Article 2 Common Procedures

Applicants. Except as otherwise provided elsewhere in these planning regulations, the following shall be eligible to apply:

The owner of the subject property or agent with written consent of the property owner.

A purchaser of the subject property with written consent of the property owner.

A lessee with written consent of the property owner.

An entity authorized to exercise the power of eminent domain.

Application Forms and Materials.

The Director shall prepare and issue application forms and lists that specify the information that will be required from applicants for projects subject to the provisions of these planning regulations.

The Director may require the submission of supporting materials as part of the application, including but not limited to narrative statements, photographs, plans, drawings, maps, renderings, models, material samples and other items necessary to describe existing conditions and the proposed project.

All material submitted becomes the property of the City, may be distributed to the public, and shall be made available for public inspection.

At any time upon reasonable request, and during normal business hours, any person may examine an application and materials submitted in support of or in opposition to an application in the Planning Division offices. Unless prohibited by law, copies of such materials shall be made available at a reasonable cost as specified in the Master Fee Schedule.

Application Fees.

Schedule of Fees. All fees shall be as set forth in the Master Fee Schedule adopted by the City Council pursuant to Section 3-7.05.

Payment of Fees. Payment of the fee is required in order for an application to be complete.

Multiple Applications. Fees for multiple applications that are combined or processed concurrently pursuant to Section 9-7.204 shall be the sum of what the individual fees would be for each application if they were submitted separately.

Refund of Fees. If an application is withdrawn prior to a decision, the applicant may be eligible to receive a refund of a portion of the fee. The Director of Planning shall determine the amount of the refund based on the level of staff review conducted to date. No refund shall be made for any application that has been approved or denied. Refunds shall be processed in accordance with Chapter 5 of Title 3.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.204 Coordination of Applications.

When multiple applications are required for a project they may be either combined or processed concurrently as follows:

Combined Processing. The following types of permits may be combined under one (1) application, with combined notice, public hearing and resolution as required. To approve the combined application, all applicable findings for each permit type must be made.

Design review pursuant to Article 4 of this chapter

Conditional use permits pursuant to Article 5 of this chapter

Variances pursuant to Article 7 of this chapter

Exceptions to standards pursuant to Article 8 of this chapter

Concurrent Processing. The following types of permits may not be combined under one (1) application, but may be processed concurrently, with combined notice, public hearing and resolution as required. These permit types may also be processed concurrently with a combined permit pursuant to subsection (a) of this section. To approve the concurrent applications, all applicable findings for each permit type must be made.

Planned unit developments pursuant to Article 10 of this chapter

Development agreements pursuant to Article 11 of this chapter

Subdivisions pursuant to Chapter 6

General Plan amendments pursuant to Article 12 of this chapter

Planning regulation and Zoning Map amendments pursuant to Article 13 of this chapter

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.205 Review for Completeness.

The Director shall determine whether an application is complete within thirty (30) days of the date the application is filed with the required fee. The Director may require additional information pursuant to Section 9-7.203(b)(2).

Incomplete Application. If an application is incomplete, the Director shall provide written notification to the applicant listing the applications for permit(s), forms, information and any additional fees that are necessary to complete the application.

Zoning Violations. An application shall not be found complete if conditions exist on the site in violation of these planning regulations or any permit or other approval granted in compliance with these planning regulations or any previous applicable regulations, unless the proposed project includes the correction of the violations.

Expiration of Application. If an applicant fails to correct any specified deficiencies or provide additional information requested within ninety (90) days of the date of the Director's notification or other time specified by the Director, the application shall expire and be deemed withdrawn. The Director shall provide written notice to the applicant and shall also notify the applicant of the opportunity for appeal.

Appeal of Determination. Determinations of incompleteness may be appealed to the Planning Commission pursuant to Article 14 of this chapter, except that there shall be a final written determination on the appeal not later than sixty (60) days after receipt of the appeal.

Extensions. The Director may, upon written request and for good cause, grant extensions of any time limit for submission of information and review of applications imposed by these planning regulations in compliance with applicable provisions of State law.

(Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.206 Application Processing.

