentative map. If a signed copy of the notification from a tenant is not received by the applicant, this requirement shall be deemed satisfied if such notices comply with the legal requirements for service by mail specified in Code of Civil Procedure Section 1013.

F.

Department of Real Estate Application. A copy of the project application submitted to the State of California's Department of Real Estate for a subdivision public report; and

G.

Additional Information. Any other information which, in the opinion of the Community Development Director, will assist in determining whether the proposed project will be consistent with the purposes of this chapter.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Acceptance of Reports. The final form of the Physical Elements Report and other documents shall be as approved by the City. The reports in their acceptable form shall remain on file with the Community Development Department for review by any interested persons. The report shall be referenced in the subdivision report to the Planning Commission.

B.

Submittal of Budget. Prior to final map approval, the applicant shall provide the City with a copy of the proposed budget for maintenance and operation of common facilities including needed reserves. The budget shall show estimated monthly costs to the owner of each unit, projected over a five year period, or such time as is required by the Department of Real Estate. Such budget shall be prepared or reviewed and analyzed by a professional management firm, experienced with management of condominium complexes. The management firm shall submit a statement of professional qualifications.

C.

Copy to Buyers. The applicant shall provide each purchaser with a copy of all submittals (in their final, acceptable form) required by Section 19.45.030 prior to said purchaser executing any purchase agreement or other contract to purchase a unit in the project, and said developer shall give the purchaser sufficient time to review said information. Copies of the submittals shall be made available at all times at the sales office and shall be posted at various locations, as approved by the City, at the project site. Copies shall be provided to the homeowners' association upon its formation.

D.

Final Information Submitted. Prior to the close of escrow, the applicant shall submit the following information to the Community Development Department:

1.

Name, address and phone number of Homeowners' Association;

2.

Actual sale price of units;

3.

Actual Homeowners' Association fee;

4.

Number of prior tenants who purchased units; and

5.

Number of units purchased with intent to be used as rentals.

E.

Evidence of Conditions. The applicant shall provide all warranties, reports, or evidence of conditions to the buyer of each unit, as required by the State, including, but not limited to:

1.

Condition of Equipment and Appliances. The applicant shall provide a warranty to the buyer of each unit at the close of escrow that any dishwashers, garbage disposals, stoves, refrigerators, hot water tanks and air conditioners that are provided have a useful life of one year. At such time as the homeowners' association takes over management of the development, the developer shall provide a warranty to the Association that any pool and pool equipment (filter, pumps, chlorinator) and any appliances and mechanical equipment to be owned in common by the Association have a useful life of one year. Prior to approval of the final map or parcel map if no final map is required, the developer shall provide the City with a copy of warranty insurance covering equipment and appliances pursuant to this section.

2.

Warranty for Improvements. The applicant shall provide to the Homeowners' Association and/or purchaser a one year warranty on all physical improvements required under this section.

3.

Long Term Reserves. Prior to approval of the final map, or parcel map if no final map is required, the applicant shall provide evidence to the City that a long-term reserve fund for replacement has been established in the name of the homeowners' association. Such fund shall equal two times the estimated monthly homeowner's assessment for each dwelling unit.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Inspections and Compliance with Standards. All condominium conversions must conform to the requirements of the district in which the project is located except as otherwise provided in this Chapter. An assessment of building condition shall be performed by the City Building Inspector prior to tentative map or parcel map approval, and a report of violations specified in the tentative subdivision report to the Zoning Administrator or Planning Commission, as the case may be. A physical inspection of every unit to ensure compliance with the Housing Code shall be required prior to final map approval or parcel map approval. The cost of the inspection shall be borne by the applicant. In addition to the requirements required in other sections of the Municipal Code, the conversion shall comply with the requirements in this section.

B.

Variations. Recognizing that the conversion of existing multiple residential structures to condominium usage presents unique problems with respect to the requirements of this chapter, the planning commission is empowered to vary any and all requirements contained in this chapter with regard to a particular conversion proposal upon finding, based upon substantial evidence in the record, that the creation of the proposed condominium will meet the stated purposes of this chapter, based upon the following factors:

1.

the age of the structure;

2.

the degree to which the proposal varies from the required standards for parking, private open space, storage space, sound transmission characteristics, fire protection and development criteria;

3.

whether there are unusual circumstances regarding the development's location, site or configuration;

4.

whether the project is in substantial compliance with both the development standards and development criteria; and

5.

whether there are mitigating features incorporated into the project.

