The intent of this chapter is to provide general development standards for the City, resulting in new development that is harmonious with existing development in the surrounding area. The standards provided in this chapter apply to all zones, unless otherwise indicated. The standards and may be modified to be more stringent through the review process, when it is required for a project.

A.

Conformance with All Sections of This Code. No building or structure shall be erected, reconstructed, structurally altered, enlarged, moved or maintained, nor shall any building, structure or land be used or designed to be used for any use other than is permitted in the district in which such building, structure or land is located and then only after applying for and securing all permits and licenses required by all laws and ordinances.

(Ord. 38.780 (25) (part), 8/19/08)

Where the term "other uses similar to the above" is mentioned, it shall be deemed to mean other uses which, in the judgment of the Commission as evidenced by a written decision, are similar to the uses listed in the same section and are not objectionable to the general welfare. "Other Uses" so determined by the Commission shall be regarded as listed uses. In no instance, however, shall these regulations be so interpreted to permit a use in a district when such use is specifically listed and permitted in a less restricted district: e.g., a use specifically set forth in the "C2" District shall not be permitted in the "C1" District.

(Ord. 38.780 (25) (part), 8/19/08)

Every parcel of land hereafter used as a private or public parking area, automobile and trailer sales area, or loading area shall be improved in accordance with Section II-13-18 of Title II (Building Regulations) of the Milpitas Municipal Code and Section XI-10-53 of Chapter 10 (Zoning, Planning and Annexation) and landscaped as per Section XI-10-53.09 of Chapter 10 (Zoning, Planning and Annexation) and landscaping requirements specific to the zoning district in which the parking area, automobile and trailer sales area or loading area is located, unless otherwise exempted by the City's land use or zoning regulations.

(Ord. 38.780 (25) (part), 8/19/08)

Any area annexed to the City after the effective date of this amendment shall immediately upon such annexation be automatically classified as an Agricultural District with the "S" Overlay District ("A-S" Zone), unless said area is located east of the alignment of Piedmont Road, Evans Road, North Park Victoria Drive and Interstate 680 Freeway as shown on the adopted General Plan and more specifically defined as the westerly boundary of the "Hillside Area" as defined in the General Plan, in which case said area shall be classified as Single-Family District—Hillside with the "H" Combining District (specifically "R1-H").

(Ord. 38.780 (25) (part), 8/19/08)

Except as hereinafter provided, no building or structure shall hereafter be erected or reconstructed which exceeds the height limit established for the district wherein such building or structure is located.

(Ord. 38.780 (25) (part), 8/19/08)

Except as hereinafter provided, no building or structure shall be hereafter erected or located on a lot unless such building, structure or enlargement conforms with the area regulations of the district in which it is located.

1.

No parcel of land held under separate ownership at the time the ordinance codified in this Section became effective shall be reduced in any manner below the minimum lot width and lot area required by this Chapter.

2.

No lot area shall be so reduced or diminished that the yards or other open spaces are smaller than prescribed by this Chapter, nor shall the occupancy be increased in any manner except in conformity with the regulations herein established.

3.

No required yard or other open space around an existing building, or which is hereafter provided around any building for the purpose of complying with the provisions of this Chapter, shall be considered as providing a yard or open space for any other building; nor shall any yard or other required open space on an adjoining lot be considered as providing a yard or open space on a lot whereon a building is to be erected.

4.

Every building hereafter erected shall be located on a lot as herein defined. In no case shall there be more than one (1) main residential building and its accessory buildings on one (1) lot. Group dwellings, court apartments and semi-detached dwellings shall be considered as one (1) main residential building on one lot.

5.

No parking area, parking space or loading space which existed at the time the ordinance codified in this Section became effective, or which subsequent thereto is provided for the purpose of complying with the provisions of this Chapter, shall thereafter be relinquished or reduced in any manner below the requirements established in this Section, unless equivalent facilities are provided elsewhere.

6.

No building permit shall be issued for a building or structure on a lot which abuts a street dedicated to a portion of its required width and which lot is located on that side thereof from which no dedication was secured, unless the yards provided on such lot include both that portion of the lot lying within the future street and the required yards.

7.

No building permit shall be issued for a building or structure on a corner lot when such building or structure is to be oriented in such a manner as to reduce the front yard requirement on the street on which such corner lot had its frontage at the time the Ordinance codified in this section became effective.

8.

Every required front, side and rear yard shall be open unobstructed from the ground to the sky.

9.

At each end of a through lot there shall be a front yard of the depth required by this Chapter for the district in which each street frontage is located; provided, however, that one of such front yards may serve as a required rear yard.

10.

Any lot of record, whether developed or undeveloped, existing in accordance with law at the time of reclassification by the City of Milpitas, which after said reclassification is less than the minimum lot area required by the zoning district to which it is reclassified shall notwithstanding have all the rights and privileges of said zoning district.

a.

Said rights and privileges shall only remain valid where said lot of record is not modified as to size, shape or area subsequent to said reclassification.

b.

