A.

Single-Family Residential (R1) Zone. The purpose and intent of this zone is to stabilize and protect the residential characteristics of the District and to promote and encourage a suitable environment for family life. The R1 District is intended for the suburban family home and the services appurtenant thereto.

B.

One and Two-Family Residential (R2) Zone. The purpose and intent of this zone is to stabilize and protect the residential characteristics of the District and to promote and encourage a suitable environment for family life. The R2 District is intended for suburban family homes and the community services appurtenant thereto.

C.

Multi-Family High Density Residential (R3) Zone. The purpose and intent of this zone is to stabilize and protect the residential characteristics of the District and to promote, insofar as compatible with the intensity of land use, a suitable environment for family life.

D.

Multi-Family Very High Density Residential (R4) Zone. The purpose and intent of this zone is to stabilize and protect the residential characteristics of the District and to promote a suitable residential environment. The "R4" District is intended to provide for higher-density residential "villages" structured around transit stations, streets, creek side open spaces, trails and parks.

E.

Urban Residential (R5) Zone. The purpose and intent of this zone is to provide for high-density residential development structured around transit stations.

(Ord. 38.777 (6) (part), 6/17/08)

A.

Permitted and Conditionally Permitted Uses.

1.

Primary Uses. The uses identified in Table XI-10-4.02-1, Residential Zone Uses, shall be the primary uses allowed to occur on a property. All uses except for those noted shall be conducted entirely within enclosed structures. The primary uses identified in Table XI-10-4.02-1 shall be permitted or conditionally permitted, as indicated:

2.

Accessory Uses. The following are the accessory uses permitted in all residential zoning districts:

a.

Boarding houses of not more than two (2) persons.

b.

Home occupations and professional offices in home, as provided in Section XI-10-13.05, Home Occupation, of this chapter.

c.

A State authorized, certified or licensed family care home, foster home or group home serving six (6) or fewer mentally disordered or otherwise handicapped persons or dependent or neglected children provided such care home furnishes care on a 24-hour a day basis.

d.

Other accessory uses, accessory buildings and structures customarily appurtenant to a permitted use, as provided for in Sections XI-10-13.05, Home Occupation and XI-10-54.08, Accessory Buildings and Structures, of this chapter.

e.

Small family child care home.

f.

Large family child care home, as provided for in Subsections XI-10-53.23-6 through XI-10-53.23-8, Parking Schedule, and Section XI-10-13.06, Large Family Child Care and Child Care Centers, of this chapter.

B.

Prohibited Uses. The following uses are prohibited:

1.

Uses where the symbol "NP" appears within Table XI-10-4.02-1.

2.

Adult Businesses as defined in Section XI-10-13.04, Adult Businesses, of this chapter.

3.

Uses that have been excluded from Table XI-10-4.02-1, unless they are found by the City to be similar to permitted or conditionally permitted uses in accordance with subsection C below.

C.

Other Uses. Any other uses, may be considered by the Planning Commission that are similar in accordance with the procedure, prescribed in Section XI-10-54.02, Other Uses Permitted by Commission, of this chapter.

Table XI-10-4.02-1
Residential Zone Uses

¹  Refer to Subsection XI-10-4.03(A) and (B), Residential Zone Special Uses, of this Chapter, for standards.

²  When located on the ground floor, retail sales of products related to the personal services provided shall be offered at the front of the premises near the pedestrian entrance and shall comprise at least 10 percent of the floor area of the business establishment.

³  Licensed nursing home serving more than six persons, except when used primarily for contagious sickness, mental or drug alcohol addict cases.

⁴  Refer to Subsection XI-10-13.07, Manufactured Homes, of this Chapter, for standards.

⁵  Refer to Subsection XI-10-54.07, Planned Unit Developments, of this Title, for standards.

⁶  In conjunction with existing or proposed legal single-family, duplex, or multi-family dwellings. Refer to Subsection XI-10-13.08, Accessory Dwelling Units, of this Chapter, for standards.