C.

Conditions. The Planning Commission is also empowered to impose conditions on any approval given which would require that specified modifications, designed to bring a structure into compliance with the condominium development standards contained in this section, are made to the structure proposed for conversion.

1.

Ground Fault Circuit Interrupters. Each kitchen and bathroom in each living unit shall be provided with ground fault circuit interrupters.

2.

Fire Prevention. All fire hydrants, fire alarm systems, portable fire extinguishers, and other fire protective appliances shall be retained in an operable condition at all times.

3.

Sound Transmission Standards. The following standards shall apply to condominium projects to limit noise transmissions:

a.

Shock Mounting of Mechanical Equipment. All permanent mechanical equipment, such as motors, compressors, pumps, and compactors, which are determined by the building official to be a source of structural vibration or structure-borne noise, shall be shock-mounted in inertia blocks or bases and/or vibration isolators in a manner approved by the building official.

b.

Noise Resistance. Common walls and floors between dwelling units shall comply with the City's building code provisions governing noise resistance for newly constructed common walls and floors.

4.

Crime Prevention Standards. All condominium projects shall comply with the requirements of the Security Ordinance in Chapter 16.14 of the El Cerrito Municipal Code. The developer shall comply with all conditions of the city's police department in respect to building security. In addition, prior to the approval of the final map, all locks in the project shall be changed so that no master key or other keys previously used will allow entry into any unit of the project after conversion.

5.

Utility Metering. Except as otherwise provided in this paragraph, each dwelling unit shall be separately metered for water, gas and electricity. If the East Bay Municipal Utility District informs the applicant in writing that individual watering metering is not possible, or the Planning Commission finds that individual water metering is economically infeasible, a plan for equitable sharing of communal water metering shall be developed prior to final map approval (or parcel map approval if no final map is required) and included in the Covenants, Conditions and Restrictions. This plan shall be subject to Planning Commission approval. In such cases where the applicant can demonstrate that this standard cannot or should not reasonably be met, this standard may be waived by the Planning Commission.

6.

Provision of Private Open Space for Each Unit. Each unit within the project shall have an appurtenant private patio, deck, balcony, atrium or solarium in accordance with Section 19.06.030.R and Section 19.07.030.N of the Municipal Code. Such space shall be designed for the sole enjoyment of the unit owner, shall have at least two weatherproofed electrical convenience outlets and such space shall be at the same level as, and immediately accessible from a room within the unit.

7.

Provision of Storage Space for Each Unit.

a.

In addition to guest, linen, food pantry and clothes closets customarily provided, each unit within the project shall meet minimum FHA storage standards. All exterior storage spaces shall be weatherproof, lockable and meet fire department requirements. Such space shall be for the sole use of the unit owner.

b.

Such space may be provided in any location approved by the Planning Commission, but shall not be divided into more than two locations within a reasonable distance of the unit.

c.

If such space is located within a common area within the project, the association shall be responsible for the care and maintenance of the exterior surface of the space in order to assure that that surface is maintained in a manner compatible with the architectural treatment of the project.

d.

Regardless of the location, the precise architectural treatment of such space shall be approved by the planning commission to ensure that such areas are safe, convenient and unobtrusive to the functional and aesthetic qualities of the project.

8.

Provision of Laundry Facilities. Laundry facilities shall be provided in each unit, or if common laundry areas are provided, such facilities shall consist of not less than one automatic washer and dryer for each five units or fraction thereof. In such cases where the applicant can demonstrate that this standard cannot or should not be reasonably met, this standard may be modified by the Planning Commission.

9.

Condition of Paved Areas. Prior to close of escrow of conversion units, the developer shall make any repairs necessary to all paved surfaces to meet current city standards.

(Ord. 2008-2 Div. II (part), 2008.)

A.