Where the yard regulations, as required by the zoning district to which said lot of record is reclassified, cannot reasonably be complied with because of insufficient minimum lot area by virtue of said reclassification, said regulations may be modified or determined by the Commission as provided for in Section XI-10-57.06, Variances, of this Chapter.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Purpose and Intent. The purpose of Planned Unit Development approval is to allow diversification in the relationships of various buildings, structures, and open spaces in planned building groups and the allowable heights of said buildings and structures, while insuring substantial compliance to the District Regulations and other provisions of this Chapter, in order that the intent of this Chapter, in requiring adequate standards related to the public health, safety and general welfare, shall be observed without unduly inhibiting the advantages of modern site planning for residential, commercial, or industrial purposes. Where use is made of the planned unit development process as provided in this section, a building permit shall not be issued for such development, or part thereof, until the City has approved said development as herein provided.

B.

Review Requirements.

1.

Application for Planned Unit Developments shall be made on a form prescribed for this purpose by the City of Milpitas.

No application shall be accepted for a use which will require change of zoning district, unless said application is accompanied for an application for a zoning amendment, as provided in Section XI-10-57.02, General Plan/Specific Plan/Zoning Amendments, of this Chapter.

2.

Application shall be accompanied by a general development plan showing the use or uses, dimensions and locations of proposed structures and of acres to be reserved for vehicular and pedestrian circulation, parking, public uses such as schools and playgrounds, landscaping, and other open spaces, and architectural drawings and sketches demonstrating the design and character of the proposed uses and the physical relationship of the uses. Such other pertinent information shall be included as may be required by the Commission.

3.

Application shall be accompanied by a fee which shall be established by City Council Resolution.

4.

The Planning Commission shall hold at least one public hearing, prior to making its recommendations to the City Council. Upon receipt of the recommendation of the Planning Commission, the City Council shall hold at least one public hearing, prior to any final action on an application.

5.

Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

6.

In order to grant a Planned Unit Development permit the Planning Commission and City Council shall determine that the following standard requirements have been met:

a.

The proposed development will result in an intensity of land utilization no higher than and standards of open spaces at least as high as permitted or specified otherwise for such development in the General Plan, Zoning Ordinance and Subdivision Ordinance.

b.

The development will not create traffic congestion pursuant to the California Environment Quality Act (CEQA). However, if traffic congestion is created by the proposed development, the traffic impacts will be mitigated by traffic improvements proposed by the developer or by funding capital projects and by on-site provisions for traffic circulation and parking or, if it cannot be mitigated, the Planning Commission and City Council shall issue any necessary findings pursuant to CEQA.

c.

For residential development in the Valley Floor Planning Area, as defined in the Milpitas General Plan Land Use Element, the maximum dwelling unit density per gross acre shall be the upper limit of the corresponding General Plan density range within each zoning designation. In the case of the Valley Floor Planning Area residential developments proposed on land zoned "R3" (Multiple Family Residential) an overall density of up to forty (40) units per gross acre can be approved if the following criteria are found by the City Council to be met.

i.

Sewer capacity and water availability will be sufficient to accommodate the proposed project density as well as other future planned unit development downstream from the project site. Any improvements to the sewer or water system that would be required to accommodate any higher density proposals may be made conditions of project approval;

d.

Required Findings. In addition to the finding that standard requirements in this section have been met, the Planning Commission and City Council must also make the following findings based on evidence in the record in order to approve the Planned Unit Development application:

i.

Development of the site under the provisions of the Planned Unit Development will result in public benefit not otherwise attainable by application of the regulations of general zoning districts.

ii.

The proposed Planned Unit Development is consistent with the Milpitas General Plan; and

iii.

The proposed development will be in harmony with the character of the surrounding neighborhood and will have no adverse effects upon the adjacent or surrounding development, such as shadows, view obstruction, or loss of privacy that are not mitigated to acceptable levels.

7.

The Planning Commission shall make its recommendation to the City Council within 45 days of the date of the filing of said application (pending any necessary zoning amendment). The Commission may recommend to the City Council that the permit be denied, that permit be approved as submitted, or that the permit be approved, subject to various conditions. Within 30 days of the receipt of the recommendation from the Planning Commission, the City Council shall hold a hearing, as required by Subsections XI-10-54.07(B)(3) and XI-10-54.07(B)(4) of this section. The City Council shall consider the report of the Planning Commission but shall not be bound thereby. Upon the close of the hearing, the City Council may deny the permit, approve the permit as submitted, or approve the permit subject to such conditions as it deems necessary (in addition to or other than those recommended by the Planning Commission).

Any Planned Unit Development, as authorized, shall be subject to all conditions imposed by the City and shall be excepted from other provisions of this Chapter, only to the extent specified in said permit.

8.

Following the issuance of a planned unit development by the City Council, the Building Inspector shall issue a building permit and shall insure the development is undertaken and completed in conformance with the approved plans.

9.

A Planned Unit Development permit may be revoked after notice to the permittee and hearing in any case where the conditions of such permit have not been complied with. The revocation of the permit shall only be made after written notice of violation is mailed to the holder of the permit. The permit holder shall be given the opportunity to explain why the permit should not be revoked. The Planning Commission and City Council shall hold a public hearing regarding the permit. After receiving the Planning Commission's recommendations on permit, the City Council at its discretion may revoke the permit issued if they determine that the previous conditions of approval have not been complied with. The public hearing shall be held in accordance with Section XI-10-64, Development Review Process, of this Chapter.

If a Planned Unit Development is submitted in conjunction with the Tentative Map application, then the approval of the Planned Unit Development shall run concurrent with and expire with the approved Tentative Map.

