Milpitas City Zoning Code

SECTION 13

Special Uses

XI-10-13.01 - Purpose and Intent

Given their unique nature, certain activities and uses have special impacts upon the community, giving rise to a need for special review procedures or standards. The purpose of this chapter is to identify and regulate such uses in order to ensure the maintenance of the public health, safety and welfare in accordance with the goals, objectives, policies, and implementation programs of the General Plan.

(Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.02 - Applicability

The activities and uses covered or described in this chapter, when permitted within the zone in which they are to be located, shall comply with the provisions described here, as well as all other standards and provisions of this title.

(Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.03 - Reserved.

Editor's note— Ord. No. 38.839, § 10, adopted December 3, 2019, amended the Code by repealing former XI-10-13.03, which pertained to massage services as accessory uses, and derived from Ord. 38.780, adopted August 19, 2008; and Ord. 38.784, adopted December 16, 2008.

XI-10-13.04 - Adult Businesses

Purpose and Intent. The purpose of this Subsection is to establish reasonable and uniform regulations regarding the location of Adult Businesses, which will permit the location of Adult Businesses in certain areas but which will also reduce or prevent neighborhood blight, maintain property values; and reduce the incidence of unlawful activity by preventing the concentration of Adult Businesses or their close proximity to incompatible uses.

Definitions.

"Adult Businesses" means any of the following:

Adult Arcade. The term "adult arcade" as used in this Subsection, means any place to which the public is permitted or invited, wherein coin-operated, currency-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, television sets, monitors, receivers, transmitters, video cassette players or other images producing devices are maintained to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult Bookstore. The term "adult bookstore" as used in this subsection means an establishment that has thirty (30) percent or more of its stock in books, visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and/or specified anatomical areas.

Adult Cabaret. The term "adult cabaret" as used in this subsection, means a nightclub, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear seminude; and/or (3) shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Hotel/Motel. The term "hotel/motel" as use in this subsection means a hotel or motel or similar commercial establishment which:

Offers public accommodations, for any form of consideration, which provide patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertises the availability of this sexually oriented type of material by means of any off-premises advertising including but not limited to newspapers, magazines, pamphlets or leaflets, radio or television; and

ii.

Offers a sleeping room for rent for a period of time that is less than ten (10) hours or allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours, or rents any single room more than twice in a 24-hour period.

Adult Motion Picture Theater. The term "adult motion picture theater" as used in this subsection, means a business establishment in which for any form of consideration, films, motion pictures, video cassettes, video tapes, laser discs, slides or similar photographic or electronic reproductions are regularly shown and thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Theater. The term "adult theater," as used in this Subsection, means a theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.

Escort. The term "escort" as used in this subsection, means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

Escort Agency. The term "escort agency" as used in this subsection means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.

Modeling Studio. The term "modeling studio" as used in this subsection, means a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display specified anatomical areas to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. Modeling studio does not include schools maintained pursuant to standards set by the State Board of Education. Modeling studio further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit, or make available specified sexual activities.

Distinguished or Characterized by an Emphasis Upon. As used in this subsection, the term "distinguished or characterized by an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas.

Nudity or a State of Nudity. The term "nudity or a state of nudity" as used in this subsection, means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the areola or nipple, or the showing of the covered male genitals in a discernible turgid state.

Regularly Features. The term "regularly features" with respect to an adult motion picture theater, theater or adult cabaret means a regular and substantial course of conduct. The fact that live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occurs on two (2) or more occasions within a thirty (30) day period, three (3) or more occasions within a sixty (60) day period, or four (4) or more occasions within a one hundred eighty (180) day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.

School. The term "school" as used in this subsection is an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education. This definition includes kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university. The term "school" as used in this subsection also means day care center or facilities.

Seminude. The term "seminude" as used in this subsection, means a state of dress in which clothing covers no more than the genitals, pubic region, and areolas of the female breast, as well as portions of the body covered by supporting straps or devices.

Specified Anatomical Areas. The term "specified Anatomical Areas" as used in this subsection, means and includes any of the following:

Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breast below a point immediately above the top of the areola; or

Human male genitals in a discernibly turgid state, even if completely and opaquely covered; or

Any device, costume or covering that simulates any of the body parts included in subsection (a) or (b) above.

Specified Sexual Activities means and includes any of the following:

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;

Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

Masturbation, actual or simulated;

Human genitals in a state of sexual stimulation, arousal or tumescence; or

Excretory functions as part of or in connection with any of the activities set forth in (a) through (d) of this subsection.

Establishment of an Adult Business. As used in this subsection, to "establish" an Adult Business shall mean and include any of the following:

The opening or commencement of any Adult Business as a new business;

The conversion of an existing business, whether or not an Adult Business, to any Adult Business defined herein;

The addition of any of the Adult Businesses defined herein to any other existing Adult Business; or

The relocation of any such Adult Business.

Location and Distance Regulations.

Adult Businesses shall only be allowed in HS (Highway Service), M1 (Light Manufacturing) and M2 (Manufacturing) districts.

No Adult Business shall be allowed:

Within 1,000 feet of any school, public park or recreation area, residential district, mobile home park or MHP District, church or religious institution;

Within 500 feet of any other Adult Business premises.

Any Adult Business lawfully established and lawfully operating under the Milpitas Municipal Code is not in violation of these regulations by the subsequent establishment of a school, public park or recreation area, residential district, or church or religious institution within the respective distances specified above for each type of use. This provision applies only to the renewal of an Adult Business permit and does not apply when an application for an Adult Business permit is submitted after such permit has been revoked.

Distance between any two (2) Adult Business premises shall be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of an adult business premises to the nearest entrance of the second adult business premises. The distance between any Adult Business premises and any school, public park or recreation area, residential district, church or religious institution shall also be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of the Adult Business premises to the nearest property line of a school, public park or recreation area, residential zone, or church or religious institution.

(Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.05 - Home Occupation

Purpose. The purpose of this Section is to provide residents with the ability to work at home yet ensure that the business does not interfere with, detract from, or otherwise adversely affect the character of the neighborhood.

Regulations.

All persons operating a home occupation must obtain a home occupation permit from the City prior to commencing any business. It is unlawful to operate a home occupation without a permit.

Only the residents of the dwelling may operate the home occupation. No employees associated with the home occupation shall report to work on the premises.

The home occupation shall not involve more than one client visitation on the premises at any time.

The home occupation shall not be operated in a manner which creates noise, vibrations, dust, odor, smoke or television and radio interference affecting adjoining properties.

No signs are permitted either on or off the premises in connection with the home occupation. Products or equipment produced or used by home occupation shall not be displayed in a manner which is visible from the exterior of the dwelling.

There shall be no storage of materials or supplies outdoors in a manner which is visible from adjacent properties or public ways.

The home occupation shall not require modification or exterior alterations of the dwelling in which a home occupation is conducted.

The home occupation shall be conducted entirely within the dwelling except for those types of occupations which are conducted entirely off-site and away from the dwelling.

The occupations listed below shall not be considered incidental and secondary to the residence because they will change the residential character of the dwelling and because they change the character of the neighborhood:

Barber and beauty shops or similar cosmetology establishments;

Kennels and other boarding for pets;

Massage establishments;

Mechanical and auto repair;

Medical and dental offices;

Retail sales (excluding retail sales in which all products are sold over the phone or internet and shipped to the customer);

Commercial cannabis uses. See Subsection XI-10-13.15.

Violation of Regulations. Violation of any provision of this Chapter may result in the revocation of the home occupation permit after notice and an opportunity for a hearing has been given to the permittee.

(Ord. No. 38.839, § 11, 12/3/19; Ord. No. 298, § 3, 1/15/19; Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.06 - Large Family Child Care and Child Care Centers

Purpose. The purpose of provisions dealing with childcare facilities is to allow regulation of such facilities to the extent provided herein. However, nothing is intended to allow regulation to a greater extent than allowed by State law.

Required Review.

Large family child care homes may be approved administratively by the Planning Division, provided that the applicant submits information to the Planning Division demonstrating compliance with applicable development standards listed in Section XI-10-13.06(C), Development Standards, below, and the applicant obtains approval from the Fire Department.

Child care centers shall require approval of a Conditional Use Permit by the Planning Commission, as per Subsection 57.07, Conditional Use Permits, of this Chapter. The applicable development standards are listed in Subsection 18.06.C., below.

Development Standards.

Density. Large family child care homes shall be spaced at least three hundred (300) feet apart from each other. This spacing requirement does not apply to small family childcare homes.

Exception: The Planning Commission may allow the locating of Large family child care homes closer than three hundred (300) feet apart from each other through the approval of a Conditional Use Permit, pursuant to Subsection 57.04, Conditional Use Permits, of this Chapter.

Off-Street Parking Requirements. There shall be provided off-street parking spaces for automobiles in accordance with the requirements of Section XI-10-53, Off-Street Parking Regulations, of this Chapter. All such parking spaces shall be improved as provided for in Section XI-10-54.03, Improvement of Parking Areas, Auto Sales Areas, and Loading Areas, of this Chapter.

Hours of operation. For large family child care homes, hours of operation shall not occur before 6:30 A.M or after 7:30 P.M., in order to maintain compatibility with neighboring properties and limit noise during night-time hours. Hours of operation may be limited through the Conditional Use Permit process and shall be based on compatibility with neighboring properties and other planning principles as set forth in Subsection 57.04, Conditional Use Permits, of this Chapter.

Fence Height. Outdoor play areas for childcare centers shall be enclosed with a six-foot high fence. The fence type shall be compatible with neighboring properties and other planning principles as set forth in Section XI-10-57.04, Conditional Use Permits, of this Chapter.

Code Enforcement Procedures. If any large family child care home is operating in a manner that constitutes a nuisance, the child care facility operator shall work with the Planning Division to address the nuisance, through such actions as adjusting hours of operation, adjusting hours of outdoor play, staggering times for child drop-off and pick-up, and the like. If any childcare center is operating in a manner which constitutes a nuisance, the Planning Commission shall reopen the Conditional Use Permit to add or change conditions of approval addressing the issue(s). If the nuisance continues, the Planning Commission may review the Conditional Use Permit with a recommendation to the City Council pursuant to Section XI-10-63.06 (Revocation, Suspension and Modification).

(Ord. 38.780 (20) (part), 8/19/08)

(Ord. No. 38.789, §§ 12—14, 4-21-09)

XI-10-13.07 - Manufactured Homes

Purpose and Intent. This Section provides standards and procedures for individual manufactured homes on individual lots in residential zones. These standards are provided to ensure the compatibility of manufactured homes with other surrounding permitted uses, create a safe and desirable living environment for manufactured home residences, and address land use compatibility.

Applicability and Review Requirements. A single manufactured home may be permitted on lots zoned for single-family dwellings where it has been determined the lot and structure are compatible:

In districts where site plan and architectural review is not generally required for single-family dwellings, the site plan and architectural review process shall be utilized to initially determine if a lot and structure is compatible for a manufactured home. Compatibility of a lot and structure shall be determined by such factors as height, bulk and character of other structures in the neighborhood. If a lot and structure is determined to be compatible, site plan and architectural review is limited only to specifying roof overhang, roofing material and siding material based on the following standards.

Development Standards. The following development standards shall be applicable to the establishment of manufactured homes as single-family dwellings in the R1 District:

Manufactured homes and any garages, carports, and other structures attached thereto, must conform to all regulations for single-family dwellings applicable to the zone.

Manufactured homes must be certified under the National Manufactured Housing Construction and Safety Standards Act of 1974.

Manufactured homes must be attached to a permanent engineered perimeter foundation system approved by the Building Official and pursuant to Section 18551 of the State Health and Safety Code.

Manufactured homes must be covered with stucco and/or wood siding or an exterior material commonly found on new conventionally erected single-family dwellings in the surrounding area.

The roofing material must be wood or composition shingles or other materials commonly found on conventionally erected single-family dwellings in the surrounding area. The roof must have a minimum pitch with respect to roofing material in accordance with the City of Milpitas Building Code.

The roof must have eave and gable overhangs of not less than eighteen (18) inches measured horizontally from the vertical side of the mobile home. The overhang must be constructed with materials commonly found on conventionally erected single-family dwellings in the surrounding area and must be at the same slope and be covered with the same roofing material as the roof itself.

The exterior covering and roofing materials of the garage, carport, or any other structure attached to the manufactured home must be the same as for the manufactured home.

As used in this Section, "commonly found" means an architectural feature or construction material that occurs or appears frequently on conventionally erected single-family dwellings within five hundred (500) feet of the boundaries of the lot or parcel on which a manufactured home is proposed.

(Ord. No. 315, § 2, 1/7/25; Ord. No. 38.795, § 31, 4/6/10; Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.08 - Accessory Dwelling Units

Purpose and Intent. The purpose of these standards is to allow and regulate accessory dwelling units (hereinafter referred to as ADUs) and junior accessory dwelling units (hereinafter referred to as JADUs) in compliance comply with Government Code Sections 65852.2 and 65852.22.

Effect of Conforming. An ADU or JADU that conforms to the standards in this section shall:

Be deemed consistent with the City's general plan and zoning designation for the lot on which the ADU or JADU is located.

Not be deemed to exceed the allowable density for the lot on which the ADU or JADU is located.

Not be considered in the application of any local ordinance, policy, or program to limit residential growth.

Not be required to correct a "nonconforming zoning condition" as defined in Subsection XI-10-13.08(C)(10) below. This does not prevent the City from enforcing compliance with applicable building safety standards in accordance with Health and Safety Code section 17980.12.

Definitions.

Accessory Dwelling Unit or ADU: As defined by Government Code Section 65852.2, an ADU is an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. An ADU also includes an efficiency unit as defined in Section 17958.1 of the Health and Safety Code and a manufactured home as defined by Section 18007 of the Health and Safety Code.

Accessory Structure: For purposes of this section, an accessory structure is a structure that is accessory and incidental to a dwelling located on the same lot.

Attached Accessory Dwelling Unit: An attached ADU is an ADU that shares at least one wall with the primary dwelling.

Complete and Independent Living Facilities: Permanent provisions for living, sleeping, eating, cooking, and sanitation in an accessory structure located on the same parcel as a proposed or existing primary single-family or multi-family dwelling.

Detached Accessory Dwelling Unit: An ADU is detached if it does not share any walls with the primary dwelling unit or existing attached accessory structure.

Efficiency Kitchen: In accordance with Government Code Section 65852.22(a)(6), an efficiency kitchen includes the following: (a) a cooking facility with appliances and (b) food-preparation counter space with a total area of at least 15 square feet and food-storage cabinets with a total of at least 30 square feet of shelf space.