⁷  Refer to XI-10-13.13, Special Uses, Single Room Occupancy Residences, of this Chapter.

⁸  Permitted only in single family dwellings.

⁹  Permitted only in multi-family dwellings.

¹⁰  May be permitted with approval of a conditional use permit for kitchens associated with a civic or community organization, such as a church or social club.

¹¹  Refer to Subsection XI-10-13.18, Mobile Food Vending, of this Chapter.

¹²  Mobile food vending in the R1, R2, and R3 zones may be permitted in the public right-of-way as part of an approved special event. See Subsection XI-10-13.18(C)(3)(a)(i). Mobile food vending in the R4 and R5 zones is permitted in the public right-of-way upon issuance of all required City and County permits (see Subsection XI-10-13.18(H).

¹³  In all residential zones, mobile food vending on private property may be permitted on a parcel having a current certificate of use and occupancy as a museum, hospital, school, or place of religious assembly and worship, provided that the mobile food vending use shall not operate more frequently than once per week and for no longer than three consecutive days.

¹⁴  In the R1, R2, and R3 residential zones, mobile food vending shall not be permitted on a private property having a residential use. In the R4 and R5 residential zones, mobile food vending on private property having residential use may be permitted as part of an approved, on-time or recurring special event. See Subsection XI-10-13.18(C)(3)(a)(i).

¹⁵  Except for the raising of animals or fowl for commercial purposes, or the sale of any products at retail on the premises.

¹⁶  Except for driving tee or range, miniature course and similar uses operated for commercial purposes.

¹⁷  Allowed commercial uses to be specified through the Conditional Use Permit process.

¹⁸  Refer to Subsection XI-10-13.11(E), Model Home Complexes and Sales Offices, of this Chapter for temporary tract offices.

¹⁹  Subject to the requirements of Subsection XI-10-13.16, Short-Term Rentals, of this Chapter.

(Ord. No. 38.848, § 5, 11/15/22; Ord. No. 38.845, § 5, 6/21/22; Ord. No. 38.840, § 4, 6/16/20; Ord. No. 38.835, § 5, 3/3/20; Ord. No. 38.837, § 5, 11/5/19; Ord. No. 38.833, § 5, 5/7/19; Ord. No. 38.822, § 3, 5/5/15; Ord. No. 38.810, § 4, 12/3/13; Ord. No. 38.795, § 17, 4/6/10; Ord. 38.780 (3)—(7), 8/19/08; Ord. 38.777 (6), 6/17/08)

A.

Incidental Services Within R3 Zones. Incidental services such as restaurants and retail sales to serve residents may be allowed through the approval of a Conditional Use Permit in accordance with the provisions in Section XI-10-57.04, of this chapter, provided there is no exterior display or advertising and such activities are conducted in spaces which are integral parks of a main building.

B.

Personal Services, Retail and Offices within R4 and R5 Zones. Personal services, retail and offices may be permitted provided they are:

1.

Less than or equal to ten thousand (10,000) square feet in gross floor area;

2.

Not open past 10:00 p.m.;

3.

Not specifically noted in Table XI-10-4.02-1, Residential Zone Uses, of this Chapter, requiring Conditional Use Permit approval or listed as a prohibited use; and

4.

Not listed as a prohibited use in Section XI-10-4.02(B), Prohibited Uses, of this Chapter.

If items 1 through 2, above, are not met, then approval of a Conditional Use Permit is required in accordance with Section XI-10-57.04, of this Chapter.

C.

Affordable Housing. Affordable housing units should be provided in all new housing projects. While twenty percent (20%) is the minimum goal, affordable unit requirements will be determined on a project by project basis, taking into consideration the size and location of the project, the type of housing unit, proximity to transit and the mix of affordable units in the vicinity.

(Ord. No. 38.848, § 5, 11/15/22; Ord. No. 38.795, § 18, 4/6/10; Ord. 38.777 (6) (part), 6/17/08)

The following minimum requirements shall be observed, except where increased for conditional uses. The minimum requirement shall be one of the following for the district classification as designated on the zoning map.