When an application is determined to be complete, the Director shall make a record of that date. In consultation with other City staff as appropriate, the Director or his or her designee shall investigate and analyze the application and formulate appropriate conditions of approval. If the application requires a public hearing, the Director shall schedule it and provide notice as required by Section 9-7.208.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.207 Environmental Review.

Before approving any application subject to discretionary review under these planning regulations, the requirements of the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000 et seq.) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) shall be met.

Procedures. The City of Emeryville hereby adopts the State CEQA Guidelines as its environmental review procedures.

Determination of Exemption. The Director shall determine whether a project is exempt from environmental review under CEQA and, if so, shall make a record of that determination. If the project is not exempt, a negative declaration, mitigated negative declaration, or environmental impact report shall be prepared at the applicant's expense.

Exempt Projects. Prior to approving the project, the decision-maker(s) shall first approve the determination of exemption. Following project approval, a notice of exemption need not be filed with the Alameda County Clerk unless the applicant requests it or the City determines that it is necessary. All filing fees for the notice of exemption shall be paid by the applicant.

Nonexempt Projects. If the Director determines that the project is not exempt from environmental review under CEQA, the applicant shall be notified and shall deposit with the City sufficient funds to pay the anticipated cost of preparation and processing of the required environmental document. Prior to approving the project, the decision-maker(s) shall first approve the negative declaration, mitigated negative declaration, or environmental impact report. Any identified mitigation measures shall be incorporated into the conditions of approval of the project unless a statement of overriding considerations is adopted. Following project approval, a notice of determination shall be filed with the Alameda County Clerk at the applicant's expense.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.208 Public Notice.

Whenever the provisions of this title require public notice, notification shall be provided in compliance with the requirements of State law and as follows. Unless otherwise specified elsewhere in these planning regulations or applicable State law, all notice shall be provided at least ten (10) days prior to the public hearing or date of action. The type of notice to be provided for each permit type is indicated in Table 9-7.202.

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

The location of the real property, if any, that is the subject of the application;

A general description of the proposed project or action;

The date, time, location, and purpose of the public hearing or the date of action when no public hearing is required;

The identity of the hearing body or officer;

(5)

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

(6)

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

(7)

If a public hearing is required, a statement that any interested person or authorized agent may appear and be heard; and

(8)

A statement describing how to submit written comments.

Types of Notice.

On-Site Poster (Type A). The applicant erects a poster on the site of the proposed project, readily visible to the public, in a format prescribed by the Director. Such poster shall remain in place until the public hearing or date of action, and shall be removed thereafter by the applicant.

Limited Notice (Type B). Notice is provided to adjacent property owners and other interested parties.

Posted Notice (Type C). Notices are posted at the three (3) public places designated in Chapter 8 of Title 2.

Newspaper Notice (Type D). A display advertisement of at least one-eighth (1/8) page is published in a newspaper of general circulation.

(5)

Mailed Notice (Type E). Notice is provided by first class mail delivery to the parties listed below. If the number of owners to whom notice would be mailed or delivered is greater than one thousand (1,000), Type D newspaper notice may be used instead.

The applicant, the owner, and any occupant of the subject property.

All property owners of record within three hundred feet (300') of the subject property as shown on the latest available assessment roll or within a larger area if deemed necessary by the Director in order to provide adequate public notification.

All neighborhood and community organizations that have previously filed a written request for notice of projects in the area where the site is located.

The City of Oakland or the City of Berkeley if the subject property is within three hundred feet (300') of the respective jurisdiction's boundary.

The Emery Unified School District, East Bay Municipal Utility District, and any other local agency expected to provide water, wastewater treatment, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected.

Any person or group who has filed a written request for notice regarding the specific application and has paid any required fee that the City Council has adopted to provide such service.

(6)

Additional Notice (Type F). Notice may be provided in any other manner deemed necessary or desirable.

Failure to Receive Notice. The validity of the proceedings shall not be affected by the failure of any person or entity to receive notice given pursuant to this section.

(Sec. 3 (part), Ord. 14-001, eff. Mar. 6, 2014; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.209 Conduct of Public Hearings.