Junior Accessory Dwelling Unit or JADU: As defined by Government Code Section 65852.22, a JADU is a unit that satisfies all the following:

The unit is no more than 500 square feet in size.

The unit is contained entirely within an existing or proposed single-family structure.

The unit includes an efficiency kitchen, as defined in Subsection XI-10-13.08(C)(6) above.

The unit includes separate sanitation facilities or shares sanitation facilities with the existing or proposed primary dwelling.

If the unit does not include separate sanitation facilities, then it includes an interior entrance to the main living area of the existing or proposed primary dwelling in addition to an exterior entrance that is separate from the main entrance to the primary dwelling.

Livable Space: A space within a building designed for living, sleeping, eating or food preparation, including but not limited to a den, study, library, home office, sewing room, or recreational room and excluding such areas as garages.

Living Area: As defined by Government Code Section 65852.2, the interior habitable area of a dwelling unit, including basements and attics, but not including a garage or any accessory structure.

10.

Natural Person: An individual and living human being, as opposed to a legal person which may be a private (i.e. business entity or non-governmental organization) or public (i.e. government) entity.

11.

Nonconforming Zoning Condition: A physical improvement on a property that does not conform with current zoning standards.

12.

Passageway: A pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU or JADU.

13.

Proposed Dwelling: A dwelling that is the subject of a permit application and that meets the requirements for permitting.

14.

Public Transit: A location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public. Examples include, but are not limited to, Altamont Commuter Express (ACE), Bay Area Rapid Transit (BART), AC Transit, Valley Transportation Authority (VTA) bus service and light rail, and paratransit.

15.

Tandem Parking: Two or more vehicles parked on a driveway or in a garage or any other location on a lot, lined up behind one another.

Approval Process. The following approvals shall apply to ADUs and JADUs under this section:

Requiring a Building Permit Only. ADUs and JADUs that comply with the general requirements outlined in Subsection XI-10-13.08(E) below shall be allowed with only a building permit in the following scenarios:

Converted on Single-family Lot: One ADU as described in this Subsection XI-10-13.08(D)(1)(a) and one JADU are allowed on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU:

Is within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress; and

ii.

Has exterior access that is independent of that for the single-family dwelling: and

iii.

Has side and rear setbacks sufficient for fire and safety, as required by applicable building and fire codes.

iv.

The JADU complies with the requirements of Government Code Section 65852.22.

Limited Detached on Single-family Lot. One detached, new-construction ADU is allowed on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under Subsection XI-10-13.08(D)(1)(a)), if the detached ADU satisfies the following limitations:

The side- and rear-yard setbacks are at least four feet.

ii.

The total floor area is 800 square feet or less.

iii.

The peak height above grade does not exceed the applicable height limit in Subsection XI-10-13.08(E)(3) below.

Converted on Multi-family Lot: One or more ADUs are allowed within portions of existing multi-family dwelling structures that are not used as livable space, including but not limited to storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. Under this Subsection XI-10-13.08(D)(1)(c), at least one converted ADU is allowed within an existing multifamily dwelling, up to a quantity equal to 25 percent of the number of existing multifamily dwelling units.

Limited Detached on Multi-family Lot: No more than two detached ADUs are allowed on a lot that has an existing multi-family dwelling if each detached ADU satisfies the following limitations:

The side- and rear-yard setbacks are at least four feet. If the existing multifamily dwelling has a rear or side yard setback of less than four feet, the City will not require any modification to the multifamily dwelling as a condition of approval for the ADU.

ii.

The peak height above grade does not exceed the applicable height limit provided in Subsection XI-10-13.08(E)(3) below.

iii.

If more than one detached ADU is created, the ADUs may share a common wall.

Requiring a Building Permit and a Minor Site Development Permit (Minor SDP).

Except as allowed under Subsection XI-10-13.08(D)(1) above, no ADU may be created without approval of a Building Permit and a Minor SDP in compliance with the standards set forth in Subsections E and F below.

The City may charge a fee to reimburse the costs incurred in processing Minor SDPs for ADUs, including the costs of adopting or amending the City's ADU Ordinance. The additional fee for ADUs shall be determined by the Planning Director and approved by the City Council by Resolution.

Timing and Process for Review

Any application for an ADU that satisfies the standards in Subsections XI-10-13.08(E) through (F) of this section shall be subject to ministerial approval without discretionary review or public hearing.

The City shall act on an application to create an ADU or JADU within 60 days from the date the City receives a complete application. If the City has not acted on the complete application within 60 days, the application is deemed approved unless either:

The applicant requests a delay, in which the 60-day time period is tolled for the period of the requested delay; or

ii.

The application for the ADU or JADU is submitted as part of a permit application for a new single-family or multi-family dwelling on the lot, in which case the City may delay acting on the permit application for the ADU or JADU until it acts on the permit application to create the new single-family dwelling; however, the application for the ADU or JADU shall still be subject to ministerial approval without discretionary review or a hearing.

If the City denies an application to create an ADU or JADU, the City must provide the applicant with comments that include, among other things, a list of all defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the 60-day time period established by Subsection XI-10-13.08 (D)(3)(a) above.

A demolition permit for a detached garage that is to be replaced with an ADU shall be reviewed with the application for the ADU and issued concurrently.

General ADU and JADU Requirements. The following requirements shall apply to all ADUs and JADUs approved under Subsection XI-10-13.08(D)(1) and (D)(2) above.

Location and Zoning.

An ADU or JADU requiring only a building permit under Subsection XI-10-13.08(D)(1) above may be created on any lot located in any residential or mixed-use zone.

An ADU or JADU requiring both a Minor SDP and a building permit under Subsection XI-10-13.08(D)(2) above may be created on any lot located in any zoning district that allows single-family or multi-family residential uses.

Building and Safety.

Subject to Subsection XI-10-13.08(E)(2)(b) below, all ADUs and JADUs shall comply with all local building code requirements.

No change of occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the Building Official or Code Enforcement Division Officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this Subsection XI-10-13.08(E)(2)(b) prevents the City from changing the occupancy code of a space that was non-habitable space or that was only permitted for nonresidential use and was subsequently converted for residential use in accordance with this section.

Fire sprinklers.

Fire sprinklers are required in an ADU or JADU if sprinklers are required in the primary residence.

ii.

The construction of an ADU or JADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.

Maximum Height.

Except as otherwise provided by Subsections XI-10-13.08(E)(3)(b) and (E)(3)(c) below, a detached ADU created on a lot with an existing or proposed single family or multifamily dwelling unit shall not exceed 16 feet in height.

A detached ADU may be up to 18 feet in height when located on a lot with an existing or proposed single-family or multifamily unit that is located within one-half mile walking distance of a major transit stop or a high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code.

A detached ADU may be up to two additional feet in height (for a maximum of 20 feet) if needed to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.

A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one story above grade shall not exceed 18 feet in height.

An attached ADU shall not exceed 25 feet in height or the height limitation imposed by the standards for the underlying zoning district, whichever is less. Notwithstanding the foregoing, ADUs subject to this Subsection XI-10-13.08(E)(3)(d) shall not exceed two stories.

For purposes of this Subsection XI-10-13.08(E)(3), height is measured from the finished grade to the peak of the structure.

Owner Occupancy.

An ADU that is permitted after January 1, 2020, but before January 1, 2025, shall not be subject to any owner-occupancy requirement.

Unless applicable law requires otherwise, all ADUs permitted on or after January 1, 2025 shall be subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person's legal domicile and permanent residence.

As required by state law, all JADUs shall be subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person's legal domicile and permanent residence. However, the owner-occupancy requirement in this Subsection XI-10-13.08(E)(4)(c) shall not apply if the property is entirely owned by another governmental agency, land trust, or housing organization.

No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided in Government Code Section 65852.26, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all the dwellings (in the case of a multifamily lot).

No Short-Term Rental. No ADU or JADU may be rented for a term that is shorter than 30 days. This prohibition applies regardless of when the ADU or JADU was created.

Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction, in a form approved by the City Attorney, shall be recorded against the title of the property in the County Recorder's office and a copy filed with the Planning Department. The deed restriction shall run with the land and bind all future owners, heirs, and assigns. The deed restriction shall provide that:

Except as otherwise provided in Government Code Section 65852.26, the ADU or JADU may not be sold separately from the primary dwelling;

The ADU or JADU is restricted to the approved size and other development standards established in this Section;

The JADU is legal only so long as either the primary residence or the JADU is occupied by the owner of record of the property;

The ADU or JADU shall not be used as a short-term rental of less than 30 days;

The deed restriction runs with the land and may be enforced against future property owner(s);

The deed restriction may be removed if the property owner eliminates the ADU or JADU. To remove the deed restriction, an owner shall make a written request to the Planning Director and provide evidence that the ADU or JADU has been eliminated. The Director shall then decide whether the evidence supports the claim. The Director's determination may be appealed to the City Council.

The deed restriction is enforceable by the City, and failure to comply with the deed restriction may result in legal action against the property owner.

Income Reporting. In order to facilitate the City's obligation to identify adequate sites for housing in accordance with Government Code sections 65583.1 and 65852.2, the following requirements must be satisfied:

With the building-permit application, the applicant must provide the city with an estimate of the projected annualized rent that will be charged for the ADU or JADU.

Specific ADU Requirements. The following specific standards shall apply only to ADUs that require a minor Site Development Permit under Subsection XI-10-13.08(D)(2) above.

Maximum Size.

The maximum size of an attached or detached ADU subject to this Subsection XI-10-13.08(F) is 850 square feet for a studio or one-bedroom unit and 1,000 square feet for a two-bedroom unit. These standards shall not apply to properties located in the "H" Hillside Combining District.

The maximum size of an attached or detached ADU on a property located in the "H" Hillside Combining District is 1,200 square feet.

The maximum size of an attached ADU that is created on a lot with an existing primary dwelling is further limited to 50 percent of the floor area of existing primary dwelling. No application of the percent-based size limit in this paragraph or of a floor area ratio (FAR), front setback, lot coverage limit, or open-space requirement may require the ADU to be less than 800 square feet.

No ADU subject to this Subsection XI-10-13.08(F) may cause the total FAR of the lot to exceed 0.45, subject to Subsection XI-10-13.08(F)(1)(c) above.

Minimum Setbacks.

An ADU that is subject to this Subsection XI-10-13.08(F) must conform to a 25-foot minimum front-yard setback, subject to Subsection XI-10-13.08(F)(1)(c) above.

An ADU that is subject to this Subsection XI-10-13.08(F) must conform to minimum 4-foot side- and rear-yard setbacks.

No setback is required for an ADU that is subject to Subsection XI-10-13.08(F) if the ADU is constructed in the same location and to the same dimensions as an existing structure.

Building Separation. A detached ADU shall be located at least six feet from the rear wall of the primary dwelling unit.

Lot Coverage. No ADU subject to this Subsection XI-10-13.08(F) may cause the total lot coverage of the lot to exceed 50 percent, subject to Subsection XI-10-13.08(F)(1)(c) above.

Minimum Open Space. No ADU subject to this Subsection XI-10-13.08(F) may cause the total percentage of open space of the lot to be less than 50 percent, subject to Subsection XI-10-13.08(F)(1)(c) above.

Passageway. No passageway is required for an ADU.

Parking.

Generally, one off-street parking space is required for each ADU unless one or more of the following conditions is met:

The ADU is located within one-half mile walking distance of public transit.

ii.

The ADU is located within an architecturally and historically significant historic district.

iii.

The ADU is part of an existing primary residence or an accessory structure (i.e., it is a converted ADU under Subsection XI-10-13.08(D)(1)(a) above).

iv.

On-street parking permits are required but not offered to the occupant of the ADU.

An established car share vehicle stop is located within one block of the ADU.

vi.

When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily dwelling on the same lot, provided that the ADU or the lot satisfies any other criteria listed in Subsections (F)(7)(a)(i) through (v) above.

No off-street parking is required for a JADU, except as required under Subsection XI-10-13.08(F)(5)(d) below.

If a parking space is required for an ADU, the space may be located within any setback area, in a tandem configuration, or on a mechanical lift. Each unenclosed parking space shall be at least 8½ feet wide and 18 feet long. Each parking space that is provided in an enclosed garage shall be at least 10 feet wide and 20 feet long.

When a garage, carport, or covered parking structure is converted to an ADU or demolished in conjunction with the construction of an ADU, the off-street parking space or spaces are not required to be replaced.

Architectural Design Standards.

The materials and colors of the exterior walls, roof, and windows and doors an ADU or JADU shall match the appearance of the existing or proposed primary dwelling.

The roof slope shall match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope of the largest portion of the roof.

An ADU or JADU shall have an independent exterior entrance, separate from that of the primary dwelling. The entrance to an attached ADU or JADU shall be located on a side or rear building façade, not facing a public right-of-way.

Exterior lighting shall be limited to down-lights (or as otherwise required by the building or fire code).

The interior horizontal dimensions shall be at least 10 feet wide in every direction, with a minimum interior wall height of seven feet.

Windows and doors shall not have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.

Windows located on the second story of an ADU or JADU shall be either clerestory with the bottom of the glass at least six feet above the finished floor or use frosted or obscure glass to preserve privacy.

The ADU and primary dwelling must use the same driveway to access the street, unless otherwise required for fire-apparatus access, as determined by the Milpitas Fire Department.

Landscape Design Standards.

Evergreen landscape screening shall be planted and maintained between the ADU and adjacent parcels as follows:

At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one 24-inch box size plant shall be provided for every ten linear feet of exterior wall.

ii.

Plant specimens must be at least six feet tall when installed. As an alternative, a solid fence of at least 6 feet in height may be installed.

iii.

All landscaping shall be drought tolerant.

Fees.

Impact Fees and other City Fees.

No impact fee shall be required for an ADU or JADU that is less than 750 square feet in floor area. For purposes of this paragraph, "impact fee" has the same meaning as the term "fee" is defined in the Mitigation Fee Act (Gov. Code § 66000(b)), except that it also includes fees specified in the Quimby Act (Gov. Code § 66477). "Impact fee" does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation.

Any impact fee that is required for an ADU that is 750 square feet or greater in floor area shall be assessed proportionally in relation to the square footage of the primary dwelling unit (e.g. the floor area of the primary dwelling divided by the floor area of the ADU, times the impact fees charged for a new dwelling).

Utility Fees.

When an ADU is constructed with a new single-family dwelling, a separate utility connection directly between the ADU and the utility, and payment of the standard connection fee and capacity charge for a new dwelling, is required.