Table XI-10-4.04-1
Residential Zone Development Standards

¹  For R3 properties, the minimum requirement of lot area per dwelling unit may be waived where a Planned Unit Development has been approved at a higher density in accordance with the provisions of Section XI-10-54.07(B)(6)(c), Planned Unit Development, of this title. For R3 Properties, provided that all other requirements of this title are met, the required area per dwelling may be reduced to 1,000 square feet for each efficiency apartment, as defined herein, contained in a multiple-family dwelling.

²  For R1 properties with slopes less than sixteen (16) percent. For R1-10 properties with slopes equal to or greater than sixteen (16) percent, but less than twenty-six (26) percent, the minimum lot width shall be two hundred (200) feet. For R1-10 properties with slopes equal to or greater than twenty-six (26) percent, the minimum lot width shall be three hundred (300) feet.

³  For R1 properties with slopes less than sixteen (16) percent. For R1-2.5, R1-3, and R1-4 properties, if access is provided to the side of garage via curved driveway, the setback may be 15 feet. For R1-10 properties with slopes equal to or greater than sixteen (16) percent, the minimum setback is forty (40) feet.

For R4 properties, the sidewalk shall be based on either existing sidewalk or an assumed 10-foot wide sidewalk, whichever is wider. Where a public easement prevents a building from being located at its required minimum or maximum setback, the building shall be located as close to the back of said easement as possible.

For R4 and R5 properties, (1) porches, stairs and balconies may be located in the front and street side setback areas provided they are incorporated into an integrated landscape concept where the majority of the setback areas are reserved for landscaping; (2) stairs and porches may project up to six (6) feet into the minimum setback; (3) the front yard setback area shall be landscaped; (4) where a public easement prevents a building from being located at its required minimum or maximum setback lines, the building shall be located as close to the back of said easement as possible.

⁴  For R1 properties with slopes less than sixteen (16) percent. For R1-10 properties with slopes equal to or greater than sixteen (16) percent but less than twenty-six (26) percent the minimum setback shall be twenty (20) feet on side and a total of forty-five (45) feet for both sides. For R1-10 properties with slopes equal to or greater than twenty-six (26) percent, the minimum setback shall be forty (40) feet.

For R4 and R5 properties, balconies, bay windows and awnings may project up to six (6) feet into the interior side setback. Interior side setback areas shall be landscaped but may also be occupied by accessory buildings and drive aisles.

⁵  For R5 properties, the street-side yard setback shall be landscaped.

⁶  For R1 properties with slopes less than sixteen (16) percent. For R1-10 properties with slopes equal to or greater than sixteen (16) percent, the minimum setback is forty (40) feet.

For R4 and R5 properties, balconies, bay windows and awnings may project up to six (6) feet into the rear setback. Interior side setback areas shall be landscaped but may also be occupied by accessory buildings and drive aisles.

For R5 properties, to mitigate the effects of adjacent service commercial or light industrial uses, increased setbacks and other measures, such as a solid six-foot barrier, shall be considered by the Planning Commission during the site and architectural review process.

⁷  For R3 properties, the height restriction can be waived where a Planned Unit Development has been approved at a density in excess of twenty (20) units per gross acre in accordance with the provisions of Section XI-10-54.07(B)(6)(c), of this chapter.

For R5 properties, except on specified sites with frontage on arterials, including Capitol Avenue, Great Mall Parkway, Montague Expressway, Milpitas Boulevard Extension, and Piper Drive, where heights may extend up to twelve (12) stories.

(Ord. 38.777 (6) (part), 6/17/08)

(Ord. No. 38.785, § 3, 4-7-09)

A.

All Zones.

1.

Areas for Collecting and Loading Recyclable Materials. There shall be provided areas for collecting and loading recyclable materials in accordance with the requirements of Section XI-10-54.12 of this Chapter.

B.

R1 Zones.

1.