Whenever the provisions of these planning regulations require a public hearing, the hearing shall be conducted in compliance with the requirements of State law and as follows:

Staff Report. At least five (5) days prior to the hearing the Director shall issue a staff report containing an analysis of the project, recommendation for action, and any recommended conditions of approval deemed necessary to ensure that the project will comply with the General Plan, these planning regulations, and any other applicable City regulations.

Presentations. At the hearing, the Director or his or her designee shall briefly present his or her analysis of the project and recommendation for action. If the hearing is before the City Council, the Planning Commission's recommendation shall also be presented. The applicant shall also be provided an opportunity to make a presentation.

Testimony. Any person may appear at the public hearing and submit oral or written evidence, either individually or as a representative of a person or an organization. Each person who appears at a public hearing shall be identified, state an address and, if appearing on behalf of a person or organization, state the name and mailing address of the person or organization being represented.

Time Limits. The presiding officer may establish time limits for individual testimony and may request that individuals with shared concerns select one (1) or more spokespersons to present testimony on behalf of those individuals.

Continuation of Public Hearing. The body conducting the public hearing may continue it to a fixed date, time and place, in which case no additional notification is required, or may continue it to an undetermined date and provide notice of the continued hearing when the date, time and place for the hearing have been determined.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.210 Action.

Decision. After the close of the public hearing, or, if no hearing is required, no sooner than ten (10) days after any notice was provided pursuant to Section 9-7.208, the Director, Planning Commission, or City Council, as the case may be, shall make a decision to approve, approve with conditions, or deny the application.

Findings. The decision shall be based on the findings required by these planning regulations or State law. The findings shall be based on consideration of the application, plans, testimony, reports, and other materials that constitute the administrative record and, for a Planning Commission or City Council decision, shall be stated in writing in the resolution approving or denying the application.

Conditions of Approval. In approving an application, the Director, Planning Commission, or City Council may impose conditions it deems necessary to ensure that the project will comply with the General Plan, these planning regulations, and any other applicable City regulations.

Referral Back to Planning Commission. In approving applications requiring City Council approval upon a recommendation of the Planning Commission, the Council may add, modify or delete any terms of the permit itself or any provisions of the conditions of approval. Such action may, but need not be, referred back to the Planning Commission for its review and recommendation. If the Council proposes any substantial modification to an amendment to the General Plan, planning regulations, or Zoning Maps that was not previously considered by the Planning Commission during its hearings, the proposed modification shall first be referred back to the Planning Commission for its recommendation. The Planning Commission may, but is not required to, conduct a public hearing on the proposed modification.

Notice of Decision. After the decision is made, the Director shall issue a notice of decision. For a Planning Commission or City Council action, this notice shall consist of the approved resolution or ordinance and any associated conditions of approval. For a decision by the Director, a letter shall be issued to the applicant indicating the decision and any written findings and conditions of approval. A copy of the notice shall also be provided to any other person or entity that has filed a written request of such notification.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.211 Scope of Approvals.

Scope. Any approval allows only those uses, activities, and structures actually proposed in the application, described in the staff report, if any, and/or included in the conditions of approval. Any other uses, activities, or structures shall require a separate application and approval. The approved use and/or construction is subject to, and shall comply with, all applicable City regulations and laws and regulations of other governmental agencies.

Termination of Previous Uses. Unless otherwise specified, the approval of a new use shall terminate all rights and approvals for previous uses no longer occupying the same site or location, including conforming uses, nonconforming uses, and any previous entitlements granted under these planning regulations or any previous regulations.

Approved Plans. The approved project shall be constructed in conformance with the approved plans except as modified by the conditions of approval. The approved plans shall be clearly referenced by sheet number/name and date in the conditions of approval.

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

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.212 Effective Date.

A final decision on an application for any discretionary approval subject to appeal shall become effective after the expiration of the fifteen (15) day appeal period following the date of action, unless an appeal is filed pursuant to Article 14 of this chapter. No building permit or business license for the structure or use that is the subject of the application shall be issued until after the close of the fifteen (15) day appeal period.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.213 Expiration and Extension.