Review Procedure. Applications for proposed condominium conversions shall be accepted twice annually: the last Friday in April and the last Friday in October. The Planning Commission shall meet to consider the applications no later than sixty (60) days from the dates of application. The total number of rental units approved for conversion to condominiums in the first annual consideration shall not exceed sixty (60%) percent of the total annual allotment, and the number of units approved for conversion in the second annual consideration, when added to the number of units approved for conversion in the first annual consideration shall not exceed one hundred (100%) percent of the total annual allotment. Allocations for conversions shall not be cumulative from year to year. Single structures containing a number of units in excess of the prescribed allotments for either of the two (2) annual considerations, may be approved on a variance basis.

B.

Annual Limitation. The total number of rental units eligible for conversion to condominiums for the following year shall be determined by the Planning Commission at the last meeting of the fiscal year. The allotment shall be determined by balancing the existing vacancy rate, the number of units produced in the previous year and the existing housing stock.

C.

Approval Evaluation Factors. In reviewing applications for conversions, and in selecting from applications for conversion proposals, the Planning Commission shall include the consideration of the following:

1.

The Planning Commission may give preference to projects with high percentages of affordable units included in the application. Units that are currently affordable should be converted into affordable condominiums.

2.

If the Planning Commission determines that vacancies in the project have been increased for the purpose of preparing the project for conversion, the tentative map may be disapproved. In evaluation of the current vacancy level under this subsection, the increase in rental rates for each unit over the preceding five (5) years and the average monthly vacancy rate for the project over the preceding two (2) years shall be considered.

3.

Conversion projects shall not be approved by the Commission if the total percentage of rental stock in the City is equal to or less than 15% of total dwelling unit stock.

4.

Effect of Proposed Conversion on the City's Rental Supply, Especially Low and Moderate Income Units. Along with other factors, the City will consider the following:

a.

The need and demand for lower cost home ownership opportunities which are increased by the conversion of apartments to condominiums.

b.

The probable income range of tenants living in existing apartments based on the assumption that households should pay between one-fourth (1/4) and one-third (1/3) of their income for housing. That income range will be compared with existing income limits for the Section 8 Program to determine whether potential displaced tenants can be categorized as low and moderate income.

c.

The number of families on current waiting lists for assisted rental housing programs that operate in El Cerrito, not including nonprofit motivated projects.

(Ord. 2008-2 Div. II (part), 2008.)

Notices to tenants shall be provided as required in the Subdivision Map Act, Government Code Section 66427.1. All written notices to tenants required by this section shall be deemed satisfied if such notices comply with the legal requirements for service by mail set forth in Code of Civil Procedure Section 1013.

A.

Notice of Intent. A notice of intent to convert shall be delivered by the Applicant to each tenant at least 60 days prior to filing of the parcel map or tentative map. The form of the notice shall be in the form outlined in the Subdivision Map Act, Government Code Section 66452.9, and approved by the Community Development Director.

B.

Notice of Public Report. Each tenant shall receive 10 days' written notice that an application for a public report will be or has been submitted to the Department of Real Estate and that such report will be available on request.

C.

Notice of Final Map Approval. Each tenant shall receive written notification within 10 days of approval of a final map for the proposed conversion.

D.

Tenant's Right to Purchase. Any present tenant shall be given notice of an exclusive right to contract for the purchase of his or her respective unit upon the same terms and conditions that such unit will be initially offered to the general public or terms more favorable to the tenant. The right shall run for a period of not less than 90 days from the date of issuance of the subdivision public report unless the tenant gives prior written notice of his or her intention not to exercise the right. Evidence of receipt by each tenant shall be submitted prior to approval of the final map.

E.

Vacation of Units. Each tenant not in default under the obligations of the rental agreement or lease under which he occupies his unit, shall be given a minimum of 180 days' written notice of intention to convert his or her unit prior to termination of tenancy. Leases that extend past the 180 days notification period shall be honored provided they do not extend more than an additional 180 days. The applicant shall notify each tenant immediately prior to the time of final map approval of the anticipated date required to vacate the unit and when the 180-day period will begin. Evidence of receipt by each tenant shall be submitted prior to approval of the final map.

F.