Where no Tentative Map is submitted in conjunction with the Planned Unit Development application, and the Planned Unit Development permit has not been used within one (1) year after the date of granting thereof, the permit granted shall be null and void.

10.

No area designated for use as a "Common Green" or "Park" upon any map or plat or plan which has been approved as part of a Planned Unit Development may be used for any purpose other than a common green or park or playground, including but not limited to a school playground as approved by the City Planning Commission.

(Ord. 38.780 (25) (part), 8/19/08)

A.

General Requirements.

1.

Exempted. Fences, walls, latticework screen and guard railings are exempt from the accessory building and structure provisions.

2.

All accessory buildings and structures, as well as building additions as described in Subsection 55.03(7), Rear Yard—Building Additions in R1 and R2, of this Chapter, in the rear yard are limited cumulatively to a total area not exceeding thirty percent (30%) of the area of the required rear yard, except where noted below. Projection of eaves of accessory buildings and structures shall not be closer than three (3) feet to any side or rear lot line.

3.

Attached or Detached. An accessory building may be erected detached from the principal building, or erected as an integral part of the principal building, or it may be connected by a breezeway or similar structure.

a.

Attached Accessory Building. An accessory building attached to the main building shall be made structurally a part and have a common wall with the main building and shall comply in all respects with the requirements of this Chapter applicable to the main building.

b.

Detached Accessory Building. A detached accessory building in an "R" District shall be located on the rear one-half (½) of the lot and at least six (6) feet from any dwelling building existing or under construction on the same lot and at least fourteen (14) feet from a residential structure existing or under construction on any adjacent lot.

Any detached accessory building shall not be located within three (3) feet of any rear lot line or side line of the rear half of an adjacent lot or within seven (7) feet of the side line of the front half (½) of any adjacent lot; and, in the case of a corner lot, shall not project beyond the front line required or existing on the adjacent lot.

B.

Standards by Type of Building or Structure.

1.

Recreation shelters and storage shelters shall be permitted as accessory buildings provided that these uses are not equipped for use as living quarters.

2.

Guest house accessory buildings shall not be closer than six (6) feet from the nearest point of the main building. There shall be not more than one (1) guest house on any one (1) building site.

3.

A porte-cochere may be permitted over a driveway in a side yard provided such structure is not more than fifteen (15) feet in height, twenty-four (24) feet in length, not closer than three (3) feet from the side lot line, and is entirely open on at least three (3) sides, except for the necessary supporting columns.

4.

Open, unenclosed stairways, or balconies, not covered by a roof or canopy, may extend or project into a required rear yard not more than four (4) feet, and such balconies may extend into a required front yard not more than thirty (30) inches. Openwork type railing not more than three and one-half (3-½) feet in height may be installed or constructed on any open, unenclosed stairways, or balconies, not covered by a roof or canopy.

5.

Open, unenclosed porches, and decks, not covered by a roof or canopy, which do not extend above the finished floor level of the first floor of the building, may extend or project into any rear or side yard, but in no event shall the structure come closer than three (3) feet to any adjoining property line. Openwork type railing not more than three and one-half (3-½) feet in height may be installed or constructed on any porch or deck.

6.

Platforms, landing places, concrete slabs, walkways and paved areas not covered by a roof or canopy and up to eighteen (18) inches above the ground may extend or project into any rear or side yard but in no event shall the projection come closer than three (3) feet to any adjoining property line with the exception of walkways four (4) feet in width or less which may extend to the property line. These projections are excluded from the 30% maximum required rear yard coverage.

7.

Patio covers, including but not limited to gazebos and pergolas shall not exceed twelve (12) feet in height. Built-in barbecue pits and fountains shall not exceed six (6) feet in height. None of these structures shall come closer than three (3) feet to any side or rear property line. Patio covers are as defined in Section XI-10-2.03, Definitions, of this chapter.

8.

In-ground pools, in-ground spas, and associated decking no more than eighteen (18) inches above ground shall not come closer than three (3) feet to any side or rear property line. These accessory structures are excluded from the 30% maximum allowed rear yard coverage.

9.

Depressed ramps and handicap ramps, may be located in any front, side or rear yard but in no case shall come closer than three (3) feet to any adjoining property line. Openwork type railing and guard railing for safety protection around depressed ramps not more than three and one-half (3-½) feet in height above ground level adjacent thereto may be installed or constructed on any ramp.

10.

Open, unenclosed fire escapes may extend or project into any front, side or rear yard not more than four (4) feet.

11.

Utility or mechanical equipment structures, such as pool equipment units and air conditioning units shall not come closer than three (3) feet to any side or rear property line.

12.

Community Emergency Caches. Shall be exempt from discretionary review when they meet the definition in Section XI-10-2.03, Definitions, of this Chapter and do not displace required parking for the site and are located in the rear half of the property.

(Ord. 38.780 (25) (part), 8/19/08)

(Ord. No. 38.789, § 24, 4-21-09)

Any zoning application proposed for new real estate development or structure for human occupancy shall be subject to approval in accordance with the policies and criteria established by the State Mining and Geology Board and findings of the State Geologist in conformance with the requirements of the Public Resources Code, Section 2621, et seq.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Purpose and Intent. The purpose and intent of this section is to establish standards for fences and walls and similar screening that limit their visual and traffic impacts, but allow for the privacy and architectural interest afforded by such structures. The purpose of a stricter fence or wall height limit in the front yard is to provide for an open street scene, to allow the primary structures on a street to be visible and to contribute to the visual character of the neighborhood, and to allow for unobstructed views of traffic to and from driveways.