Unless the Planning Commission or City Council specifies otherwise pursuant to subsection (b) of this section, any design review approval, conditional use permit, variance or exception to standards granted in accordance with the terms of these planning regulations shall automatically expire unless an application for a building permit has been filed and fees have been paid within one (1) year from the date of final approval, or, if a building permit is not required, a good faith effort to commence work upon the use has been made, as determined by the Director in his or her sole discretion. If a building permit is issued but expires with no work being done, then the associated planning permit shall also expire unless extended pursuant to the provisions of this section. Such extension may not exceed three (3) years from the planning permit's original approval date.

In approving any design review approval, conditional use permit, variance or exception to standards the Director, Planning Commission, or City Council may grant an initial expiration period of up to two (2) years from the date of final approval upon the applicant's request. Such lengthened expiration period, and the actual expiration date, shall be specified in the conditions of approval.

An applicant may request time extensions not exceeding one (1) year by applying to the original decision-maker(s) prior to the expiration date of the permit. In the case of one (1) year approvals, two (2) such extensions may be allowed. In the case of two (2) year approvals, one (1) such extension may be allowed. In no case shall a permit be extended beyond three (3) years from its original approval date. After that time, a new application shall be required.

The Director shall refer an extension request to the Public Works Director, Fire Chief, and Police Chief for their review and recommendation prior to action being taken on the extension request.

In order for an extension to be granted pursuant to subsection (c) of this section, all of the following findings must be made:

The permit holder has clearly documented that it has made a good faith effort to commence work upon the use.

It is in the best interest of the City to extend the permit.

There are no substantial changes to the project, no substantial changes to the circumstances under which the project is undertaken, and no new information of substantial importance that would require any further environmental review pursuant to the California Environmental Quality Act.

The permit holder is maintaining the property in compliance with all applicable City regulations.

(f)

In granting an extension pursuant to subsection (c) of this section, the decision-maker(s) may modify the conditions of approval as it deems necessary in order to fulfill the purposes of these planning regulations.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.214 Modifications.

Minor Modifications. The Director may approve minor modifications to approved plans or conditions of approval that are substantially consistent with the original findings and conditions of approval and would not intensify any potentially detrimental effects of the project.

9-7.215 Failure to Comply with Conditions.

Major Modifications. Modifications to approved plans or conditions of approval that are not deemed minor by the Director require the approval of the original decision-maker(s). Any person holding a permit granted under these planning regulations may apply for such modification by following the same procedure required for the initial application for the permit. Such modifications may be to the terms of the permit itself or to conditions of approval.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

Failure to comply with any condition of approval is a violation of these planning regulations subject to enforcement action as prescribed by Article 15 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.216 Denied Applications.

Whenever an application for any type of permit under these planning regulations has been denied, no application for essentially the same proposal affecting the same property, or any portion thereof, shall be filed within one (1) year after the date of denial. This shall not apply in instances where the applicant can show changed circumstances sufficient to justify a new application. Whether or not a new application is justified shall be determined by the Director, whose decision may be appealed to the Planning Commission pursuant to Article 14 of this chapter.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

9-7.217 Legal Considerations.

Indemnification. Applicant, its assignees, and successors-in-interest shall defend, hold harmless, and indemnify the City of Emeryville, the City of Emeryville as successor agency to the redevelopment agency, the Bay Cities Joint Powers Insurance Authority and their respective officials, officers, agents and employees (the indemnified parties) against all claims, demands, and judgments or other forms of legal and or equitable relief, which may or shall result from: (1) any legal challenge or referendum filed and prosecuted to overturn, set aside, stay or otherwise rescind any or all final project or zoning approvals, analysis under the California Environmental Quality Act or granting of any permit issued in accordance with the project; or (2) applicant's design, construction and/or maintenance of the public improvements set forth in the final building plans. Applicant shall pay for all direct and indirect costs associated with any action herein. Direct and indirect costs as used herein shall mean but not be limited to attorney's fees, expert witness fees, and court costs including, without limitation, City Attorney time and overhead costs and other City staff overhead costs and normal day-to-day business expenses incurred by the City including, but not limited to, any and all costs which may be incurred by the City in conducting an election as a result of a referendum filed to challenge the project approvals. The indemnified parties shall promptly notify the applicant, its assignees, and successors-in-interest of any claim, demand, or legal actions that may create a claim for indemnification under this section and shall fully cooperate with applicant, its assignees and successors-in-interest.