Except as described in Subsection XI-10-13.08(G)(2)(a), converted ADUs and JADUs on a single-family lot that are created under Subsection XI-10-13.08(D)(1)(a) above are not required to have a new or separate utility connection directly between the ADU or JADU and the utility. Nor is a connection fee or capacity charge required.

Except as described in Subsection XI-10-13.08(G)(2)(a), all ADUs and JADUs that are not covered by Subsection XI-10-13.08(G)(2)(b) require a new, separate utility connection directly between the ADU and the utility.

The connection shall be subject to a connection fee or capacity charge that is proportionate to the burden created by the ADU on the water and sewer systems, based on either the floor area or the number of drainage-fixture units (DFU) values, as defined by the Uniform Plumbing Code.

ii.

The portion of the fee or charge that is charged by the City may not exceed the reasonable cost of providing this service.

Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures.

The City shall not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.

Unpermitted ADUs constructed before 2018.

Permit to Legalize. As required by state law, the City may not deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if denial is based on either of the following grounds:

The ADU violates applicable building standards, or

ii.

The ADU does not comply with Government Code section 65852.2 (State ADU law) or this ADU ordinance (MMC Section XI-10-13.08).

Exceptions:

Notwithstanding Subsection XI-10-13.08(H)(2)(a) above, the City may deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if the Building Official makes a finding that correcting a violation is necessary to protect the health and safety of the public or of occupants of the structure.

ii.

Subsection XI-10-13.08(H)(2)(a) above does not apply to a building that is deemed to be substandard in accordance with California Health and Safety Code section 17920.3.

Nonconforming ADUs and Discretionary Approval. Any proposed ADU or JADU that does not conform to the objective standards set forth in Subsections XI-10-13.08(A) through (H) may be allowed by the City with a Minor Site Development Permit, in accordance with Section XI-10-57 "Applications".

(Ord. No. 38.851, § 4, 12/6/22; Ord. No. 38.843, § 4, 8/17/21; Ord. No. 38.840, § 6, 6/16/20; Ord. No. 38.833, § 6, 5/7/19; Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.09 - Wireless Communications Facilities

Purpose and Intent. It is the purpose to regulate the placement and design of antennas and wireless communication facilities. The installation of antennas and wireless communication facilities may affect the public health, safety and welfare, as well as the aesthetic quality of life by creating unattractive appurtenances to buildings and open areas, by blocking and degrading views, and by creating visual clutter. Therefore, conditional use permit review and the standards that follow are intended to protect and promote public health, safety, community welfare and the aesthetic quality of life by encouraging the orderly development of wireless communication facilities. In addition, they are intended to regulate the placement of certain antennas due to their size and commensurate visual and aesthetic impact in order to promote public safety and protect the aesthetic quality of the community. The standards that follow are the minimum necessary to obtain the community objectives of promoting public health, safety and aesthetics while providing for reasonable signal access.

Review Requirements.

Unless identified as exempt below, wireless communications facilities shall require the approval of a Conditional Use Permit, in accordance with Section XI-10-57.04, Conditional Use Permits, of this Chapter.

Any facility exempt from local regulation per the FCC and those wireless communications facilities listed below shall be exempt from obtaining a Conditional Use Permit and shall be permitted provided that the following standards are met:

Receive-only radio and television antennas, including satellite dishes one meter or less in diameter in residential zones or on residential buildings, or two meters or less in diameter in commercial and industrial zones, provided that:

The antenna meets all lot coverage, height, setback and other requirements on accessory structures as per Section XI-10-54.08, Accessory Buildings and Structures, of this Chapter; and

ii.

All required building permits are obtained.

Amateur radio facilities, provided that all antennas and supporting structures meet the following requirements:

All fixed radio equipment, antennas and antenna support structures shall comply with all lot coverage, height, setback and requirements on accessory structures as per Section XI-10-54.08, Accessory Buildings and Structures, of this Chapter; and

ii.

All required building permits shall be obtained.

Temporary wireless communication facilities providing public information coverage of a news event. Mobile facilities providing public information coverage of news events may be set up on public or private property for a duration of seventy-two (72) hours or less.

Stealth Wireless Communications Facilities. The Planning Division shall review a stealth antenna installation if the project meets the definition of a stealth wireless communications facility within Section XI-10-2.03, Definitions, of this Chapter.

Development Standards for Exempt Facilities. Wireless Communication Facilities exempt from obtaining a Conditional Use Permit in accordance with Section XI-10-57.04, Conditional Use Permits, of this Chapter, shall meet the following:

No vertical structure associated with an Antenna (hereinafter "Tower or Mast") shall exceed the maximum height of a structure permitted in the zoning district in which the structure is located by more than twenty-five (25) feet (hereinafter "Maximum Height") except as provided in this Section. The Maximum Height shall be measured to the highest point of the Tower or Mast or Antenna(s) mounted thereon.

All Towers or Masts must be attached to the main structure or to a foundation. In any event, the design of the attachment must meet or exceed the Tower or Mast manufacturer's recommended design for such structural attachment or foundation. Guy wires may only be used as a means of support for Towers or Masts only if such Tower or Mast does not exceed 20 feet in height. Wire antennas suspended from Towers or Masts shall not be considered guy wires. Such manufacturer's recommended design shall be submitted with the building permit application and shall form the basis for permitting and subsequent inspection.

The sum of equivalent flat plate wind load(s) in square feet of all equipment needed for the communication facility to function and that are mounted on the Tower or Mast shall not exceed 100% of the Tower or Mast manufacturer's maximum wind loading specification for a minimum 70 mph wind if located on the valley floor and 80 mph wind if located within the hillside area.

No part of any Antenna mounted on a Tower or Mast may extend closer than 3 feet to a property line whether fixed or movable, or forward of the front of the building. However, in no case shall any such antenna encroach into a utility easement within which overhead power lines are located. If such antenna serves a multi-family unit that is within a multi-family building where the unit does not adjoin a side or rear yard of the building, such antenna attached to the unit or attached to a structure attached to the unit may extend forward of the front of the building by no more than 3 feet. However, in no case shall any such encroachment forward of the front of the building extend into a public right-of-way or private accessway.

All Towers and Masts attached to a foundation must be located within the side or rear yard and no closer than 10 feet from a property line. However, in no case shall a Tower and/or Mast encroach into a utility easement.

Receive-only radio and television antennas, citizens band facilities and data communications facilities and satellite dishes one meter or less in diameter in residential zones, or two meters or less in diameter in commercial and industrial zones shall not be installed between a public right-of-way and a structure. Any of the aforementioned wireless communication facilities that are preempted by federal law that are proposed to be located in the area between a public right-of-way and a structure, shall be allowed without a use permit if such facility is attached to said structure and if such location provides the only unobstructed view required for the facility to function.

There shall be no more than two antenna support structures that exceed 20 feet in height per parcel.

A Tower or Mast may exceed the Maximum Height referenced in subsection (a) above only by an extendable Tower or Mast provided that (a) the collapsed height of the Tower or Mast and Antenna(s) does not exceed the Maximum Height and (b) the extendable Tower or Mast shall be permitted to exceed the Maximum Height only during communications operations and shall be lowered to the Maximum Height upon termination of each operating session.

Masts, Towers and Antennas shall not be painted and shall be limited to gray, black, white, brown, tan, silver, gold, pale blue, dark green or any other color compatible with surrounding structures or vegetation.

10.

If an Antenna, Tower or Mast is no longer used for its intended purpose, it shall be removed.

11.

All operations of Tower or Mast mounted Antenna(s) must meet applicable FAA and FCC rules and regulations and any emissions must meet applicable FCC and ANSI radiation safety guidelines.

(Ord. 38.780 (20) (part), 8/19/08)

XI-10-13.10 - Farmer's Markets

Purpose and Intent. The purpose of this Subsection is to establish reasonable and uniform regulations for the operation of farmer's markets. The standards that follow are minimum performance standards to ensure compatibility with surrounding uses and to promote public health, safety and general welfare.

Review Requirements

Scaled or fully dimension site plan that shows location, buildings, parking facilities, and site improvements.

Traffic Handling Plan.

Market Layout Plan that shows location of booths, stalls, and trash receptacles. The layout plan shall demonstrate compliance with Fire and Building requirements for access and accessibility requirements.

Description of Market Operations and standard procedures.

Minimum Performance Standards

No music, performances or special event activities (i.e., cooking show, recipe contests, face painter) will be allowed within 200 feet of any residentially zoned property unless specifically approved by the Planning Director.

This use shall be conducted in compliance with all appropriate local, state and federal laws and regulations and in conformance with the approved use permit.

The Market operator is responsible for leaving the parking lot area clean and litter-free after each event.

The Market operator shall be responsible for providing recycling bins and trash receptacles and disposal of such trash as required by the County Environmental Health Services and the City. All foods must be produced, prepared, packaged, stored, transported, and marketed in compliance with County Environmental Health Standards. The Market shall maintain in good standing all necessary health permits for the operations of the Market and shall be responsible for requiring all vendors to be in possession of necessary health permits for all products sold.

The Market operator shall be responsible for all traffic controls during the event, including set up and tear down of equipment needed for the execution of the traffic handling plan.

The Market operator shall obtain a master business license with the City of Milpitas for participating farmers and other vendors.

The Market operator shall enter into an indemnification agreement by which it agrees to defend, indemnify and hold harmless the City, its officers, agents and employees from any and all claims, damages, cost and other expense, including attorney fees, arising out of its approval of the conditional use permit, or environmental determination rendered in connection with the permit approval, or arising from or as a result of any actions by the Market operator pursuant to the conditional use permit.

(Ord. No. 38.786, § 1, 1-20-09)

XI-10-13.11 - Temporary Uses and Structures

Purpose and Intent. The purpose of this Section is to control and regulate land use activities of a temporary nature which may adversely affect the public health, safety and welfare. The intent is to ensure that temporary uses will be compatible with surrounding land uses, to protect the rights of adjacent residences, businesses, and land owners, and to minimize any adverse effects on surrounding properties and the environment.

Applicability. This Section shall apply to the temporary uses and structures on private property and certain public right-of-way described in Subsections D through I of this Section. All other temporary uses shall be prohibited on private property.

Review Requirements. The review procedures for the temporary uses and structures allowed by this Section are specified for each use in Subsections D through I of this Section. Subsection J of this Section includes a list of potential conditions that may be imposed on a temporary use or structure project.

Temporary Seasonal Sales. Temporary seasonal sales such as Christmas tree or pumpkin sales lots may be permitted, subject to the following regulations:

Elimination of Parking. Areas used for temporary seasonal sales shall not eliminate the required parking for the primary use on the site, if there is one, or for any other site.

Location. Temporary seasonal sales may be located pursuant to Table XI-10-5.02-1, Commercial Zone Uses, Table XI-10-6.02-1, Mixed Use Zones, Table XI-10-10.02-1, Institutional Zone Uses, and on all church/religious sites and school sites.

For temporary seasonal sales located on church/religious sites and school sites within residential (R) zoning districts, the Zoning Administrator may approve the request through a Minor Site Development Permit.

Merchandise. Temporary seasonal sales shall not engage in the sale of any merchandise not directly associated with the holidays with which the seasonal sales are associated.

Other Requirements. Each site occupied by a temporary use shall be left free of debris, litter, or any other evidence of the temporary use upon completion or removal of the use, and shall thereafter be used, pursuant to the provisions of this Zoning Ordinance.

Review Requirements. Temporary seasonal sales shall require the approval by staff, provided the standards of this Section are met.

Signs. Refer to Title XI, Chapter 30, for Temporary Promotional Signs. No prohibited signs, as defined in Title XI, Chapter 30, shall be allowed.

Time Limits. Temporary seasonal sales shall be limited to forty-five (45) days of operation per calendar year.

Model Home Complexes and Sales Offices. Model home complexes and sales offices may be conditionally allowed by the Planning Division solely for the first sale of homes within a recorded tract or condominium subdivision, subject to the following regulations:

Location. The model home complex and/or sales office shall be located on the same or adjacent premises as the subdivision or building project.

Duration. The model home complex and/or sales office shall be removed within three months of closing the sale of the final unit in the project.

Review Requirements. Model home complexes and/or sales offices for the sale of homes in any subdivision containing five (5) or more units shall require the approval of staff, provided the standards of this Section are met.

Use. The sales office shall be used only for transactions involving the sale, rent or lease of lots or units within the tract or condominium subdivision.

Other Issues for Consideration. The Planning Division shall consider the hours of operation, lighting, landscaping, signage, and any other factors that may affect the model home complexes maintenance and impacts on the surrounding area and shall condition the project accordingly. In addition, the following shall apply:

Model home sales personnel shall prominently post a copy of the Milpitas General Plan and Land Use Map and to refer each purchaser of a home to said Plan and refer said purchaser to the Planning Division to answer any questions regarding interpretation of the Plan.

Other Requirements. Each site occupied by a temporary use shall be left free of debris, litter, or any other evidence of the temporary use upon completion or removal of the use and shall thereafter be used pursuant to the provisions of this Zoning Ordinance.

Parking Lot or Sidewalk Sales. Temporary parking lot or sidewalk sales may be conditionally permitted, subject to the following regulations:

Authorization. Written authorization for the sale shall be obtained from the property owner.

Location. The activity may be located in a parking lot or on a sidewalk provided that the displays and structures associated with the activity are not located in required parking/loading spaces or on public property or right-of-way.

Hazards. The activity shall not present a hazard to pedestrians or encroach on a required building exit. No item shall be displayed in a manner that: causes a safety hazard; obstructs the entrance to any building; interferes with, or impedes the flow of, pedestrian or vehicle traffic; is unsightly or creates any other condition that is detrimental to the appearance of the premises or any surrounding property; or in any other manner is detrimental to the public health, safety or welfare or causes a public nuisance.

Review Requirements. Parking lot or sidewalk sales shall require the approval by staff, provided the standards of this Section are met.

Number of Occurrences. Parking lot or sidewalk sales shall be limited to four (4) occurrences during a calendar year. Each parking lot or sidewalk sales activity shall not exceed three (3) days. A minimum thirty (30) days shall lapse between occurrences.

Other Requirements.

The site shall be maintained free of debris, litter, and upon completion or removal of the temporary use shall thereafter be used pursuant to the provisions of this Zoning Ordinance.

No amplified or acoustic sound or live entertainment is allowed in conjunction with parking lot or sidewalk sales.