This section establishes standards for all fences and walls, including those not requiring a Building Permit. (For information regarding whether a fence or wall requires a Building Permit, please contact the City's Building Division).

B.

Standards for Fences and Walls in All Zones. Unless otherwise provided for in the specific standards for individual zones, the following standards shall apply to fences and walls and to all structural elements supporting the fences, walls and hedges, including pilasters, trellises, etc. In addition to the regulations set forth in this section, all fences and walls shall be constructed and maintained so that they do not constitute a hazard to traffic, persons or property.

1.

Measurement of Fence and Wall Height. The height of a fence or wall shall be measured from the finished grade to the top of fence or wall at any point (including barbed-wire tops). Where the finished grade is a different elevation on either side of the fence or wall, the height may be measured from the side having the highest elevation.

2.

Prohibited Fences. Barbed wire fences within four (4) feet of a public sidewalk, electrically charged fences and fences which interfere with public utilities or public easements are not permitted.

C.

Standards for Fences and Walls on the Valley Floor.

1.

Height Limitations. Fences and walls shall not exceed six (6) feet in height at the rear and side yards, and forty-two (42) inches in height at the front yard.

2.

Exceptions:

a.

For any nonresidential or new multi-family projects and single-family tract projects within a zoning district combined with the "S" Overlay District, fences at the rear and side yards may be eight (8) feet maximum height when approved by the Zoning Administrator through a Site Development Permit.

b.

In all zoning districts, fences at the rear or side yard adjacent to recreational areas, athletic fields or courts may be twelve (12) feet maximum height provided that the portion of the fence higher than six (6) feet is of approved openwork.

c.

In all zoning districts, fences at the front yard and within thirty-five (35) feet of a street corner shall be of approved openwork.

d.

In residential zoning districts fences at the rear and side yards may exceed six (6) feet but not exceed eight (8) feet in height provided written consent of adjoining residential property owners is received. See Building Code for permit requirements for fences exceeding six (6) feet in height.

e.

In any Commercial or Industrial zoning district, fences or walls used for the purpose of screening or providing security to mechanical equipment such as but not limited to air conditioning units, chemical tanks or tank farms or the like, may exceed six (6) feet in height subject to the provisions of Section XI-10-54.16, Trash Enclosures, Equipment and their Screening of this Chapter.

D.

Standards for Fences and Walls within the Hillside District.

1.

Height Limitations. Fences or walls shall not exceed fifty-four (54) inches in height, and be an openwork design, and may be located anywhere on the parcel. No city review of this type fence is required.

2.

Construction Materials. All fence post and supporting framework material shall be wood in order to maintain the rural character of the hills. The Planning Commission, under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter), may approve any other type material for the posts with a Site Development Permit (Section XI-10-57.03, Site Development Permits, of this Chapter).

3.

Openwork Design. Openwork type fences shall be comprised of materials which results in a minimum of seventy-five percent (75%) visual transparency within every square foot area, posts excluded. Chain link fences and cyclone type fences are not considered an approved material in the area.

4.

Exceptions:

a.

In any zoning district combined with the "H" Combining District fences at the rear and side yards which exceed fifty-four (54) inches in height and those fences other than an openwork design may be constructed on a parcel or lot, if and when their location and design have first been approved by the Planning Commission under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter) with a Site Development Permit (Section XI-10-57.03, Site Development Permits, of this Chapter).

b.

In any zoning district combined with the "H" Combining District fences around tennis courts, and the like as determined by the Planning Commission, under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter) with a Site Development Permit, (Section XI-10-57.03, Site Development Permits, of this Chapter), may be eight (8) feet maximum height provided that the portion of the fence higher than six (6) feet is an approved openwork design. Chain link fencing may be used, in this case, as an approved openwork design. The Planning Commission, under the "H" Combining District review process, may approve fences over eight (8) feet in height with a Site Development Permit.

All tennis courts and the like shall be screened from view from the valley floor with landscape materials, as outlined in the City Council Hillside Landscape Policy, with said landscaping to the approval of the Planning Commission under the "H" Combining District review process (Section XI-10-45.09, Site and Architectural Review, of this Chapter) with a Site Development Permit, (Section XI-10-57.03, Site Development Permits, of this Chapter).

c.

Barbed wire fences, using a post material other than wood, may be erected on any parcel two (2) acres or more without Planning Commission review or approval.

(Ord. No. 38.834, § 9, 8/20/19; Ord. 38.780 (25) (part), 8/19/08)

At the time of initial sale of a newly constructed R1 home, the residential builder's sales staff shall be required to obtain the signatures of the buyers that they have been made aware of the adopted General Plan proposed land uses for the area within the general neighborhood of the proposed purchase site, and received a copy of said General Plan map.

If the buyer needs further detail of types of specific uses possible within a given General Plan designation, he shall be directed to make inquiry at the Milpitas Planning Department.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Recycling Areas at New Developments. Areas for collecting and loading recyclable materials are required for:

1.