No Increase in Rents. The rents charged tenants when a completed tentative or parcel map application was accepted by the Community Development Department shall not be increased for two years from that acceptance time until the unit is sold or until the subdivision is denied, withdrawn or reverted to acreage. The increase in rent on a unit which has been vacated after receipt of the application by the Community Development Department shall not be subject to control.

G.

Special Cases. Any non-purchasing tenant who is handicapped or has minor children in school or is age 60 or older and does not accept a lifetime lease, living in any unit prior to the time a completed tentative or parcel map application has been accepted by the Community Development Department shall be given at least an additional six months in which to find suitable replacement housing.

H.

Moving Expenses. The applicant shall provide moving expenses of two times the monthly rent to any tenant household living in any unit prior to the time a completed tentative or parcel map application has been accepted by the Community Development Department as provided in this section. The applicant will not be required to provide moving expenses to a tenant moving in after tentative or parcel map application. Eligible tenants will receive moving expenses within fourteen (14) days after they relocate, except when the tenant has given notice of his intent to move prior to receipt of notification from the applicant of his intent to convert. The applicant shall also provide each tenant with a monthly list of other rentals available in Western Contra Costa County area beginning from the time of tentative or parcel map application until each tenant relocates or decides to purchase a unit.

I.

Notice to New Tenants. At least 60 days prior to the filing of the tentative map, the applicant shall give notice of the filing of the map to each person applying after such date for rental of a unit immediately prior to acceptance of any rent or deposit. The notice shall be in the form outlined in the Subdivision Map Act, Government Code Section 66452.8(b). If the applicant fails to give notice pursuant to this section, he or she shall pay to each prospective tenant who becomes a tenant and who was entitled to such notice and who does not purchase his or her unit, an amount equal to two times monthly rent for moving expenses.

J.

Senior Citizens. At the time of final map approval, or parcel map approval if no final map is required, all tenant households resident at the time a completed tentative or parcel map application was accepted by the Community Development Department in which the head of household or spouse is age 60 or older shall be offered a Lifetime Lease. Annual rent increases shall not exceed 75 percent of the latest annual average percentage increase of the Residential Rent Component of the Consumer Price Index, San Francisco-Oakland SMSA. Tenants shall be informed of the change in this index at the time rent increases are imposed. Starting rents shall be the rent at the time of tentative or parcel map application. Lease forms shall be submitted to the Community Development Department for review prior to final map approval.

K.

Low-and-Moderate Income Tenant. At the time of final map approval, or parcel map approval if no final map is required, all tenant households resident upon acceptance by the City of a completed tentative or parcel map application, who meet the income limits of the HUD Section 8 program will be considered low- and moderate-income households and shall be offered at a minimum a three-year lease. Annual rent increases shall not exceed 75 percent of the latest annual average percentage increase of the Residential Rent Component of the Consumer Price Index, San Francisco-Oakland SMSA. Tenants shall be informed of the change in this index at the time rent increases are imposed. Starting rents shall be the rent at the time of tentative or parcel map application. Lease forms shall be submitted to the Community Development Department for review prior to final map approval.

L.

Remodeling of Units. No remodeling of the interior of tenant-occupied units shall begin until after the tenant has moved or agreed to purchase.

(Ord. 2008-2 Div. II (part), 2008.)

An application for conversion shall not be approved by the Planning Commission unless it finds all of the following:

A.

All provisions of this Chapter are met.

B.

The proposed project is consistent with the General Plan, and any applicable specific plans.

C.

The proposed project will conform to the El Cerrito Municipal Code in effect at the time of tentative or parcel map approval.

D.

The site is physically suitable for the type of development and the proposed density of the development.

E.

All parcels created have adequate and safe access from a public street for both vehicles and pedestrians.

F.

The proposed subdivision, together with the provisions for its design and improvement, are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, unless an EIR was prepared and a finding was made that specific economic, social, or other considerations make the mitigation measures or project alternatives infeasible, pursuant to Section 21081(a)(3) of the Public Resources Code.

G.

The proposed conversion will not displace a significant percentage of low and moderate income or senior citizen tenants and delete a significant number of low and moderate income rental units from the city's housing stock at a time when no equivalent housing is readily available in the City of El Cerrito area.

(Ord. 2008-2 Div. II (part), 2008.)