Temporary Buildings or Structures. Temporary buildings or structures may be permitted, subject to the following provisions:

Authorization. Written authorization for the sale shall be obtained from the property owner.

Location. The temporary building or structure shall not be visible from adjacent streets or right-of-ways.

Review Requirements. Temporary buildings or structures shall require the approval of a Conditional Use Permit, in accordance with Section XI-10-57.04, Conditional Use Permits, of this Chapter.

Only temporary buildings and structures serving permitted uses or uses that received a Conditional Use Permit pursuant to the underlying zoning are allowed.

Time limits. Temporary use of buildings shall not exceed two years in undeveloped sections of the City, and for periods not to exceed six months in developed sections. Exceptions may be granted if required by County, State or federal agency.

Temporary Contractor's Office. Temporary contractors' office trailers and construction-related storage trailers in undeveloped and developed sections of the City shall comply with the following:

Location. Trailers shall not obstruct driveways or traffic access aisles.

Other Standards.

The applicant shall demonstrate that parking will not be negatively impacted.

The colors and materials shall complement the main building, if one exists.

Any exterior noise-generating equipment associated with trailers shall not be within 300 feet of a residential or mobile home park overlay district or use.

Trailers shall be removed upon cessation of permitted construction activity.

Exceptions. Any deviation from standards 1 and 2 above shall only be allowed through the approval of a Minor Site Development Permit.

Temporary Public Safety Uses. Temporary public safety uses may be conditionally permitted in the Industrial zoning districts, subject to the following provisions:

Interim Status. Public safety uses approved on a temporary basis are intended to serve a critical interim need only, such as during construction of a permanent facility in another location.

Time Limit. Temporary public safety uses shall be limited to a total of two (2) years. Two separate extensions, up to six months each, may be granted at the discretion of the Planning Director.

Review Procedures. Temporary public safety uses shall require approval by staff pursuant to the Minor Conditional Use Permit procedure set forth in Section XI-10-57.04.

Upon expiration of the approved term of the temporary public safety use, all building and site improvements associated with the temporary use shall be removed and the facility shall be restored to its prior condition.

As a condition of approval of a Minor Conditional Use Permit for a temporary public safety use, the City may require the permittee to post a surety bond and/or provide other security in an amount determined by the City. The security shall be of sufficient amount to ensure compliance with the conditions of the permit and this chapter.

Conditions. When considering approval of a temporary use or structure, the review authority may impose conditions deemed necessary to ensure that the permit or approval will be in accordance with the standards prescribed in this Section and the findings required for the approval. These conditions may include, but are not limited to:

Regulation of operating hours and days;

Provision for temporary parking facilities, including vehicular ingress and egress;

Regulation of nuisance factors such as, but not limited to, prevention of glare or direct illumination on adjacent properties, noise, vibration, smoke, dust, dirt, odors, gases and heat;

Regulation of temporary structures and facilities, including placement, height and size, location of equipment and open spaces, including buffer areas and other yards;

Provision for sanitary and medical facilities;

Provision for solid, hazardous and toxic waste collection and disposal;

Provision for security and safety measures;

Regulation of signs;

Submission of a performance bond or other surety devices, satisfactory to the review authority, to ensure that any temporary facilities or structures used will be removed from the site within a reasonable time following the event and that the property will be restored to its former condition;

10.

Provision for visual screening, not limited to landscaping;

11.

Any other conditions which will ensure the operation of the proposed temporary use in an orderly and efficient manner and in accordance with the intent and purpose of this Section.

(Ord. No. 38.836, § 7, 9/3/19; Ord. No. 38.834, § 5, 8/20/19; Ord. No. 38.823, § 3, 11/17/15; Ord. No. 38.795, § 32, 4/6/10)

XI-10-13.12 - Live-Work Units

Purpose and Intent. The purpose of this Section is to control and regulate land use activities for the live-work unit. The intent of a live-work unit is to allow small-scale business activities in residential uses which meet certain standards. No portion of the live-work unit may be separately occupied or sold. Live-work uses are allowed one non-residential employee, and a broader range of uses than permitted in Home Occupations, and therefore are subject to granting of a conditional use permit to ensure compatibility.

Applicability. This Section shall apply to existing and new residential development that includes live-work units.

Review Requirements. Live-work units shall require the approval of a Conditional Use Permit, in accordance with Subsection XI-10-57.04, Conditional Use Permits, of this Chapter.

Minimum Performance Standards.

A business license and certificate of occupancy shall be obtained for every commercial space within the live-work units.

Living space shall occupy a minimum of 60% of the total gross floor area of the unit.

The commercial component as designated on the floor plan approved through the conditional use permit shall remain commercial and cannot be converted to a residential use.

The residential component as designated on the floor plan approved through the conditional use permit shall remain residential and cannot be converted to commercial use.

The commercial component of a live-work unit shall be located on the first floor with the main entry facing the street or common pedestrian space. The residential unit shall have direct interior access to the commercial unit.

The residential unit shall provide additional exterior access to the main residential unit that is not through the commercial component.

Exterior Appearance: The commercial component of the live-work unit shall have a commercial, store front appearance located on the 1 ^st floor of the home.

The commercial component shall be restricted to the unit and shall not be conducted in the yard, garage, or any accessory structure. Commercial outdoor storage use not permitted.

Shall demonstrate compliance with parking per Section XI-10-53 for required parking spaces.

10.

Sign size, location, illumination and materials, shall be consistent with the architectural building design and approved through a master sign program.

11.

Business shall not involve the use of hazardous materials or produce medical or hazardous waste, except those that are below permitted amounts in accordance with the California Fire Code and as amended by the Milpitas Municipal Code V-300-2.10.

12.

This use shall be conducted in compliance with all appropriate local, state and federal laws and regulations and in conformance with the approved use permit.

13.

All foods must be produced, prepared, packaged, stored, transported, and marketed in compliance with County Department of Environmental Health standards.

14.

The commercial use shall not create external noise, odor, glare, vibration or electrical interference detectable to the normal sensory perception by adjacent neighbors.

15.

Uses permitted or conditionally permitted within the underlining zoning district apply unless otherwise prohibited in Section XI-10-10-13.(E).

Prohibited Uses.

Any use not permitted within the underlying zoning district is prohibited along with the following:

Adult-oriented businesses;

Astrology;

Palmistry;

Massage establishments;

Sauna or spa;

Pharmacy or drug store

Head/smoke/tobacco shop;

Tattoo and piercing;

Veterinary services, including grooming and boarding, and the breeding or care of animals for hire or for sale;

All vehicle related uses such as auto sales, repair, or maintenance of vehicles including boats, motorcycles, or recreational vehicles;

Places of assembly;

Group instruction;

Club or social organization;

Religious assembly;

Educational institutions;

Motion picture theaters; and

Sit down restaurants

(Ord. No. 38.839, § 12, 12/3/19; Ord. No. 38.808, § 4, 5/21/13)

XI-10-13.13 - Single Room Occupancy Residences.

Purpose and Intent. The purpose of this Section is to provide for multi-tenant housing that is affordable to low-income individuals. Single Room Occupancy (SRO) residences house one to two persons in individual rooms, typically sharing bathrooms and/or kitchens. Units may, but are not required to, include full or partial kitchens and bathrooms.

Applicability. Standards for SRO residences contained in this section apply to all SRO residences where permitted by this Chapter.

Minimum Standards.

An SRO shall be located:

At least ¼ mile away from schools, parks, day care centers, adult businesses and concentrations of two or more bars and/or liquor stores; and

Within ½ mile of fixed rail or buses with 30 minute minimum headways; and

At least 1,000 feet from other SROs.

Each SRO unit shall:

Be a minimum of 150 square feet without individual kitchen or bathroom facilities, or a minimum of 300 square feet with full kitchen and bathroom facilities.

Not exceed 400 square feet.

Contain a closet and storage area within the unit.

An SRO facility shall meet the following standards:

If an individual full bath is not provided in each unit, common bath facilities shall be provided that adequately serve the residents of the SRO facility.

If an individual full kitchen is not provided in each unit, common kitchen facilities shall be provided that adequately serve the residents of the SRO facility.

Laundry facilities shall be provided in a separate room at the ratio of one washer, dryer and laundry tub with hot and cold running water for every twenty (20) units, with at least one washer, dryer and laundry tub per floor.

A minimum of two hundred (200) square feet of interior useable common space shall be provided, excluding janitorial storage, laundry facilities and hallways.

A management plan shall be submitted to the City Planning Division for review and approval prior to issuance of an occupancy permit. Management plans shall be resubmitted to City Planning Division on an annual basis for review and approval. A facility with ten (10) or more units shall provide on-site management.

(Ord. No. 38.810, § 7, 12/3/13)

Editor's note— Ord. No. 38.810, § 7, adopted December 3, 2013, amended the Code by adding new §§ XI-10-13.12 and XI-10-13.13. In order to prevent duplication of section numbers, the new sections have been added as §§ XI-10-13.13 and XI-10-13.14 at the discretion of the editor.

XI-10-13.14 - Emergency Shelters.

Purpose and Intent. The purpose of this Section is to comply with California Government Code Section 65583(a)(4), as may be amended, which requires that emergency shelters be permitted by-right in at least one zone with sufficient capacity to accommodate the local need for emergency shelter.

Applicability. Standards for Emergency Shelters contained in this Section shall apply to all Emergency Shelters where permitted by this Chapter.

Minimum Standards.

The number of beds for each Emergency Shelter shall be limited to thirty (30).

Parking requirements shall be either one space per three hundred (300) square feet of habitable floor area, or sufficient to serve the parking demand determined in a study prepared by the applicant and approved by the Planning Division.

The size of outdoor waiting areas on private property shall be sufficient to accommodate the expected number of clients without infringing upon the public right-of-way.

Onsite management shall be provided during the hours that the emergency shelter is in operation.

An emergency shelter shall not be located within 300 feet of other emergency shelters.

The length of stay for each individual at any emergency shelter shall not exceed 90 days, unless the management plan approved by City provides for longer residency by those enrolled and regularly participating in a training or rehabilitation program.

Exterior lighting of the property shall be designed to provide a minimum maintained horizontal illumination of at least one foot candle of light on parking surfaces and walkways that serve the facility. Illumination shall not extend across property lines to an adjacent property.

Security shall be provided during the hours that the emergency shelter is in operation. Security plans shall be submitted to City staff for review and approval prior to issuance of an occupancy permit. Security plans shall be resubmitted to City staff on an annual basis for review and approval.

Additional Standards. The Director of Planning may adopt additional written objective minimum standards consistent with California Government Code Section 65583(a)(4)(A), as may be amended. Any such administrative standards adopted by the Director of Planning shall be published on the Planning Division's website.

(Ord. No. 315, § 2, 1/7/25; Ord. No. 301, § 21, 8/20/19; Ord. No. 38.810, § 7, 12/3/13)

Editor's note— See editor's note, § XI-10-13.13.

XI-10-13.15 - Cannabis Uses

Purpose. The purpose of this Subsection is to prohibit to the fullest extent allowed by State Law the establishment and operation of all commercial cannabis uses within the City of Milpitas, including all cannabis dispensaries, cannabis retailers, cannabis manufacturers, cannabis microbusinesses, cannabis testing laboratories, cannabis distribution, cannabis cultivation, and delivery of cannabis. It is also the intent of this Subsection to regulate indoor cannabis cultivation, and to prohibit all outdoor cultivation, for personal use, including by qualified patients and primary caregivers. It is also the intent of this Subsection to entirely prohibit the delivery of non-medical cannabis and only allow the delivery of medicinal cannabis directly to medicinal cannabis patients or their primary caregivers to the minimum extent required by State law, subject to all laws and the additional regulations adopted here.

Finding and Declaration. The City finds and declares that this local regulatory scheme will not prevent medicinal cannabis patients or their primary caregivers from obtaining medicinal cannabis in a timely and readily accessible manner and in types and quantities that are sufficient to meet demand within the City's jurisdiction.

Definitions. For purposes of this Subsection, the following definitions shall apply:

"Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from marijuana. "Cannabis" includes "cannabis" as defined in Business and Professions Code, Section 26001 and in Section 11018 of the Health and Safety Code.

"Cannabis cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

"Cannabis delivery" means the commercial transfer of cannabis or cannabis products to a customer. "Cannabis delivery" also includes the use by a cannabis retailer of any technology platform that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of cannabis or cannabis products. Whether made directly by the individual or entity or indirectly through a third-party service or other intermediary, an offer to deliver includes any communication, action, or conduct that could be reasonably understood to convey a willingness to engage in cannabis delivery irrespective of the person or entity's actual or specific intent and includes advertisements, websites, or other media making the same suggestion.

"Cannabis delivery service" or "delivery service" means any person or entity engaged in cannabis delivery or attempting or offering to engage in cannabis delivery.

"Cannabis distribution" means the procurement, sale, and transport of cannabis and cannabis products and any other activity allowed under the State distributor license(s), including, but not limited to, cannabis storage, quality control and collection of State cannabis taxes.

"Cannabis manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product. Cannabis manufacture includes the production, preparation, propagation, or compounding of manufactured cannabis, or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages medical cannabis or cannabis products or labels or relabels its container.

"Cannabis microbusiness" means a commercial cannabis business that must engage in at least three of the following commercial cannabis activities: cultivation, manufacturing using nonvolatile solvents, distribution, and/or retail.

"Cannabis products" means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients. Cannabis products include "cannabis products" as defined in Business and Professions Code, Section 26001.

"Cannabis retailer" means a facility where cannabis or cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers cannabis and cannabis products as part of a retail sale or conducts sales exclusively by delivery. The term "cannabis retailer" includes any nonprofits that may be licensed under Business and Professions Code, Section 26070.5. For purposes of this Chapter, "cannabis retailer" also includes medical cannabis dispensaries, patient collectives and cooperatives operating, or proposing to operate, pursuant to the Compassionate Use Act (Health and Safety Code, § 11362.5) and/or the Medical Marijuana Program (Health and Safety Code, § 11362.7 et seq.), as may be amended.

10.

"Cannabis testing laboratory" means a facility, entity, or site in the State that offers or performs tests of cannabis or cannabis products.

11.

"Chief of Police" means the Chief of Police of the City of Milpitas or his or her designee.

12.

"City Attorney" means the City Attorney of the City of Milpitas or his or her designee.

13.

"City Clerk" means the City Clerk of the City of Milpitas or his or her designee.

14.

"City Manager" means the City Manager of the City of Milpitas or his or her designee.

15.