Any project for which a building permit will be required for a commercial, industrial, or institutional building, or residential building having five (5) or more living units, where solid waste is collected and loaded; and any residential project where solid waste is collected and loaded in a location sewing five (5) or more units using containers of one (1) cubic yard or larger.

2.

Any new public facility where solid waste is collected and loaded and any improvements for areas of a public facility used for collecting and loading solid waste in containers of one (1) cubic yard or larger.

B.

Recycling Areas at Existing Developments. Recycling areas are required to be added to existing development projects if one or more of the following conditions occurs:

1.

The area subject to modifications or amendment is that part of a development which is used for collecting and loading solid waste. This condition applies regardless of the size of the modification, or

2.

A single modification, or multiple modifications which are constructed within a twelve (12) month period, which collectively adds thirty (30%) percent or more to the existing gross floor area of the development project.

C.

Waiver of Parking Spaces, Encroachment into Landscaping or Open Space Areas for Voluntary Participation.

1.

When the property owner or tenant, with the property owner's approval, voluntarily participates in the recycling program in an existing development, the recyclable area may utilize up to two (2) parking spaces or encroach into any side or rear yard landscape setback or open space area for the location of the recycling container if no other area is available. The Planning Division may approve of the plan and shall provide a written decision supporting the decision.

2.

Provided further, if the Planning Division does not approve the property owner's or tenant's request, they have the right to appeal by filing a Site Development Permit application to the Planning Commission. There shall be no filing fee associated with this review.

3.

The loss of the two (2) parking spaces shall not be deducted from the total count of parking for the purpose of meeting the on-site parking criteria, from calculating the gross floor area of the building or seating requirement, or for any other use that is determined by the amount of parking space.

D.

Design Guidelines. The design and construction of recycling areas shall be reviewed in accordance with the guidelines adopted by Council Resolution for recycling areas.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Purpose and Intent. The City of Milpitas is concerned with maintaining an adequate supply of housing for its citizens including rental housing. The adopted Housing Element of the Milpitas General Plan contains the following goal statements, pertinent to this matter:

1.

To encourage the provision of a variety of individual choice of tenure, housing type, and location.

2.

To provide within our ability, opportunities for Milpitas citizens to meet their housing needs in the housing market.

3.

To encourage the cooperation within the housing market so that suppliers and consumers can function more effectively, consistent with community growth goals.

4.

To use zoning in ways which will encourage variety and mix in housing types and provide adequate sites for housing persons of all races, ages, ethnic groups, and income levels in Milpitas. Housing is considered a basic necessity and any scarcity within the community area has both a direct and indirect adverse impact on public safety, health and welfare (including but not limited to, health and safety problems relating to the quality of housing). In times of low vacancy rate and high housing cost many people cannot afford to buy homes within the community or its nearby market area and are forced to rent housing in apartments or other multiple dwellings. The unregulated conversion of rental apartment units to condominiums ownership may aggravate such a serious situation and force citizens to move out of the community.

B.

Determination—Allowance of Converting Apartment Units.

1.

Declaration of Housing Shortage. When the number of vacant apartments being offered for rent or lease in the City is equal to or less than six (6) percent of the total number of such dwelling units offered for and under rental or lease agreement in the City, a housing shortage exists which is inconsistent with the purposes of this chapter and with the declared goals of the City relating to its Housing Element of its adopted General Plan.

2.

Determination of Vacancy Rate and Surplus. Whenever an application for a condominium conversion is filed, the Planning Division shall conduct a vacancy rate survey of the existing rental apartment dwelling units in the City. This survey shall be completed within forty-five (45) days from the date the application for condominium conversion is deemed complete.

3.

Surplus Required for Conversion Application. An application for condominium conversion of existing multiple family rental housing units to residential condominium ownership shall not be approved unless there is a vacancy surplus of existing apartments which equals six (6%) percent or greater of the total number of such units, within the City, and if all of the adult tenants lawfully in possession of two-thirds of the units indicate their desire to convert such project to condominium ownership, in writing, to the City. In no event shall a number of lots, parcels, units, or rights of exclusive occupancy proposed exceed the vacancy surplus by forty (40%) percent. Nothing herein contained shall be construed to prevent the payment of any consideration by landlord to tenant, provided however, consent obtained by payment to a tenant shall not be considered by the Council to be a free and willing consent unless payment of the same consideration is made to all tenants regardless of consent.

C.

Development Standards. The following standards are required for any Residential Condominium Conversion development.

1.

Off-Street Parking. Conformance to the current off-street parking standards.

2.

Landscape and Open Space. Conformance to the current landscape and open space requirements.

3.

Housing and Fire. Conformance to the current Housing codes and Fire Regulations of the City of Milpitas.

4.

Meters and Control Valves. The consumption of gas and electricity within each unit shall be separately metered so that the unit owner can be separately billed for each utility. A water shut-off valve shall be provided for each unit or for each plumbing fixture.

5.

Overcurrent Protection. Each unit shall have its own panel board for all electrical circuits which serve the unit.

6.

Impact Sound Insulation. Wall and floor-ceiling assemblies shall conform to the sound installation performance criteria promulgated in Title 25, California Administrative Code, Section 1092, or its successor, and may be only replaced by another floor covering that provides the same or greater insulation.

7.

Prohibition of Discrimination Against Prospective Buyers with Children. In no case shall a project which can reasonably accommodate children, as determined by the Planning Commission, limit initial sales to households or individuals without children.