Front Yard Coverage.

a.

A portion of the required front yard may be paved. The width of the area that may be paved shall not exceed the width of the garage, or fifty percent (50%) of the lot width measured at the front property line, whichever is greater. Patios within the required front are included in this calculation. Walkways, which are not used for vehicular parking, do not count towards coverage limits. Exceptions may be granted by the Planning Commission after public hearing notification, per Section XI-10-64 of this Chapter, for a Site Development Permit application, as described in Section XI-10-57.03 of this Chapter. For Hillside properties, refer to Section XI-10-45 of this Chapter for additional requirements. For regulations pertaining to parking in the front yard, refer to Milpitas Municipal Code Chapter V-500.

b.

For purposes of this section, "patio" shall mean a surfaced area (concrete, brick, stone, asphalt, pavers and the like) for recreational outdoor living use, not for vehicular parking purposes, within the required front yard.

c.

For purposes of this section, "walkway" shall mean a created surface, such as brick, stone, concrete, asphalt, pavers and the like, not exceeding six (6) feet in width, intended to facilitate pedestrian or bicycle passage, and not used for vehicular parking purposes.

C.

R3 Zones.

1.

Landscape and Open Space Requirements.

a.

A minimum of twenty-five (25) percent of the total lot area (not including paved parking area) shall be landscaped or recreational open space, exclusive of parking and vehicular traffic area and this shall be shown on site plan in detail for Planning Commission approval.

b.

An average of two hundred square feet of usable open space shall be provided for each dwelling unit. "Usable open space" shall mean any open space, the smallest dimension of which is at least 4 ½ feet and which is not used as storage or for movement of motor vehicles: except that yards abutting a public street, which are not adequately screened for privacy, in the opinion of the Planning Commission, shall not qualify as usable open space. Balconies, porches, or roof decks may be considered usable open space when properly developed for work, play or outdoor living areas. At least thirty (30) percent of required open space shall be contiguous to and provide for private usable open space of the individual dwelling unit.

2.

On-Site Utilities Requirements.

a.

Where the allowable dwelling units exceed six (6) for a single parcel or the total area to be subdivided exceeds three (3) acres, all on-site utilities are to be placed underground.

b.

Television antennas are to be centralized for structures of four (4) or more units.

3.

Trash and Storage Areas and Areas for Collecting and Loading Recyclable Materials.

a.

There shall be provided areas for collecting and loading recyclable materials in accordance with the requirements of Section XI-10-54.12 of this Chapter.

b.

All outdoor storage and trash areas shall be within a completely enclosed building or behind a solid wall or tight board fence a minimum of six (6) feet in height.

D.

R4 Zones.

1.

Park and Open Space Requirements for Residential Uses.

a.

All residential projects within the Midtown Specific Plan area shall provide park land at a ratio of three and one-half (3 ½) acres per one thousand (1,000) population. Up to one and one-half (1 ½) of each three and one-half (3 ½) total park acres required (43%) may be satisfied by the provision of private recreational areas. The remaining park land requirement must be satisfied by either dedication of land to the City for public parks and open space, or payment of an in-lieu fee, as set forth in Section XI-1-9 (Park Dedication) of the Milpitas Subdivision Ordinance (Title XI, Chapter 1).

b.

All residential projects outside the Midtown Specific Plan area shall comply with the park land dedication provisions provided in Section XI-1-9.06 (Amount of Park Land to be Dedicated) of the Milpitas Subdivision Ordinance.

c.

A minimum of twenty-five percent (25%) of the total site shall be usable open space or recreational facilities. Balconies, porches, or roof decks may be considered usable open space when properly developed for work, play or outdoor living areas.

d.

Balconies and porches located above ground level with a minimum dimension of 4 ½ feet constructed for use by dwelling units shall be exempt from the usable open space dimension standards above and within in Section XI-10-2 of this chapter, and may be considered to satisfy usable open space requirements. Each dwelling unit shall be provided with private open space as follows:

i.