"Commercial cannabis use" includes all cannabis cultivation, cannabis manufacture, cannabis distribution, cannabis testing laboratories, cannabis microbusinesses, cannabis retailers, cannabis delivery, and sale of cannabis and/or cannabis products, whether intended for medical or adult-use, and whether or not such activities are carried out for profit. Commercial cannabis uses includes "commercial cannabis activity" as defined in Business and Professions Code, Section 26001, and includes any activity that requires, or may require in the future, a license from a State licensing authority pursuant to the Medicinal and Adult-Use Cannabis Regulation and Safety Act (Business and Professions Code, Division 10), as may be amended. Commercial cannabis use does not include those activities allowed for personal use by persons 21 years of age or older, without any compensation whatsoever, in strict accordance with Health and Safety Code, Section 11362.1 and does not include the activities of a qualified patient or a primary caregiver that are exempt from State licensure pursuant to Business and Professions Code, Section 26033.

16.

"Enforcement Authority" means the Chief of Police, the City Attorney, or any other person or persons designated by the Milpitas Municipal Code or the City Manager to enforce this Subsection.

17.

"Indoor" means any location that is totally contained within a fully enclosed and secure private residence or accessory building located on the grounds of the private residence.

18.

"Medicinal cannabis" or "medicinal cannabis products" shall have the same meaning as the definition set forth in Business and Professions Code, Section 26001.

19.

"Medicinal cannabis patient" means any one of the following:

A "qualified patient," as defined in Health and Safety Code, Section 11362.7, who possesses a currently valid physician's recommendation that complies with both Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code as well as all rules, regulations, and guidelines adopted by the Medical Board of California.

A "person with an identification card," as defined in Section 11362.7 of the Health and Safety Code, who possesses a currently valid identification card issued in compliance with Article 2.5 (commencing with Section 11362.7) of Chapter 6 of Division 10 of the Health and Safety Code.

20.

"Non-medicinal cannabis" or "non-medicinal cannabis products" shall mean cannabis or cannabis products, respectively, that does not qualify as medicinal cannabis, including commercial cannabis intended to be sold for non-medicinal use by an adult 21 years of age or older pursuant to State law.

21.

"Outdoor" means any location that is not totally contained within a fully enclosed and secure accessory building or primary residence.

22.

"Personal cultivation" means cannabis cultivation for a natural person's own personal use and possession in accordance with this Code and state law, including but not limited to Health and Safety Code Sections 11362.1 and 11362.2, as may be amended, and such person does not sell or distribute cannabis to any other person. "Personal use" also means and includes cultivation of medical cannabis conducted by a qualified patient exclusively for his or her personal medical use, and cultivation conducted by a primary caregiver for the personal medical purposes of no more than five specified qualified patients for whom he or she is the primary caregiver, in accordance with state law, including Health and Safety Code Sections 11362.7 and 11362.765, as may be amended. Except as herein defined, personal cultivation does not include, and shall not authorize, any cultivation conducted as part of a business or commercial activity, including cultivation for compensation or retail or wholesale sales of cannabis.

23.

"Primary caregiver" means the primary caregiver for a medicinal cannabis patient and shall have the same meaning as the definition set forth in Health and Safety Code, Section 11362.7.

24.

"Private residence" means a house, an apartment unit, accessory dwelling unit, a mobile home, or other similar dwelling occupied for residential purposes.

Personal Cultivation of Cannabis.

Indoor Personal Cultivation. The indoor personal cultivation of cannabis is prohibited except in compliance with the following:

Cannabis cultivation shall only occur indoors at a private residence, or inside an accessory structure located upon the grounds of a private residence.

Cannabis cultivation shall be limited to six plants total per residence, whether immature or mature, regardless of how many residents reside at the private residence.

Persons engaging in indoor cultivation must comply with all State and local laws regarding fire safety, water use, electrical wiring, buildings, and indoor cultivation, and with Health and Safety Code Sections 11362.1 and 11362.2.

The use of gas products (CO2, butane, propane, natural gas, etc.) or generators for cultivation of cannabis is prohibited. Use of gas products shall be limited to those allowed by the Building, Electrical, and Fire Codes as adopted and amended by the City of Milpitas.

The residence shall maintain fully functional and usable kitchen, bathroom, and bedroom areas for their intended use by the resident(s), and the premises shall not be used primarily or exclusively for cannabis cultivation.

All areas used for cannabis cultivation shall be located within a fully enclosed and secure structure. "Fully enclosed and secure structure" means a space within a building, greenhouse or other legal structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more lockable doors and inaccessible to minors.

Outdoor Personal Cultivation Prohibited. Outdoor personal cultivation of cannabis is prohibited in all zoning districts in the City of Milpitas.

Commercial Cannabis Uses.

Commercial Cannabis Uses Prohibited. All medical and adult-use commercial cannabis uses as defined herein are prohibited from establishing or operating within the City of Milpitas. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for the establishment or operation of a commercial cannabis use in any zoning district, and no person shall otherwise establish such businesses or operations in any zoning district.

Cannabis Deliveries.

Deliveries Generally Prohibited. Except as set forth in Subsection XI-10-13.15(F)(2), the ban on commercial cannabis uses also prohibits the operation of a cannabis delivery service to customers in the City of Milpitas, including those deliveries originating from a physical location outside of the City. A cannabis delivery service may not deliver, attempt to deliver, or offer to deliver cannabis or cannabis products in violation of this Subsection. Nothing in this Subsection is intended to, nor shall it be construed to, permit and/or legalize any delivery operation, use, and/or activity that is otherwise prohibited under this Subsection and/or any other law. Rather, this Subsection is intended to prohibit the delivery of commercial cannabis to the fullest extent allowed by state law, including by entirely prohibiting the delivery of non-medicinal cannabis.

Direct Deliveries to Medicinal Cannabis Patients or Primary Caregivers Excepted. The direct delivery of medicinal cannabis to a specifically identified medicinal cannabis patient or the primary caregiver for a specifically identified medicinal cannabis patient within the City's jurisdictional limits from a location outside the City's jurisdictional limits is not prohibited by this Subsection only if such deliveries fully comply with each and every one of the following operating conditions:

All deliveries must be made directly to a specifically identified medicinal cannabis patient or the primary caregiver for a specifically identified medicinal cannabis patient by a duly licensed cannabis delivery service. Prior to delivery, the delivery service must obtain a copy of written documentation for the identified medicinal cannabis patient proving the patient possess a physician's recommendation for medicinal cannabis that is valid at the time of delivery.

For deliveries to a medicinal cannabis patient, that written documentation must include either a currently valid copy of a physician's recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code or a currently valid identification card issued in compliance with Article 2.5 (commencing with Section 11362.7) of Chapter 6 of Division 10 of the Health and Safety Code.

ii.

For deliveries to a primary caregiver for a medicinal cannabis patient, that written documentation must include either a currently valid identification card for the identified patient issued to the primary caregiver in compliance with Article 2.5 (commencing with Section 11362.7) of Chapter 6 of Division 10 of the Health and Safety Code or both a currently valid copy of a physician's recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code and proof that primary caregiver has consistently assumed responsibility for the housing, health, or safety of the identified patient.

iii.

Written documentation received by a delivery service for this purpose shall be maintained confidentially and only disclosed in compliance with all applicable laws.

All deliveries must be to a fixed address for a specifically identified medicinal cannabis patient.

For deliveries to a medicinal cannabis patient, that fixed address must be the patient's private residence.

ii.

For deliveries to a primary caregiver for a medicinal cannabis patient, that fixed address must be the primary caregiver's primary business address.

iii.

Deliveries cannot be to a post office box, any other form of mail, package, or parcel pickup location or locker, or to a mail, package, or parcel receiving agency or business.

iv.

Delivery must be to a person 18 years of age or older. The delivery service must record the name of the person receiving the delivery.

Upon delivery, and prior to completing delivery, the delivery must be signed for by the identified medicinal cannabis patient or the primary caregiver for the identified medicinal cannabis patient.

All deliveries must occur between the hours of 6:00 a.m. Pacific Time and 10:00 p.m. Pacific Time. Deliveries may not occur in a manner that would tend to disturb the peace, quiet, and/or enjoyment of a reasonable person of normal sensitivity residing nearby.

The cannabis delivery service must maintain a log or other record stating the date, time, quantities, and products for each delivery as well as the name of the identified medicinal cannabis patient and the name of any primary caregiver for the delivery.

The cannabis delivery service must retain for a period of at least two years copies of all records, documentation, signatures, permits, and licenses required by this Subsection and present them to a law enforcement officer upon demand.

The cannabis delivery service must fully comply with all applicable laws, including this Subsection and Division 10 of the Business and Professions Code, all rules and regulations promulgated by the Department of Cannabis Control, including in Title 4, Division 19 of the California Code of Regulations, and all guidelines, procedures, and regulations promulgated pursuant to this Subsection by the City Manager and/or his or her designee.

Deliveries of medicinal cannabis may not include anything other than medicinal cannabis and medicinal cannabis products. Specifically, deliveries of medicinal cannabis may not include delivery of cannabis accessories or promotional materials, as defined by Section 15000 of Title 4, Division 19, Chapter 1, Article 1 of the California Code of Regulations, or branded merchandise of any kind.

Business Tax and License. A cannabis delivery service must obtain a business tax license from the City pursuant to Title III, Chapter 1 of this Code prior to commencing any delivery service within the City's jurisdiction or offering or attempting to deliver within the City's jurisdiction, even if delivering from a physical location outside of the City. A cannabis delivery service must pay all state and local taxes or fees for delivery services occurring with the City's jurisdiction, including taxes or fees imposed by or owed to the City.

Registration. A cannabis delivery service must register with the Milpitas Police Department in a form acceptable to the Chief of Police prior to commencing any delivery service within the City's jurisdiction or offering or attempting to deliver within the City's jurisdiction, even if delivering from a physical location outside of the City. That registration must be signed by the registrant averring the truth and accuracy of the information contained therein and include all of the following information:

The name, address, and telephone number of the registrant and the delivery service. If the registrant or the delivery service has done business under any other name, including a fictitious name, the registrant must provide each name and all dates and jurisdictions of use.

The name, address, and telephone number of the person(s) who will manage and operate the delivery service.

The name, address, and telephone number for the person(s) authorized to accept service of process and legal notices for the delivery service.

The business name, license number, license type, license designation, license status, and expiration date for any applicable license issued by the Department of Cannabis Control.

Any other information required by the Chief of Police.

The delivery service must update its registration annually and within 72 hours of any change to the information contained in its registration or its cessation or suspension of medicinal cannabis delivery services within the City's jurisdiction. Registration may be conditioned, suspended, refused, or revoked under the procedure specified in Subsection XI-10-13.15(F)(7). A cannabis delivery service may not re-register, and no registration will be accepted, within one (1) year after its registration is revoked. Where a cannabis delivery service is sold, transferred, merged, acquired, or any person or entity otherwise succeeds in whole or in part to any of the assets, liabilities, facilities, employees, managers, or officers of a cannabis delivery service, the registration of the successor business may be condition, suspended, refused, or revoked upon the same or similar terms as the previous business as the interests of justice require.

Administrative and Criminal Violations. In addition to all other remedies and actions allowed by law, any violation of this Subsection may be enforced by administrative citation, pursuant to Title I, Chapter 21 of this Code, or criminal prosecution, pursuant to Section I-1-4.09 of this Code. At the Enforcement Authority's sole discretion, violations of this Subsection may be charged as a misdemeanor, punished by a fine not to exceed the sum of five hundred dollars ($500) or by imprisonment in the County Jail not to exceed six (6) months or by both such fine and imprisonment, or an infraction, punished by a fine not exceeding one hundred dollars ($100) for a first violation, a fine not exceeding two hundred dollars ($200) for a second violation within one year, or a fine not exceeding five hundred dollars ($500) for each additional violation within one year. Each day such a violation continues shall be a new and separate violation.

Rebuttable Presumption. If a cannabis delivery service reports or otherwise discloses to a state, local, or federal governmental entity that it has delivered cannabis or cannabis products, whether for taxation, licensing, tracking, or other purposes, that report or disclosure shall create a rebuttable presumption for the facts and circumstances of each delivery referenced, including a prima facie case for any violation of this Subsection evidenced thereby.

Suspension or Prohibition. In addition to all other remedies and actions allowed by law, the Enforcement Authority may immediately suspend, revoke, or otherwise prohibit or condition any delivery service from delivering medicinal cannabis within the City's jurisdictions, or impose additional terms and conditions upon that delivery service, if it fails or has failed to fully comply with all laws, including this Subsection, fails or has failed to register with the Milpitas Police Department prior to delivering, attempting to deliver, or offering to deliver within the City's jurisdiction, fails or has failed to maintain its business license, or fails or has failed to remit any applicable state or local taxes or fees for delivery services occurring with the City's jurisdiction. Pursuant to Title I, Chapter 20, Section 2 of this Code, notice of this suspension, revocation, or imposition of additional terms and conditions may be served by mail to the address provided in the delivery service's registration or, if there is no current registration, any other address listed for the delivery service. Within fifteen (15) calendar days of that mailing, the delivery service may appeal that determination to a hearing officer appointed by the City Manager pursuant to the procedure provide in Title I, Chapter 20, Section 3 of this Code by filing with the City Clerk a written notice of appeal containing all factual and legal grounds for the appeals as well as all records or other evidence supporting that appeal. Within twelve (12) calendar days of being mailed notice of the hearing officer's decision pursuant to the same notice procedure, the delivery service may appeal the hearing officer's decision to the City Council pursuant to the procedure provided in Title I, Chapter 20, Section 5 of this Code.

Transportation Through City. This section shall not be construed to prohibit use of the public roads to pass through the City's jurisdiction without making a delivery within the City's jurisdiction pursuant to Business and Professions Code, Section 26090 or those activities allowed by Section 26054, subdivisions (c), (d), or (e).

Implementing Regulations. The City Manager, or his or her designee, with due consultation with the Chief of Police, shall have the authority to adopt all necessary guidelines, procedures, and regulations to implement the requirements and fulfill the policies and purposes of this Subsection related to the delivery of medicinal cannabis.

Public Nuisance; Effect of State Law.

It is hereby declared to be a public nuisance for any person owning, leasing, occupying, or having charge or possession of any real property in the City to cause or allow such real property to be used for a commercial cannabis use or for the cultivation of cannabis except in strict compliance with this Chapter. Any condition caused or permitted to exist in violation of any of the provisions of this Chapter may be abated as a public nuisance as provided in this Code and/or under State law.