D.

Review Requirements. Condominium conversions are subject to a Conditional Use Permit in accordance to Section XI-10-57.04, Conditional Use Permits, of this Chapter and the filing of a Tentative Map in accordance with Chapter 1, Subdivisions, of Title XI.

1.

Protection of Tenant Rights. In addition to the general findings required for approval of a Conditional Use Permit, approval of a Conditional Use Permit for a condominium conversion is subject to the City Council finding that the requirements of Section 66427.1(a) and (b) of the California Subdivision Map Act have been completed in accordance with State Law. Said Sections deal with:

a.

Notice to tenant(s) of intention to convert; and

b.

Tenant(s) exclusive right to purchase their unit(s) upon the same terms and conditions that such unit(s) will be initially offered to the general public or terms more favorable to the tenant(s).

(Ord. 38.780 (25) (part), 8/19/08)

A.

Purpose and Intent. The Density Bonus regulations are intended to encourage the provision of affordable housing in the community by granting density bonuses and other incentives to developers of residential projects that construct or otherwise provide for housing units that will be available for purchase or rent by senior citizens and lower income persons and households. The ordinance codified in this section is adopted in conformance with Chapter 4.3 of Title 7 of the Government Code, Section 65915, et seq.

B.

Applicability. The Density Bonus provisions are applicable in all zoning districts that allow residential development. The density bonus referred to in this Section shall apply to housing developments consisting of five or more dwelling units.

C.

Review Requirements.

1.

Submittal Requirements. Requests for a density bonus shall require the submittal of a Density Bonus application. The applicant shall submit site and architectural plans for the project (per Section XI-10-57.03(D), Submittal Requirements, of this Chapter) for review and approval in conjunction with the Planning Commission and City Council consideration of the Density Bonus application.

2.

Public Hearings. The Planning Commission shall hold at least one public hearing, prior to making its recommendation to the City Council. Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

Upon receipt of the recommendation of the Planning Commission, the City Council and/or Redevelopment Agency shall hold at least one public hearing, prior to any final action on an application. Notice of hearing shall be given in accordance with the provisions of Section XI-10-64, Development Review Process, of this Chapter.

The City Council and/or Redevelopment Agency, after recommendation by the Planning Commission, may authorize an increase in allowable dwelling unit density for those residential projects that assist in meeting the lower income or senior housing needs of the community. When the Planning Commission and Council make a finding that a developer has complied with the requirements of Sections XI-10-54.15(D)(4), Standards, and XI-10-54.15(E), Density Bonus Conditions, of this Chapter, the City Council may award a density increase, with the approval of the project.

D.

Standards.

1.

Determination of Maximum Allowable Densities. The maximum allowable base density specified in the General Plan, including any other permitted increases to density.

2.

Unit Type and Location. All affordable units shall be reasonably dispersed throughout the project, shall contain on average the same number of bedrooms as the non-affordable units in the project, and shall be comparable with the non-affordable units in terms of appearance, materials and finished quality. The Planning Commission may recommend to the City Council and/or Redevelopment Agency modifying the requirements as to unit size or type, if it is found that such a modification would better serve the affordable housing need of Milpitas.

3.

Agreement. Prior to final building inspection and occupancy for a project containing affordable units, the applicant shall execute and record at the Santa Clara County Recorder's Office the City's Agreement Imposing Restrictions on Real Property, which Agreement shall explain the affordability requirements. The agreement shall be approved by the Milpitas City Attorney prior to recordation.

4.

Retaining Affordability. A developer shall agree to, and the City shall insure continued affordability of, all lower- or very low-income density bonus units for thirty (30) years or a longer period of time, if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. If the City does not grant at least one (1) additional concession or incentive, in addition to a density bonus as specified in Section XI-10-54.15(E), Density Bonus Conditions, of this Chapter, the developer shall agree to, and the City shall ensure continued affordability for a minimum of ten (10) years of all lower or very low-income housing units receiving a density bonus.

5.

Affordable Rents. Those units targeted for lower-income households, as defined in Section 50079.5 of the Health and Safety Code shall be affordable at a rent that does not exceed thirty (30%) of sixty (60%) percent of the Santa Clara County median income. Those units targeted for very low-income households, as defined in Section 50105 of the Health and Safety Code, shall be affordable at a rent that does not exceed thirty (30%) of fifty (50%) percent of County median income.

6.

Relation to Statute. Density bonus requirements not specified in these regulations shall be governed by the State Density Bonus Law, Government Code section 65915, et seq.

E.

Density Bonus Conditions.

1.

When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the city shall provide the applicant incentives or concessions for the production of housing units and childcare facilities as prescribed in this section.

2.

The city shall grant a density bonus and incentives or concessions described in Section XI-10-54.15(F), Concessions and Incentives, of this Chapter, when the applicant for the housing development seeks and agrees to construct at least any one of the following criteria:

a.

Ten percent (10%) of the total units in a housing development for lower income households as defined in Section 50079.5 of the State Health and Safety Code.

b.

Five percent (5%) of the total units in a housing development for very low-income households as defined in Section 5015 of the State Health and Safety Code.

c.

A senior citizen housing development as defined in Sections 51.3 and 51.12 of the State Civil Code.

d.