Balconies and porches (above ground level): minimum sixty (60) square feet; or

ii.

Patios (at ground level): minimum one hundred square feet.

2.

Exceptions to Standards.

a.

Exceptions to all but the use, density and park land requirement regulations of this Section may be approved by the Planning Commission through approval of a Conditional Use Permit in accordance with the requirements of Section XI-10-57.04.

b.

In addition to the required findings under Section XI-10-57.04, the Planning Commission must be able to make the following two additional findings for such exceptions:

i.

The exceptions meet the design intent identified within the Specific Plan and do not detract from the overall architectural, landscaping and site planning integrity of the proposed development.

ii.

The exceptions allow for a public benefit not otherwise obtainable through the strict application of the specified standard.

E.

R5 Zones.

1.

Building Location and Placement.

a.

All buildings shall face the street.

b.

Primary building entrances shall be oriented to the street.

2.

Park and Open Space Requirements.

a.

All residential projects within the Transit Area Specific Plan area shall provide park land at a ratio of three and one-half (3.5) acres per one thousand (1,000) population.

i.

Two (2) of the required three and one-half (3.5) acres must be satisfied by either dedication of land to the City for public parks and open space, or payment of an in-lieu fee, as set forth in Section XI-1-9 (Park Dedication) of the Milpitas Subdivision Ordinance (Title XI, Chapter 1). Land dedication is required if a park is shown on a property on Figure 3-8 of the Transit Area Specific Plan.

ii.

Up to one and one-half (1.5) of each three and one-half (3.5) total park acres required (43%) may be satisfied by the provision of private recreational areas. Private open space cannot be shared between separate developments.

b.

Each residential project shall provide adequate on-site usable open space or recreational facilities to the approval of the Planning Commission through the Site Development Permit process.

i.

Balconies, porches, or roof decks, with a minimum dimension of four and one-half (4.5) feet, may be considered usable open space when properly developed for work, play or outdoor living areas.

ii.

Each dwelling unit shall be provided with private open space as follows:

1.

Balconies (above ground level): minimum forty (40) square feet; or

2.

Patios or porches (at ground level): minimum fifty (50) square feet.

c.

All development projects within the Transit Area Specific Plan area shall dedicate and/or improve public trails if a trail is shown on a property on Figure 3-8 of the Transit Area Specific Plan.

d.

Twenty percent (20%) of a landscape buffer area may count towards the public park and open space requirements when it includes trails or wide sidewalks connected to the pedestrian and bicycle network.

e.

Park Sites. Parks must be bordered by public streets, or public right-of-way such as a trail or railroad right-of-way, on at least three sides.

3.

Exceptions to Standards.

a.

Exceptions to all but the allowable uses, density requirements, and public and private park land requirement regulations may be approved by the Planning Commission through approval of a Conditional Use Permit in accordance with the requirements of Section XI-10-57.04, Conditional Use Permits, of this chapter.

b.

In addition to the required findings for a Conditional Use Permit, the Planning Commission must be able to make the following two additional findings for such exceptions:

i.

The exceptions meet the design intent identified within the Transit Area Specific Plan and do not detract from the overall architectural, landscaping and site planning integrity of the proposed development.

ii.

The exceptions allow for a public benefit not otherwise obtainable through the strict application of the specified standard.

iii.

The project design in its totality does not adversely impact adjoining properties to a greater degree than a project that complies with all development standards. Impacts to be considered include: access to sunlight, views, shadows on parks and open space, privacy, and noise.

(Ord. 38.780 (8), (9), 8/19/08; Ord. 38.777 (6) (part), 6/17/08)

Editor's note— Ord. No. 38.785, § 4, adopted April 7, 2009, amended the Code by repealing former XI-10-4.06 in its entirety. Former XI-10-4.06 pertained to off-street parking regulations, and derived from Ord. 38.777, adopted June 17, 2008.

Properties located within Specific Plans shall conform to the underlying Specific Plan in accordance with Section XI-10-11.06, Conformance with Specific Plans, of this Chapter.