In the event of any conflict between the penalties enumerated under this Code and any penalties set forth in State law, the maximum penalties allowable under State law shall govern. The City Attorney or prosecuting attorney has the authority to declare and prosecute the violation as the maximum penalty permitted by State law, including but not limited to, those penalties prescribed by Health & Safety Code, Section 11362.4. To the extent certain conduct is immune from arrest and criminal liability pursuant to State law, including the Compassionate Use Act of 1996 (Health and Safety Code Section 11362.5) or the Medical Marijuana Program (Health and Safety Code Section 11362.7 et seq.), criminal penalties shall not apply.

(Ord. No. 298.1, § 2, 3/5/24; Ord. No. 298, § 3, 1/15/19)

XI-10-13.16 - Massage Establishments

Purpose. The purpose of this Subsection, in conjunction with Title III, Chapter 6 "Massage Establishments and Practitioners" of the City of Milpitas Municipal Code, is to regulate the establishment, location, and operation of massage establishments and accessory massage establishments in compliance with State law.

Definitions. For purposes of this Subsection, the following definitions shall apply:

"Act" means the Massage Therapy Act (Business and Professions (B&P) Code Section 4600, et seq.), as amended.

"California Massage Therapy Council" or "CAMTC" means the California Massage Therapy Council established under Business and Professions Code section 4602.

"Certified massage practitioner" or "massage practitioner" means a person who is currently certified as a massage practitioner by the CAMTC pursuant to Business and Professions Code sections 4604.1 and/or 4604.2.

"Certified massage therapist" or "massage therapist" means a person who is currently certified as a massage therapist by the CAMTC pursuant to Business and Professions Code section 4604.

"Compensation" means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value. In addition to accepting other forms of compensation, a person may be deemed to have received compensation for performing a massage when the massage is offered as part of a membership, as part of a package of services or as incidental to the purchase of a product.

"Employee" means any person hired by a massage establishment who renders any service for the business/owner in exchange for any form of compensation from the business, including independent contractors.

"Managing officer/employee" means a person that can or does have or share ultimate control over the day-today operations of a business.

"Massage" means any method of treating the external parts of the body, usually with the hands, so as to stimulate circulation and make muscles or joints supple, or relieve tension, for remedial, or health purposes offered in return for any form of compensation. Methods of massage include, but are not limited to, stroking, kneading, rubbing, tapping, pounding, or stimulating the external parts of the body with or without the aid of any mechanical or electrical apparatus or appliances. Massage may occur with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice; or by baths, including but not limited to, Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath. Massage includes the application of various manipulation or touch techniques to the muscular structure and soft tissues of the human body as defined in the Act, Business and Professions Code section 4601(e), and recognized as legitimate by CAMTC.

"Massage establishment" means any establishment having a fixed place of business where any person, firm, association, partnership, corporation or other entity engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any massage for compensation. For the purpose of this Chapter, the term "massage establishment" shall also include, but not be limited to, any business providing off-premises massage services.

10.

"Massage Establishment, Accessory" means an establishment that provides massage which is incidental to the primary business, where the owner of the primary business is responsible for the massage services and conduct of the massage technician(s) employed at the location.

11.

"Massage technician" means and includes both a "massage practitioner" and a "massage therapist" as defined by this Chapter.

12.

"Off-premises massage service" means any business where a function of such business is to engage in or carry on massage, not at a fixed location but at a location designated by the customer, massage technician, or other person, and sometimes known as an out-call massage service.

13.

"Owner" means any individual who has any direct or indirect ownership interest in a massage establishment.

14.

"Sole provider" means a massage business where the owner owns 100 percent of the business, is the only person who provides massage for compensation at or for that business, and has no other employees, independent contractors or rent-space massage therapists.

Applicability.

This section applies to Massage Establishments as defined in Title III, Chapter 6 "Massage Establishments and Practitioners" and Subsection XI-10-2.03 "Definitions" and Subsection XI-10-13.16 "Massage Establishments of this Chapter (Zoning) and to Accessory Massage Establishments" as defined in Subsection XI-10-2.03 "Definitions" and Subsection XI-10-13.16 "Massage Establishments" of this Chapter (Zoning).

Preexisting Massage Establishments. Any legally established massage establishments must comply with the provisions of this Subsection and the provisions of Title III, Chapter 6 "Massage Establishments and Practitioners."

Exemptions. The requirements of this Subsection do not apply to the following establishments or classes of individuals who perform massage while employed in their professional capacities:

Physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or acupuncturists, who are duly licensed to practice their respective professions in the State of California and persons working directly under the supervision of such licensed persons. "Working directly under the supervision" means that the person is an employee of the licensed person, is working at the same location as the licensed person, has his or her work supervised by the licensed person, and that the licensed person is present when the employee is performing massage. This exemption shall not apply if the business performs massage on persons for whom the licensed person does not provide professional services.

Barbers, beauticians, cosmetologists, manicurists, and other persons licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the California Business and Professions Code while engaging in practices within the scope of their licenses, and who perform massage only on the neck, face, scalp, hands, arms, or lower limbs up to the knee of their customers.

Personal fitness training centers, gymnasiums, athletic facilities or health clubs, when the giving of massage for compensation is not a principal function of such businesses.

Hospitals, nursing homes, sanitariums, or any other healthcare facilities duly licensed by the State of California.

Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment.

Trainers of amateur, semi-professional or professional athletes or athletic teams, while engaging in their training responsibilities for and with athletes; and trainers working in conjunction with a specific athletic event such as an outdoor road or bike race.

Sole providers, including sole providers operating an off-premise massage service, who have a valid certificate issued by the CAMTC pursuant to the Act, either as a certified massage practitioner or a certified massage therapist, and who are practicing consistent with the qualifications established by such certificate.

General Requirements.

Required Permits. Prior to the operation of a massage establishment, the owner or managing officer/employee must obtain a Massage Establishment Permit pursuant to Title III, Chapter 6 "Massage Establishments and Practitioners", a Minor Conditional Use Permit issued by the Zoning Administrator pursuant to Section XI-10-57.04 "Conditional Use Permits and Minor Conditional Use Permits", and a business license pursuant to Title III, Chapter 1 "Business Licenses" of the Milpitas Municipal Code. Prior to the operation of an accessory massage establishment, the owner must obtain a obtain a Massage Establishment Permit pursuant to Title III, Chapter 6 "Massage Establishments and Practitioners", a Minor Conditional Use Permit pursuant to Section XI-10-57.04 "Conditional Use Permits and Minor Conditional Use Permits", and a business license pursuant to Title III, Chapter 1 "Business Licenses" of the Milpitas Municipal Code. A Massage Establishment Permit, and any renewal thereof, shall be filed with the Chief of Police, pursuant to Title III, Chapter 6 "Massage Establishments and Practitioners" of the Municipal Code. The Minor Conditional Use Permit issued by the Zoning Administrator, or, in the case of an Accessory Massage Establishment, a Minor Conditional Use Permit, shall not be granted until a Massage Establishment Permit is issued by the Chief of Police.

Compliance with Codes. Prior to the operation of a massage establishment or accessory massage establishment, the massage establishment must comply with all applicable codes regarding fire, building and safety, health and safety, and other relevant laws.

Permitted Zoning Districts. Massage establishments and accessory massage establishments are allowed in the C2, HS, TC, MXD, MXD2, MXD3 zoning districts, subject to a Minor Conditional Use Permit issued by the Zoning Administrator or Minor Conditional Use Permit issued by staff, respectively.

Operational Standards. In addition to the restrictions specifically required in the Massage Establishment Permit issued by the Chief of Police and pursuant to Title III, Chapter 6 "Massage Establishments and Practitioners", all massage establishments must comply with the regulations applicable to the zoning district in which it is located and with the following operating requirement:

Hours of Operation. Massage Establishments shall operate and massage services shall be provided between the hours of 7:00 a.m. and 10:00 p.m. Massage services begun before 10:00 p.m. must terminate at 10:00 p.m. No customer shall be in such massage establishment between the hours of 10:00 p.m. and 7:00 a.m. No massage establishment shall be open between the hours of 10:30 p.m. and 7:00 a.m.

Off-Street Parking Requirement. Two (2) off-street parking spaces per treatment room must be provided. If there are no treatment rooms, then one (1) space for every two (2) massage chairs or two (2) massage tables must be provided. The parking space must comply with all development standards set forth in Section 53 "Off-Street Parking Regulations".

Commercial Purposes Only. A massage establishment must be used for commercial purposes only. Use of the massage establishments for residential or lodging purposes is prohibited.

Off-Premises Massage Businesses. No off-premises massage business shall conduct massage in a hotel or motel room, vehicle, or in the residence of the massage technician. No off-premises massage service may be provided in a private residence or business between the hours of 10:00 p.m. and 7:00 a.m. However, a massage technician is permitted to provide off-premises massage services at a private residence so long as it is the not the private residence of the massage technician and is not provided between the hours of 10:00 p.m. and 7:00 a.m.

Recreational or Special Events. Persons administering massages to other persons who are participating in a recreational or special event that has been approved pursuant to Section XI-10-15 "Special Events and Activities" and the Chief of Police shall be CAMTC certified but will not be required to hold a Massage Establishment Permit provided the following conditions are met:

The massage technician shall be registered with the City of Milpitas Police Department;

Massage services are equally available to all participants in the event;

The massage services are provided during the event in an open area at the site of the event;

The sponsors of the event have approved the provision of massage services at the event;

Massage services were included in the project description in the application for a Special Event Permit pursuant to Subsection XI-10-15.12 "Permit Application."

Signs. A recognizable and legible sign complying with the requirements of Section XI-10-24 "Signs" must be posted at the main entrance of the massage establishment identifying the location as a licensed massage establishment.

Application Procedure.

Minor Conditional Use Permit issued by the Zoning Administrator Required for Massage Establishments. The owner of a massage establishment must apply for and obtain a Minor Conditional Use Permit issued by the Zoning Administrator before operating massage establishment. The Minor Conditional Use Permit issued by the Zoning Administrator is subject to the provisions of and issued pursuant to the Minor Conditional Use Permit process in Section XI-10-57.04 "Conditional Use Permits and Minor Conditional Use Permits."

Minor Conditional Use Permit Required for Accessory Massage Establishments. The owner of an accessory massage establishment must apply for and obtain a Minor Conditional Use Permit reviewed by Planning Department staff before operating an accessory massage establishment. The Minor Conditional Use Permit is subject to the provisions of and issued pursuant to the Minor Conditional Use Permit process in Section XI-10-57.04 "Conditional Use Permits and Minor Conditional Use Permits."

Compliance Review. The Planning Director or his or her designee will review the Minor Conditional Use Permits issued by the Zoning Administrator for massage establishments and Minor Conditional Use Permits for accessory massage establishments within one (1) year after issuance for compliance with this Subsection and Conditions of Approval. The Planning Director or his or her designee will conduct a similar compliance review of Conditional Use Permits issued by the Zoning Administrator for massage establishments and Minor Conditional Use Permits issued by Planning staff on an annual basis concurrent with review of the Massage Establishment Permit and renewal of the Business License for each use. Any failure to conduct a review does not waive any noncompliance or the City's right to conduct a review in the future.

Change in Ownership. If there is a change of property ownership, change of Owner's agent or representative, or any other change in material facts pertaining to the information contained in the Conditional Use Permit issued by the Zoning Administrator application for a massage establishment or the Minor Conditional Use Permit application for an accessory massage establishment, the new owner or new owner's authorized agent or representative shall notify the City prior to continuing to operate the massage establishment. The Planning Director or his or her designee will conduct a compliance review of the Conditional Use Permit issued by the Zoning Administrator for the massage establishment or the Minor Conditional Use Permit for the accessory massage establishment the for the subject property in conjunction with the application for a Business License by the new property owner.

Violation of Regulations. Violation of any provision of this Chapter may result in the revocation of the after notice and an opportunity for a hearing has been given to the permittee, in accordance with Subsection XI-10-63.06 "Revocation, Suspension, Modification."

(Ord. No. 38.839, § 13, 12/3/19)

XI-10-13.17 - Short-Term Rentals

Purpose. The purpose of this Subsection is to regulate the establishment and operation of short-term rental units ("STRs"). As such, the City desires to give special consideration to preserving the residential character of neighborhoods, preventing long-term residential uses from being replaced with STRs, and protecting all neighborhoods from potential adverse impacts caused by the operation of STRs.

Definitions. For purposes of this Subsection, the following definitions apply:

"Alternative Contact Person" means a natural person, whether the owner, local property manager, or agent of the owner, who is available twenty-four hours per day, seven days per week to respond to complaints regarding the condition, operation, or conduct of occupants of a short-term rental unit.

"Applicant" means a person applying for or renewing a Short-Term Rental Permit. "Applicant" may be the "Owner" or "Operator."

"Bedroom" means "Bedroom" as defined in Subsection XI-10-2.03 "Definitions" of the Milpitas Municipal Code.

"Dwelling unit" means "Dwelling unit" as defined in Subsection XII-1-2.04 "Definitions" of the Milpitas Municipal Code.

"Good Neighbor Manual" means a manual prepared by the City regarding the general rules of conduct to be followed when operating a Short-Term Rental Unit.

"Hosted Rental" means a Short-Term Rental Unit where an Owner or Operator is living and present in the dwelling unit during the short-term rental period.

"Hosting Platform" means business or person that provides a means through which an Operator may offer a dwelling unit, or portion thereof, for Short-Term Rentals. A Hosting Platform is usually, though not necessarily, provided through an internet-based platform. It generally allows a property owner or tenant to advertise the dwelling unit through a website provided by the Hosting Platform and provides a means for potential Short-Term Rental Transients to arrange short-term rentals, whether the Short-Term Rental Transient pays rent directly to the Operator or to the Hosting Platform.

"Operator" means a natural person who is the Owner, lessee, or Owner's agent to act on the Owner's behalf to insure compliance with this Subsection.

"Owner" means "Owner" as defined in Subsection XI-10-2.03 "Definitions" of the Milpitas Municipal Code.

10.

"Short-Term Rental Unit" or "Short-Term Rental" or "STR" is defined by Subsection XI-10-2.03 "Definitions" of the Code.

11.

"Short-Term Rental Permit" means a permit to establish a Short-Term Rental Unit.

12.

"Transient" means "Transient" as defined in Subsection III-13-2.03 "Transient" of the Milpitas Municipal Code.

13.

"Un-hosted Rental" means an STR where an Owner or Operator is not living and present in the primary dwelling unit during the short-term rental period.

Applicability.

This section applies to Short-Term Rental Units as defined in Subsection XI-10-13.16(B)(10).