Ten percent (10%) of the total dwelling units in a condominium project as defined in subdivision (f) or in a planned development project as defined in subdivision (k) of Section 1351 of the State Civil Code for persons and families of moderate income, as defined in Section 50093 of the State Health and Safety Code.

3.

If the housing development meets criteria (a), (b), or (c) above, the density bonus shall be an increase of 20% over the maximum allowable residential density under the general plan and zoning ordinance. If the housing development meets criterion (d) above, the density bonus shall be an increase of five (5%) percent over the maximum allowable residential density under the general plan and zoning ordinance.

4.

If at least one of the above criteria is met, an additional density bonus shall be granted as per the following sliding scale:

a.

An additional two and one-half (2.5%) percent density bonus for each increase of one (1%) percent Very Low-Income units above the initial 5% threshold;

b.

A density increase of one and one-half (1.5%) percent for each one (1%) percent increase in Lower-Income units above the initial 10% threshold; and

c.

A one (1%) percent density increase for each one (1%) percent increase in Moderate-Income condominium or planned development units above the initial 10% threshold.

5.

The total of the density bonuses pursuant to paragraphs (3) and (4) above shall not exceed 35% for the proposed housing development.

F.

Concessions and Incentives. Any project that meets the minimum criteria specified in Subsection XI-10-54.15(E)(2), Density Bonus Conditions, of this Chapter, for a density bonus is entitled to concessions depending upon the amount of affordable housing provided as follows:

1.

For projects that provide either five (5%) percent of the units affordable to Very Low-Income households, 10% of the units affordable to Low-Income households, or 10% Moderate-Income condominiums, the developer is entitled to one concession;

2.

When the number of affordable units is increased to 10% Very Low-Income units, 20% Lower-Income units, or 20% Moderate-Income condominiums, the developer is entitled to two concessions; and

3.

When the number of affordable units is increased to 15% Very Low-Income, 30% Low-Income, or 30% Moderate-Income household condominiums, the number of concessions is increased to three concessions.

Requested concessions shall be approved unless the City makes either of the following findings in writing and based on substantial evidence.

a.

The concession is not required in order to provide for affordable housing costs as defined in State Health and Safety Section 50052.2, or for rents for the affordable units pursuant to Section XI-10-54.15(D)(5), Standards, of this Chapter.

b.

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

4.

Land Donation. A density bonus of 15% over the maximum allowable residential density under the general plan and zoning ordinance is available to projects that donate land for residential use. The land must satisfy all of the following requirements prior to granting the density bonus:

a.

Have the appropriate general plan designation and zoning to permit construction of units affordable to Very Low-Income households in an amount not less than 10% of the units in the residential development;

b.

Be at least one (1) acre in size or of sufficient size to permit development of at least 40 units; and

c.

Be served by adequate public facilities and infrastructure.

A density bonus based on land donation may be combined with the density bonus in Section XI-10-54.15(E), Density Bonus Conditions, of this Chapter; however, the maximum combined density bonus that can be granted is 35%. When the land is transferred, it must have all the permits and approvals necessary for the development of the Very Low-Income housing units. The land transfer shall occur prior to or concurrent with approval of the final subdivision map, parcel map, or residential development application. The land and affordable units must be subject to deed restrictions ensuring continued affordability. The city may require that the land be transferred to a developer instead of the city.

5.

Parking Standards. If a project qualifies for a density bonus, the developer may request and the City must grant the following parking standards for the entire development project:

a.

Zero to one (0-1) bedroom—one (1) on-site parking space;

b.

Two to three (2-3) bedrooms—two (2) on-site parking spaces;

c.

Four and more (4+) bedrooms—two and one-half (2.5) on-site parking spaces.

These numbers are inclusive of guest parking and handicapped parking and may be tandem or uncovered but cannot be on street. The parking standards may be requested even if no density bonus is requested.

6.

Waivers and Modifications of Development Standards. The City may not impose a development standard that makes it infeasible to construct the housing development with the proposed density bonus. In addition to requesting incentives and concessions, applicants may request the waiver of development standards and shall show that the waiver is necessary to make the housing units economically feasible.

For the purpose of this section, development standards are defined as site or construction conditions that apply to a residential development pursuant to any local policy, resolution or regulation. The requested waiver shall be approved unless the City makes either of the findings set forth in Section XI-10-54.15(F)(3), Concessions and Incentives, of this Chapter.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Purpose and Intent. The location of trash enclosures and mechanical and other similar types of equipment on private property can significantly affect the visual quality of a project. Particularly important is the view of projects and their related equipment and services from adjacent streets. The requirements of this subsection are meant to address the negative visual impacts resulting from the location of trash enclosures and mechanical equipment on private property, while recognizing that they are necessary aspects of development.

B.

Trash Enclosures. Trash enclosures which enclose dumpsters shall be of sufficient size to accommodate the trash and recyclable materials generated by the uses on the parcel(s) being served. The following standards shall apply:

1.

When located on the street side of corner lots, the enclosure must be set back at least as far as the main building.

2.

Colors and materials of the enclosure shall complement the building and shall consist of masonry wall such as split face block or masonry finished to match the building or other solid screening material utilizing colors and materials which complement the building.

3.

Gates shall be solid metal painted to match the enclosure.

4.

The enclosure shall screen the dumpsters, trash compactors or equipment.

5.