(Ord. No. 38.795, § 19, 4/6/10; Ord. 38.777 (6) (part), 6/17/08)

A.

Purpose. The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Government Code section 65852.21.

B.

Definition. A "two-unit project" means the development of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this section.

C.

Application.

1.

Only individual property owners may apply for a two-unit project. "Individual property owner" means a natural person holding fee title individually or jointly in the person's own name or a beneficiary of a trust that holds fee title. "Individual property owner" does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp., S corp., etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15).

2.

An application for a two-unit project must be submitted on the city's approved form.

3.

The applicant must obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application.

4.

Only a complete application will be considered. The city will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.

5.

The city may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the Code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application.

D.

Approval.

1.

An application for a two-unit project is approved or denied ministerially, by the Planning Director, without discretionary review.

2.

The ministerial approval of a two-unit project does not take effect until the city has confirmed that the required documents, such as the deed restriction and easements, have been recorded with the Santa Clara County Clerk.

3.

The approval must require the owner and applicant to hold the city harmless from all claims and damages related to the approval and its subject matter.

4.

The approval must require the owner and applicant to reimburse the city for all costs of enforcement, including attorneys' fees and costs associated with enforcing the requirements of this Code.

E.

Location requirements. A two-unit project must satisfy each of the following requirements:

1.

Map act compliance. The lot must have been legally subdivided.

2.

Single-family residential zone. The two-unit project shall be located in a single-family residential zone. For the purposes of this section, the R1 zone is the only single-family residential zoning district where a two-unit project may be located.

3.

Lot location. The two-unit project shall be located on a lot that conforms with the applicable requirements of Sections XI-1-31.04-4 through XI-1-31.04-8 of this Title.

4.

Not historic. The two-unit project shall be located on a lot that conforms with the applicable requirements of Section XI-1-31.05 of this Title.

5.

No impact on protected housing. The two-unit project shall be located on a lot that conforms with the applicable requirements of Section XI-1-31.06 of this Title.

F.

Residential unit standards.

1.

Quantity.

a.

No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, "unit" means a dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under Section XI-10-04.08 of this Chapter, an ADU, or a JADU.

b.

A lot that is not created by an urban lot split may have a two-unit project under this section, plus any ADU or JADU that must be allowed under State law and the City's ADU Ordinance.

2.

Unit size.

a.

The total floor area of each primary dwelling that is developed on a resulting lot must be:

i.

Less than or equal to 800 square feet; and

ii.

More than or equal to 500 square feet.

b.

A primary dwelling that was legally established prior to the urban lot split and that is larger than 800 square feet is limited to the lawful floor area at the time of the urban lot split. It may not be expanded.

c.

A primary dwelling that was legally established prior to the urban lot split and that is smaller than 800 square feet may be expanded to 800 square feet after the urban lot split.

3.

Demo cap. The two-unit project may not involve the demolition of more than 25 percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years.

G.

Maximum height.

1.

On a resulting lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.

2.

On a resulting lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the step-back area.

3.

No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot resulting from an urban lot split.

H.

Setbacks.

1.

General setbacks. All setbacks must conform to those objective setbacks that are imposed through the underlying R1 zone.

2.

Exceptions. Notwithstanding Subsection XI-10-4.08.H.1 above:

a.

Existing structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same dimensions as an existing legally established structure.

b.

Minimum unit size. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line.

3.

Front setback area. Notwithstanding any other part of this code, dwellings that are constructed under this section must be a minimum of 15 feet from the front property lines. The front setback area must:

a.

Be kept free from all structures greater than three feet high;

b.

Be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect;

c.

Allow vehicular and fire-safety access to the front structure in accordance with the City's adopted Building and Fire Safety Codes.

I.

Parking.

1.

Off-street parking requirement. Each new primary dwelling unit that is built on an existing lot or a lot created through an urban lot split must have at least one off-street parking space per unit.

2.

Exceptions. Notwithstanding Subsection XI-10-4.08.I.1 above:

a.