Permitted Zoning Districts. STRs are permitted in dwelling units in the R1, R2, R3, R4, R5, MXD, MXD2, and MXD3 Zoning Districts, subject to the requirements of this Subsection XI-10-13.16.

Nonconforming Dwelling Units. STRs are prohibited within all nonconforming dwelling units, except those that are legal nonconforming with respect to the parking standards of Section 53 "Off-Street Parking Requirements." If a dwelling is legal and nonconforming only because it does not meet the parking standards of Section 53 "Off-Street Parking Regulations," an STR may be established when parking for the dwelling unit is provided to meet the applicable requirements of Section 53 "Off-Street Parking Regulations."

Permitted in Primary Dwelling Units Only. STRs are permitted in primary dwelling units only. STRs are not permitted within accessory structures and buildings, accessory dwelling units (ADUs), guest house accessory buildings, or recreational vehicles.

General Requirements.

Required Permits. Prior to the operation of a dwelling unit, or a portion thereof, as an STR, the operator must obtain a Short-Term Rental Permit pursuant to this Subsection and a business license pursuant to Title III, Chapter 1 "Business Licenses" of the Milpitas Municipal Code. A Short-Term Rental Permit may be terminated or revoked if the standards of this Chapter are not met.

Compliance. Occupants of the STR must comply with all applicable Federal, State, and local laws. The Operator must ensure compliance with this provision.

Rentals per Dwelling Unit. A maximum of one (1) Short-Term Rental is permitted per dwelling unit at any given time.

Off-Street Parking Requirement. One (1) off-street parking space must be provided for the STR. Any parking space in excess of the required number of parking spaces for the primary dwelling unit pursuant to Section 53 "Off-Street Parking Regulations" may be used for the STR. The parking space must comply with all development standards set forth in Section 53 "Off-Street Parking Regulations."

Exterior Alterations. The exterior of the dwelling unit must not be altered such that the structure appears to serve a nonresidential use either by color, materials, construction, lighting, signage, landscaping, or by other similar effects.

Hosted Rentals Only. An Operator may only conduct a Hosted Rental. Un-hosted Rentals are prohibited in STRs.

Maximum Occupancy. The daytime (7:00 a.m. to 9:00 p.m.) and overnight (9:00 p.m. to 7:00 a.m.) occupancy of the STR is limited to a maximum of two (2) persons per bedroom plus one (1) additional person. The Operator shall not allow the STR to be used for any gathering where the number of persons will exceed the permitted maximum occupancy limits.

Alternative Contact Person. The Owner must identify and designate an Alternative Contact Person who must be available twenty-four (24) hours per day, seven (7) days per week, to respond to complaints regarding the condition, operation or conduct of occupants of the STR. The Alternative Contact Person must respond in-person to complaints within sixty (60) minutes.

Trash and Refuse. Trash and refuse must be stored outside of public view, except in proper containers for the purpose of collection by the City's authorized waste hauler on scheduled trash collection days.

10.

Signage. Signs that advertise the availability of the short-term rental unit are prohibited.

11.

Liability Insurance. Liability insurance is required of the Operator, or Hosting Platform on behalf of the Operator, in the amount of no less than $500,000. Proof of liability insurance is not required if hosting activity is only handled by a hosting platform that already extends similar liability coverage.

12.

Commercial and Assembly Uses Prohibited. STRs are limited to dwelling, lodging, and sleeping purposes only. Use of the STR for any other commercial uses or assembly uses such as weddings, corporate events, or parties, is prohibited.

13.

Transient Occupancy Tax. Either the Operator or Hosting Platform must collect and remit the transient occupancy tax ("TOT") pursuant to Title 3, Chapter 3.24 "Transient Occupancy Tax" of the Milpitas Municipal Code. The Operator must maintain records of TOT paid, even if paid by a hosting platform, for three years.

14.

Good Neighbor Manual Required. The Operator must sign a manual provided by the City that summarizes general rules of conduct and all rules and regulations applicable to the use of the STR in this Subsection and the Milpitas Municipal Code. The Operator must post the manual on the inside of the front door and door to the backyard or a in a conspicuous location near each door.

15.

Indemnification. To the fullest extent permitted by law, the Owner of an STR must defend, indemnify, and hold the City of Milpitas, its officials, officers, and employees free and harmless from any and all claims, demands, causes of action, damage or injury to persons or property arising out of any alleged acts, omissions, or willful conduct of the Owner, its employees, or its agents.

16.

Health and Safety. It is the Operator's responsibility to assure that the STR is and remains in compliance with all applicable codes regarding fire, building and safety, health and safety, and other relevant laws.

17.

Amnesty Period. Notwithstanding any other provision of law, Short-Term Rental Units operating on or before the enactment of this ordinance shall be considered existing, unpermitted uses. An amnesty period of six (6) months after the effective date of this Ordinance, is provided to allow these existing, unpermitted uses to be legalized by conforming to the requirements of this Chapter, including compliance with operating standards, registration, and record-keeping obligations. Transient occupancy tax payment continues to be required at all times for Short-Term Rental Units and must be collected and paid during the amnesty period. Applications to bring an existing, unpermitted Short-Term Rental Unit use into compliance shall be made on or before six (6) months from the effective date of this ordinance. Existing Short-Term Rental Units that do not conform to the requirements of this section shall cease operation within six (6) months of the effective date of this Ordinance, and shall be prohibited from resuming unless and until the use conforms to the requirements of this Chapter.

Application Procedure.

Short-Term Rental Permit. STRs are subject to a Short-Term Rental Permit, pursuant to this Subsection. An Owner or Operator must apply for and obtain a Short-Term Rental Permit before operating an STR.

The Planning Director makes the determination on the Short-Term Rental Permit application, based on compliance with provisions in this Subsection XI-10-13.16.

The application must contain the following information and documentation:

The name, address, and telephone number of the Owner of the subject short-term rental unit;

If the Applicant is not the Owner, the Applicant must demonstrate written consent of the Owner to operate a Short-Term Rental Unit on the property;

The name, address, and telephone number of the Owner's authorized agent or representative, if any;

The name, address, and 24-hour telephone number of the Alternative Contact Person;

Verification that the Alternative Contact Person can respond in person to the site of the short-term rental unit within sixty (60) minutes of notification of a complaint;

The address of the proposed STR;

The number of bedrooms in the STR;

The location and dimensions of the off-street parking space designated for the STR;

For STRs located in any area governed by a homeowners' association or community association (association) and subject to CC&Rs, the Applicant must additionally submit a copy of a letter to the association's governing board stating the applicant's intent to operate a Short-Term Rental Unit and inviting the association to submit a letter to the City stating one of the following: (1) that short-term rentals are not prohibited at the proposed unit by the CC&Rs; or (2) that a short-term rental is allowed at the proposed unit under the CC&Rs, but only under certain conditions, and a statement of whether or not the conditions here are met; or (3) that the CC&Rs do not allow short-term rentals as defined herein. The association's response is not determinative, but it is a factor that may be considered by the Planning Director;

A copy of the Good Neighbor Manual, signed by the Owner, certifying that the Owner has read and understands the guidelines for responsible operation;

The Operator must attach a copy of the "Smoke Alarm & Carbon Monoxide Alarm Self Certification" for the property to be used as a Short-Term Rental to the application in order to ensure the space has smoke alarms and carbon monoxide alarms and spark arrestors installed; and

Such other information as the Planning Director deems reasonably necessary to administer this Subsection.

Compliance Review. The Planning Director or the Planning Director's designee will review the Short-Term Rental Permit within one (1) year after issuance for compliance with this Subsection. The Planning Director or his or her designee will conduct a similar compliance review of Short-Term Rental Permits on an annual basis, or as needed, concurrent with renewal of the Business License for each use. Any failure to conduct a review does not waive any noncompliance or the City's right to conduct a review in the future.

Change in Ownership. If there is a change of property ownership, change of Owner's agent or representative, or any other change in material facts pertaining to the information contained in the Short-Term Rental Permit application, the new owner or new owner's authorized agent or representative shall obtain a new Business License and notify the City prior to continuing to rent the subject unit as a short-term rental. The Planning Director or his or her designee will conduct a compliance review of the Short-Term Rental Permit for the subject property in conjunction with the application for a Business License by the new property owner.

Violation of Regulations. Violation of any provision of this Chapter, including the requirement to maintain a current Business License, may result in the revocation of the Short-Term Rental Permit after notice and an opportunity for a hearing has been given to the permittee, in accordance with Subsection XI-10-63.06 "Revocation, Suspension, Modification."

Enforcement. Where prompt compliance is not forthcoming, the City may take any appropriate enforcement action to secure compliance. All remedies in the Milpitas Municipal Code are considered cumulative and the use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing these provisions.

(Ord. No. 38.835, § 7, 3/3/20)

XI-10-13.18 - Mobile Food Vending

Purpose and intent. The purpose of this section is to allow mobile food vendors to operate in appropriate areas of the city and to protect and maintain public safety, health and welfare while providing opportunities for small businesses, adding vibrancy and activity to streetscapes and neighborhoods, and expanding food access in areas underserved by brick-and-mortar restaurants.

Definitions.

"Catering establishment" means an establishment in which the principal use is the preparation of food and meals on the premises, and where such food and meals are delivered to another location for serving and consumption.

"Commissary" means a fixed-location kitchen where food is stored and prepared for off-site vending from mobile food vehicles. Commissaries serving mobile food vendors may include shared-use commercial kitchens, private commercial kitchens, restaurant kitchens, and kitchens associated with civic and community organizations such as churches or social clubs; but do not include catering service establishments.

"Ice cream truck" means a motorized vehicle selling ice cream or other frozen dairy or non-dairy dessert products on streets and in other public places.

"Mobile food park" means a site with two or more mobile food vehicles located together on the same parcel and operating at the same time for more than seven consecutive days.

"Mobile food vehicle" means a motorized, wheeled vehicle or towed vehicle designed and equipped to store, prepare, serve and sell food, but which does not include ice cream trucks or mobile food vending wagons or push-carts as regulated in Milpitas Municipal Code Section V-100-10-11.

"Mobile food vending" means the selling or offering to sell products from a mobile food vehicle.

Mobile food vending review procedures.

On private property.

One mobile food vehicle operating on a parcel, when permitted under the use regulations for the applicable zone, may be approved subject to approval of a minor site development permit (staff review) pursuant to subsection XI-10-57.03(B)(2) of this Chapter.

A mobile food park operating for more than seven consecutive days may be approved subject to a minor conditional use permit (zoning administrator review) pursuant to Subsection XI-10-57.04(E)(2)(a) of this Chapter.

Two or more mobile food vehicles operating on a parcel for a period of seven consecutive days or less shall require a special event permit pursuant to Section 15 of this Chapter.

In public parks and open spaces.

One mobile food vehicle operating within a public park or open space may be approved subject to approval of a minor site development permit (staff review) pursuant to Subsection XI-10-57.03(B)(2) of this Chapter.

Two or more mobile food vehicles operating together within a public park or open space for a period of seven consecutive days or less shall require a special event permit pursuant to Section 15 of this Chapter.

Mobile food parks shall not be permitted within public parks and open spaces.

In public right-of-way.

Mobile food vending in the public right-of-way is permitted subject to the review and approval of the Milpitas Planning Department, as follows:

In low- and medium-density residential zoning districts R1, R2, and R3, mobile food vending in the public right-of-way may be permitted as part of a one-time or recurring special event for which a special event permit has been issued pursuant to Subsection XI-10-15.07 of this Chapter, or as part of another official event authorized by the City (e.g., National Night Out).

ii.

In high-density residential zoning districts R4 and R5; all commercial, industrial, mixed-use, and institutional zoning districts; and within the specific plan areas; mobile food vending in the public right-of-way is permitted upon issuance of all required City and County permits per Section XI-10-13.18(H).

Ice cream trucks.

Ice cream trucks may operate on public rights-of-way in all zoning districts, including residential zones, and in public parks with no City of Milpitas zoning permits required (i.e. permits administered under Milpitas Municipal Code Chapter XI-10—Zoning). Ice cream trucks shall be required to obtain a City of Milpitas business license.

An operator of an ice cream truck proposing to vend in a stationary location on private property shall be subject to all requirements, standards, and permitting procedures in Section XI-10-13.18 that apply to mobile food vehicles.

Location and siting requirements.

On private property.

The operator of a mobile food vehicle operating on a privately owned parcel shall obtain prior written permission from the property owner and shall have an original signed copy of such permission available at all times while the mobile food vehicle is in operation on the property.

A mobile food vehicle shall be parked on a paved surface outside any designated fire lane and outside any parking or loading space that is required for the principal use on the property.

Mobile food vending operations shall not reduce the available parking on the property below the minimum number of parking spaces required to serve the existing use(s) on the lot.

ii.

For a property that is nonconforming with respect to parking, mobile food vending operations shall not reduce the total existing amount of parking on the lot.

Unless otherwise approved pursuant to Section XI-10-13.18(G)(1), a mobile food vehicle shall be parked a minimum of 15 feet from a driveway curb cut while in operation.

In public right-of-way.

A mobile food vehicle operating in the public right-of-way shall be parked in a legal parking space and shall comply with all City parking regulations at all times while in operation.

A mobile food vehicle may only serve customers from an adjacent sidewalk or the side of the vehicle closest to the curb and shall not serve customers from the side of the vehicle closest to the motorized travel lanes of the street.

In public parks and open spaces.

The location and siting of mobile food vending operations within a public park or open space shall be subject to the approval of the City of Milpitas Recreation and Community Services Department, through the minor site development permit or special event permit process as required per Section XI-10-13.18(C)(2)(a) or (b).

A mobile food vehicle operating within a public park shall be parked in a legal parking space on a paved surface outside any designated fire lane.

Separation from other uses.

A mobile food vehicle in operation shall be located a minimum of 150 feet from any existing restaurant.

A mobile food vehicle in operation shall be located a minimum of 150 feet from a freeway on- or off-ramp.

Site design standards.

Parking.

For one mobile food vehicle operating on private property or in a public park, no parking shall be required to serve the mobile food vending use. The mobile food vehicle shall comply with Subsection XI-10-13.18(D)(1)(b) with respect to parking for other existing uses on a lot.

For mobile food parks, one parking space shall be required per 2.5 seats provided on site for customers, plus one parking space per 60 square feet of lot area dedicated to the mobile food vending operation (see Table 53.09-1). Such parking shall be provided in addition to any required parking serving other existing uses on the lot.

Access and circulation.