No net reduction in the number of on-site trees and no loss of protected trees, as defined in Section X-2-7.01 of the Milpitas Municipal Code, may be approved to accommodate an enclosure.

6.

When feasible, sides and rear of the enclosure shall be landscaped.

7.

On-site parking shall meet ordinance requirements, except as provided in Section XI-10-54.12(C), Areas for Collecting and Loading Recyclable Materials, of this Chapter.

8.

Trash enclosures shall be located as far away as possible from Residential or Mobile Home Park combining districts or uses.

9.

Follow the City's Engineering standards for trash enclosures.

C.

Ground- Mounted Equipment.

1.

Ground-Mounted Equipment. Ground-mounted equipment, such as air conditioning units, landscape irrigation controls, transformers, fuse boxes, telephone equipment, gas meters, water meters, stand pipes, fire sprinkler connectors, and other exterior equipment shall comply with the following:

a.

Location. Outside the front yard setback and, when no front yard setback is required outside the area between the street and the building closest to the street and screened from public view as provided for in Subsection (b) below.

Where it is infeasible to locate ground-mounted equipment outside the front yard, ground-mounted equipment located in the front yard shall be screened from public view as provided for in Subsection (b) below.

b.

Screening. Equipment shall be completely screened from view by dense shrubbery, masonry wall such as split face block or masonry finished to match the building, or other solid screening material utilizing colors and materials which complement the building. Chain link fencing with or without slats may not be approved in the Mixed Use district, but may be approved in the Commercial and Industrial districts if it is an expansion of an existing approved chain link enclosure and it is not visible from public viewing points with a Minor Site Development Permit.

c.

On-site parking shall meet minimum standards.

d.

No net reduction in the number of on-site trees and no loss of protected trees, as defined in Section X-2-7.01 of the Milpitas Municipal Code, may be approved to accommodate a tank, transformer or equipment.

e.

Height of Equipment.

i.

In Commercial and Industrial districts, the installed height of the transformer, tank or equipment shall not exceed the height of the building. Equipment exceeding building height may be approved if it is proposed at the rear of the building, and the applicant can demonstrate with line-of-sight drawings that the equipment will not be seen from public viewing points.

ii.

In the Mixed Use district, the installed height shall not exceed six (6) feet.

iii.

If adjacent to a Residential or Mobile Home Park Overlay district or use, installed height of the equipment shall not exceed six (6) feet.

f.

Generators may not be approved if located adjacent to a Residential or Mobile Home Park Overlay district or use.

D.

Rooftop Equipment. All rooftop equipment including, but not limited to air conditioning units, and mechanical equipment shall be shielded and architecturally screened from view from on-site parking areas, adjacent public streets and adjacent residentially zoned property as follows:

1.

All rooftop equipment shall be located in an area which is screened by a screening wall, parapet wall or equipment well. The height of such equipment, mounted in the well, shall not exceed the height of the architectural element used to screen the equipment. Viewsheds and sightlines shall be taken into consideration and the equipment should be placed in a location, which effects maximum screening. The Planning Division may also require additional screening devices in conjunction with tenant improvements as deemed necessary where the screening wall, parapet wall or equipment well does not provide adequate screening from the above-referred views.

Exceptions: Rooftop equipment which exceeds the height of existing roof screens, if line-of-sight drawings demonstrate that the equipment will be visible from surrounding "worst case" view points from the above referred views shall only be allowed through the approval of a Site Development Permit.

2.

Roof screens shall be sheathed in a matching or complementary material and color to the exterior building and may include metal panels, parapet walls or screens constructed of exterior grade plywood or other durable materials.

(Ord. No. 38.795, § 34, 4/6/10; Ord. 38.780 (25) (part), 8/19/08)

Exterior lighting shall be shielded or recessed so that direct glare and reflections are contained within the boundaries of the parcel, and shall be directed downward and away from adjoining properties and public rights-of-way. Fixtures shall be appropriate in terms of height, style, design, scale and wattage to the use of the property. Fixtures shall be spaced appropriately to maximize pedestrian safety.

(Ord. 38.780 (25) (part), 8/19/08)

A.

Reused Sites. Reused sites are opportunity and rezone sites listed in the City of Milpitas 2023-2031 Housing Element, Appendix E, Tables E-13 and E-14 that are identified for lower-income housing capacity and as a 5th Cycle Housing Element site. On these reused sites, owner-occupied and rental multi-family housing uses shall be allowed by right (i.e., without any discretionary review) when at least 20 percent of the units will be affordable to lower income households.

B.

Rezone Sites. Rezone sites are listed in the City of Milpitas 2023-2031 Housing Element, Appendix E, Table E-14 that are identified for lower-income housing capacity. On these rezone sites, the following shall apply:

1.

Owner-occupied and rental multi-family housing uses shall be allowed by right (i.e., without any discretionary review) when at least 20 percent of the units will be affordable to lower income households.

2.

100 percent residential use is allowed.

3.

A minimum of 50 percent of the floor area in mixed-use projects must be occupied by residential use.

(Ord. No. 38.855, § 9, 6/18/24; )

Editor's note— Ord. No. 38.795, § 36, adopted April 6, 2010, amended the Code by repealing former § XI-10-54.19 in its entirety. Former § XI-10-54.19 pertained to model home complexes and sales offices, and derived from Ord. 38.780 (25) (part), adopted August 19, 2008.