Proximity to transit. No additional parking is required for any new primary dwelling unit located within one-half mile walking distance of:

i.

A corridor with fixed-route bus service or the intersection of two or more major bus routes with frequency of service intervals of 15 minutes or less during the morning and afternoon peak commute hours; or

ii.

A site that contains an existing rail or bus rapid transit station; or

b.

Proximity to car-share service. No additional parking is required for a new primary dwelling unit located within one block of a car-share vehicle location.

J.

Architecture.

1.

If there is a legal primary dwelling on the lot that was established before the urban lot split, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

2.

If there is no legal primary dwelling on the lot before the urban lot split, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

3.

Reserved.

4.

All exterior lighting must be limited to down-lights.

5.

No window or door of a dwelling that is constructed on the lot after the urban lot split may 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.

6.

If a dwelling is constructed on a lot after an urban lot split and any portion of the dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

K.

Landscaping.

1.

Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights-of-way) as follows:

a.

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.

b.

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

c.

All landscaping must be drought-tolerant to conserve water used for irrigation.

L.

Non-conforming conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected.

M.

Utilities.

1.

Each primary dwelling unit on an existing lot or the lots resulting from an urban lot split must have a separate direct water connection to the water service provider.

2.

Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or, if the percolation test has been recertified, within the last ten years.

N.

Building and Safety. All structures built on the lot must comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot and all structures to the City's current code.

O.

Separate conveyance.

1.

Within a resulting lot.

a.

Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other.

b.

Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an urban lot split.

c.

All fee interest in a lot and all dwellings on the lot must be held equally and undivided by all individual property owners.

P.

Regulation of uses.

1.

Residential-only. Non-residential uses, except for legal home-based businesses, are not permitted on any single-family residential lot.

2.

No STRs. No dwelling unit located on a lot created by an urban lot split may be rented for a period of less than 30 days.

3.

Owner Occupancy. Unless the lot was created by an urban lot split, the individual property owners of a lot with a two-unit project must occupy one of the dwellings on the lot as the owners' principal residence and legal domicile.

Q.

Notice of construction.

1.

At least 30 business days prior to starting any construction activities related to a structure on a lot created by an urban lot split, the property owner must provide written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:

a.

Notice that construction has been authorized:

b.

The estimated start and end dates for construction:

c.

The hours of construction;

d.

Contact information for the project manager (for construction-related issues); and

e.

Contact information for the City Office of Building Safety.

2.

This notice requirement does not confer a right on the noticed persons or any others to comment on the project before permits are issued. Approval is ministerial. Under state law, the City has no discretion in approving or denying a project under this Chapter. This notice requirement is intended to foster neighborhood awareness and expectations.

R.

Deed restriction. The owner must record a deed restriction, acceptable to the City of Milpitas, that does each of the following:

a.

Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.

b.

Expressly prohibits any non-residential use of the lots created by the urban lot split.

c.

Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.

d.

States that the property is formed by an urban lot split and is therefore subject to the city's urban lot split regulations, including all applicable limits on dwelling size and development.

S.

Specific adverse impacts.

1.

Notwithstanding any other provisions in this section, the City may deny an application for a two-unit project if the Building Official makes a written finding, based on a preponderance of the evidence, that the project would have a "specific, adverse impact" on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

2.

"Specific adverse impact" has the same meaning as in Gov. Code § 65589.5(d)(2): "a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete" and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).

3.

The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact.

T.

Remedies. If a two-unit project violates any part of this code or any other legal requirement:

1.

The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract.

2.

The city may:

a.

Bring an action to enjoin any attempt to sell, lease, or finance the property.

b.

Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.

c.

Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000.00, or both; or a misdemeanor.

d.

Record a notice of violation.

e.

Withhold any or all future permits and approvals.

f.

Pursue all other administrative, legal, or equitable remedies that are allowed by law or the Milpitas Municipal Code.

(Ord. No. 38.844, § 4, 12/14/21)