All mobile food vending operations shall be located so as not to impede safe movement of vehicular, bicycle or pedestrian traffic, and to maintain a clear line of sight for vehicles, bicycles and pedestrians.

No mobile food vehicle shall obstruct access to or circulation through any parking lot, or access to any public sidewalk or alley.

Seating areas.

For mobile food vehicles operating in the public right-of-way, on-site seating (including tables, chairs, canopies, umbrellas, or similar amenities) shall not be permitted.

For one mobile food vehicle operating on private property, the site plan submitted for minor site development permit review per Subsection XI-10-13.18(C)(1)(a) shall show all proposed temporary amenities and structures for on-site seating and dining. For mobile food parks, the site plan submitted for minor conditional use permit review per subsection XI-10-13.18(C)(1)(b) shall show all proposed temporary and permanent amenities and structures for on-site seating and dining.

Mobile food vending operations requiring a special event permit shall be subject to the requirements and procedures in Section 15 of this Chapter for seating, dining areas and similar amenities.

Restrooms.

For one mobile food vehicle operating on private property or for mobile food vehicles operating in the public right-of-way:

If the vehicle operates in the same location on an ongoing basis, for at least one day per week and for more than one hour on each day of operation, the operator must have access to a restroom facility within 200 feet pursuant to the Health and Safety Code Section 114315. If the vehicle operates in the same location on an ongoing basis, for at least one day per week and for more than three consecutive hours on each day of operation, the operator must arrange and secure access to a restroom within 200 feet of the site that is available to customers and employees of the mobile food vehicle.

ii.

A mobile food vehicle operator to whom Section XI-10-13.18(E)(4)(a)(i) applies shall submit to the City, concurrently with the permit application, a signed letter from the owner of the property on which the restroom is located to verify that the mobile food vending operation has access to the restroom for use by employees and customers (if required) during its hours of operation.

For mobile food parks, one single-stall, gender-neutral restroom shall be provided for every five mobile food vehicles operating on the site. In calculating the restroom requirement, fractional numbers shall be rounded down to the nearest whole number.

Mobile food vending operations requiring a special event permit shall be subject to the requirements and procedures in Section 15 of this Chapter for restrooms.

Operational standards and requirements.

Mobility of operations. Mobile food vehicles shall not connect to temporary or permanent on-site water, gas, electricity, telephone or cable sources.

Hours of operation. Unless otherwise approved pursuant to Section XI-10.13.18(G)(1), hours of operation for mobile food vending shall be between the hours of 7:00 a.m. and 10:00 p.m.

Parking and storage of mobile food vehicles. Outside of hours of active operations mobile food vehicles shall be removed from the operating site, whether on private property or in the public right-of-way. Mobile food vehicles shall not be parked overnight at the location of operation.

Noise. Mobile food vending operations shall comply with the provisions of Milpitas Municipal Code Title V, Chapter 213 Noise Abatement.

Signage. A mobile food vehicle may display signage permanently attached to or painted on the vehicle advertising its products and services. A mobile food vehicle may also place one free-standing 'sandwich board' sign within 10 feet of the vehicle that displays information such as the menu, prices, and specials of the day. Any free-standing signage shall be subject to the provisions of Section XI-10-24 of this chapter. No other signs or banners that are separate from the mobile food vehicle shall be placed at the operating site or within the public right-of-way.

Trash management and disposal.

For one mobile food vehicle operating on private property or in the public right-of-way, and for mobile food parks:

All mobile food vending operations shall provide separate and clearly marked receptacles for trash, recycling and/or compost (minimum size for each 32 gallons), according to the collection services available, at the operating site. Operators of mobile food vehicles shall properly dispose of all trash, recycling and/or compost generated by their operations daily.

ii.

The operator of a mobile food vehicle shall keep the area within a 25-foot radius of the vehicle, including private property, sidewalks, and roadways, clean and free of paper, food waste and other refuse generated by the operation.

Mobile food vending operations requiring a special event permit shall be subject to the requirements and procedures in Section 15 of this Chapter for trash management and disposal.

Mobile food vending operations, if using disposable food service ware for packaging and serving, shall use products that are recyclable or compostable. Use of polystyrene foam food service ware is prohibited per Milpitas Municipal Code Title III, Chapter 8, Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware.

Exceptions to Standards and requirements.

Exceptions or reductions to the location and siting requirements, site design standards, and operational and standards in Subsections XI-10-13.18(D) through (F) may be granted at the discretion of the Planning Director and the Fire Marshal based on site-specific conditions and subject to the following findings:

The proposed number, configuration, and operation of mobile food vehicles is generally consistent with the overall intent of these regulations;

The proposed mobile food vending activity will not be detrimental or injurious to property or improvements in the vicinity nor to the public health, safety, and general welfare.

Other permits and licenses required.

All mobile food vehicles operating within the City of Milpitas must obtain a permit for mobile food facilities from the Santa Clara County Department of Environmental Health. The valid County health permit shall at all times be displayed on the vehicle in a location visible to the public.

All mobile food vehicles operating within the boundaries of the City of Milpitas shall obtain a current City of Milpitas business license prior to establishing a vending location on public or private property or setting up operations. The license shall at all times be displayed on the vehicle in a location visible to the public.

All mobile food vehicles must have current and valid vehicle registration clearly displayed on their license plates while vending at the operating site or in the public right-of-way.

(Ord. No. 38.845, § 11, 6/21/22)

XI-10-13.19 - Outdoor Dining

Purpose and Intent. The purpose of the outdoor dining regulations is to increase opportunities for restaurants to expand dining area into outdoor spaces, supporting local businesses and enhancing dining experience for Milpitas residents and visitors; to promote active, vibrant, pedestrian-oriented commercial districts and shopping centers; and to ensure that outdoor dining spaces are safe, well designed, and attractive.

Definitions.

Outdoor dining area: Any privately owned outdoor area serving as an extension of the indoor customer seating area for a café or restaurant, which occupies space adjacent to the business that was formerly used for vehicle parking, pedestrian circulation, or similar use unrelated to the seating or customers.

Review and Approval Procedures.

New or modified outdoor dining areas on private property may be approved with a Minor Site Development Permit (Staff Review) pursuant to Subsection XI-10-57.03(B)(2) of this Chapter.

In cases where the underlying zoning district requires a Conditional Use Permit (CUP) for a restaurant, an existing establishment with an approved CUP may add or modify an outdoor dining area with approval of a Minor Site Development Permit. No amendment to the approved CUP shall be required.

Written permission from the owner of record of the subject property shall be required as part of the Minor Site Development Permit application for outdoor dining. This requirement shall apply to stand-alone restaurants as well as those located within a multi-tenant commercial center or mixed-use development.

Location and Siting Requirements.

Outdoor dining shall be permitted in any zone where restaurants are a permitted use (or where restaurants are conditionally permitted and a CUP has been approved for the restaurant).

Outdoor dining areas may be established on privately owned lots subject to the following requirements:

Dining areas may be located within outdoor areas adjacent to restaurants, such as existing private sidewalks and walkways, patios, etc. A minimum five (5) foot wide path of travel shall be maintained along all pedestrian walkways from parking areas and public sidewalks to all public building entrances.

Outdoor dining areas may be located within, and may replace, existing off-street parking spaces (see also Subsection XI-10-13.19(E)) on privately owned parcels.

Parking spaces to be converted to outdoor dining areas must be immediately adjacent to the restaurant establishment. An outdoor dining area shall not be separated from the restaurant by any vehicular drive aisle.

ii.

No existing accessible parking spaces required per Title 24, California Building Standards Code, and the Americans with Disabilities Act may be removed to accommodate outdoor dining areas.

Outdoor dining areas shall be subject to the base zone regulations for minimum setbacks from property lines. Any permanent canopies, pergolas or similar shade structures requiring a building permit shall be subject to base zone regulations for maximum lot coverage.

Outdoor dining areas shall not be located within required loading zones or stormwater treatment areas, nor be located so as to obstruct access to utilities.

Outdoor dining areas shall be subject to all emergency access regulations per the California Fire Code.

Outdoor dining areas shall not be located in a manner that creates a potential safety hazard.

Allowed Reductions to Required Off-Street Parking.

For restaurants located in the MXD, MXD2, and MXD3 zones or in any commercial zone within the Milpitas Metro Specific Plan or Milpitas Gateway-Main Street Specific Plan areas, total required off-street parking as specified in Subsection XI-10-53.09 - Off-Street Parking Required by Land Use may be reduced by up to 50 percent to accommodate new or expanded outdoor dining areas in existing parking areas.

No minimum parking requirements shall apply to restaurants located within one-half mile of the Milpitas Transit Center.

For restaurants located in any other area of the city, required off-street parking may be reduced by up to 15 percent to accommodate new or expanded outdoor dining areas in existing parking areas, provided that the size of the outdoor dining area is 800 square feet or less.

For multi-tenant commercial properties with shared parking, allowed reductions to required parking to accommodate outdoor dining shall be based on the total parking requirement for all uses and establishments on the subject property, not solely on the parking requirement for the restaurant(s) proposing to add or expand outdoor dining areas. The shared parking standards established in Section XI-10-53.11 shall apply to locations with shared parking arrangements.

Design Standards.

Barriers and Materials.

Outdoor dining areas shall be delineated by a substantial and durable barrier that separates the dining area from vehicular drive aisles and parking spaces.

Materials. Barriers should be made from high-quality materials (e.g., wood or iron railings and fencing, planter boxes, decorative concrete barriers).

Materials and design of barriers and associated amenities should be consistent with the design and appearance of the restaurant and complementary to the character and design of the surrounding district.

ii.

Plywood or other unfinished materials used for construction of a barrier to delineate and protect an outdoor dining area shall be painted or covered in siding or other finished materials approved by the Planning Department.

iii.

Chain link fencing, corrugated metal, unfinished wood materials, stanchions, retractable belts, screens, and small landscape planters are not acceptable materials for barriers for outdoor dining areas and shall be prohibited.

Solid portions of barriers for outdoor dining areas shall be no more than three (3) feet in height. Transparent, shatterproof glass (plexiglass or similar material) may be placed above a three-foot solid barrier, up to a total maximum height of six (6) feet (for freestanding plexiglass over a solid barrier). If the outdoor dining area has a permanent shade or roof structure, plexiglass or other transparent materials may extend to the height of the ceiling.

Barriers may be permanent or movable. If movable, they should be well secured and designed to support weight leaning against them.

Barriers shall have one opening for emergency access, with a minimum width of 36 inches, for every 20 linear feet of barrier.

Barriers adjacent to parking spaces shall be marked with reflective material, such as tape or plastic reflective strips.

Shade Structures, Tables and Chairs, and Other Amenities.

Permanent overhead shade structures (e.g. pergolas) may be allowed for outdoor dining areas. The design and location of any permanent overhead shade structure shall complement the main restaurant and shall be subject to review and approval by the Planning Department. All permanent overhead shade structures shall require a building permit.

Permanent overhead shade structures shall be durable and made from high-quality materials such as wood or metal. Plywood, corrugated metal, and corrugated polycarbonate are prohibited as materials for roofing or shade structures.

The maximum height for all overhead shade structures for outdoor dining areas shall be 12 feet.

Non-permanent shade equipment, such as umbrellas, fabric canopies, or retractable awnings, are permitted, provided they are made from high-quality materials and removed or stored when the outdoor dining area is not in use.

For awnings projecting from buildings, the minimum vertical clearance shall be eight (8) feet and the maximum extension from the face of a building shall be seven (7) feet.

ii.

Awnings and umbrellas should have no words or advertising other than the name and logo of restaurant establishment.

Tables and chairs should be of a high-quality and visually appealing material such as wood or metal. Inexpensive plastic or vinyl tables and chairs are not permitted.

The layout of outdoor dining areas should incorporate spaces for landscape planters with decorative plants and flowers.

Traffic Safety. A minimum two (2) foot setback shall be required between an outdoor dining area barrier and any adjacent parking space(s).

Accessibility Requirements

Outdoor dining areas shall have hard, non-slip surfaces, such as concrete, tile, stone, or wood/composite decking. Soft surfaces such as dirt, gravel, and lawn are not permitted.

If an outdoor dining area is located on a raised platform or in a sunken area, a ramp must be provided that meets the requirements of the California Building Code and the Americans with Disabilities Act.

A minimum of five (5) percent of the seats provided in an outdoor dining area shall be wheelchair accessible.

Minimum dimensions for wheelchair accessible seating spaces shall be 30 inches wide by 48 inches deep. Access to all such seating spaces shall be provided via a path with a minimum unobstructed width of 36 inches.

Fire Safety. All outdoor dining areas shall comply with the requirements of the California Fire Code. Minor Site Development Permit applications for new or modified outdoor dining areas are subject to review and approval by the Milpitas Fire Department.

Lighting. No electrical wires for lighting elements shall cross the required clear path of travel along a public sidewalk or private pedestrian walkway. Solar lighting is encouraged for outdoor dining areas.

Signage. All restaurant signage shall comply with Section XI-10-24 - Signs of this Chapter. No additional signage shall be permitted in outdoor dining areas.

Operational Standards.

Hours of Operation.

The hours of operation for outdoor dining areas shall be limited to the hours the restaurant is open for ordering and serving of meals.

In addition to Subsection XI-10-13.19(G)(1)(a), in no case shall outdoor dining be permitted before 7:00 am, seven (7) days per week, or after 10:00 pm Sunday through Thursday and after 11:00 pm Friday and Saturday.

Alcoholic Beverages.

The restaurant owner or manager shall coordinate with the California Department of Alcoholic Beverage Control (ABC) regarding alcohol sales in conjunction with outdoor dining.

The restaurant owner or manager shall obtain approval from ABC for a modified license to extend the permitted area for serving alcohol to include all outdoor dining areas associated with the restaurant and shall provide proof of such approval to the City of Milpitas Planning Department.

No smoking or vaping shall be permitted within outdoor dining areas.

Outdoor preparation and/or storage of food is not permitted within outdoor dining areas.

All live entertainment in outdoor dining areas is subject to the provisions of Subsections XI-10-5.04(E) and XI-10-6.06(B) of this Chapter.

Maintenance Requirements.

Outdoor dining areas shall be kept clean and free of litter and debris at all times.

All plants and landscaping shall be maintained in good health.

All plexiglass or other transparent materials used as part of an outdoor seating barrier shall be regularly cleaned and provide a clear view from the outdoor seating area. Cracked, broken, or discolored materials are prohibited and shall be replaced immediately.

(Ord. No. 38.850, § 4, 12/6/22)